ILLINOIS POLLUTION CONTROL BOARD
October 29,
1992
LONE STAR INDUSTRIES,
INC.,
)
Petitioner,
v.
)
PCB 92—134
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by B. Forcade):
On October 14,
1992, The Environmental Protection Agency
(Agency) filed a “Motion to Dismiss and Motion To Stay Filing of
Agency Recommendation”.
The Board denied the Agency’s motion to
stay on October 16,
1992.
Lone Star filed its response to the
Agency’s motion to dismiss on October
19,
1992.
Lone Star filed a petition for variance on September 17,
1992.
Lone Star operates a portland cement manufacturing plant
and associated quarry in Oglesby,
Illinois.
Lone Star is seeking
a variance from various provisions of the Board’s regulations on
landfills.
In particular,
the petition requests variance from
the following provisions:
1.
Minimum of one foot of cover within 60 days of waste
placement
-
Sections
814.302(a)
and 811.313
-
extend
to December 31,
1992.
2.
Installation of leachate management system
-
Section
814.302(b) (1))
-
extend to December 31,
1992.
3.
Diversion of runoff from undisturbed areas
—
Section
811.103(b)
—
extend to December
31,
1992.
4.
Installation of a final cover system which meets all
stated design standards
—
Section
811.314
-
extend to
one year after final Board action on an adjusted
standard petition or rule change, or determination by
the Board that the proposed final cover system meets
the requirements of the existing rule.
5.
Requirement for setting background concentration for
groundwater
—
Section
811.320(d))
—
extend to 120 days
after final Board action on an adjusted standard
petition or rule change,
or determination by Board that
the requirement is non-applicable.
6.
Completion of groundwater impact assessment and
submittal as part of Initial Facility Report
-
0
37-0077
2
Sections
811.317, 815.202(a),
815.203(b),
and 812.316)
-
extend to December 31,
1994.
7.
Completion and submittal of a written Closure Plan as
part of an initial Facility Report
-
Sections
815.202(a),
815.203(b), and 811.110(d)
—
extend to 120
days after final Board action on an adjusted standard
petition or rule change modifying the applicable
requirements for the final cover system.
Pet. at
4
The Agency argues that Lone Star’s petition should be
dismissed because
is it does not seek relief which is the proper
subject of a variance petition.
The Agency argues that the
petition does not envision compliance with the Board’s
regulations because Lone Star is only seeking relief for the
period before the Board can act on an adjusted standard petition
or a rule change.
The Agency specifically references requests 4,
5, and
7 of Lone Star’s petition.
The Board notes that Lone Star
has not filed a petition for adjusted standard or rule change.
Lone Star contends that it is not seeking to avoid ultimate
compliance with the regulations either in their present form or
as modified by Board action.
Lone Star contends that it is
merely seeking affirmation that the proposed actions will result
in compliance with the regulations as they are interpreted by the
Board,
or in the alternative, time to comply with site-specific
rules.
Lone Star holds that proposed dates of compliance are set
forth in its petition.
Lone Star notes that its has fully
complied with the requirements for a variance petition in 35
Ill.
Adm. Code 104.121.
Lone Star notes that the alleged deficiencies
only relate to some of the provisions for which relief is sought.
Lone Star argues that those provisions that are not challenged by
the Agency should not be subject to dismissal.
The Board will not grant a variance for an indefinite period
because the length of a variance is limited to five years.
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2,
par. 1036(b).)
Lone Star is
requesting that variance be granted for an indefinite period in
requests
4,
5 and 7.
The duration of the variance requested by
Lone Star in 4,
5 and
7
is subject to some action on the part of
the Board
(i.e. adjusted standard, rule change or Board
determination).
Lone Star seeks a determination from the Board
on final cover composition and conditions and the requirement for
installation of monitoring wells.
The Board may dismiss a petition for some legal defect.
In
considering a motion to dismiss, the Board may accept all well
plead facts as true and draw all inferences
in favor of the non-
moving party.
(Erich J. Mandel v. Thaddeus G. Kulpaka
(July 30,
1992)
PCB 92—33.)
Lone Star’s failure to request the variance
0137-0076
3
for a specific period, regarding certain numbered requests could
be construed to create a legal defect.
However, due to the
nature of the variance and the method of compliance that Lone
Star plans to follow, the Board can infer that compliance may be
possible by means other than an adjusted standard or rule change
within the maximum five year term of a variance.
For example,
in
request #4,
Lone Star seeks in part
a determination that the
proposed final cover meets the requirements of the existing rule.
Therefore,
this request is more in the nature of a declaratory
judgment action.
The alleged legal defects in the petition can
be corrected through inference and dismissal would be
inappropriate in this matter.
A variance by its nature is a temporary reprieve from
compliance with the Board’s regulations.
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d 276,
367 N.E.2d 684.)
A variance petitioner
accordingly is required,
as a condition to grant of variance, to
commit to a plan that is reasonably calculated to achieve
compliance within the term of the variance.
(City of Mendota v.
IPCB
(3d Dist.
1987),
161 Ill. App.
3d 203, 514 N.E.2d 218.)
However, the Board has found that in some exceptional
circumstances variance may be granted even though petitioner does
not have a final compliance plan.
See Mobil Oil v.
IEPA
(Sept.
20,
1984,
60 PCB 99; IPC, Clinton Plant v. IEPA (May 22,
1989),
PCB 88—97, 100 PCB 181); Amerock v. IEPA (Nov.
11,
1985), PCB
84—62,
66 PCB 411; Zeigler Coal v. IEPA (Aug.
22,
1991), PCB
91-12,
125 PCB 331.)
In each of these exceptional circumstances
the Board has required assurance,
commonly through conditions
attached to the grant of variance, that negative environmental
impact during the term of the variance be minimal and temporary.
The filing of a proposal for site-specific relief
is not a
compliance plan,
since it is a matter of speculation whether such
regulatory relief may be granted.
(Citizens Utilities Company of
Illinois v. IPCB et al.
(3rd Dist.
1985),
134 Ill. App.
3d 111,
479 N.E.2d 1213.)
The pendency of a rulemaking does not stand
by itself as grounds for grant of a variance.
(Section 35(a)
of
the Act; Citizens Utilities Com~anvof Illinois v.
IPCB,
supra;
City of Lockport v.
IEPA (September 11,
1986), PCB 85-50,
72 PCB
256,
260; General Motors Corporation, Electro—Motive Division v.
IEPA (February
19,
1987), PCB 86—195,
76 PCB 54,
58; Alton
Packaging Corp.
v.
IEPA (February 25,
1988),
PCB 83-49,
86 PCB
289,
299, Borden Chemicals v. IEPA (October 25,
1990)
PCB 90—130,
115 PCB 453.)
Lone Star’s petition does present alternate forms of
compliance with Board regulations other than site-specific
rulemaking or a rule change.
The Boards finds that the
information contained in petition is sufficient and that
dismissal of the petition at this point in the proceeding
is
unwarranted.
The Board does not reach a determination on whether
Lone Star’s petition presents an adequate plan for compliance or
0137-0079
4
if
a variance is necessary.
Therefore,
the motion to dismiss
is denied.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certiey that the above order was adopted on the
-~/~
day of
,
1992,
by a vote of
7—
c
f~~1~~
~
Dorothy M. Gu~1n, Clerk
Illinois Po~l~ution
Control Board
0370080