ILLINOIS POLLUTION CONTROL BOARD

February 6, 1992

D & B REFUSE SERVICE, INC.     

)

Petitioner,

)

PCB 92-12

(Variance)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,         

)

Resjondent.

ORDER OF THE BOARD (by M. Nardulli):

This matter is before the Board on the Illinois Environmental

Protection Agency’s (Agency) January 27, 1992 motion to dismiss

petitioner’s variance petition. On January 21, 1991, petitioner D

& B Refuse Service, Inc. (D & B) filed a petition for variance from

35 Iii. Adm. Code 814.501(b) and 814.104(a) seeking to operate its

landfill for 16 months 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 existing 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 year&, 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. Adin. 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).)

The relief sought in the instant variance petition is

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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virtually identical to the relief sought by the petitioner in Land

and Lakes Co. v. IEPA, PCB 91—215 (January 23, 1992). By its

variance petition, D & B seeks to continue to operate its landfill

located in rural Moultrie Country for 16 months beyond the two year

closure provisions in Part 814 of the Board’s new landfill

regulations and to be allowed to remain under Part 807 of the

Board’s old landfill regulations. D & B contends that it has

75,000 cubic yards of air space remaining and that it would impose

an arbitrary and unreasonable hardship on it to close by September

18, 1992 because it needs the remaining capacity to finance Part

807 c1os~ireand post—closure. D & B asserts that closure under the

new regulations, which it contends that it cannot comply with,

would also impose an arbitrary and unreasonable hardship because

closure/post-closure costs would exceed $3 million. Additionally,

D & b contends that premature closing of its landfill would require

that waste be transported to other landfills in central Illinois

resulting in increased transportation costs that would impose a

hardship on both petitioner and its customers. Therefore, D & B

seeks an additional 16 months of operation so that it may fill its

landfill to capacity without having to comply with the new landfill

regulations.

D & B’s proposed compliance plan is to achieve compliance with

the Part 807 regulations by January of 1994.

The Agency contends that the variance petition should be

dismissed because D & B has failed to present a plan or timetable

by which it will ultimately achieve compliance with the applicable

Part 811 regulations if it remains in operation until January of

1994. Therefore, the Agency asserts that the relief sought by D &

B is not the relief envisioned by the variance concept. City of

Mendota v. Pollution Control Board, 161 Ill. App. 3d 203, 514

N.E.2d 218 (3d Dist. 1987), the Agency states that D & B seeks

permanent exemption from these regulations, which is not the proper

subject of a variance petition.

D & B 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. D & B contends that the Agency is

mistaken when it claims that it 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

completion and the estimated costs involved for each

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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.

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).)

Hera, the only regulations from whiOh D & B 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 16—month extension of time

sought by D & B precludes compliance with the regulations which are

the subject of this variance. It is impossible for D & B to

receive the requested relief of operating under the old regulations

for three years and four months 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.

D & B 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, D & B 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 D & B 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 pursqant 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

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.

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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 within two years in accordance with the old regulations. D

& B cannot amend these regulatory provisions by way of a variance.

In conclusion, D & B seeks to exercise the option of staying

open bey’ond two years, but wants to avoid ever complying with the

stricter standards. D & B 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, D & B 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. D & B’s

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 D & B’s 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

B,o~rd,

hereby certt~ that the above Order was adopted 

or~,the

~

day of 

_____________________,

1992 by a vote of ~

~borothy N.,4ünn,

Clef~k

Illinois Pollution Control Board

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