ILLINOIS POLLUTION CONTROL BOARD

June 17, 2004

IN THE MATTER OF:

)

)

RCRA SUBTITLE D UPDATE, USEPA

)

R04-5

REGULATIONS (January 1, 2003 through

)

(Identical-in-Substance

June 30, 2003)

)

Rulemaking - Land)

________________________________________

)

RCRA SUBTITLE D UPDATE, USEPA

)

R04-15

REGULATIONS (July 1, 2003 through

)

(Identical-in-Substance

December 31, 2003)

)

Rulemaking - Land)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

This identical-in-substance rulemaking updates the Illinois municipal solid waste landfill

(MSWLF) regulations to incorporate revisions to the federal regulations. The federal

amendments that prompted this action were made by the United States Environmental Protection

Agency (USEPA) during the two update periods of January 1, 2003 through June 30, 2003 and

July 1, 2003 through December 31, 2003. This proceeding adopts amendments to 35 Ill. Adm.

Code 810 and 811. The principal amendments relate to disposal of residential lead-based paint

waste and location of new MSWLF units near airports. This adoption also makes a limited

number of non-substantive corrections and stylistic revisions to segments of the text covered by

the federal amendments.

As explained below, for reasons of administrative economy, the Board consolidated

dockets R04-5 and R04-15 in the March 18, 2004 proposal for public comment. The caption

reflects that consolidation.

Sections 7.2 and 22.40(a) of the Environmental Protection Act (Act) (415 ILCS 5/7.2 and

22.40(a) (2002)) require the Board to adopt amendments to the Illinois regulations that are

“identical-in-substance” to MSWLF adopted by the United States Environmental Protection

Agency (USEPA). These USEPA rules implement Subtitle D of the Resource Conservation and

Recovery Act of 1976, 42 U.S.C §§ 6941-6949, (RCRA Subtitle D).

Sections 7.2 and 22.40(a) of the Act provides for quick adoption of regulations that are

“identical-in-substance” to federal regulations that USEPA adopts to implement Sections 4004

and 4010 of RCRA, 42 U.S.C. §§ 6944 and 6949a (1996). Section 22.40(a) of the Act also

provides that Title VII of the Act and Section 5 of the Administrative Procedure Act (APA) (5

ILCS 100/5-35 & 5-40 (1996)) do not apply to the Board’s adoption of identical-in-substance

regulations. The federal RCRA Subtitle C regulations are found at 40 C.F.R. 258.

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2

CONSOLIDATION OF DOCKETS R04-5 AND R04-15

By the opinion and order for the March 18, 2004 proposal for public comment, the Board

consolidated consideration of the R04-5 and R04-15 RCRA Subtitle D update dockets in the

interests of administrative economy. The sets of amendments involved are relatively small in

volume. The consolidation of those two dockets will expedite the amendment of all the

regulations involved at a reduced cost to the State. The caption reflects this addition.

FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING

USEPA amended the federal RCRA Subtitle D MSWLF regulations once during the

nominal January 1, 2003 through June 30, 2003 period of docket R04-5. That single action is

summarized as follows:

68 Fed. Reg. 36487 (June 18, 2003)

USEPA amended key definitions to allow disposal of residential lead-based paint waste

that is not hazardous waste in a construction and demolition landfill that does not accept

other household waste.

USEPA amended the federal RCRA Subtitle D MSWLF regulations once during the

nominal July 1, 2003 through December 31, 2003 period of docket R04-15. That single action is

summarized as follows:

68 Fed. Reg. 59333 (October 15, 2003)

USEPA amended the rules to add a note referencing the adoption of the Wendell H. Ford

Aviation Investment Act (the Ford Act) prohibiting location of a new landfill within six

miles of a certain public airports.

The Board amends the Illinois regulations to incorporate the substance of two sets of

federal amendments relating to disposal of residential lead-based paint waste and location of new

MSWLF units in the vicinity of public airports.

PUBLIC COMMENTS

The Board adopted a proposal for public comment in this matter on March 18, 2004. A

notice of proposed amendments appeared in the April 2, 2004 issue of the

Illinois Register

, at 28

Ill. Reg. 5577 (Part 810) and 5594 (Part 811). The Board received public comments on this

proposal for a period of 45 days following its publication in the

Illinois Register

, until May 17,

2004. The Board now adopts the amendments, making any necessary changes made evident

through the public comments.

During the public comment period, the Board received the following documents:

Line Numbered Version from the Joint Committee on Administrative Rules

(JCAR), received March 30, 2004 for each of Parts 810 and 811.

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3

PC 1 E-mail to Erin Conley, Rules Coordinator, by Deborah Connelly, JCAR, dated

March 28, 2004.

PC 2 Comments of the Illinois Environmental Protection Agency (Agency), by Mark

Wight, Assistant Counsel, dated May 13, 2004.

In PC 1, JCAR pointed out that the March 18, 2004 proposal for public comment did not

update various references to the Act to correspond with statutory amendments. Public Act 92-

574 amended the Act effective June 26, 2002. Among the amendments was a renumbering of

various definitions. The Board has incorporated changes in the adopted version of the

amendments.

In PC 2, the Agency requests that the Board not adopt the federal amendments of June

18, 2003 relating to disposal of residential lead-based paint waste. Alternatively, the Agency

requests that the Board add a note to the new definition of “construction and demolition landfill”

to help avoid confusion that might be caused by this new federal definition. The Agency

comments are considered in the following discussion.

After the conclusion of the public comment period, the Board received an additional

comment:

PC 3 Comments of the Marion Ridge Landfill, by Claire A. Manning, Attorney,

Posegate & Denes, P.C., dated June 2, 2004.

In PC 3, Marion Ridge Landfill addresses the Board note appended to Section 811.302(f),

relating to the Ford Act. Accompanying PC 3 was a motion for leave to file instanter. Although

it was filed after the close of the public comment period, the Board grants the motion to file

instanter and accepts PC 3. The issues raised by the comments and the Board’s responses are

discussed below in the segment of this opinion relating to that provision. The Board notes that

PC 3 cites the Federal Aviation Administration (FAA) Advisory Circular number 150/5200-34,

which USEPA cited in the note language it added to its regulations. No copy of this FAA

document was attached to the comments. The Board hearing officer introduced a copy of the

cited FAA Advisory Circular no. 150/5200-34 as Hearing Officer Exhibit 1 (H.O. Ex. 1) to

complete the record.

DISCUSSION

The following discussion begins with a description of the types of deviations the Board

makes from the literal text of federal regulations in adopting identical-in-substance rules. It is

followed by a discussion of the amendments and actions undertaken in direct response to the

federal actions involved in this proceeding. This first series of discussions is organized by

federal subject matter, generally appearing in chronological order of the relevant

Federal

Register

notices involved. Finally, this discussion closes with a description of the amendments

and actions that are not directly derived from the federal actions.

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4

Discussion of the Particular Federal Actions Involved in This Docket

Disposal of Residential Lead-Based Waste in Construction and Demolition Landfills--

Section 810.103

The USEPA Action.

The USEPA action of June 18, 2003 (68 Fed. Reg. 36487) related

to disposal of residential lead-based paint waste in construction and demolition landfills.

USEPA added definitions to its regulations of “residential lead-based paint waste” and

“construction and demolition landfill.” USEPA further amended the definition of MSWLF to

exclude a construction and demolition (C & D) landfill.

Residential lead-based paint waste is defined as waste that contains lead-based paint that

was generated in the course of abatement, rehabilitation, renovation, and remodeling activities in

homes or other residential units. The term includes lead-based paint debris, chips, dust, and

sludges.

A C & D landfill is defined as one that meets the 40 C.F.R. 257 general requirements for

land disposal facilities or for disposal of conditionally exempt small quantity generator waste. A

C & D landfill may not also receive hazardous waste or industrial solid waste. The federal

definition states that a C & D landfill typically receives roadwork material, excavated material,

demolition waste, construction and renovation waste, and site clearing waste.

The Board’s Proposal.

The Board incorporated the June 18, 2003 federal amendments

into the April 2, 2004 proposal for public comment without substantive deviation from the

corresponding federal text. This included the addition of the two new definitions of “residential

lead-based paint” and “C & D landfill” and the amendment of the existing definition of

“MSWLF.” Persons wishing the details of the federal amendments that underlie the current

actions were directed to the June 18, 2003 issue of the

Federal Register

. The deviations from

the text of the federal amendments were restricted to those structural and stylistic changes

needed to make the text comport with the

Illinois Register

format and the Board’s preferred

style.

The Board requested public comment on the incorporation of the June 18, 2003 federal

amendments into the Illinois landfill regulations. The Agency submitted PC 2, which

significantly considered incorporation of the federal amendments. The Agency requested that

the Board either decline to incorporate the federal amendments into the Illinois regulations, or

append a cautionary Board note to the definition of “C & D landfill.” The Board alters the

amendments in response to the Agency comments.

The Agency Comment.

The Agency opposes adoption of the federal amendments of

June 18, 2003. It stated in PC 2 that the regulatory structure contemplated by USEPA does not

exist in the Illinois landfill regulations. The Agency maintains that addition of the definition of

“C & D landfill” will “create legal conflicts with existing landfill provisions and unnecessary

confusion” and may even “create legal inferences disruptive to the Agency’s administration of

the non-hazardous landfill rules.” PC 2 at 1.

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5

The Board’s Analysis.

The Board agrees that the federal and Illinois regulatory

schemes for solid waste landfills are different. The distinctions made between the various types

of facilities are not the same under the Illinois regulations as those made under the federal rules.

Examination of the federal regulations shows that the June 18, 2003 amendments did not create a

new set of regulatory standards for a new class of landfills.

USEPA’ Regulatory Scheme.

Prior to the June 18, 2003 federal amendments, disposal

of residential lead-based paint waste was permissible only in a MSWLF facility. Residential

lead-based paint waste fulfills the definition of “household waste” for which such disposal is

required. 40 C.F.R. 258.1;

see

40 C.F.R. 258.2 (definitions of “household waste” and

“municipal solid waste landfill”). The object of the June 18, 2003 amendments was to facilitate

removal of lead-based paint from residential units by allowing greater flexibility in disposal of

the removal waste. 68 Fed. Reg. 36487, 36488-89 (June 18, 2003). USEPA wanted to allow

disposal of the waste in a facility other than a MSWLF. To accomplish this purpose, USEPA

created definitions of “residential lead-based paint waste” and “C & D landfill.” USEPA then

excluded from the definition of MSWLF those C & D landfills that receive residential lead-based

paint waste, so long as the facility does not receive other household wastes. 68 Fed. Reg. 36487,

36495

(June 18, 2003).

Contrary to what is implied by the Agency’s assertions in PC 2, the June 18, 2003 federal

amendments did not alter the federal regulatory scheme and create a new class of land disposal

facility standards. USEPA chose to define a new class of landfills to implement the residential

lead-based paint waste exception. This allowed USEPA to distinguish residential lead-based

paint waste from all other types of household waste. 68 Fed. Reg. at 36488. USEPA thus

avoided exclusion of this material from the universe of what is considered household waste,

which might have had hazardous waste implications. 68 Fed. Reg. at 36490;

see

40 C.F.R.

261.4(b)(1) (2003) (excluding household waste from the definition of “hazardous waste”).

Creation of this new class of landfills did not create a new set of landfill requirements.

The federal regulations designate a solid waste disposal facility that does not fulfill the

classification requirements of 40 C.F.R. 257 as a prohibited “open dump.” They provide that a

facility that meets the requirements of Part 257 or 258 is not an open dump. 40 C.F.R.

257.1(a)(1) (2003); 40 C.F.R. 258.1(g);

see

40 C.F.R. 257.2 (2003) (definition of “open dump”).

The federal regulations contemplate three sets of solid waste disposal facility standards

applicable to different kinds of facilities.

1

The provisions of 40 C.F.R 257 and 258 set forth the

federal standards applicable to permissible land disposal facilities. Compliance with any set of

standards avoids the “open dump” designation.

The first set of federal landfill regulations is the basic land disposal facility standards of

40 C.F.R. 257.3 that apply to land disposal units to which more specific standards do not apply.

2

1

This does not include standards applicable to hazardous waste disposal facility standards under

40 C.F.R. 264 and 265.

2

Additional regulations within this set apply to application of solid waste to land used to

produce food crops. 40 C.F.R. 257.3-5 (2003).

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6

See

40 C.F.R. 257.3 (2003). The generally applicable standards of section 257.3 are very

general in nature.

The second, more comprehensive set of Part 257 land disposal facility standards applies

to landfills that receive “conditionally exempt small quantity generator” (CESQG) waste.

CESQG waste is hazardous waste that is generated in limited quantities.

See

Subpart B of 40

C.F.R. 257 (2003). It is not regulated under the hazardous waste standards, so long as the

generator complies with certain basic requirements.

See

40 C.F.R. 261.5 (2003).

The third, most comprehensive set of federal land disposal facility standards is the

MSWLF rules. The MSWLF rules are codified as 40 C.F.R. 258. A MSWLF is defined as one

that accepts “household waste.” 40 CFR 257.2 & 258.2 (2003). The MSWLF standards of 40

C.F.R. 258 are far more detailed than the general standards of Part 257.

The June 18, 2003 addition of a definition of “C & D landfill” to 40 C.F.R. 257.2 and

258.2 did not add a new class of regulatory standards. If the C & D landfill facility does not

accept other household wastes, it avoids regulation under the standards that apply to a MSWLF.

See

40 C.F.R. 257.2 & 258.2 (2003) (parallel definitions of “municipal solid waste landfill”). If

the C & D landfill facility does not accept CESQG waste, it avoids the regulations applicable to

facilities that receive this type of waste. A further condition is that the C & D landfill may not

also receive hazardous waste or industrial waste.

See

40 C.F.R. 257.2 & 258.2 (2003) (parallel

definitions of “construction and demolition landfill”). The regulations that apply to a C & D

landfill that fulfills these conditions are the general standards of 40 C.F.R. 257.3, the basic set of

existing solid waste disposal rules.

The Illinois Regulatory Scheme.

The Illinois landfill regulations also create distinct sets

of solid waste disposal facility standards, but the distinctions made in the Illinois regulations are

different from those made in the federal regulations.

3

Under the Illinois regulations, there are six

basic types of solid waste disposal facilities. Coal combustion electric generator waste landfills

(Part 816) and steel and foundry waste landfills (Part 817) would not be eligible to accept

residential lead-based paint waste.

See

35 Ill. Adm. Code 816.510(f), 816.520, and 817.101

(2002) (restricting the types of wastes facilities may receive). Therefore, a facility that receives

residential lead-based paint waste could potentially fall within one of four classes of facilities. A

distinct set of requirements applies to each type of facility. The four types of facilities are the

following:

1)

Inert waste landfills (Subpart B of 35 Ill. Adm. Code 811),

2)

Putrescible waste landfills (Subpart C of 35 Ill. Adm. Code 811),

3)

Chemical waste landfills (Subpart C of 35 Ill. Adm. Code 811), and

3

This discussion does not consider the solid waste management facility standards (35 Ill. Adm.

Code 807), hazardous waste treatment, storage, and disposal facility standards (35 Ill. Adm.

Code 724 and 725), or compost management facility standards (35 Ill. Adm. Code 831).

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7

4)

Municipal solid waste landfills (35 Ill. Adm. Code 811).

The core Illinois solid waste disposal facility (landfill) requirements are those of Subpart

A of 35 Ill. Adm. Code 811.

See

35 Ill. Adm. Code 811.102-811.112 (2002). The Subpart A

standards apply to all solid waste landfill units.

See

35 Ill. Adm. Code 811.101(a), 816.500(a) &

817.101(a) (2002).

The inert waste landfill rules of Subpart B of 35 Ill. Adm. Code 811 apply to inert waste

landfills (in addition to the core Subpart A requirements). These are the least rigorous set of

landfill regulations under the Illinois scheme. The Board agrees with the Agency assertions (PC

2 at 4) that it is unlikely that residential lead-based paint waste would qualify as inert waste. The

lead-based paint removal waste would likely include wood, which is susceptible to biologic

decomposition. Further, residential lead-based paint waste would likely leach lead. Either

biologic decomposition or formation of a contaminated leachate would disqualify the waste from

disposal in an inert waste landfill.

See

415 ILCS 5/3.160 (2002) (definition of “inert waste”).

Thus, there are only three types of landfill eligible to accept lead-based paint removal

waste under the Illinois regulatory scheme: putrescible waste landfills, chemical waste landfills,

or MSWLFs. Presently, without incorporation of the federal June 18, 2003 amendments into the

Illinois regulations, disposal as household waste in a MSWLF would be required in Illinois.

See

35 Ill. Adm. Code 811 (definitions of “household waste” and “MSWLF”). The point of the

federal amendments is to allow the disposal of residential lead-based paint waste in a non-

hazardous, non-MSWLF facility.

See

PC 2 at 2. The federal amendments, if incorporated into

the Illinois regulations, would potentially allow disposal of residential lead-based paint waste in

either of the other two types of non-MSWLF facilities in this State: a chemical waste landfill or

a putrescible waste landfill.

4

Consideration of Other Regulatory Options.

The method chosen by USEPA to grant the

exception is not the most suitable method for granting the exception in Illinois. As explained

above, the method chosen by USEPA is based on the structure of the federal regulations.

Defining a new category of landfill in the federal rules does not create a new class of landfill

standards; it merely facilitates changing the regulatory class of the affected waste from one set of

existing landfill requirements to another. Under the Illinois scheme, the applicability of

substantive standards is determined by the categorization of the waste disposed of. Thus, adding

a category of waste to Board rules without more can lead to confusion as feared by the Agency.

The Board believes that fulfillment of our identical-in-substance mandate requires

adoption of a relaxation of federal regulations unless that relaxation is inconsistent with State

regulations adopted pursuant to Section 27 of the Act. 415 ILCS 5/27 (2002). While the Agency

raises legitimate concerns for a potential for confusion, the Board does not perceive any

fundamental inconsistency between the incorporation of the federal exception for residential

lead-based paint waste and the existing Illinois landfill regulations. Incorporation of an

4

In so stating, the Board does not intend to characterize the waste or authorize disposal in any

particular type of landfill. The characterization of the waste and the exact type of landfill that

can receive the waste is determined under the regulations of 35 Ill. Adm. Code 810 and 811.

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8

exception for residential lead-based paint waste from the federally-derived MSWLF

requirements does not relax otherwise-applicable Illinois standards that are more stringent than

the federal standards of 40 C.F.R. 257.3 (or Subpart B of 40 C.F.R. 257 for CESQG waste). This

conclusion is based on the fact that it is not necessary to use the federal designation of a “C & D

landfill” to implement the exception. The federal use of the term “C & D landfill” is intended

only to limit the defined universe of household waste in terms identical to those chosen by

USEPA, and it is possible to draft the exception without use of the term “C & D landfill.”

The first alternative to the federal method for codifying the residential lead-based paint

waste exception is to drop the definition of “C & D landfill” and the reference to this term from

the language added to the definition of “MSWLF.” The effect is to exclude from the definition

of “MSWLF” a facility that receives residential lead-based paint waste and no other household

waste. This is the essence of the federal action. The advantages of this alternative is that it does

not introduce the new type of landfill in this State, which is a major focus of the Agency’s

criticisms of the amendments, and it avoids the references to CESQG waste to which the Agency

also objects.

Another alternative method for incorporating the federal exception into the Illinois

regulations might accomplish the same end with even less potential for confusion. One more

direct method might be to add substantive provisions in Subpart C of 35 Ill. Adm. Code 811 and

elsewhere, as appropriate, that provide for disposal of residential lead-based paint waste as

chemical or putrescible waste. The problem with this alternative is that it is so significantly

different from the federal amendments and from the present amendments as proposed, that the

Board cannot now adopt an alternative without a new proposal or within the scope of our

identical-in-substance mandate.

The appropriate method for instituting a rule that is not identical-in-substance to the

federal regulations is by the general rulemaking procedure of Section 27 of the Act. 415 ILCS

5/27 (2002). For the Board to remove the residential lead-based paint exception from the Illinois

rules, if the Board is to formally create a new category of landfill designated as a “C & D

landfill” with a separate set of requirements, or if it is necessary to rephrase and restructure the

federal exception, the Board must engage in general rulemaking do so. If the Agency desires

such amendments, it may petition the Board to commence such a proceeding. In such a

proceeding, the Board has greater latitude to exercise discretion than it has in the context of this

identical-in-substance proceeding. Further, a general rulemaking proceeding confers the benefits

of public hearing and greater opportunity for comment.

Having concluded that incorporation of the residential lead-based paint waste exception

into the Illinois landfill rules is mandated, and that the Board cannot significantly alter the

structure of the federal exception in the context of this proceeding, the Board addresses the

Agency’s alternative suggestion. The Agency suggested that the Board should append a Board

note to the definition of C & D landfill to clarify the CESQG waste disposal requirements. The

Agency stated that the notes would be similar to those appended to 35 Ill. Adm. Code

721.105(f)(3)(E) and (g)(3)(E) in the hazardous waste regulations. The Agency suggested the

following note, in terms very similar to those used in the hazardous waste rules:

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BOARD NOTE: The Illinois non-hazardous waste landfill regulations, 35 Ill. Adm.

Code 810 through 814, do not allow the disposal of hazardous waste in a landfill

regulated under those rules. The Board specifically does not intend that this definition

authorize any disposal of conditionally exempt small quantity generator waste in a

landfill not specifically permitted to accept the particular hazardous waste.

The Board’s Adopted Amendments.

The Board will add the USEPA amendments, but

will address the Agency’s concerns by using the first alternative outlined above. The Board will

add the definition of “residential lead-based paint waste” and except facilities disposing of this

material and no other household waste from the definition of “municipal solid waste landfill.”

This will make it unnecessary to add the Agency-requested Board note, since the amendments

will include no reference to CESQG waste and the definition of C & D landfill is omitted. This

will also mean dropping the reference to C & D landfill from the definition of MSWLF. The

Board added a Board note explaining this difference between the state and federal definitions.

The definition of “residential lead-base paint waste” remains unchanged from the proposed

version.

The Board definition of “municipal solid waste landfill and accompanying Board note as

adopted reads as follows:

“MUNICIPAL SOLID WASTE LANDFILL UNIT” OR “MSWLF UNIT” MEANS A

CONTIGUOUS AREA OF LAND OR AN EXCAVATION THAT RECEIVES

HOUSEHOLD WASTE, AND THAT IS NOT A LAND APPLICATION, SURFACE

IMPOUNDMENT, INJECTION WELL, OR ANY PILE OF NONCONTAINERIZED

ACCUMULATIONS OF SOLID, NONFLOWING WASTE THAT IS USED FOR

TREATMENT OR STORAGE. A MSWLF UNIT MAY ALSO RECEIVE OTHER

TYPES OF RCRA SUBTITLE D WASTES, SUCH AS COMMERCIAL SOLID

WASTE, NONHAZARDOUS SLUDGE, SMALL QUANTITY GENERATOR WASTE

AND INDUSTRIAL SOLID WASTE. SUCH A LANDFILL MAY BE PUBLICLY OR

PRIVATELY OWNED OR OPERATED. A MSWLF UNIT MAY BE A NEW MSWLF

UNIT, AN EXISTING MSWLF UNIT OR A LATERAL EXPANSION. A SANITARY

LANDFILL IS SUBJECT TO REGULATION AS A MSWLF IF IT RECEIVES

HOUSEHOLD WASTE. (Section

3.85 3.285 of the Act) But, a landfill that receives

residential lead-based paint waste and which does not receive any other household waste

is not a MSWLF unit.

BOARD NOTE: The final sentence of corresponding 40 C.F.R. 258.2 provides as

follows: “A construction and demolition landfill that receives residential lead-based

paint waste and which does not receive any other household waste is not a MSWLF

Unit.” A construction and demolition landfill is a type of landfill that does not exist in

Illinois, so the Board omitted the reference to “construction and demolition landfill.” A

landfill in Illinois that receives residential lead-based paint waste and no other type of

household waste would be permitted as a chemical waste landfill or a putrescible waste

landfill under Subpart C of 35 Ill. Adm. Code 811, as appropriate.

The residential lead-based paint waste exception illustrates that problems can result from

incorporation of substantive requirements into the rules through definitions. Definitions are

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10

generally used to resolve the terms used in the substantive regulations. The Board prefers to

limit the function of definitions in this way and to embody substantive requirements, including

those pertaining to the applicability of the regulations, into substantive provisions. Sometimes,

incorporating substantive requirements into a definition can result in a potential for ambiguity

that necessitates extended explanation, as in the appended Board note here. Further,

incorporating substantive requirements into definitions can have unintended substantive effects.

The Board invites the Agency to submit a proposal for whatever amendments it believes are

necessary to the rules to avoid ambiguity or unintended substantive effects.

Restrictions on the Location of a new MSWLF Unit in the Vicinity of a Public Airport--

Section 811.320

The USEPA action of October 15, 2003 (68 Fed. Reg. 59333) related to location of a new

MSWLF unit in the vicinity of a public airport. USEPA added a note to its 40 C.F.R. 258.10

provision relating to location of a MSWLF in proximity to an airport. USEPA deliberately chose

not to amend the language of its location restriction provisions. USEPA instead chose to append

a note to its location restrictions that referenced the federal statutory change that instituted a new

restriction.

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (the Ford

Act), Pub. L. 106–181, effective April 5, 2000, amended 49 U.S.C. 44718(d). This provision

relates to location of a federally funded public airport in proximity to a municipal solid waste

landfill (MSWLF). The amended provision now prohibits establishing a new MSWLF within

six miles of a federally-funded public airport served by general aviation aircraft and regularly

scheduled flights of aircraft designed for 60 or fewer passengers, unless the FAA determines at

the request of the state that the location would have no adverse impact on aviation safety.

On July 11, 2002 (67 Fed. Reg. 45915), USEPA adopted a direct final rule that would

have incorporated the federal statutory location restrictions into the rules as a new subsection (e)

to 40 C.F.R. 258.10. However, USEPA withdrew this rule on October 8, 2003 (67 Fed. Reg.

62647) in response to several adverse public comments. In response to the comments, USEPA

chose to add the note to 40 C.F.R. 258.10 referencing the federal legislation that imposes the

additional location restrictions.

The Board incorporated the October 15, 2003 federal amendments without substantive

deviation from the corresponding federal text. The deviations from the text of the federal

amendments are restricted to those structural and stylistic changes needed to make the text

comport with the

Illinois Register

format and the Board’s preferred style. The table that begins

on page 17 of this opinion itemizes the various revisions made in the federal text in adapting it

into the State regulations. The only significant change in the text is correction of an apparent

federal error in the citation. Examination of the text of 49 U.S.C. 44718 (copy appended to the

end of this memo) discloses an apparent error in the text of the October 15, 2003 USEPA

amendments. There is no pertinent USEPA refers to “49 U.S.C. 44718 note” in its added

language in 40 C.F.R. 258.10. Rather, it is subsection (d) of 49 U.S.C. 44718 in the amended

statute that sets forth the text of the location restriction. The Board will correct the reference “49

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11

USC 44718 note” to “49 USC 44718(d)”. Persons interested in the details of the federal

amendments should consult the October 15, 2003

Federal Register

notice.

The Board requested public comment on the addition of the Board note to Section

811.302(f) relative to the federal statutory landfill location restrictions. The Board received two

comments relating to the note. In PC 2, the Agency stated its support for addition of the note. In

PC 3, Marion Ridge Landfill raises various issues relating to addition of the note. The comments

of PC 3 prompt further examination of the added note.

In PC 3, Marion Ridge Landfill raised concerns over the note as it appeared in the

proposal for public comment. Marion Ridge Landfill explained that it is a landfill in Williamson

County that has received site location suitability approval under Section 39.2 of the Act (415

ILCS 5.39.2 (2002)).

See

Concerned Citizens of Williamson County v. Bill Kibler Development

Corp., PCB 96-60 (Feb. 15, 1996). Marion Ridge Landfill stated that it anticipates issuance of a

development permit on or before July 24, 2004. PC 3 at 1. Marion Ridge Landfill is located

within the prohibited setback zone described in the Ford Act, but it anticipates obtaining an

exemption from the FAA to allow development and operation of the landfill within that zone.

PC 3 at 2. Marion Ridge Landfill requests further clarification that the Board note relative to the

Ford Act “is not intended to give the Agency any new authority or responsibility to regulate

concerning the standards set forth in the Ford Act.” PC 3 at 3. Marion Ridge Landfill requested

that the Board alter the note by changing its restructure and adding explanatory language.

Initially, Marion Ridge Landfill requested that the Board separate the added note

language relating the existence of the Ford Act from the pre-existing note language relating the

federal source of subsection (f). Marion Ridge Landfill stated that adding the information about

the Ford Act “presents unnecessary confusion.” PC 3 at 3. Marion Ridge Landfill does not

explain how confusion might arise through combining information as to the federal source of the

provision with language noting the existence of an independent federal authority.

Marion Ridge Landfill next requested that the Board “provide clarification, in the rule

itself, that, for purposes of application of the standards set forth in the Ford Act, the definition of

‘putrescible’ set forth in 35 Ill. Adm. Code 810.103 is not applicable.” PC 3 at 4. Marion Ridge

Landfill noted that the definition of “putrescible waste” used by the FAA is different from the

one that appears in Section 810.103 of the landfill rules.

Compare

40 C.F.R. 257.3-8(e)(7)

(2003)

with

35 Ill. Adm. Code 810.103 (2002) (definitions of “putrescible waste”).

5

Marion

Ridge Landfill requested that the Board append a Board note to the Section 810.103 definition of

“putrescible waste” stating that the FAA definition of “putrescible waste” controls with regard to

airport location under the Ford Act. PC 3 at 4. Marion Ridge Landfill also suggested in PC 3

that the Board note appended to Section 811.302(f) include this explanation. Marion Ridge

Landfill requested that two notes be appended to subsection (f) to appear as follows (Marion

Ridge Landfill revisions underlined):

5

Marion Ridge Landfill cites FAA Aviation Circular 150/5200-34 (H.O. Ex. 1), Appendix I, as

the source of this definition. The actual source from which the FAA drew this definition was 40

C.F.R. 257.3-8(e)(7).

See

FAA Aviation Circular 150/5200-34 (H.O. Ex. 1), Appendix I, ¶j.

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12

BOARD NOTE: Subsection (f) of this Section is derived from 40 CFR 258.10 (2003), as

amended at 68 Fed. Reg. 59333 (October 15, 2003).

SECOND BOARD NOTE:

A prohibition on locating a new MSWLF near certain

airports was enacted in Section 503 of the federal Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century (Ford Act) (49 USC 44718(d)). Section 503

prohibits the “construction or establishment” of a new MSWLF after April 5, 2000 within

six miles of certain smaller public airports absent federal approval

. The FAA administers

the Ford Act and has issued guidance in FAA Advisory Circular 150/5200-34, dated

August 26, 2000.

For further information, please contact the FAA. The terms defined

therein, including the definition of “putrescible,” are the terms that apply to location

standards under the Ford Act. This note is adopted solely for the convenience of the

public and should not be considered as the promulgation of new location standards under

the Illinois Environmental Protection Act.

The Board initially responds that multiple notes have not been appended to a single rule

provision in the past. Rather than reducing the possibility for confusion, the Board believes that

departing from this past practice could have an opposite effect. The Board believes that

appending two notes to a single provision could cause confusion as to applicability and

substantive effect. The Board will not split the Board note appended to subsection (f). The

Board will, however, add a statement to the note explaining that the information that follows the

subsection derivation material is drawn from the federal regulations. This statement serves to

further distance the Board observation as to the material source from the federal observations on

the independent location restriction of the Ford Act.

As to the issues relating to the two definitions of “putrescible waste,” the Board agrees

that the federal and State definitions are “much different,” that the FAA definition is “key” to

exception from the Ford Act location standards, and that “for the purposes of application of

standards under the Ford Act, the FAA definition applies.” PC 3 at 4. The Board disagrees,

however, that the existence of the two definitions could cause confusion. The FAA makes all

determinations under the Ford Act, and the FAA would refer to the USEPA definition to resolve

any issues. The Illinois definition of “putrescible waste” in Section 810.103 does not affect the

operation of federal law, so the Board finds that there is no need to alter the Board note.

Finally, Marion Ridge Landfill expressed concern over the Board note appended to

subsection (f) implicitly extending the authority of the Agency. The USEPA’s note simply

directs attention to an independent federal landfill location restriction. The sparse language

chosen by USEPA avoids interpretation of the Ford Act restriction. It clearly directs attention to

the FAA for further information on the restriction. The changes requested by Marion Ridge

Landfill would engage in interpretation by discussion of the restriction and would remove the

statement directing attention to the FAA for further information. This would run counter to the

purposes sought by Marion Ridge Landfill itself.

When USEPA added the note to 40 C.F.R. 258.10 on October 15, 2003, it did so as part

of a deliberate decision to not incorporate the Ford Act provisions into the MSWLF regulations.

As noted above, USEPA initially incorporated substantive rules relative to the Ford Act, but

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13

withdrew them. The ultimate action was the adoption of the note that references the Ford Act

requirements as independently administered by the FAA. In making this decision, USEPA stated

as follows:

After reviewing the comments, [US]EPA has decided not to finalize the rule as proposed.

Instead of adding a new subsection (e) to 40 CFR 258.10, [US]EPA is incorporating

information about the Ford Act in a note following the criteria in 40 CFR 258.10. As a

result, the specific limitations of the Ford Act are not being incorporated into the criteria

for MSWLFs under RCRA and are not enforceable as part of EPA’s MSWLF criteria.

The note is for advisory purposes only.

Because section 503 of the Ford Act is directly applicable to any ‘‘person’’ constructing

or establishing a MSWLF, it does not by its terms require implementation through

regulation. The Ford Act does not amend Subtitle D of the Resource Conservation and

Recovery Act (RCRA), which [US]EPA administers. Therefore, in light of the

comments received, [US]EPA has reconsidered promulgating a regulation under RCRA

that incorporates the Ford Act requirements. In addition, to the extent that section 503 the

Ford Act is to be interpreted, the Federal Aviation Administration, not [US]EPA, is the

administering agency under the statute. The FAA has issued guidance interpreting

section 503. See FAA AC No.150/5200–34. For further information, the public should

contact the FAA.

68 Fed. Reg. 59333, 59334 (Oct. 15, 2003).

The language added to the Board note appended to Section 811.302(f) as proposed is

nearly identical to the note added by USEPA to corresponding 40 C.F.R. 258.10. In the context

of an identical-in-substance rulemaking proceeding, the Board is reluctant to change federal

provisions in any way that could have a substantive effect. Examples of the instances in which

the Board will change federal provisions are the following:

1)

The Board will revise the federal language when there are clear errors in the text or the

text is ambiguous or unclear on its face, but only to the extent necessary to effect the

clear federal intent of the rule.

2)

The Board will change the language of a newer federally derived requirement when it is

necessary to preserve a more stringent State requirement that the Board originally derived

in a general rulemaking proceeding under Section 27 of the Act (415 ILCS 5/27 (2002))

and the existing State provision is not inconsistent with the newer federally derived rules.

3)

The Board will deviate from the federal text when it is necessary to render administration

of federally derived requirements consistent with administration of existing State

regulations.

With a single exception, none of these justifications for altering the federal text exist

relative to the Marion Ridge Landfill requests to revise the federal note added to Section

811.302(f). There are no errors in the federal text, and the federal text is clear and unambiguous

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14

on its face. No alteration of a new federally derived requirement is required to preserve a more

stringent existing State requirement derived by a Section 27 rulemaking proceeding. There is no

need to render administration of a federally derived requirement consistent with administration

of an existing State regulation. In fact, the addition of a note to the Section 810.103 definition of

“putrescible waste” and the suggested alternative explanatory language suggested by Marion

Ridge Landfill might tend to cause more confusion than the simple explanation added by

USEPA directing attention to the FAA for further information.

The sole suggestion from Marion Ridge Landfill that the Board is incorporating into the

adopted amendments relates to a possible exception from the Ford Act requirements. The Board

believes that adding a reference to federally approved exceptions to the Ford Act location

restriction would add clarity to the description of the Ford Act requirements. The Ford Act

language relating to exemption from the airport location restriction states as follows:

In general.--No person shall construct or establish a municipal solid waste landfill . . .

that receives putrescible waste . . . within 6 miles of a public airport . . . unless

the State

aviation agency of the State in which the airport is located requests that the Administrator

of the Federal Aviation Administration

exempt the landfill from the application of this

subsection and the Administrator determines that such exemption would have no adverse

impact on aviation safety.

49 U.S.C. 44718(d)(1) (1994), as amended in Pub. L. 106-181, title V, Sec. 503(b), Apr.

5, 2000, 114 Stat. 133 (emphasis added).

The FAA determines whether to exempt a landfill from the location restriction. FAA

Advisory Circular 150/5200-34 (H.O. Exhibit 1) is the FAA guidance that describes

implementation of the restriction, including explanation of the exemption process. The Board

note as proposed cited this guidance document. Adding a reference to the possibility of

exemption from the restriction would enhance clarity. The Board believes, however, that the

statement suggested by Marion Ridge Landfill, “absent federal approval,” is not as clear as

stating, “unless the FAA allows an exemption.” The Board has added this statement to the

Board note appended to Section 811.320(f).

In summary, as adopted after consideration of PC 3, the Board note attached to

subsection (f) of Section 811.302 will read as follows (with strikeout and underlining indicating

the amendments):

BOARD NOTE: Subsection (f) of this Section

is derived from 40 CFR 258.10 (1992)

(2003), as amended at 68 Fed. Reg. 59333 (October 15, 2003). USEPA added the

following information in a note appended to 40 CFR 258.10: A prohibition on locating a

new MSWLF near certain airports was enacted in Section 503 of the federal Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (Ford Act) (49 USC

44718(d)). Section 503 prohibits the “construction or establishment” of a new MSWLF

after April 5, 2000 within six miles of certain smaller public airports unless the FAA

allows an exemption. The FAA administers the Ford Act and has issued guidance in

---

15

FAA Advisory Circular 150/5200-34, dated August 26, 2000. For further information,

please contact the FAA.

General Revisions and Deviations from the Federal Text

In incorporating the federal rules into the Illinois system, some deviation from the federal

text is unavoidable. This deviation arises primarily through differences between the federal and

state regulatory structure and systems. Some deviation also arises through errors in and

problems with the federal text itself. The Board conforms the federal text to the Illinois rules

and regulatory scheme and corrects errors that we see in the text as we engage in these routine

update rulemakings.

In addition to the amendments derived from federal amendments, the Board often finds it

necessary to alter the text of various passages of the existing rules as provisions are opened for

update in response to USEPA actions. This involves correcting deficiencies, clarifying

provisions, and making other changes that are necessary to establish a clear set of rules that

closely parallel the corresponding federal requirements within the codification scheme of the

Illinois Administrative Code

.

The Board updates the citations to the

Code of Federal Regulations

to the most recent

version available. As of the date of this opinion, the most recent version of the

Code of Federal

Regulations

available to the Board is the July 1, 2002 version. Thus, we have updated all

citations to the 2002 version, adding references to later amendments using their appropriate

Federal Register

citation, where necessary.

The Board substituted “or” for “/” in most instances where this appeared in the federal

base text, using “and” where more appropriate. The Board further used this opportunity to make

a number of corrections to punctuation, grammar, spelling, and cross-reference format

throughout the opened text. We changed “who” to “that” and “he” or “she” to “it,” where the

person to which the regulation referred was not necessarily a natural person, or to “he or she,”

where a natural person was evident; changed “which” to “that” for restrictive relative clauses;

substituted “must” for “shall”; capitalized the section headings and corrected their format where

necessary; and corrected punctuation within sentences.

In addition, the federal rules have been edited to establish a uniform usage throughout the

Board’s regulations. For example, with respect to “shall,” “will,” and “may,” “must” is used

when an action is required by the rule, without regard to whether the action is required of the

subject of the sentence or not. “Shall” is no longer used, since it is not used in everyday

language. Thus, where a federal rule uses “shall,” the Board substitutes “must.” This is a break

from our former practice where “shall” was used when the subject of a sentence has a duty to do

something. “Will” is used when the Board obliges itself to do something. “May” is used when

choice of a provision is optional. “Or” is used rather than “and/or,” and denotes “one or both.”

“Either . . . or” denotes “one but not both.” “And” denotes “both.”

The Joint Committee on Administrative Rules (JCAR) has requested that the Board refer

to the United States Environmental Protection Agency in the same manner throughout all of our

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16

bodies of regulations—

i.e.

, air, water, drinking water, RCRA Subtitle D (municipal solid waste

landfill), RCRA Subtitle C (hazardous waste), underground injection control (UIC), etc. The

Board has decided to refer to the United States Environmental Protection Agency as “USEPA.”

We will continue this conversion in future rulemakings as additional sections become open to

amendment. We will further convert “EPA” used in federal text to “USEPA,” where USEPA is

clearly intended.

The Board has assembled tables to aid in the location of these alterations and to briefly

outline their intended purpose. The tables set forth the miscellaneous deviations from the federal

text and corrections to the pre-amended base text of the rules in detail. The tables are set forth

and explained immediately below this opinion. There is no further discussion of most of the

deviations and revisions elsewhere in this opinion.

Discussion of Miscellaneous Housekeeping Amendments

The tables below list numerous corrections and amendments that are not based on current

federal amendments. The first table (beginning immediately below) includes deviations made in

this Proposal for Public Comment from the verbatim text of the federal amendments. The

second table (beginning below at page 17) contains corrections and clarifications that the Board

made in the base text involved in this proposal. The amendments listed in this second table are

not directly derived from the current federal amendments. Some of the entries in these tables are

discussed further in appropriate segments of the general discussion beginning at page 4 of this

opinion. Table 3 (beginning on page 21 below) is a listing of revisions made to the text of the

amendments from that proposed and set forth in the Board’s opinion and order of March 18,

2004. Table 3 indicates the changes made, as well as the source that suggested each of the

changes. Table 4 (on page 23 below) indicates suggested revisions that the Board has not made

in adopting these amendments. Each entry gives a brief explanation why the Board did not

incorporate the suggested change.

Table 1:

Deviations from the Text of the Federal Amendments

Illinois Section

40 C.F.R. Section

Revision(s)

810.103 “construction

and demolition

landfill”

258.2

Omitted the definition

810.103 “municipal

solid waste landfill

unit”

258.2

Added “but” offset with a comma before

“a landfill”; removed “construction and

demolition” from before “landfill”; added

“which” before “does not receive” for a

restrictive relative clause

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17

810.103 “residential

lead-based paint

waste”

258.2

Placed the defined term in standard

typeface and placed it in quotation marks;

changed "which" to "that" for a restrictive

relative clause; added a comma after "" to

offset the final element of a series; added

a comma after "renovation" to offset the

final element of a series; changed "lead

based" to hyphenated "lead-based"

811.302(f) Board note

258.10 note

Added “federal” before “Wendell H. Ford

Aviation . . . Act”; deleted the

Public

Laws

citation; corrected the reference “49

USC 44718 note” to “49 USC 44718(d)”;

changed “new MSWLF’s” to singular “a

new MSWLF”; added “unless . . . an

exemption”; changed “Federal Aviation

Administration (FAA)” to “FAA”

Table2 :

Board Housekeeping Amendments

Section

Source

Revision(s)

810 table of contents

Board

Removed the note “NOTE: Capitalization . . . language”

810.103 preamble

Board

Changed "shall be" to "will be"

810.103 “Act”

Board

Removed the unnecessary comma after "Act"

810.103 “admixtures”

Board

Added a comma after "bentonite" to offset the final

element of a series

810.103 “Agency”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.08” to “Section 3.105”

810.103 “aquifer”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; changed the statutory language from capitalized to

italic text; removed the unnecessary ending period after

“Act”

810.103 “bedrock”

Board

Added a comma after "alluvium" to offset the final

element of a series

810.103 “beneficially

usable waste”

Board

Changed "which" to "that" for a restrictive relative clause

810.103 “Board”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.04” to “Section 3.130”;

removed the unnecessary ending period after “Act”

810.103 “borrow area” Board

Added a comma after "alluvium" to offset the final

element of a series

810.103 “coal

combustion power

generating facilities”

Board

Changed "which" to "that" for a restrictive relative clause

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18

810.103 “construction

and demolition

landfill”

Board,

Agency

Deleted the definition

810.103 “dead animal

disposal site”

Board,

JCAR

Corrected “Dead Animal Act” to singular “Dead Animal

Disposal Act”; removed the commas that offset “225

ILCS 610” and placed the citation in brackets; removed

the commas that offset “8 Ill. Adm. Code 90” and placed

the citation in parentheses

810.103 “disposal”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; changed "shall" to "will"; corrected “Section 3.08”

to “Section 3.185”; removed the unnecessary ending

period after “Act”

810.103

“documentation”

Board

Added a comma after "bonds" to offset the final element

of a series

810.103 “existing

facility”

Board

Changed "which" to "that" for a restrictive relative clause

810.103 “existing

MSWLF unit”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; added an ending period after “Act”; corrected

“Section 3.87” to “Section 3.285”; removed the

unnecessary ending period after “Act”

810.103 “facility”

Board

Changed "shall be" to "will be"

810.103 “geotextiles”

Board

Changed "which" to "that" for a restrictive relative clause

810.103

“groundwater”

Board,

JCAR

Changed the statutory language from capitalized to italic

text

810.103 “household

waste”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.89” to “Section 3.230”

810.103 “inert waste”

Board

Changed "shall" to "will"; added a comma after

"masonry" to offset the final element of a series

810.103 “lateral

expansion”

JCAR,

Board

Changed the statutory language from capitalized to italic

text; changed the comma after “1993” to a period using

underline and strikeout; corrected “Section 3.88” to

“Section 3.275”; changed “Of” to lower-case “of”

810.103 “lift”

Board

Changed "which" to "that" for a restrictive relative clause

810.103 “malodor”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.02” to “Section 3.115”

810.103 “municipal

solid waste landfill

unit”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “noncontainerized” to hyphenated “non-

containerized”; corrected “nonflowing” to hyphenated

“non-flowing”; corrected “nonhazardous” to hyphenated

“non-hazardous”; corrected “Section 3.85” to “Section

3.285”; added “but” offset by a comma before “a landfill

that receives”; removed “construction and demolition”

from before “landfill”

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19

810.103 “National

Pollutant Discharge

Elimination System”

JCAR,

Board

Changed “U.S.C.” to “USC”; changed “Environmental

Protection Act” to the defined short-form “Act”; added a

comma after “Act” to offset the final element of a series;

changed “and 35 Ill. Adm. Code 309.Subpart A and 310”

to “Subpart A of 35 Ill. Adm. Code 309, and 35 Ill. Adm.

Code 310”; removed the last sentence “’NPDES permit’

means . . . program,” which also appears as the next

definition

810.103 “NPDES

permit”

Board

Added the ending period

810.103 “new facility” Board

Changed “shall be” to “will be”

810.103 “new

MSWLF unit”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.86” to “Section 3.285”

810.103 “one hundred

(100)-year flood plain”

Board,

JCAR

Changed “one hundred (100) year” to hyphenated “one

hundred-year”; changed "which" to "that" for a

restrictive relative clause

810.103 “one hundred

(100)-year, 24-hour

precipitation event”

Board,

JCAR

Changed “one hundred (100) year” to hyphenated “one

hundred-year”; changed “24 hour” to hyphenated “24-

hour” (twice)

810.103 “perched

watertable”

JCAR

Removed the unnecessary space before the ending

quotation mark

810.103 “person”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.26” to “Section 3.315”

810.103 “professional

engineer”

Board,

JCAR

Removed “Illinois ” from before the statutory title

“Professional Engineering Practice Act of 1989”;

removed the quotation marks from the statute name

“Illinois Professional . . . of 1989”; changed “The” to

lower-case “the”

810.103 “professional

land surveyor”

JCAR

Corrected “Surveyors” to “Surveyor” to reflect text on

file

810.103 “putrescible

waste”

Board,

JCAR

Changed "which" to "that" for a restrictive relative

clause; corrected “definitions” to singular “definition”;

changed "shall be" to "will be"

810.103 “publicly

owned treatment

works”

Board

Added a comma after "recycling" to offset the final

element of a series; added a comma after "pipes" to offset

the final element of a series; changed "which" to "that"

for a restrictive relative clause

810.103 “Resource

Conservation and

Recovery Act”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; added the conjunction “and” before “Recovery”;

corrected “Section 3.90” to “Section 3.425”

810.103 “salvaging”

Board

Added a comma after "vectors" to offset the final

element of a series

810.103 “scavenging”

Board

Changed "which" to "that" for a restrictive relative clause

810.103 “settlement”

Board

Added a comma after "soil" to offset the final element of

a series

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20

810.103 “shredding”

Board

Changed numeric "3 inch" to written, hyphenated "three-

inch"

810.103 “significant

modification”

Board

Added a comma after "occur" to offset the final element

of a series; added a comma after "intermediate" to offset

the final element of a series; added a comma after

"efficiency" to offset the final element of a series;

removed the unnecessary comma after "system" that

separated a two-element series

810.103 “slag”

Board

Changed "which" to "that" for a restrictive relative clause

810.103 “sole source

aquifer”

Board,

JCAR

Removed the unnecessary comma after "1974"; changed

“U.S.C.” to “USC”

810.103 “special

waste”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; added a comma after “pollution control waste” to

offset the final element of a series; corrected “Section

3.45” to “Section 3.475”; removed the unnecessary

ending period after “Act”

810.103 “twenty-five

(25)-year, 24-hour

precipitation event”

Board,

JCAR

Changed “twenty five (25) year” to hyphenated “twenty-

five-year”; changed “24 hour” to hyphenated “24-hour”

810.103 “uppermost

aquifer”

Board

Changed "which" to "that" for a restrictive relative clause

810.103 “waste pile”

Board

Corrected “nonflowing” to hyphenated “non-flowing”;

changed "shall" to "must"; added a comma after

"records" to offset the final element of a series

810.103 “waste

stabilization”

Board

Added a comma after "physical" to offset the final

element of a series; changed "which" to "that" for a

restrictive relative clause

810.103 “zone of

attenuation”

JCAR

Changed “is” to “means”

811 table of contents,

811.112 heading

JCAR

Added missing heading

811.302(a)

Board

Changed "shall" to "must"

811.302(b)

Board,

JCAR

Changed "shall" to "must"; changed “U.S.C.” to “USC”;

added a comma before "unless" to offset a parenthetical

811.302(b)(3)

Board

Added a comma after "fractures" to offset the final

element of a series

811.302(c)

Board

Changed "shall" to "must"; changed numeric "8" to

written "eight"

811.302(d)

Board

Changed "no part . . . shall be located" to "no part . . .

may be located"

811.302(e)

Board

Changed "shall not be located" to "may not be located";

added the parenthetical “(FAA)” to define the

abbreviation

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21

811.302(f)

Board,

JCAR

Changed "shall" to "must"; removed “Federal Aviation

Administration” and the parentheses from the defined

abbreviation “FAA”; changed numeric "within 7 days of"

to written "within seven days after"

811.302(f) Board note

Board

Changed "subsection (f)" to "subsection (f) of this

Section"; Updated the citation to the

Code of Federal

Regulations

to the most recent edition, including a

Federal Register

citation for later amendments

Table 3:

Revisions to the Text of the Proposed Amendments in Final Adoption

Section Revised

Source(s) of

Revision(s)

Revision(s)

810 table of contents

Board

Removed the note “NOTE: Capitalization . . . language”

810.103 “Agency”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.08” to “Section 3.105”;

removed the unnecessary ending period after “Act”

810.103 “aquifer”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; changed the statutory language from capitalized to

italic text; removed the unnecessary ending period after

“Act”

810.103 “Board”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.04” to “Section 3.130”;

removed the unnecessary ending period after “Act”

810.103 “construction

and demolition

landfill”

Board,

Agency

Deleted the definition

810.103 “dead animal

disposal site”

JCAR

Corrected “Dead Animal Act” to singular “Dead Animal

Disposal Act”

810.103 “disposal”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.08” to “Section 3.185”;

removed the unnecessary ending period after “Act”

810.103 “existing

MSWLF unit”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.87” to “Section 3.285”;

removed the unnecessary ending period after “Act”

810.103

“groundwater”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; removed the unnecessary ending period after “Act”

810.103 “household

waste”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.89” to “Section 3.230”;

removed the unnecessary ending period after “Act”

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22

810.103 “lateral

expansion”

JCAR,

Board

Changed the statutory language from capitalized to italic

text; changed the comma after “1993” to a period using

underline and strikeout; corrected “Section 3.88” to

“Section 3.275”; changed “Of” to lower-case “of”;

removed the unnecessary ending period after “Act”

810.103 “malodor”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.02” to “Section 3.115”;

removed the unnecessary ending period after “Act”

810.103 “municipal

solid waste landfill

unit”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “noncontainerized” to hyphenated “non-

containerized”; corrected “nonflowing” to hyphenated

“non-flowing”; corrected “nonhazardous” to hyphenated

“non-hazardous”; corrected “Section 3.85” to “Section

3.285”; removed the unnecessary ending period after

“Act”; added “but” offset by a comma before “a landfill

that receives”; removed “construction and demolition”

from before “landfill”

810.103 “National

Pollutant Discharge

Elimination System”

JCAR,

Board

Changed “U.S.C.” to “USC”; removed the last sentence

“’NPDES permit’ means . . . program,” which also

appears as the next definition

810.103 “new

MSWLF unit”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.86” to “Section 3.285”;

removed the unnecessary ending period after “Act”

810.103 “one hundred-

year flood plain”

JCAR

Corrected “one hundred (100)-year” to “one hundred-

year”

810.103 “one hundred-

year, 24 hour

precipitation event”

JCAR

Corrected “one hundred (100)-year” to “one hundred-

year”

810.103 “perched

watertable”

JCAR

Removed the unnecessary space before the ending

quotation mark

810.103 “person”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.26” to “Section 3.315”;

removed the unnecessary ending period after “Act”

810.103 “professional

engineer”

JCAR

Removed “Illinois ” from before the statutory title

“Professional Engineering Practice Act of 1989”

810.103 “professional

land surveyor”

JCAR

Corrected “Surveyors” to “Surveyor” to reflect text on

file

810.103 “putrescible

waste”

JCAR

Corrected “definitions” to singular “definition”

810.103 “Resource

Conservation and

Recovery Act”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; corrected “Section 3.90” to “Section 3.425”;

removed the unnecessary ending period after “Act”

810.103 “sole source

aquifer”

JCAR

Changed “U.S.C.” to “USC”

---

23

810.103 “special

waste”

Board,

JCAR

Changed the statutory language from capitalized to italic

text; added a comma after “pollution control waste” to

offset the final element of a series; corrected “Section

3.45” to “Section 3.475”; removed the unnecessary

ending period after “Act”

810.103 “twenty-five

(25)-year, 24-hour

precipitation event”

JCAR

Corrected “twenty-five (25)-year” to “twenty-five-year”

810.103 “waste pile”

Board

Corrected “nonflowing” to hyphenated “non-flowing”

810.103 “zone of

attenuation”

JCAR

Changed “is” to “means”

811 table of contents,

811.112 heading

JCAR

Added missing heading

811.302(b)

JCAR

Changed “U.S.C.” to “USC”

811.302(f)

JCAR

Changed “within seven days of” to “within seven days

after”

811.302(f) Board note

JCAR,

Marion

Ridge

Landfill

Added “USEPA added . . . 258.10:”; changed “U.S.C.”

to “USC”; added “unless . . . an exemption”; changed

“Federal Aviation Administration (FAA)” to “FAA”

Table 4

Requested Revisions to the Text of the Proposed Amendments Not Made in Final

Adoption

Section Affected

Source(s) of Request:

Requested Revision(s)

Explanation

810.103 “lateral

expansion”

JCAR: Change the comma

after 1993 to a period (no

strikeout or underlining)

This was done, but using strikeout and

underlining to reflect text on file

810.103 “National

Pollutant Discharge

Elimination System”

JCAR: Delete the last

sentence that also appears

as the following definition

(no strikeout)

This was done, but using strikeout

810.103 “NPDES permit”

JCAR: Remove the

underlining from the

ending period

The underlining is necessary to

indicate the addition to the text on file

810.103 “professional land

surveyor”

JCAR: Remove the

underlining from the

definite article “the” before

“Illinois . . . Act of 1989”

The underlining is necessary to

indicate the addition to the text on file

810.103 “waste pile”

JCAR: Delete the hyphen

from “non-containerized”

(no strikeout)

The word “non-containerized” appears

as hyphenated in the text on file

---

24

ORDER

The complete text of the proposed amendments follows:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 810

SOLID WASTE DISPOSAL: GENERAL PROVISIONS

Section

810.101

Scope and Applicability

810.102

Severability

810.103

Definitions

810.104

Incorporations by Reference

AUTHORITY: Implementing Sections 5, 21, 21.1, 22, 22.17, and 28.1 and authorized by

Section 27 of the Environmental Protection Act [415 ILCS 5/5, 21, 21.1, 22, 22.17, 28.1 and 27].

SOURCE: Adopted in R88-7 at 14 Ill. Reg. 15838, effective September 18, 1990; amended in

R93-10 at 18 Ill. Reg. 1268, effective January 13, 1994; amended in R90-26 at 18 Ill. Reg.

12457, effective August 1, 1994; amended in R95-9 at 19 Ill. Reg. 14427, effective September

29, 1995; amended in R96-1 at 20 Ill. Reg. 11985, effective August 15, 1996; amended in R97-

20 at 21 Ill. Reg. 15825, effective November 25, 1997; amended in R04-5/R04-15 at 28 Ill. Reg.

________, effective ______________________.

NOTE: Capitalization indicates statutory language.

Section 810.103

Definitions

Except as stated in this Section, or unless a different meaning of a word or term is clear from the

context, the definition of words or terms in this Part

shall be will be the same as that applied to

the same words or terms in the Environmental Protection Act (Act) [415 ILCS 5]:

“Act” means the Environmental Protection Act

, [415 ILCS 5].

“Admixtures” are chemicals added to earth materials to improve for a specific

application the physical or chemical properties of the earth materials. Admixtures

include, but are not limited to: lime, cement, bentonite,

and sodium silicate.

“AGENCY” IS THE ENVIRONMENTAL PROTECTION AGENCY

ESTABLISHED BY THE ENVIRONMENTAL PROTECTION ACT.

“Agency”

is the Environmental Protection Agency established by the Environmental

Protection Act.

(Section 3.08 3.105 of the Act)

---

25

“Applicant” means the person submitting an application to the Agency for a

permit for a solid waste disposal facility.

“AQUIFER” MEANS SATURATED (WITH GROUNDWATER) SOILS AND

GEOLOGIC MATERIALS WHICH ARE SUFFICIENTLY PERMEABLE TO

READILY YIELD ECONOMICALLY USEFUL QUANTITIES OF WATER TO

WELLS, SPRINGS, OR STREAMS UNDER ORDINARY HYDRAULIC

GRADIENTS

“Aquifer” means saturated (with groundwater) soils and geologic

materials which are sufficiently permeable to readily yield economically useful

quantities of water to wells, springs, or streams under ordinary hydraulic

gradients

and whose boundaries can be identified and mapped from

hydrogeologic data. (Section 3 of the Illinois Groundwater Protection Act [415

ILCS 55/3]

.)

“Bedrock” means the solid rock formation immediately underlying any loose

superficial material such as soil, alluvium,

or glacial drift.

“Beneficially usable waste” means any solid waste from the steel and foundry

industries that will not decompose biologically, burn, serve as food for vectors,

form a gas, cause an odor, or form a leachate that contains constituents

that which

exceed the limits for this type of waste as specified at 35 Ill. Adm. Code 817.106.

“BOARD” IS THE POLLUTION CONTROL BOARD ESTABLISHED BY

THE ACT.

“Board” is the Pollution Control Board established by the Act.

(Section 3.04 3.130 of the Act.)

“Borrow area” means an area from which earthen material is excavated for the

purpose of constructing daily cover, final cover, a liner, a gas venting system,

roadways,

or berms.

“Chemical waste” means a non-putrescible solid whose characteristics are such

that any contaminated leachate is expected to be formed through chemical or

physical processes, rather than biological processes, and no gas is expected to be

formed as a result.

“Coal combustion power generating facilities” means establishments

which that

generate electricity by combusting coal and which utilize a lime or limestone

scrubber system.

“Contaminated leachate” means any leachate whose constituent violate the

standards of 35 Ill. Adm. Code 811.202.

“Dead animal disposal site” means an on-the-farm disposal site at which the

burial of dead animals is done in accordance with the Illinois Dead Animal

---

26

Disposal Act, [225 ILCS 610,] and regulations adopted pursuant thereto, (8 Ill.

Adm. Code 90)

.

“Design Period” means that length of time determined by the sum of the operating

life of the solid waste landfill facility plus the postclosure care period necessary to

stabilize the waste in the units.

“DISPOSAL” MEANS THE DISCHARGE, DEPOSIT, INJECTION,

DUMPING, SPILLING, LEAKING OR PLACING OF ANY SOLID WASTE

INTO OR ON ANY LAND OR WATER OR INTO ANY WELL SUCH THAT

SOLID WASTE OR ANY CONSTITUENT OF THE SOLID WASTE MAY

ENTER THE ENVIRONMENT BY BEING EMITTED INTO THE AIR OR

DISCHARGED INTO ANY WATERS, INCLUDING GROUNDWATER.

“Disposal” means the discharge, deposit, injection, dumping, spilling, leaking or

placing of any solid waste into or on any land or water or into any well such that

solid waste or any constituent of the solid waste may enter the environment by

being emitted into the air or discharged into any waters, including groundwater.

(Section 3.08 3.185 of the Act.) If the solid waste is accumulated and not

confined or contained to prevent its entry into the environment, or there is no

certain plan for its disposal elsewhere, such accumulation

shall will constitute

disposal.

“Disturbed areas” means those areas within a facility that have been physically

altered during waste disposal operations or during the construction of any part of

the facility.

“Documentation” means items, in any tangible form, whether directly legible or

legible with the aid of any machine or device, including but not limited to

affidavits, certificates, deeds, leases, contracts or other binding agreements,

licenses, permits, photographs, audio or video recordings, maps, geographic

surveys, chemical and mathematical formulas or equations, mathematical and

statistical calculations and assumptions, research papers, technical reports,

technical designs and design drawings, stocks, bonds,

and financial records, that

are used to support facts or hypotheses.

“Earth liners” means structures constructed from naturally occurring soil material

that has been compacted to achieve a low permeability.

“Existing facility” or “Existing unit” means a facility or unit

which that is not

defined in this Section as a new facility or a new unit.

“EXISTING MSWLF UNIT” MEANS ANY MUNICIPAL SOLID WASTE

LANDFILL UNIT THAT HAS RECEIVED HOUSEHOLD WASTE BEFORE

OCTOBER 9, 1993.

“Existing MSWLF unit” means any municipal solid waste

landfill unit that has received household waste before October 9, 1993.

(Section

3.87 3.285 of the Act)

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27

“Facility” means a site and all equipment and fixtures on a site used to treat, store

or dispose of solid or special wastes. A facility consists of an entire solid or

special waste treatment, storage or disposal operation. All structures used in

connection with or to facilitate the waste disposal operation

shall be will be

considered a part of the facility. A facility may include, but is not limited to, one

or more solid waste disposal units, buildings, treatment systems, processing and

storage operations, and monitoring stations.

“Field capacity” means that maximum moisture content of a waste, under field

conditions of temperature and pressure, above which moisture is released by

gravity drainage.

“Foundry sand” means pure sand or a mixture of sand and any additives necessary

for use of the sand in the foundry process, but does not include such foundry

process by-products as air pollution control dust or refractories.

“Gas collection system” means a system of wells, trenches, pipes and other

related ancillary structures such as manholes, compressor housing, and

monitoring installations that collects and transports the gas produced in a

putrescible waste disposal unit to one or more gas processing points. The flow of

gas through such a system may be produced by naturally occurring gas pressure

gradients or may be aided by an induced draft generated by mechanical means.

“Gas condensate” means the liquid formed as a landfill gas is cooled or

compressed.

“Gas venting system” means a system of wells, trenches, pipes and other related

structures that vents the gas produced in a putrescible waste disposal unit to the

atmosphere.

“Geomembranes” means manufactured membrane liners and barriers of low

permeability used to control the migration of fluids or gases.

“Geotextiles” are permeable manufactured materials used for purposes

which that

include, but are not limited to, strengthening soil, providing a filter to prevent

clogging of drains, and collecting and draining liquids and gases beneath the

ground surface.

“GROUNDWATER” MEANS UNDERGROUND WATER WHICH OCCURS

WITHIN THE SATURATED ZONE AND WITHIN GEOLOGIC MATERIALS

WHERE THE FLUID PRESSURE IN THE PORE SPACE IS EQUAL TO OR

GREATER THAN ATMOSPHERIC PRESSURE.

“Groundwater” means

underground water which occurs within the saturated zone and within geologic

materials where the fluid pressure in the pore space is equal to or greater than

atmospheric pressure.

(Section 3 of the Illinois Groundwater Protection Act)

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28

“HOUSEHOLD WASTE” MEANS ANY SOLID WASTE (INCLUDING

GARBAGE, TRASH, AND SANITARY WASTE IN SEPTIC TANKS)

DERIVED FROM HOUSEHOLDS (INCLUDING SINGLE AND MULTIPLE

RESIDENCES, HOTELS AND MOTELS, BUNKHOUSES, RANGER

STATIONS, CREW QUARTERS, CAMPGROUNDS, PICNIC GROUNDS,

AND DAY-USE RECREATION AREAS). “

Household waste” means any solid

waste (including garbage, trash, and sanitary waste in septic tanks) derived from

households (including single and multiple residences, hotels and motels,

bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and

day-use recreation areas).

(Section 3.89 3.230 of the Act)

“Hydraulic barriers” means structures designed to prevent or control the seepage

of water. Hydraulic barriers include, but are not limited to, cutoff walls, slurry

walls, grout curtains and liners.

“Inert waste” means any solid waste that will not decompose biologically, burn,

serve as food for vectors, form a gas, cause an odor, or form a contaminated

leachate, as determined in accordance with 35 Ill. Adm. Code 811.202(b). Such

inert wastes

shall will include only non-biodegradable and non-putrescible solid

wastes. Inert wastes may include, but are not limited to, bricks, masonry,

and

concrete (cured for 60 days or more).

“Iron slag” means slag.

“Land application unit” means an area where wastes are agronomically spread

over or disked into land or otherwise applied so as to become incorporated into

the soil surface. For the purposes of this Part and 35 Ill. Adm. Code 811 through

815, a land application unit is not a landfill; however, other Parts of 35 Ill. Adm.

Code: Chapter I may apply, and may include the permitting requirements of 35

Ill. Adm. Code 309.

“Landfill” means a unit or part of a facility in or on which waste is placed and

accumulated over time for disposal, and which is not a land application unit, a

surface impoundment or an underground injection well. For the purposes of this

Part and 35 Ill. Adm. Code 811 through 815, landfills include waste piles, as

defined in this Section.

“LATERAL EXPANSION” MEANS A HORIZONTAL EXPANSION OF THE

ACTUAL WASTE BOUNDARIES OF AN EXISTING MSWLF UNIT

OCCURRING ON OR AFTER OCTOBER 9, 1993, A HORIZONTAL

EXPANSION IS ANY AREA WHERE SOLID WASTE IS PLACED FOR THE

FIRST TIME DIRECTLY UPON THE BOTTOM LINER OF THE UNIT,

EXCLUDING SIDE SLOPES ON OR AFTER OCTOBER 9, 1993.

“Lateral

expansion” means a horizontal expansion of the actual waste boundaries of an

existing MSWLF unit occurring on or after October 9, 1993. A horizontal

---

29

expansion is any area where solid waste is placed for the first time directly upon

the bottom liner of the unit, excluding side slopes on or after October 9, 1993

.

(Section 3.88 Of 3.275 of the Act)

“Leachate” means liquid that has been or is in direct contact with a solid waste.

“Lift” means an accumulation of waste

which that is compacted into a unit and

over which cover is placed.

“Low risk waste” means any solid waste from the steel and foundry industries that

will not decompose biologically, burn, serve as food for vectors, form a gas, cause

an odor, or form a leachate that contains constituents that exceed the limits for

this type of waste as specified at 35 Ill. Adm. Code 817.106.

“Malodor” means an odor caused by

ONE OR MORE CONTAMINANT

EMISSIONS INTO THE ATMOSPHERE FROM A FACILITY THAT IS IN

SUFFICIENT QUANTITIES AND OF SUCH CHARACTERISTICS AND

DURATION AS TO BE

one or more contaminant emissions into the atmosphere

from a facility that is in sufficient quantities and of such characteristics and

duration as to be

described as malodorous and which may be INJURIOUS TO

HUMAN, PLANT, OR ANIMAL LIFE, TO HEALTH, OR TO PROPERTY, OR

MAY UNREASONABLY INTERFERE WITH THE ENJOYMENT OF LIFE

OR PROPERTY.

injurious to human, plant, or animal life, to health, or to

property, or may unreasonably interfere with the enjoyment of life or property

.

(Section 3.02 3.115 of the Act (defining “air pollution”))

“MUNICIPAL SOLID WASTE LANDFILL UNIT” OR “MSWLF UNIT”

MEANS A CONTIGUOUS AREA OF LAND OR AN EXCAVATION THAT

RECEIVES HOUSEHOLD WASTE, AND THAT IS NOT A LAND

APPLICATION, SURFACE IMPOUNDMENT, INJECTION WELL, OR ANY

PILE OF NONCONTAINERIZED ACCUMULATIONS OF SOLID,

NONFLOWING WASTE THAT IS USED FOR TREATMENT OR STORAGE.

A MSWLF UNIT MAY ALSO RECEIVE OTHER TYPES OF RCRA

SUBTITLE D WASTES, SUCH AS COMMERCIAL SOLID WASTE,

NONHAZARDOUS SLUDGE, SMALL QUANTITY GENERATOR WASTE

AND INDUSTRIAL SOLID WASTE. SUCH A LANDFILL MAY BE

PUBLICLY OR PRIVATELY OWNED OR OPERATED. A MSWLF UNIT

MAY BE A NEW MSWLF UNIT, AN EXISTING MSWLF UNIT OR A

LATERAL EXPANSION. A SANITARY LANDFILL IS SUBJECT TO

REGULATION AS A MSWLF IF IT RECEIVES HOUSEHOLD WASTE.

“Municipal solid waste landfill unit” or “MSWLF unit” means a contiguous area

of land or an excavation that receives household waste, and that is not a land

application, surface impoundment, injection well, or any pile of non-

containerized accumulations of solid, non-flowing waste that is used for treatment

or storage. A MSWLF unit may also receive other types of RCRA Subtitle D

wastes, such as commercial solid waste, non-hazardous sludge, small quantity

---

30

generator waste and industrial solid waste. Such a landfill may be publicly or

privately owned or operated. a MSWLF unit may be a new MSWLF unit, an

existing MSWLF unit or a lateral expansion. A sanitary landfill is subject to

regulation as a MSWLF if it receives household waste

. (Section 3.85 3.285 of the

Act) But, a landfill that receives residential lead-based paint waste and which

does not receive any other household waste is not a MSWLF unit.

BOARD NOTE: The final sentence of corresponding 40 C.F.R. 258.2 provides as

follows: “A construction and demolition landfill that receives residential lead-

based paint waste and which does not receive any other household waste is not a

MSWLF Unit.” A construction and demolition landfill is a type of landfill that

does not exist in Illinois, so the Board omitted the reference to “construction and

demolition landfill.” A landfill in Illinois that receives residential lead-based

paint waste and no other type of household waste would be permitted as a

chemical waste landfill or a putrescible waste landfill under Subpart C of 35 Ill.

Adm. Code 811, as appropriate.

“National Pollutant Discharge Elimination System” or “NPDES” means the

program for issuing, modifying, revoking and reissuing, terminating, monitoring,

and enforcing permits and imposing and enforcing pretreatment requirements

under the Clean Water Act (33

U.S.C. USC 1251 et seq.), Section 12(f) of the

Environmental Protection Act, and Subpart A of 35 Ill. Adm. Code 309.Subpart

A, and 35 Ill. Adm. Code 310. “NPDES permit” means a permit issued under the

NPDES program.

“NPDES permit” means a permit issued under the NPDES program.

“New facility” or “New unit” means a solid waste landfill facility or a unit at a

facility, if one or more of the following conditions apply:

It is a landfill or unit exempt from permit requirements pursuant to Section

21(d) of the Act that has not yet accepted any waste as of September 18,

1990;

It is a landfill or unit not exempt from permit requirements pursuant to

Section 21(d) of the Act that has no development or operating permit

issued by the Agency pursuant to 35 Ill. Adm. Code 807 as of September

18, 1990; or

It is a landfill with a unit whose maximum design capacity or lateral extent

is increased after September 18, 1990.

BOARD NOTE: A new unit located in an existing facility

shall be will be

considered a unit subject to 35 Ill. Adm. Code 814, which references applicable

requirements of 35 Ill. Adm. Code 811.

---

31

“NEW MSWLF UNIT” MEANS ANY MUNICIPAL SOLID WASTE

LANDFILL UNIT THAT HAS RECEIVED HOUSEHOLD WASTE ON OR

AFTER OCTOBER 9, 1993 FOR THE FIRST TIME.

“New MSWLF unit”

means any municipal solid waste landfill unit that has received household waste

on or after October 9, 1993 for the first time

. (Section 3.86 3.285 of the Act)

“One hundred

(100) year-year flood plain” means any land area which that is

subject to a one percent or greater chance of flooding in a given year from any

source.

“One hundred

(100) year-year, 24 hour 24-hour precipitation event” means a

precipitation event of

24 hour 24-hour duration with a probable recurrence

interval of once in 100 years.

“Operator” means the person responsible for the operation and maintenance of a

solid waste disposal facility.

“Owner” means a person who has an interest, directly or indirectly, in land,

including a leasehold interest, on which a person operates and maintains a solid

waste disposal facility. The “owner” is the “operator” if there is no other person

who is operating and maintaining a solid waste disposal facility.

“Perched watertable

” means an elevated watertable above a discontinuous

saturated lens, resting on a low permeability (such as clay) layer within a high

permeability (such as sand) formation.

“Permit area” means the entire horizontal and vertical region occupied by a

permitted solid waste disposal facility.

“PERSON” IS ANY INDIVIDUAL, PARTNERSHIP, CO-PARTNERSHIP,

FIRM, COMPANY, CORPORATION, ASSOCIATION, JOINT STOCK

COMPANY, TRUST, ESTATE, POLITICAL SUBDIVISION, STATE

AGENCY, OR ANY OTHER LEGAL ENTITY, OR THEIR LEGAL

REPRESENTATIVE, AGENT OR ASSIGNS.

“Person” is any individual,

partnership, co-partnership, firm, company, corporation, association, joint stock

company, trust, estate, political subdivision, State agency, or any other legal

entity, or their legal representative, agent or assigns

. (Section 3.26 3.315 of the

Act)

“Potentially usable waste” means any solid waste from the steel and foundry

industries that will not decompose biologically, burn, serve as food for vectors,

form a gas, cause an odor, or form a leachate that contains constituents that

exceed the limits for this type of waste as specified at 35 Ill. Adm. Code 817.106.

“Poz-O-Tec materials” means materials produced by a stabilization process

patented by Conversion Systems, Inc. utilizing flue gas desulfurization (FGD)

---

32

sludges and ash produced by coal combustion power generation facilities as raw

materials.

“Poz-O-Tec monofill” means a landfill in which solely Poz-O-Tec materials are

placed for disposal.

“Professional engineer” means a person who has registered and obtained a seal

pursuant to

“The Illinois the Professional Engineering Practice Act of 1989” [225

ILCS 325].

“Professional land surveyor” means a person who has received a certificate of

registration and a seal pursuant to the

Illinois Professional Land Surveyor Act of

1989 [225 ILCS 330].

“Putrescible waste” means a solid waste that contains organic matter capable of

being decomposed by microorganisms so as to cause a malodor, gases, or other

offensive conditions, or which is capable of providing food for birds and vectors.

Putrescible wastes may form a contaminated leachate from microbiological

degradation, chemical processes, and physical processes. Putrescible waste

includes, but is not limited to, garbage, offal, dead animals, general household

waste, and commercial waste. All solid wastes

which that do not meet the

definitions definition of inert or chemical wastes shall be will be considered

putrescible wastes.

“Publicly owned treatment works” or “POTW” means a treatment works that is

owned by the State of Illinois or a unit of local government. This definition

includes any devices and systems used in the storage, treatment, recycling,

and

reclamation of municipal sewage or industrial wastewater. It also includes

sewers, pipes,

and other conveyances only if they convey wastewater to a POTW

treatment plant. The term also means the unit of local government

which that has

jurisdiction over the indirect discharges to and the discharges from such a

treatment works.

“Recharge zone” means an area through which water can enter an aquifer.

“Residential lead-based paint waste” means waste containing lead-based paint

that is generated as a result of activities such as abatement, rehabilitation,

renovation, and remodeling in homes and other residences. The term residential

lead-based paint waste includes, but is not limited to, lead-based paint debris,

chips, dust, and sludges.

“RESOURCE CONSERVATION AND RECOVERY ACT” or “RCRA”

MEANS THE RESOURCE CONSERVATION AND RECOVERY ACT OF

1976 (P.L. 94-580 Codified as 42 USC. §§ 6901 et seq.) AS AMENDED.

“Resource Conservation and Recovery Act” or “RCRA” means the Resource

---

33

Conservation and Recovery Act of 1976 (P.L. 94-580 codified as 42 USC. §§

6901 et seq.) as amended

. (Section 3.90 3.425 of the Act)

“Responsible charge,” when used to refer to a person, means that the person is

normally present at a waste disposal site; directs the day-to-day overall operation

at the site; and either is the owner or operator or is employed by or under contract

with the owner or operator to assure that the day-to-day operations at the site are

carried out in compliance with any Part of 35 Ill. Adm. Code: Chapter I

governing operations at waste disposal sites.

“Runoff” means water resulting from precipitation that flows overland before it

enters a defined stream channel, any portion of such overland flow that infiltrates

into the ground before it reaches the stream channel, and any precipitation that

falls directly into a stream channel.

“Salvaging” means the return of waste materials to use, under the supervision of

the landfill operator, so long as the activity is confined to an area remote from the

operating face of the landfill, it does not interfere with or otherwise delay the

operations of the landfill, and it results in the removal of all materials for

salvaging from the landfill site daily or separates them by type and stores them in

a manner that does not create a nuisance, harbor vectors,

or cause an unsightly

appearance.

“Scavenging” means the removal of materials from a solid waste management

facility or unit

which that is not salvaging.

“Seismic Slope Safety Factor” means the ratio between the resisting forces or

moments in a slope and the driving forces or moments that may cause a massive

slope failure during an earthquake or other seismic event such as an explosion.

“Settlement” means subsidence caused by waste loading, changes in groundwater

level, chemical changes within the soil,

and adjacent operations involving

excavation.

“Shredding” means the mechanical reduction in particle sizes of solid waste.

Putrescible waste is considered shredded if 90 percent of the waste by dry weight

passes a

3 inch three-inch sieve.

“Significant Modification” means a modification to an approved permit issued by

the Agency in accordance with Section 39 of the Act and 35 Ill. Adm. Code 813

that is required when one or more of the following changes (considered

significant when that change is measured by one or more parameters whose

values lie outside the expected operating range of values as specified in the

permit) are planned, occur,

or will occur:

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An increase in the capacity of the waste disposal unit over the permitted

capacity;

Any change in the placement of daily, intermediate,

or final cover;

A decrease in performance, efficiency,

or longevity of the liner system;

A decrease in efficiency or performance of the leachate collection system;

A change in configuration, performance, or efficiency of the leachate

management system;

A change in the final disposition of treated effluent or in the quality of the

discharge from the leachate treatment or pretreatment system;

Installation of a gas management system

, or a decrease in the efficiency or

performance of an existing gas management system;

A change in the performance or operation of the surface water control

system;

A decrease in the quality or quantity of data from any environmental

monitoring system;

A change in the applicable background concentrations or the maximum

allowable predicted concentrations;

A change in the design or configuration of the regraded area after

development or after final closure;

A change in the amount or type of postclosure financial assurance;

Any change in the permit boundary;

A change in the postclosure land use of the property;

A remedial action necessary to protect groundwater;

Transfer of the permit to a new operator;

Operating authorization is being sought to place into service a structure

constructed pursuant to a construction quality assurance program; or

A change in any requirement set forth as a special condition in the permit.

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“Slag” means the fused agglomerate which that separates in the iron and steel

production and floats on the surface of the molten metal.

“Sole source aquifer” means those aquifers designated pursuant to Section

1424(e) of the Safe Drinking Water Act of 1974

, (42 U.S.C USC 300h-3).

“Solid Waste” means a waste that is defined in this Section as an inert waste, as a

putrescible waste, as a chemical waste or as a special waste, and which is not also

defined as a hazardous waste pursuant to 35 Ill. Adm. Code 721.

“SPECIAL WASTE” MEANS ANY INDUSTRIAL PROCESS WASTE,

POLLUTION CONTROL WASTE OR HAZARDOUS WASTE, EXCEPT AS

DETERMINED PURSUANT TO SECTION 22.9 OF THE ACT

“Special waste”

means any industrial process waste, pollution control waste, or hazardous waste,

except as determined pursuant to Section 22.9 of the Act

and 35 Ill. Adm. Code

808. (Section

3.45 3.475 of the Act.)

“Static Safety Factor” means the ratio between resisting forces or moments in a

slope and the driving forces or moments that may cause a massive slope failure.

“Steel slag” means slag.

“Surface impoundment” means a natural topographic depression, a man-made

excavation, or a diked area into which flowing wastes, such as liquid wastes or

wastes containing free liquids, are placed. For the purposes of this Part and 35 Ill.

Adm. Code 811 through 815, a surface impoundment is not a landfill. Other Parts

of 35 Ill. Adm. Code: Chapter I may apply, including the permitting requirements

of 35 Ill. Adm. Code 309.

“Twenty-five

(25) year-year, 24 hour 24-hour precipitation event” means a

precipitation event of 24 hour 24-hour duration with a probable recurrence

interval of once in 25 years.

“Uppermost aquifer” means the first geologic formation above or below the

bottom elevation of a constructed liner or wastes, where no liner is present,

which

that is an aquifer, and includes any lower aquifer that is hydraulically connected

with this aquifer within the facility’s permit area.

“Unit” means a contiguous area used for solid waste disposal.

“Unit of local government” means a unit of local government, as defined by

Article 7, Section 1 of the Illinois Constitution. A unit of local government may

include, but is not limited to, a municipality, a county, or a sanitary district.

“Waste pile” means an area on which non-containerized masses of solid,

non

flowing non-flowing wastes are placed for disposal. For the purposes of this Part

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and 35 Ill. Adm. Code 811 through 815, a waste pile is a landfill, unless the

operator can demonstrate that the wastes are not accumulated over time for

disposal. At a minimum, such demonstration

shall must include photographs,

records,

or other observable or discernable information, maintained on a yearly

basis, that show that within the preceding year the waste has been removed for

utilization or disposal elsewhere.

“Waste stabilization” means any chemical, physical,

or thermal treatment of

waste, either alone or in combination with biological processes,

which that results

in a reduction of microorganisms, including viruses, and the potential for

putrefaction.

“Working face” means any part of a landfill where waste is being disposed of.

“Zone of attenuation”

is means the three dimensional region formed by excluding

the volume occupied by the waste placement from the smaller of the volumes

resulting from vertical planes drawn to the bottom of the uppermost aquifer at the

property boundary or 100 feet from the edge of one or more adjacent units.

(Source: Amended at 28 Ill. Reg. ________, effective ______________________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 811

STANDARDS FOR NEW SOLID WASTE LANDFILLS

SUBPART A: GENERAL STANDARDS FOR ALL LANDFILLS

Section

811.101

Scope and Applicability

811.102

Location Standards

811.103

Surface Water Drainage

811.104

Survey Controls

811.105

Compaction

811.106

Daily Cover

811.107

Operating Standards

811.108

Salvaging

811.109

Boundary Control

811.110

Closure and Written Closure Plan

811.111

Postclosure Maintenance

811.112

Recordkeeping Requirements for MSWLF Units

SUBPART B: INERT WASTE LANDFILLS

Section

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811.201

Scope and Applicability

811.202

Determination of Contaminated Leachate

811.203

Design Period

811.204

Final Cover

811.205

Final Slope and Stabilization

811.206

Leachate Sampling

811.207

Load Checking

SUBPART C: PUTRESCIBLE AND CHEMICAL WASTE LANDFILLS

Section

811.301

Scope and Applicability

811.302

Facility Location

811.303

Design Period

811.304

Foundation and Mass Stability Analysis

811.305

Foundation Construction

811.306

Liner Systems

811.307

Leachate Drainage System

811.308

Leachate Collection System

811.309

Leachate Treatment and Disposal System

811.310

Landfill Gas Monitoring

811.311

Landfill Gas Management System

811.312

Landfill Gas Processing and Disposal System

811.313

Intermediate Cover

811.314

Final Cover System

811.315

Hydrogeological Site Investigations

811.316

Plugging and Sealing of Drill Holes

811.317

Groundwater Impact Assessment

811.318

Design, Construction, and Operation of Groundwater Monitoring Systems

811.319

Groundwater Monitoring Programs

811.320

Groundwater Quality Standards

811.321

Waste Placement

811.322

Final Slope and Stabilization

811.323

Load Checking Program

811.324

Corrective Action Measures for MSWLF Units

811.325

Selection of remedy for MSWLF Units

811.326

Implementation of the corrective action program at MSWLF Units

SUBPART D: MANAGEMENT OF SPECIAL WASTES AT LANDFILLS

Section

811.401

Scope and Applicability

811.402

Notice to Generators and Transporters

811.403

Special Waste Manifests

811.404

Identification Record

811.405

Recordkeeping Requirements

811.406

Procedures for Excluding Regulated Hazardous Wastes

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SUBPART E: CONSTRUCTION QUALITY ASSURANCE PROGRAMS

Section

811.501

Scope and Applicability

811.502

Duties and Qualifications of Key Personnel

811.503

Inspection Activities

811.504

Sampling Requirements

811.505

Documentation

811.506

Foundations and Subbases

811.507

Compacted Earth Liners

811.508

Geomembranes

811.509

Leachate Collection Systems

SUBPART G: FINANCIAL ASSURANCE

Section

811.700

Scope, Applicability and Definitions

811.701

Upgrading Financial Assurance

811.702

Release of Financial Institution

811.703

Application of Proceeds and Appeals

811.704

Closure and Postclosure Care Cost Estimates

811.705

Revision of Cost Estimate

811.706

Mechanisms for Financial Assurance

811.707

Use of Multiple Financial Mechanisms

811.708

Use of a Financial Mechanism for Multiple Sites

811.709

Trust Fund for Unrelated Sites

811.710

Trust Fund

811.711

Surety Bond Guaranteeing Payment

811.712

Surety Bond Guaranteeing Performance

811.713

Letter of Credit

811.714

Closure Insurance

811.715

Self-Insurance for Non-commercial Sites

811.716

Local Government Financial Test

811.717

Local Government Guarantee

811.718

Discounting

811.719

Corporate Financial Test

811.720

Corporate Guarantee

811.Appendix A

Financial Assurance Forms

Illustration A

Trust Agreement

Illustration B

Certificate of Acknowledgment

Illustration C

Forfeiture Bond

Illustration D

Performance Bond

Illustration E

Irrevocable Standby Letter of Credit

Illustration F

Certificate of Insurance for Closure and/or Postclosure Care

Illustration G

Operator’s Bond Without Surety

Illustration H

Operator’s Bond With Parent Surety

Illustration I

Letter from Chief Financial Officer

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