ILLINOIS POLLUTION CONTROL BOARD
January 23, 1992
LAND and LAXES COMPANY,
)
)
Petitioner,
)
v.
)
PCB 91—218
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD (by M. Nardulli):
This matter is before the Board on the Illinois Environmental
Protection Agency’s (Agency) January 6, 1992 motion to dismiss
petitioner’s amended variance petition. On December 24, 1991,
petitioner Land and Lakes Company (Land and Lakes) filed an amended
petition for variance from 35 Ill. Adm. Code 814.501(b) and 814.104
seeking to operate its landfill for one year beyond the two-year
deadline set forth in the regulations. The Agency asks that the
variance petition be dismissed because the relief sought is not the
proper subject of a variance.
A review of the Board’s landfill regulations is necessary to
understand the instant case. Part 814 addresses what are often
referred to as the transition provisions between the Board’s old
and new landfill regulations. The regulations from which Land and
Lakes seeks variance provide that an exisiting landfill must close
by September 18, 1992 (i.e. two years after the effective date of
the Board’s new landfill regulations adopted in R88-7) unless it
can demonstrate compliance with the stricter operating, closure and
post-closure care standards of Subpart B, applicable either to
landfills remaining open for more than seven years’, or Subpart D,
applicable to landfills remaining open between two and seven years.
The standards set forth in Subpart D, applicable to Land and Lakes
because it seeks to remain open three years, in large part
reference Part 811, which sets forth the standards applicable to
new landfills. (35 Ill. Adm. Code 814.402.) Only if a landfill
closes within the two-year period may it continue to operate under
its present permit and close under the closure and post—closure
care provisions of Part 807 of the old landfill regulations. (35
Ill. Adm. Code 814.104(a) and 814.502(a) and (b).)
Those landfills seeking to stay open beyond seven years
must demonstrate compliance with the strictest standards
in Part 814. (See e.g., 35 Ill. Adm. Code 814.301 and
814.302.)
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By its variance petition, Land and Lakes seeks to continue to
operate its landfill for one year beyond the two year closure
provisions in Part 814 of the Board’s new landfill regulations and
to be allowed to remain subject to its existing permits, issued
prior to the new regulations, under Part 807 of the Board’s old
landfill regulations. Land and Lakes contends that it has limited
disposal capacity remaining at its landfill but that it “does not
make economic sense” to comply with the requirements applicable to
new landfills (Part 811). Land and Lakes estimates that compliance
with Part 811 would be in excess of $3.5 million for one additional
year of ‘operation. Land and Lakes seeks an additional year of
operation so that it may fill its landfill to capacity without
having to comply with the new landfill regulations.
Land and Lakes proposed compliance plan is as follows: “The
proposed method to achieve compliance with the act (sic and
regulations would be to operate, close and provide post—closure
care for the facility in accordance with all existing state and
local permits issued pursuant to Section (sic 807, as well as
applicable federal, State and local regulations.”
The Agency contends that the variance petition should be
dismissed because “Land and lakes does not present a plan or
timetable by which it will ultimately achieve compliance with the
applicable regulations, namely the Section (sic 811 regulations if
it remains in operation until September 18, 1993
...
Therefore,
the relief sought here by Land and Lakes is not the. relief
envisioned by the variance concept.” Citing City of Mendota v.
Pollution Control Board, 161 Ill. App. 3d 203, 514 N.E.2d 218 (3d
Dist. 1987), the Agency states that “Land and Lakes seeks permanent
exemption from these regulations, which is not the proper subject
of a variance petition.”
Land and Lakes asserts that it is not seeking permanent
exemption from Part 811; rather, it seeks an extension of time to
close its facility under part 807. According to Land and Lakes, it
“will comply with the Part 807 regulations and will close in
accordance with the existing permits in full compliance with those
regulations. All it seeks is additional time to do so.” Land and
Lakes contends that the Agency is mistaken when it claims that Land
and Lakes is seeking a permanent exemption.
DISCUSSION
Section 104.121(f) requires a petition for variance to
include:
A detailed description of the existing and proposed
method of control to be undertaken to achieve full
compliance with the Act and regulations, including a time
schedule for the implementation of all phases of the
control program from initiation of design to program
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completion and the estimated costs involved for each
phase and the total cost to achieve compliance
...
The requirement that a variance petition include a compliance plan
is consistent with the purpose of a variance which is to provide
temporary relief while encouraging future compliance. (Monsanto
Co. v. PCB, 67 Ill. 2d 276, 367 N.E.2d 684 (1977).) “T)he
variance procedure is not intended as a mechanism for seeking a
permanent exemption from the Act.” (City of Mendota v. PCB, 161
Ill. App. 3d 203, 514 N.E.2d 752 (3d Dist. 1987).)
Here, the only regulations from which Land and Lakes seeks
variance are those that require a landfill to either: (1)
demonstrate compliance with the new landfill regulations such that
the landfill may stay open between two and seven years or; (2)
close within two years and remain under the old regulations. The
one year extension of time sought by Land and Lakes precludes
compliance with the regulations which are the subject of this
variance. It is impossible for Land and Lakes to receive the
requested relief of operating under the old regulations for three
years from the effective date of the Board’s new landfill
regulations and achieve future compliance with regulations which
require that operations cease within two years. Land and Lakes
mistakenly equates a request for an extension of a regulatory
deadline with a variance petition. As noted above, while a
variance allows one time to achieve compliance, it also
contemplates ultimate compliance. Such compliance cannot be
achieved by variance in the instant case.
Rather than seeking temporary relief from the two-year
deadline, Land and Lakes actually seeks permanent relief from ever
having to demonstrate compliance with the stricter new regulations
seeking, instead, to simply substitute the regulations in Part 807.
Given that Land and Lakes is requesting to initiate closure between
two and seven years, the following “between two and seven year”
provisions of Part 814 automatically apply (35 Ill. Adm. Code
814.401(a)):
(a) The standards in this Subpart are applicable to all
existing units of landfills, including those exempt
from permit requirements in accordance with Section
21(d) of the Act, that have accepted or accept
chemical and putrescible wastes. Based upon an
evaluation of the information submitted pursuant to
Subpart A and any Agency site inspection, units
that meet the requirements of this Subpart shall
initiate closure between two and seven years after
the effective date of this Part.
(b) Based upon an evaluation of the information
submitted pursuant to Subpart A and any Agency site
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inspection, units which are unable to comply with
the requirements of this Section are subject to the
requirements of Subpart E (the two—year closure
requirement).
Consequently, if a landfill seeks to continue accepting waste
beyond the two-year deadline but will initiate closure within seven
years, it must demonstrate compliance with the applicable standards
set forth in Part 814 which refer to Part 811. Landfills which
cannot demonstrate compliance with the stricter standards must
close wi’thin two years in accordance with the old regulations.
Land and Lakes cannot amend these regulatory provisions by way of
a variance. The Board’s transition provisions anticipated the very
situation in which Land and Lakes finds itself. Relief is provided
for in the regulations: Land and Lakes may continue to operate
beyond the two-year deadline but there is a price to pay in that
the new regulations must be met.
In conclusion, Land and Lakes seeks to exercise the option of
staying open beyond two years, but wants to avoid ever complying
with the stricter standards. Land and Lakes has not requested
relief from immediate compliance with the “between two and seven
year” provisions of Part 814, nor has it presented a compliance
plan or time schedule for achieving ultimate compliance with the
standards applicable to landfills seeking to operate beyond the
two-year deadline. Consequently, Land and Lakes is seeking
permanent relief from Part 814 and Part 811 by attempting to
“extend” the two—year deadline allowing a landfill to close under
the old landfill regulations. Land and Lakes petition is, in
essence, an attempt to amend the Board’s new landfill regulations
by way of variance and improperly seeks permanent relief.
For the foregoing reasons, the Board grants the Agency’s
motion to dismiss Land and Lakes’ amended petition for variance.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (Ill. Rev.
Stat. 1989, ch. 111 1/2, par. 1041) provides for the appeal of
final Board orders. The Rules of the Supreme Court of Illinois
establish filing requirements.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Boarc~,hereby cer y that the above Order was adopted on the
‘~&- day of
___________________,
1992 by a vote of
~
~Dorothy N. G~n, Clerk
Illinois Pol~itionControl Board
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