ILLINOIS POLLUTION CONTROL BOARD

January23, 1992

LAND

and LAKES COMPANY,      

)

Petitioner,

)

PCB 91—216

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD (by N. 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. Adin. 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 $4 million for one additional

year of ‘operation. Land and Lalces 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.” Citint~ 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 ~ro~er subiect

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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3

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).) “The

variance procedure is not intended as a mechanism for seeking a

permanent exemption from the Act.” (City of Nendota 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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4

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 wfthin 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 N. Gunn, Clerk of the Illinois Pollution Control

Board hereby cez~qfythat the above Order was adopted on the

_____

day of 

_________________,

1992 by a vote of 

_____

‘V

~‘or~thy N. Gu)~h, Clerk’

Illinois Pol~ition Control Board

\~~1

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