ILLINOIS POLLUTION CONTROL BOARD
September
15,
1993
IN THE MATTER OF:
)
R93—l0
RCRA
SUBTITLE D AMENDMENTS
)
(Identical
in Substance Rule)
(AMENDMENTS TO 35 ILL. ADM.
)
CODE PART 810,
PART 811,
)
AND
PART
814)
)
Adopted Rule.
Final Order.
OPINION OF THE BOARD
(by J. Anderson):
SUMMARY OF TODAY’S ACTION’
The Board today adopts,
in accordance with Section 7.2 of
the Environmental Protection Act
(Act), amendments to the Board’s
existing nonhazardous solid waste landfill regulations that are
identical
in substance to USEPA’s Subtitle D regulations
contained in 40 CFR 258
(1992)
(Subtitle D regulations or
Subtitle
D)2.
USEPA’s Subtitle D regulations implement Sections
4004 and 4010 of the Resource Conservation and Recovery Act
(RCRA)
of 1976
(P.L. 94—580,
codified as 42 U.S.C. para.
6944
&
6950)
‘In the Illinois Environmental Protection Act,
the Board
is
charged
to
“determine,
define
and
implement
the
environmental
control standards
applicable
in the State
of Illinois”
(415 ILCS
5/5(b)).
More generally, the Board’s rulemaking charge is based on
the
system
of
checks
and
balances
integral
to
Illinois
environmental governance:
the Board bears responsibility for the
rulemaking
and
principal
adjudicatory
functions,
whereas
the
Illinois Environmental Protection Agency
(Agency)
is responsible
for carrying out the principal administrative duties.
The latter’s
duties
include
administering
any
regulation
that may stem
from
today’s action.
2The
Board
expresses
its
appreciation
to
Anand
Rao
of
the
Board’s
technical
support
staff
for
his
special
assistance
in
drafting the opinion and crafting the order so as to blend the RCRA
Subtitle D language into the Board’s existing landfill regulations.
The Board also appreciates the assistance of Board attorney Michael
NcCambridge
for
his
assistance
in
drafting
and
formatting
the
opinion and order, particularly
as regards financial assurance.
2
The Board adopts these identical
in substance amendments as
mandated pursuant to Section 22.40(a) of the Act3, which provides
in pertinent part:
Where the federal regulations authorize the State to
adopt alternative standards,
schedules,
or procedures
to the standards,
schedules,
or procedures contained in
the federal regulations,
the Board may
....
retain
existing Board rules that establish alternative
standards,
schedules,
or procedures that are not
inconsistent with the federal regulations.
The instant amendments are contained in the Board’s nonhazardous
solid waste landfill regulations at 35 Ill.
AdIn. Code
810,
811,
and 814.
The text of the adopted rules appears
in a separate
order,
adopted this same day.
As is customary in identical
in
substance rulemakings,
the Board is providing for a post-adoption
comment period of 15 days,
to allow for review, particularly by
those involved in the federal authorization process, prior to
filing with the Secretary of State.
Section 22.40(a) provides that there be quick adoption of
the federal Subtitle D landfill regulations,
and that Title VII
of the Act and Section
5 of the Administrative Procedure Act
(APA)
(5 ILCS 100/5-1
et seq.)
shall not apply.
Because this
rulemaking
is not subject to Section
5 of the APA,
it is not
subject to First Notice and Second Notice review by the Joint
Committee on Administrative Rules
(JCAR)4.
The Board
nevertheless appreciates JCAR’s comments during the 45-day public
comment period
in any identical
in substance proceeding.
Today’s amendments correspond to USEPA’s regulatory program
concerning municipal solid waste landfills
(NSWLFs).
MSWLFs fall
under the putrescible waste landfill category of the Board
regulations.
The Board’s landfill regulations also regulate
chemical and inert waste landfills, which are not affected by
these amendments.
The~adoptedamendments prescribe additional
requirements
for MSWLF units concerning location,
facility
3This past
July,
the
Illinois General Assembly,
in HB
300,
adopted a number of amendments, among them the addition to the Act
of new Section
22.40.
These amendments were signed
into law on
September
13,
1993 as Public Act 88—496,
effective immediately.
4The
Board notes that non-identical
in substance
amendments
cannot be considered
in this rulemaking.
Such amendments must be
adopted
in
a
“regular’~ rulemaking proceeding
in
accordance with
Title
VII
of
the
Act
and
Section
5
of
the
APA.
See
Section
22.40(b).
Identical
in substance rulemaking constraints are more
fully discussed in this opinion.
3
design,
operation,
groundwater monitoring,
closure and
postclosure care,
and financial assurance.
BACKGROUND
Prior
to discussing the substantive aspects of today’s
regulations,
the regulatory history and the approach taken by the
Board in adopting the federal rules is discussed below.
RCRA Subtitle
D Program
On October
9,
1991,
the USEPA promulgated the final
municipal solid waste landfill regulations pursuant to the
requirements of the Resource Conservation and Recovery Act of
1976
(P.L.
94—580, codified as 42 U.S.C
§5
6944
&
6950)
(Subtitle
D landfill regulations).
Section 4005(c) (1) of RCRA requires all
RCP.A
authorized states,
including Illinois,
to adopt and
implement a permit program or other system of approval that
complies with the performance standards of the Subtitle D
regulations.
The Subtitle D regulations provide flexibility to
the states in choosing any design standards that will secure
compliance with the federal rule’s performance standards.
Within
two years of the effective date of the Subtitle D regulations,
i.e. October
9,
1993~, the states are required to seek a
determination by the USEPA that their state programs comply with
the minimum standards of the Subtitle D regulations.
The Subtitle D regulations prescribe minimum standards for
municipal solid waste landfill
(MSWLF)
units including:
location
restrictions; facility design and operating criteria; and
requirements for groundwater monitoring,
corrective action,
closure and
postclosure care,
and financial assurance.
The
regulations establish differing requirements for existing and new
units.
Regulatory Format
The Board has chosen to weave the Subtitle D amendments
directly into its existing landfill regulations,
rather than
treating the Subtitle D amendments as
a separate “add—on” with
back-and-forth cross-references.
This chosen approach most
clearly identifies both
a) where the existing, not inconsistent,
5The USEPA has proposed amendments at 40 CFR 258
(58 FR 40568,
July
28,
1993)
that extend the compliance dates for certain small
landfills
and
also
delay
the
effective
date
of
the
financial
assurance
requirements.
The
implications
of
the
proposed
extensions
on the Board’s instant regulations are discussed later
in this opinion.
4
Board requirements apply to MSWLF units,
and b) where the new
federal requirements apply to MSWLF units.
We note that the comprehensive standards in the Board’s
existing nonhazardous solid waste landfill regulations address
all elements covered by the Subtitle D regulations.
Moreover,
extensive changes are not required,
in that the existing Board
landfill regulations in large measure are not inconsistent with
the Subtitle
D requirements.
The Board’s regulations are found
at 35
Ill.
Adm.
Code 807 and 810 through 815.
Among the
significant requirements are:
Interrelated systems of checks and balances to control
transport of contaminants, including a stringent groundwater
assessment program;
Liners of compacted earth, or compacted earth and
geomembrane;
Leachate collection systems;
State of the art leachate treatment and disposal
requirements;
Landfill gas monitoring and xnanagement~
Detailed construction and operating oversight requirements;
Postclosure care for as many years as
is necessary at each
landfill to demonstrate that contamination is no longer a
problem;
A groundwater monitoring system designed to quickly detect
potential problems, and to trigger prompt remedial action
where indicated;
Built-in provisions to avoid sensitive areas ranging from
airports to nature preserves;
More intensive permitting and reporting requirements; and
Phase-out of existing landfills timed to the level of
compliance with the new regulations.
Finally, we believe that this approach will minimize
administrative and interpretive difficulties for the Illinois
Environmental Protection Agency
(Agency)
and the regulated
community alike.
5
Identical
in Substance Constraints
As
it does with all
of its determinations where identical in
substance rulemakings have been mandated,
the Board has followed
the provisions
in Section 7.2 of the Act, which articulate what
constitutes “identical in substance”.
Such mandated rulemakings,
as is the case here,
usually flow from a State legislative
statement of intent and directive to do what
is necessary to
secure federal approval of
a program.
The RCRA Subtitle D
legislative statement
(as well as that for
RCRA
Subtitle
C)
is
found
in Section 20(a)
of the Act.
We emphasize that the Board is not authorized in this type
of proceeding to review the substantive merits p~ ~
of the
federal regulations or, for that matter,
of the existing Board
regulations.
All of the Board’s earlier regulations adopted on
the merits pursuant to its “regular” procedures under Title VII
of the Act and Section
5 of the APA
-
including those that are
more stringent
—
remain,
as long as there
is not
a problem of
inconsistency.
In like manner,
the Board would not use
a
“regular” rulemaking to itself review the merits of federally—
derived provisions,
where merits have already been pre—determined
by the USEPA and the Board
is mandated to adopt them anyway.
We
do,
however, attempt to amend the federal/state language for
clarity of intent and compatibility with Illinois administrative
law.
Several of the commenters either asked the Board to visit
the merits of the federal rules themselves or to amend more
stringent Illinois requirements.
Those comments requested that
the Board improve the regulations for one technical reason or
another,
but they did not provide the stringency-consistency
rationale for such a change.
The Board has declined to make
these changes.
Without the justification that the pre-existing
Illinois regulation is inconsistent with the federal regulations,
we lack the authority to amend the rules using the identical
in
substance procedures.
In examining these comments, however, we noted that several
of the comments might potentially produce useful changes in the
existing Illinois landfill rules.
Since such changes are
certainly within the scope of our general rulemaking authority
under Title VII of the Act, we would suggest that any person
wanting to have the Board make those changes should file an
appropriate rulemaking petition in a separate docket.
In that
way the Board may use the Title VII rulemaking procedure for
making those changes.
Equivalency Determination and the Agency’s Application
At the outset,
the Board notes that it has attempted to make
the instant amendments consistent with the equivalency
6
determination made by the Agency as part of its application to
the USEPA.
The Agency filed
its solid waste management permit
program application with the USEPA for determination of adequacy,
pursuant to Section 4005(c)
of Subtitle D of RCRA,
on March 31,
1993
(PC #1).
A significant portion of the application consists
of a demonstration of compliance of the Board’s existing landfill
regulations with the Subtitle D regulations.
The demonstration
includes a detailed section—by—section evaluation of the Subtitle
D regulations and the corresponding requirements in the Board’s
existing nonhazardous solid waste landfill regulations.
The
Agency’s analysis shows that the Board’s existing regulations are
substantially equivalent to the Subtitle D regulations contained
in 40 CFR 258.
However,
the analysis identified a number of
deficiencies in the Board’s existing nonhazardous solid waste
landfill regulations.
The deficiencies were minor in nature,
except for a few items such as interpretation of existing
units/lateral expansions,
corrective action procedures,
and
financial assurance requirements.
The Board addressed the deficiencies identified by the
Agency in the proposal for public comments adopted on May 20,
1993.
Since then,
the Agency’s comments
(PC #9) indicate that
other deficiencies have come to light upon the USEPA’s review of
the Agency’s application.
The Board has made changes
in today’s
regulations to address these shortcomings.
As noted in the May 20 proposed opinion,
the Board relied
significantly on the Agency’s application in this rulemaking.
The Board does not discuss the details of the equivalency
determination in this opinion.
Instead, the Board has
incorporated the Agency’s application by reference.
We note that
the Agency’s application was marked as Public Comment #1
(PC #1).
The Board will limit
its discussion to the major issues raised by
the public comments regarding the proposed amendments,
and the
actual changes in today’s rules.
FEDERAL ACTIONS COVERED BY THIS
RULEMAKING
The
RCRA
Subtitle
D regulations were drawn from 40 CFR 258
(1992)
(Solid waste disposal facility criteria).
The following
USEPA actions are covered in this rulemaking:
56
Fed. Reg.
50978,
October 9,
1991
(Subtitle D
Regulations)
57 Fed.
Reg.
28626,
June 26,
1992
(Subtitle D
Regulations:
corrections)
58 Fed. Reg.
___________________
(Extension of
Compliance dates)
7
PERMITTING SCHEME
Under the instant regulations,
the MSWLFs will be regulated
as
a subset of the putrescible waste landfill category.
The
NSWLF units will be subject to putrescible waste landfill
requirements,
and the additional requirements adopted pursuant to
this rulemaking.
The framework for regulating the nonhazardous
landfills will remain the same,
i.e.
new MSWLFs will be subject
to the requirements of Part 811 and existing MSWLFs and lateral
expansions will be subject to the requirements of Part 814.
Further, MSWLF units will be subject to the informational
requirements of Part 812 and the permitting requirements of Part
813.
The Subtitle D regulations require the State to implement a
permit program to regulate all MSWLFs,
including on-site
facilities, which were exempted from the landfill permit program
pursuant to Section 21
(d)
of the Act.
The legislative
amendments
(HB 300)
at Sections 21(d),
21(t),
22.42, and 22.43 of
the Act provide for the implementation of the permit requirements
applicable to NSWLFs.
The statutory changes are reflected in
proposed amendments to Part 814 relating to the permit
requirements for MSWLF units.
The permitting procedures under
the instant proposal are explained below.
Permitting Requirements for New MSWLF Units
In the case of new MSWLFs, the owner or operator, prior to
waste disposal, will have to comply with all the requirements of
Part 811 and obtain a permit in accordance with Parts 812 and
813.
Permitting Requirements for Existing MSWLF Units
The implementation of the permit program in the case of
existing units
is more complicated due to the existing transition
rules
of Part 814.
The Board’s existing regulations at Sections
814.104 allow the owners or operators of existing facilities
until September,
1994 to file an application for a permit
modification,
unless the Agency notifies the owners or operators
to file the application at an earlier date.
Such facilities are
allowed to operate under their Part 807 permit until the approval
of the permit modifications under Part 814.
Thus,
a facility may
continue operation under a Part 807 permit until September 1994
and still
be in compliance with Part 814.
In order to bring existing MSWLFs under compliance with the
permitting requirements of the Subtitle D Regulations before
October
9,
1993,
the Act was amended to include
a new section
(Section 22.42)
dealing with the interim permit requirements for
existing MSWLF units.
Section 22.42 requires the owners or
operators of all existing MSWLF units to submit
a written
8
application to the Agency for a permit
(if no permit has been
issued
for the MSWLF unit under Section
21(d)
of the Act6)
or a
permit modification
(if a permit has been issued under Section
21(d)
of the Act.
Such applications must be filed within 30 days
of the effective date of Public Act 88-496,
or September 1,
1993,
whichever occurs
first.
The owners or operators who file such
applications are deemed to have an interim permit on October
9,
1993 or 30 days after the Agency receives the application,
whichever occurs first.
Section 22.42 allows the Agency to impose conditions to
ensure compliance with the requirements of the MSWLF interim
rules of Section 22.41 of the Act.
The interim regulations are
essentially a combination of the most stringent requirements of
the Subtitle D Regulations and the Board regulations, which
ensures the compliance of the state program with the Subtitle D
Regulations.
The Board notes that these interim rules will take
effect on the effective date of Public Act 88-496.
The statutory
interim “rules” will expire and be replaced by the Board
regulations when:
(i)
the State receives full approval of its
MSWLF program by the USEPA; and
(ii)
the rules adopted by the
Board
in the instant rulemaking have been reviewed and authorized
by the USEPA.
Also,
according to Section 22.42,
no interim permit or
interim permit modification is deemed issued if the Agency
provides a written notification that the application is
incomplete or the applicant must file an application for a
lateral expansion.
The Board notes that the deemed issued
permits are intended mainly to ensure compliance with the
Subtitle D Regulations.
The owners or operators of existing
MSWLF units are still required to submit applications for
significant modification of their permits in accordance with
Section 814.104 by September
9,
1994.
Finally,
Section 22.42 sets forth the terms for the
termination of the interim permits.
Permitting Requirements for Lateral Expansions
Section 21(t)
of the Act prohibits a lateral expansion of a
MSWLF unit on or after October
9,
1993 without a permit
modification granted by the Agency.
The statutes do not
prescribe any specific permitting requirements for lat-eral
expansions other than granting authority to the Agency to issue
such permit modifications
(Section 22.43 of the Act).
Also,
the
Board notes that the interim permit requirements of Section 22.42
do not apply to lateral expansions.
Since for the most part,
6Refers
to
the
landfills
that have
been operating
without
permits under prior exemptions.
9
lateral expansions are treated as new MSWLF units under the
Subtitle D Regulations, the Board has proposed permit
modification requirements at Section 814.109.
Section 814.109 requires owners or operators
of MSWLFs
seeking lateral expansions after October
9,
1993 to file an
application for a permit modification with the Agency.
The
permit application must comply with the requirements and
procedures of Parts 811 and 812.
The owners or operators may
begin lateral expansion of
a MSWLF unit only upon the Agency’s
approval of the permit modification pursuant to the procedures of
Part 813.
PUBLIC COMMENTS
The Board started the “public comment” phase of this
rulemaking by adopting the proposal for public comments on May
20,
1993.
The following public comments
(PC)
relating to the
instant rulemaking were received by the Board:
PC #1
Illinois Environmental Protection Agency’s solid
waste management permit program application
submitted to the USEPA for determination of
adequacy, pursuant to Section 4005(c)
of Subtitle
D of RCRA on March 31,
1993
PC #2
Department of Commerce and Community Affairs
PC #3
Browning—Ferris Industries,
Midwest Region
(BFI)
PC #4
Village of Winnetka
(Winnetka)
PC #5
Waste Management,
Inc.
(WMI)
PC
#6
Envirometrics
& Statistics Limited
(EnviroStat),
on behalf
of Laidlaw Waste Systems
PC #7
Secretary of State
(Code Unit)
PC #8
USEPA, Region
5,
Solid Waste Section (USEPA)
PC #9
Illinois Environmental Protection Agency7 (Agency)
PC #10
Agency’s revised application submitted to the
USEPA on August 27,
1993 for
a Determination of
RCRA Subtitle D Program Adequacy.
The Board notes that seven of the ten public comments
(PC #3
through #9) were filed
in response to the Board’s proposal for
public comments.
The Board extends its appreciation to all
commenters for their thoughtful contributions to today’s
~ All of
the public comments were
filed
prior
to August
2,
1993,
the
general
close
of
the
comment
period,
except
for the
Agency’s filing on August 16, 1993.
The Agency had been granted a
filing extension by Board order
of August
5,
1993
in response to
the Agency’s plea that its comment had been delayed by the need for
its personnel to respond to issues arising out of the record summer
floods
of
1993.
10
considerations of the law that underpins Subtitle D to
recommendations concerning the form and content of specific
provisions of the Illinois solid waste regulations.
The Board has reviewed in detail all of the public comments.
In responding to these, the Board today makes a number of changes
in the amendments as originally presented in the proposal for
public comment.
First, the Board will discuss the major issues
relating to the compliance dates and the existing NSWLF
standards.
All other changes are discussed under the following
Section-by—Section commentary.
There are also
a number of changes offered in the public
comments that we cannot address
in this identical in substance
rulemaking,
as explained earlier in this opinion.
The largest
class of these consists of proposals that would modify the
existing landfill regulations in manners not identical
in
substance to Subtitle D.
MAJOR ISSUES
USEPA’s Proposed Extension of Compliance Dates
The Agency and Winnetka called to the Board’s attention the
USEPA’s proposal to amend several Subtitle D compliance dates
contained in 40 CFR 258
(1992).
(PC #9 at
2 and PC #4 at
1.)
The Board notes that the USEPA’s proposed rule was published in
the Federal Register on July 28,
1993
(58 FR 40568).
The USEPA’s
proposed amendments that affect the instant regulations include
the following:
a)
Extension of the effective date of the Subtitle D
regulations for a period of six months from October
9,
1993 to April
9,
1994 for certain small MSWLF units,
if
certain specific conditions are mets.
b)
Extension of the effective date of the financial
assurance requirements from April
9,
1994 to April
9,
1995 for all NSWLF units.
The Agency states that,
if the USEPA’s proposal becomes
final,
as proposed,
the problem of accommodating the federal
revisions in the state program will be complicated by the
~The conditions are:
(1) the unit receives less than 100 tons
of per day
of waste for disposal;
(ii)
the unit
is
located in
a
state that has submitted an application for program approval to the
USEPA by October
9,
1993 or
is located on tribal lands; and
(iii)
the unit is not currently listed on the Superfund National Priority
List
(NPL).
11
provisions of the of the State legislation
(HB 300),
now Public
Act 88-496.
(PC #9
at 2—3.)
The Agency notes that several
provisions of Public Act 88-496 contain compliance dates
reflecting the dates contained in the existing Part 40 CFR 258
(1992)
The Board adopts USEPA’s proposed revision of the compliance
dates
in today’s rules
in anticipation of the need to be
identical in substance to the USEPA’s regulations.
In this
regard, the Board notes that Section 22.40(a) of the Act mandates
the Board to adopt regulations that are identical in substance to
the federal regulations or amendments of such regulations
promulgated by the USEPA to implement Sections 4004 and 4010 of
RCRA as those regulations relate to the MSWLF program.
The Board
anticipates that the USEPA’s proposal will become effective
before the end of the post-adoption comment period of the instant
regulations.
If not,
or if there are any changes
in the final
USEPA version, the Board will make appropriate changes to its
regulations before filing the same with the Secretary of State.
The Board notes that its actions concerning the compliance
dates appear consistent with the intent of the legislature to
mirror the federal mandates only as necessary to receive federal
authorization.
The Board believes that the existing statutory
compliance dates were not intended to cause the state program to
be more stringent than the federal program would require9.
9We
note
that
the
legislative
debate
in
the
House
before
passage of what was then HB 299
(later HB 300)
indicates that the
intent was that the legislative compliance requirements were added
strictly to respond to the Subtitle
D federal mandate; e.g.,
the
following statements were made by Representative Novak:
“....
it’s going to be concerned with Subtitle D, which
is
a
new
federal
mandate
concerning
the
solid
waste
management
industry.
We’re
going
to
be working
out
language to
the
agreement as soon
as we get over to the Senate,
we want to
keep it alive”
(State of Illinois, 88th General Assembly, House of Representatives
transcription debate, August 23,
1993)
Also, during the Senate debate on then—HB 300, sponsor Senator
Mahar specifically addressed why the October
9,
1993 deadline was
included:
“Federal
Subtitle
D
requirements
will
become
effective
on
October the 9th of this year. Facilities in states that do not
have federally approved program by October the 9th must comply
with the inflexible federal program;...”
12
Applicable Standards for Existing Units and Lateral Expansions
The Agency’s comments express concern regarding the proposed
requirements for existing MSWLF units and lateral expansions
under Part 814.
Specifically, the Agency’s concerns relate to
the permit requirements and the applicable standards.
The Agency
notes that the proposed amendment to Section 814.102 would
require all existing MSWLF units and lateral expansions to come
into compliance with the applic~.blestandards of Part 814 by
October
9,
1993.
(PC #9 at 36.)
The Agency contends that
Section 814.102 would require existing facilities to comply not
only with the Subtitle D criteria by October 9,
1993,
but also
with the more stringent Illinois requirements that would not have
been required until the completion of significant modifications
in accordance with Section 8l4.l04’°. The Agency states that the
proposed compliance requirements under Section 814.102 would
place a substantially greater burden than necessary on existing
MSWLF units operating under a permit issued pursuant to Part 807.
(PC #9 at 37.)
The Agency’s comments also voice concern regarding the
proposed permit modification requirements for lateral expansion
at Section 814.108.
The Agency notes that the regulations must
provide for the continued recognition of lateral expansion since
applications for lateral expansions may be submitted after the
expiration of the statutory interim period.
However, the Agency
maintains that it is unnecessary for such applications to be
reviewed under the existing significant modification procedures,
as proposed by the Board.
The Agency suggests that the proposed
review procedure be replaced with
a much more limited review,
primarily of the design criteria.
(PC #9 at 45.)
Finally, the
Agency suggests the addition of a new section containing
standards that are applicable to lateral expansions at units
operating under permits issued pursuant to Part 807 until such
permits are modified in accordance with Part 814.
(PC #9 at 45-
46.)
The Board has made
a number of changes
in today’s
regulations under Section 814.Subpart A in order to address the
Agency’s concerns and clarify the applicable requirements for the
existing MSWLF units and lateral expansions.
The Board has
(State of Illinois,
88th General Assembly, Regular Session Senate
Transcript
(first proof), July 13,
1993.)
~
Board’s
nonhazardous
landfill
regulations
require
existing landfills operating under permits issued pursuant to Part
807 to come into compliance with Part 814 standards by applying for
a
significant
modification
of
the
Part
807
permits.
The
regulations
allow
such landfills until
September
1994
to file
an
application for
significant modification.
13
amended Section 814.101 to clarify the applicable standards for
existing NSWLF units and lateral expansions based on the current
status of such units
in terms of their operating permits.
An existing MSWLF unit operating under
a permit modified
pursuant to Part 814
or an existing unit that is newly required
to obtain a permit under Section
21(d)
of the Act is required to
comply with the applicable standards of Subpart C or D of Part
814, which include the additional requirements relating to
existing MSWLF units and lateral expansions.
Similarly, an
existing unit operating under
a permit issued pursuant to Part
813
is required to comply with the standards of Part 811,
as
amended in this rulemaking.
An existing MSWLF unit operating
under a permit issued pursuant Part 807
is required to comply
with the terms of its permit and the more stringent requirements
of the Subtitle D regulations.
The Subtitle D requirements applicable to the existing units
operating under Part 807 permits are prescribed in an appendix to
Part 814
(Section 814.Appendix A).
These requirements mirror the
interim permit requirements
(PC #10) specified by the Agency
pursuant to Section 22.42
of the Act.
The Board chose this
approach to address the existing MSWLF units operating under Part
807 permits in order to maintain continuity with the Agency’s
action during the interim period, which expires upon the approval
of the instant regulations by the USEPA.
Regarding the Agency’s concern relating to the review
process of the permit modification applications, the Board notes
that it is reluctant to prescribe any limited review criteria at
this time.
Further, the Agency’s comments do not provide
adequate guidance to craft specific review criteria for permit
modifications for lateral expansions.
However,
in today’s
regulations the Board has amended the permit modification
requirements for lateral expansions to clarify the informational
requirements.
The amended requirements are specified in section
814.109
(previously numbered as 814.108).
Today’s amendments essentially require an owner or operator
of an existing MSWLF unit seeking a lateral expansion to obtain a
permit modification prior to such expansion.
Section 814.109
clearly specifies the informational requirements for a permit
modification application based on the current status of the
existing units
in terms of their operating permits.
Only
information required to demonstrate compliance with the
additional requirements prescribed for MSWLF would be required
under the instant regulations.
The Board envisions that the
informational requirements
for existing units operating under
permits issued pursuant to Part 813 or Part 814 will be minimal,
since most of the information would have been submitted to the
Agency along with the application
for a new permit or a
significant modification of
an existing permit.
14
Finally,
the Board notes that the instant regulations under
Part 814 include
a new section that specifies the compliance
dates for existing MSWLF units.
As discussed above,
the
compliance dates specified in Section 814.107 reflect the revised
effective dates proposed by the USEPA
in the Federal Register
published on July 28,
1993.
Agency or Board Action?
The Board had requested comments regarding certain specific
requirements applicable to MSWLF units that require Agency
determination, as proposed.
Specifically, the Board wanted to
know whether the Agency determination required by subsections
811.110(e)
and
(f), 811.111(d) (3), and 811.303(d) might be
addressed through a variance,
provisional variance,
or an
adjusted standard proceeding.
These requirements specify
conditions for extension of closure schedule, cover disturbance,
and postclosure care period.
The Agency has stated that the
determinations identified by the Board are appropriate subjects
for permit applications and review pursuant to Part 813, Subpart
B.
(PC #9 at
2.)
The Agency maintains that if an applicant
disagrees with the Agency’s decision, the appeal mechanism is
available for resolution.
WMI’s comments also note that the
Agency determination is more appropriate when it comes to
extension of closure schedule and cover disturbance.
However,
regarding the reduction of postclosure care period itself,
WMI
states that the Board must make such decisions under an adjusted
standard procedure due to the financial implications, and the
need for consistent determination.
(PC #5 at
5.)
The Board notes that its main concern regarding the
determinations identified above is the lack of adequate guidance
for the Agency to evaluate the required demonstrations.
The
Board notes that the federal Subtitle
D criterion included in the
above requirements
is nebulous.
Essentially, the federal
language requires an owner or operator to demonstrate that the
deviations from the applicable requirements relating to the
closure requirements and postclosure care period are “sufficient
to protect human health and environment.”
However, the Board
notes that it will retain the federal standard
in the instant
regulations without specifying any additional criteria,
since
today’s rulemaking involves an identical
in substance regulation.
Regarding the appropriate procedure for addressing changes~
from the closure schedule and postclosure care period,
the Board
agrees,
in part, with WMI’s comments.
The Board believes that
the implementation of closure schedule and cover disturbance
during postclosure can be handled through permit modifications.
However,
regarding the postclosure care period, the Board
concludes that an adjusted standard procedure must be used only
if
an operator seeks an over-all reduction of the postclosure
15
care periodH.
The Board believes that reduction of individual
elements of postclosure care monitoring requirements may be
handled through permit modification.
The Board notes that this
approach ensures Board’s oversight in making decisions regarding
the over-all postclosure activities of
a MSWLF unit.
At the same
time,
it allows the Agency to make determinations regarding the
individual elements of postclosure care.
In this regard, the
Board notes that an Agency determination is appealable to the
Board.
The changes to Section 811.303 are discussed later under
the Section-by-Section discussion.
Groundwater Impact Assessment
(Section 811.317)
The Agency recommended the inclusion of allowable levels
specified in 40 CFR 258.Table
1 for certain constituents as the
applicable standards for groundwater impact assessment.
The
Agency’s comments note that although the applicable groundwater
quality standards in the Board’s existing regulations are at
least as stringent as current MCLs,
they are less stringent than
the values of 40 CFR 258.Table
1 for five constituents: barium;
chromium (hexavalent); endrin; selenium; and 2,4,5—
trichlorophenoxy acetic acid.
(PC #9 at 4-5.)
The Board notes that the federal regulations at 40 CFR
258.40(a) prescribe a performance standard, which requires the
liner design to ensure that the Table
1
levels’2 are not exceeded
at the compliance point.
This performance standard is similar to
the groundwater impact assessment requirement at Section 811.317.
The groundwater impact assessment requires an operator to utilize
a groundwater contaminant transport model and show that the
concentrations of all constituents of leachate are less than the
applicable groundwater quality standards of Section 811.320 at
the zone of attenuation~3(compliance point).
The applicable groundwater quality standards are the
background concentrations of the monitored constituents.
“Over—all reduction of the postclosure care period involves
the
reduction
of
monitoring
period
relating
to
inspection
and
maintenance,
leachate collection,
gas monitoring,
and groundwater
monitoring.
~24OCFR 258.Table
1 includes all those compounds for which the
USEPA
had
established
maximum contaminant
levels
(MCLs)
as
of
October
9,
1991.
‘3The
zone of attenuation
is
a volume bounded by
a vertical
plane
at the property boundary
or
100 feet from the edge
of the
unit,
whichever is
less,
extending from the ground surface to the
bottom of the uppermost aquifer and excluding the volume occupied
by the waste.
16
Further,
Section 811.320 requires the groundwater quality to be
maintained at each constituent’s background concentrations at or
beyond the zone of attenuation for
a period of 100 years after
closure of the last unit accepting waste within
a landfill
facility.
The Section 811.320 standard
is based on the concept
of “nondegradation” and requires the application of statistical
methods and procedures to ensure that increases above an
established standard are shown to be statistically significant
increases.
The Board notes that
it
is not clear from the Agency’s
comments as to why the Agency is referring to the Illinois
standards as “MCLs,” and comparing the current MCLs with the 40
CFR 258.Table
1 values.
(PC #9 at 4-5.)
The “MCLs” are not the
applicable standards under the Board’s existing landfill rules.
Part 811 requires the applicable groundwater quality standards to
be established on
a site—specific basis based on the background
concentrations of the monitored constituents.
In this regard,
the Board notes that the groundwater quality standards at 35
Ill.
Adin.
Code 620.301(d)’4 recognize the nondegradation standards
promulgated by the Board for landfill facilities.
The Board notes that in evaluating the adequacy of the Board
regulations, the Agency must consider the existing nondegradation
standards based on the background concentrations,
and not the
state NCLs.
In this regard,
the Board believes that the existing
standards applicable to landfills at Section 811.320 are more
stringent: than the federal levels specified in 40 CFR258.Table
1,
since the nondegradation standard does not permit
contamination up to an MCL.
Also,
the Board notes that it has no
authority under the identical in substance mandate to change or
modify more stringent state requirements.
In view of this,
the
Board will not make any changes to include the Table
1 values for
specific constituents,
as suggested by the Agency.
Financial Assurance Requirements
The Agency submitted numerous comments on the financial
assurance requirements.
A number of the Agency comments prompted
a number of changes to the text of the proposal for public
comment.
Other of the Agency comments relate to changes the
Agency desires that are beyond the scope of this rulemaking.
Since the structure of the landfill regulations and the nature of
the Agency’s comments would otherwise lead to burdensome
repetition if discussed on
a Section-by-Section basis,
the Board
‘4The groundwater quality standards under 35 Ill. Adm. Code 620
prescribe
numerical
standards
based
on
federal
“MCLs”
for
the
State’s groundwaters classified as potable resource groundwater or
Class
I groundwater.
However,
in the case of nonhazardous waste
landfills,
the more stringent nondegradation standard controls.
17
will deal with the comments on a topical basis before the
Section—by-Section analysis.
The first major group of Agency comments suggest
incorporating corrective action into the financial assurance
requirements.
Key among these is that the Board failed to
include revisions to various of the financial assurance forms of
Appendices A through
I
in the proposal for public comment.
The
Board has made a number of revisions
in the text based on these
comments, but for various reasons,
we have not followed all the
Agency—recommended language.
Prescribed Cost of Living Adjustments:
The Agency recommended the addition at Section 811.701(c)
of
a prescribed format for owners and operators to adjust closure,
post—closure care,
and corrective action plan cost estimates for
increases in the cost of living.
Basically, the Agency would
have the Board require the owner or operator to make the
adjustments at a fixed time before the anniversary date of the
establishment of the financial assurance instrument.
The Agency
would also have the Board impose a specific index for the
adjustments.
Section 258.71(a) (1) requires an owner or operator to
“annually adjust the closure cost estimate for inflation”.
Similarly, Section 258.72(a) (2) requires an adjustment for
inflation to the postclosure care cost estimate and Section
258.73(a) (1) requires such an adjustment to the corrective action
cost estimate in similar terms.
The Board followed the federal
language at Sections 811.104(k) (2)
and 811.705(d), requiring
annual adjustments based on inflation.
Essentially, the Agency-recommended provision adds
requirements not included in the federal rules.
Without
addressing the merits of the Agency’s recommended language, the
Board concludes that this suggestion is beyond the scope of this
proceeding.
Exclusion of
MSWLF
Cost Estimate from Reduction to Present
Value:
The Agency recommends that the Board exclude the cost
estimates for MSWLF units from the Section 811.704(g) (2)
provision that allows for a reduction of.the post—closure care
estimate to present value.
40 CFR 258.72 does not allow such
a
reduction to present value.
Instead,
section 258.72
is
structured in such a way that closure and the commencement of
post—closure care
is possible at any time during the operating
life of the unit.
The Agency
is correct,
and the Board has added
“Except to a MSWLF unit” to the beginning of the subsection
(g)
preamble.
18
Submittal of Financial Assurance Estimates to the Agency:
The Agency
has requested that the Board amend Section
811.704(k) (1)
so that owner or operator must include any revision
of the corrective action cost estimate in an application for
significant modification and submit
it to the Agency.
The Agency
states that the proposed provision that would require an owner or
operator to notify the Agency that the estimate for corrective
action has been placed
in the operating record is insufficient.
The Board followed the federal requirements in drafting the
proposal for public comments.
Sections 258.71(a),
258.72(a),
and
258.73(a) require placement of the revised closure, post—closure
care, and corrective action cost estimates in the operating
record and notice of the placements to the state.
The additional
actions requested by the Agency go beyond the basic federal
requirements, and the Agency has provided nothing that would help
the Board conclude that they would not go beyond the scope of the
proceeding.
Requirements for Entities Providing Financial Assurance:
The Agency notes that the federal regulations require at
sections 258.74(a)(1),
(c)(1),
and
(d)(l) that a person providing
financial assurance by acting as trustee, issuing a letter of
credit or issuing a policy of insurance must be regulated and
examined by a federal or state agency.
The original Illinois
landfill regulations require at Section 811.710 that a person
acting as a trustee be subject to examination under the Illinois
Banking Act and comply with the Corporate Fiduciary Act.
The
rules require at Section 811.713(b)
that a person issuing a
letter of credit be regulated by the Commissioner of Banks and
Trust Companies
(under the Illinois Banking Act)
and be insured
by the Federal Deposit Insurance Corporation or the Federal
Savings and Loan Insurance Corporation.
Similarly,
an insurer
must be regulated under the Illinois Insurance Code.
To the extent the Illinois regulations specify the persons
who must regulate the trustee,
issuer of a letter
of credit, or
the insurer, without more the Board perceives that the Illinois
regulations go beyond the scope of the federal regulations.
Without regard to the Agency’s assertions that most Illinois
sites have provided financial assurance that does not comply with
the requirement, the Board cannot amend these provisions
in the
way requested without a proposal from the Agency that would
initiate
a “regular” rulemaking on the merits.
In examining the text of the financial assurance
requirements to address these Agency comments,
the Board observed
a number of Illinois Administrative Code format corrections that
are necessary.
The Board corrects the citations at Sections
811.710(b),
811.711(b),
811.712(b),
811.713(b),
and 811.714(b)
to
19
include both the citations to the Illinois Revised Statutes and
the Illinois Compiled Statutes.
The Board repeats certain of the
citations in second appearances
in subsequent Sections because we
believe this adds clarity and avoids back—searching the text to a
previous Section for the citation.
Examination of the text revealed another problem with the
proposed text that the Agency did not mention in its comments.
40 CFR 258.74(b) (1)
very specifically requires that a person
issuing a surety bond must be among those listed as acceptable
sureties in U.S. Department of the Treasury Circular 570.
The
Board believes that we must add this more stringent minimum
federal requirement to Sections 811.712(b)
and 811.713(b).
To
avoid problems of incorporation by reference of Circular 570,
the
Board renders the requirement as approval as an acceptable
surety.
We indicate the fact that the Department of the Treasury
lists the acceptable sureties in Circular 570.
Addition of “Corrective Action” to Various Provisions:
The Agency suggests that the Board add references to
corrective action at various segments of the financial assurance
provisions.
We did so in many locations in the proposal for
public comment.
We now add such references at Sections
811.710(h),
811.711(e),
811.712(e), and 811.713(e)
for trusts,
letters of credit and surety bonds.
The federal rules allow each
of these mechanisms for corrective action cost financial
assurance.
We did not similarly add such references as suggested
at Sections 811.714 and 811.715 because careful examination of
federal section 258.74(d)
indicates that USEPA does not expressly
allow insurance for corrective action cost financial assurance.
The effect of many of these added references to corrective
action is to provide for reimbursement to the Agency for the
owner or operator’s failure to undertake and complete corrective
action.
The Agency proposed an alternative structure for these
provisions, which essentially repeated in parallel the language
for closure and post—closure care cost reimbursement, but the
Board felt that a simpler structure was possible by merely adding
these references without repeating blocks of very similar
language.
The Board has added the only condition not repeated,
at Sections 811.711(e) (2) (E)
,
811.712(e) (2) (E)
,
and
811.713(e) (2) (E) with a limitation that it applies only to
corrective action.
The Agency also recommended similar changes to Sections
811.711(e) (1)
and 811.712(e) (1)
to clarify that the same bond is
not required to provide for all of closure, post-closure care,
and corrective action cost financial assurance,
since the
regulations allow for the use of multiple instruments.
The Board
did not use the Agency—suggested language for this clarification,
but we did change these subsections
in response to the comment by
20
adding
“a corrective action” before “bond”
in
the
instant
regulations.
Payment into the Landfill Closure and Post-Closure Fund:
The Agency has recommended that the Board provide that all
funds be made payable into the Closure and Post-Closure Fund,
rather than to the Agency.
The Agency recommends this change at
Sections 811.711(h) (2),
811.712(h) (2),
and 811.713(h) (2).
The
Board has made this change in these
locations.
Further, we have
made these changes where appropriate in the financial assurance
forms, discussed below.
Agency Authority to Enter into Contracts:
The Agency has requested that the Board add language at
Section 811.710(h)
that gives the Agency the authority to enter
into contracts for corrective action at a site.
The Board does
not add such a provision because any authority the Agency must
possess to enter into contracts must derive from the statute.
(See Section 4(s)
of the Act.)
Elimination of Surety Bond Guaranteeing Payment, Required
Penal Sum in the Full Amount of the Current Cost Estimate,
and Duplicate Language for Term of Bond:
The Agency has requested that the Board eliminate the surety
bond guaranteeing payment.
The Agency asserts that a bond
guaranteeing performance allows the surety to elect payment
instead of performance.
The Agency concludes that the bond
guaranteeing payment is not necessary.
Alternatively, the Agency
recommends elimination of the references to the Appendix D and H
forms for performance and surety bonds.
This elimination would
also negate these bonds.
The Agency also recommends amendment of Sections 811.711(f),
811.712(f),
and 811.713(f)
to eliminate the requirement that the
penal sum of
a bond or letter of credit be in the amount of the
current cost estimate.
The Agency states that the allowed
conjunctive use of multiple financial assurance instruments
supports this elimination.
Thus,
Illinois regulations could
appear to require the bond in the full amount of the current cost
estimate despite the existence of multiple financial assurance
mechanisms.
The Agency further comments that the Board should eliminate
the language of Section 811.711(g) (3)
,
relating to the required
term of
a bond,
because
it duplicates language of subsection
(h) (1), which relates to release of the surety.
(We note the
dual function of the adjoining identical language.)
The
parallel, independent use of the same language without cross—
reference
is
a state regulatory style issue.
21
The Board did not make these Agency—suggested amendments
to Sections 811.711 and 811.712. These are beyond the scope of an
identical in substance rulemaking.
The merits of the Agency’s
position on these issues can be addressed
in
a “regular”
rulemaking.
Date of Issuance and Name, Address,
and Telephone Number of
Issuing Institution for a Letter of Credit:
The Agency suggested that the Board should revise the text
proposed for Section 811.713(c) (2)
so that the letter of credit
must indicate the date of issuance and name,
address,
and
telephone number of the issuing institution.
Examination of 40
CFR 258.74(c) (2)
indicates that the date of issuance and name and
address of the
issuing institution are federally-required
information.
The Board has made these revisions.
However, we do
not similarly include the telephone number requirement because
this would be a new additional state requirement.
Agency—Suggested Minor Corrections:
The Agency highlights that the Board did not substitute the
appropriate state cross—reference for the federal cross
references found in the source text at 40 CFR 258.73 (a) (2) and
(a) (3).
The Board has corrected these to reference “subsections
(k)(5)
and
(k)(6)
below” at Section 811.704(k) (3)
and
(k)(4).
The Agency recommends that the Board change the phrase
“closure,
post—closure,
an~
corrective action” to “closure, post—
closure, g~corrective action” at Section 811.706(b) and
(b) (1).
The Agency does not justify the change with any supporting
statements.
Examination of the context reveals that the
provisions
involved refer to the chosen financial assurance
mechanisms collectively.
Since,
in the aggregate,
the chosen
mechanisms must collectively assure all of closure, post-closure,
and corrective action,
the Board does not follow the Agency
recommendation.
If the Agency’s concern is that the provision
could imply that each instrument must cover all types of
financial assurance, we direct attention to Section 811.707,
which clearly allows the use of multiple mechanisms,
with the use
of
“any or all of the mechanisms to provide for closure and
postclosure care of the site or corrective action”.
We note that
the addition of
“or corrective action”
is an addition made by the
Board.
Financial Assurance Forms Revisions:
The Board did not include proposed amendments to the
financial assurance forms
in the proposal for public comment.
This was due to inadvertent oversight
in the rush to rapidly
assemble the proposal.
The financial assurance forms are an
integral portion
of the financial assurance requirements, and the
22
amendments involve the same subject matter as the proposed
amendments.
Further,
forms that conform with the federal
requirements are necessary for federal authorization.
For these
reasons,
the Board includes amendments to the forms
in the
adopted rule.
The Agency submitted edited financial assurance forms as an
appendix to its public comments.
The Agency—recommended
revisions to the forms correlate with the Agency’s
recommendations as to the text of the rules.
As with the rules
text suggestions,
the Board has accepted and made those Agency
suggestions that are necessary to conform the forms to the
federal regulations.
Similarly, the Board has included other
suggested changes that are not required by USEPA as elements of a
state program.
As for the regulatory text suggestions, the Board
suggests that the Agency might wish to pursue these changes in a
“regular” rulemaking.
As with the regulatory revisions,
the
amendments are limited to the trust, surety, and letter of credit
forms of Appendix
A, Illustrations A,
C,
D,
and E.
The federal
rules do not provide for insurance or self—insurance for
corrective action financial assurance,
so the Board does not
include Illustrations
F,
G,
and I.
Further,
the Board does not
include Illustration H because the federal rules do not provide
for a corporate guarantee or parent surety.
Rather, the federal
regulations require that the surety be a regulated entity.
SECTION-BY-SECTION DESCRIPTION OF THE AMENDMENTS
TO PARTS 810,
811,
AND
814
Part 810
Definitions
(Section 810.103)
The Subtitle D amendments to Part 810 include the addition
of the following statutory definitions relating to municipal
solid waste landfill
(MSWLF)
units to Section 810.103:
“Existing
NSWLF unit”,
“Household waste”,
“Lateral expansion”,
“Municipal
solid waste landfill unit”
or “MSWLF unit”,
“New
MSWLF unit”,
and
“Resource conservation and recovery Act”.
These definitions are
substantially similar to the definitions contained in 40 CFR
258.2
(1992).
An “Existing MSWLF unit”
is defined as any municipal solid
waste landfill unit that has received household waste before
October
9,
1993.
This statutory definition does not provide any
limitation on waste placement similar to the federal definition
of “Existing MSWLF unit”.
However,
the intent of the Subtitle D
Regulations
is maintained by the modified statutory definition of
“lateral expansion”.
23
A “Household waste”
is defined as 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).
A “lateral expansion”
is defined as
a horizontal expansion
of the actual waste boundaries of an existing MSWLF unit
occurring on or after October
9,
1993, where a horizontal
expansion is considered as any area where solid waste
is placed
for the first time directly upon the bottom liner of the unit on
or after october
9,
1993.
According to this definition, the
waste boundary is the actual foot-print of the waste and not the
originally permitted area.
Thus,
any horizontal expansion beyond
the actual foot-print of the waste on or after October
9,
1993
will be considered as a lateral expansion, which is consistent
with the USEPA’s interpretation.
A “Municipal solid waste landfill unit” or “MSWLF unit”
is
defined as 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.
The definition notes that a MSWLF
unit may 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.
“New MSWLF unit”
is defined as any municipal solid waste
landfill unit that receives household waste on or after october
9,
1993 for the first time.
In addition to the above statutory definitions, the Board
has the defined the term “owner”
in Section 810.103 for purposes
of clarity.
The Board notes that the terms “owner” and
“operator” have been used interchangeably, and sometimes together
in various Sections
of the existing landfill regulations at Parts
810 through 815.
However,
in the Subtitle D Regulations, both
the terms “owner” and “operator”
are used together consistently.
The Board notes that its intent has always been that the owner is
the operator if there
is no other person operating the disposal
facility operator,
as indicated by the definition of “owner” at
35
Ill.
Adin.
Code 807.104.
Therefore,
the definition of
“owner”
is included
in order to avoid any confusion regarding the
applicability of the regulations to NSWLF units and other
nonhazardous solid waste landfills.
The Board notes that this
definition
is essentially the same as the definition of “owner”
found at
35
Ill. Adm Code 807.104.
24
“Owner”
is defined as
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.
Further, the “owner”
is the “operator”
if there
is no other
person who
is operating and maintaining
a solid waste disposal
facility.
Finally,
the Subtitle D amendments include the statutory
definition of RCRA, which means the Resource Conservation and
Recovery Act of 1976
(P.L.
94—580,
codified as 42 USC. §S 6901 et
seq.),
as amended.
Incorporation by Reference
(Section 810.104)
The amendments to Section 810.104 includes the incorporation
by reference to two additional documents.
The first document
is
entitled “Test Methods
for Evaluating Solid Waste,
Physical/Chemical methods,
EPA Publication SW—846”, which
contains test methods for evaluating solid waste.
The second
document
is
a list of hazardous organic and inorganic
constituents found at 40 CFR 258.Appendix II
(1992).
The Agency suggested that the federal regulations
incorporated by reference under Section 810.104 be included as
separate appendices to Part 811.
(PC #9 at
8.)
In this regard,
the Agency notes that it receives frequent complaints from the
regulated community regarding the lack of availability of the
referenced documents.
The Board agrees with the Agency that
including the federal incorporations in appendices to Part 811
would assist the regulated community.
However, the Board notes
that it will not be able to make any changes in this proceeding
regarding the incorporations at this time due to the limited time
available.
In this regard,
the Board notes that a considerable
amount
of Board’s limited resources that would be needed to
specifically list and proof the incorporated federal regulations,
which include the names of over 300 chemical compounds along with
the chemical abstract service
(CAS)
numbers,
the analytical
method numbers and the practical quantitation limits
(PQLs).
Part 811
Purpose,
Scope and Applicability
(Section 811.101)
The scope of the Board’s nonhazardous solid waste landfill
regulations
is significantly broader than the Subtitle
D
Regulations,
since
its scope
is not limited to only MSWLF units.
The Board’s existing regulations cover all existing and new
landfills
in the State that accept nonhazardous solid waste
including wastes that are characterized as inert, putrescible and
chemical waste.
However,
in order to incorporate the federal
requirements
in the State’s existing landfill program,
the
statutes created
a new category
of
landfills, which is based on
25
the federal definition of municipal solid waste landfill
(MSWLF)
unit.
Under the Board’s existing regulations, the MSWLF category
is
a subset of putrescible waste landfills.
The amendments to Section 811.101 reflect the inclusion of
MSWLF units under the Board’s existing landfill regulations.
The
amendment at Section 811.101(d)
specifies that the standards
applicable to new MSWLF units
include:
(i) the standards
applicable to putrescible waste landfills under Part 811;
and
(ii)
the standards adopted pursuant to this rulemaking, which are
identical in substance to the Subtitle D Regulations.
In
addition, Section 811.101(d) (2)
notes the inclusion of a new
appendix to Part 811, which provides
a section-by—section
correlation between the federal MSWLF regulations and the Board’s
nonhazardous solid waste landfill regulations.
Operating Standards
(Section 811.107)
The Subtitle D landfill amendments add a ne~Section
811.107(m)
that prohibits the disposal of bulk or
noncontainerized liquid waste in MSWLF units,
except for the
following exceptions:
(i)
household waste other than septic
wastes; and
(ii)
leachate and gas condensate derived
form
the
MSWLF unit where the unit is equipped with a composite liner and
leachate collection system designed and constructed to maintain
less than 30 centimeters of head above the liner.
Subsection
811.107(m), which is derived from 40 CFR 258.28
(1992)
also
defines the terms “liquid wastes” and “gas condensate.”
The Agency’s comments recommended the addition of a
reference to Section 811.309 under the liquid restriction
requirements proposed at Section 811.107(m)(1)(B).
(PC #9 at 9.)
Section 811.309 contains standards for leachate recycling systems
and conditions for suspension of leachate collection.
An
examination of the Subtitle D regulations at
40 CFR 258.28
indicates that the liquid restriction requirements apply to
leachate recycling systems.
In view of this,
the Board accepts
the Agency’s suggestion. The instant regulations at Section
81l.107(m(1)(B)
includes a reference to Section 811.309.
Closure and Postclosure Care
(Sections 811.110 and 811.110)
The instant regulations prescribe additional requirements
for MSWLF units concerning closure and post closure care.
The
closure requirements for MSWLF units are specified at Sections
811.110(e)
through 811.110(h).
Mainly,
the amendments to closure
requirements specify the deadlines for initiating and completing
closure,
and require
a deed notation to be made regarding the
property.
An owner or operator
is required to initiate closure within
30 days of the final receipt of waste,
but no later than one year
26
if the unit has remaining capacity and there
is reasonable
likelihood
of receiving additional waste.
The amendments allow
the Agency to grant extensions beyond the 1—year deadlines
if the
owner or operator of the affected unit demonstrates that the unit
does not pose a threat to human health and environment.
The amendment at Section 811.110(f)
requires the completion
of closure within 180 days of beginning of closure.
The Agency
is allowed to grant extensions beyond the 180—day deadlines under
limited circumstances.
Section 811.110
(g) requires the owner or operator, upon
closure,
to record a notation on deed to the property that
notifies any potential buyer of the property that the land has
been used as
a landfill and that its use is restricted.
The
notation from the deed may be removed only if the owner or
operator demonstrates that all wastes are removed from the
faciiity.
The Agency’s comments suggest that the Board add the closure
plan requirements at 40 CFR 258.60
(c) (2)
and
(C)
(3), since
comparable requirements are not contained in the existing
regulations under Part 811.
(PC #9 at 7.)
The federal criteria
require the written closure plan to include the largest area of
the MSWLF unit ever requiring a final cover at any time during
the active life,
and the maximum inventory of wastes ever on the
site over the active
life.
In order to satisfy the federal
requirements, the Board has added the federal closure plan
requirements under Section 811.110(d) (3).
Additional postclosure care requirements for MSWLF units are
specified at Sections 811.111(c)
and 811.111(d).
Section 811.111
(c)
extends the minimum postclosure care period to 30 years from
15 years for MSWLF units to comply with the minimum federal
requirement at 40 CFR 258.61
(1992).
The Board notes that
a
similar change has been included in Section 811.303, which
specifies the requirements for establishing the design period for
chemical and putrescible waste landfills.
The Agency recommended that the Board revise Section
811.111(c) (1) (C)
to allow the reduction of the inspection and
maintenance period provided that the owner or operator
demonstrates that the reduced period will be sufficient to
protect human health or environment.
(PC #9 at 10.)
The Agency
notes that this revision will make the postclosure maintenance
period for MSWLF units consistent with the design period criteria
specified at Section 811.303.
We accept the Agency’s
recommendation.
Today’s amendments include revised language that
addresses the reduction of the inspection and maintenance period
under Sections 811.111(c) (1) (C)
and 811.111(c) (1) (D)
.
(see
discussion relating to “Agency or Board action?” under major
issue
5)
27
Section 811.111(d) (1)
requires the owner
or operator
of
MSWLF unit to provide a description of the planned uses of the
property during the postclosure care period.
Further,
Section
811.111(d) (2)
specifies that such uses must not disturb the
integrity of the
final
cover,
liner,
or any other components of
the containment system,
unless such uses are necessary to comply
with the requirements of Part 811.
Section 811.111(d) (3)
requires the Agency to approve any other disturbances if the
owner or operator demonstrates the disturbance will not increase
the potential threat to human health or the environment.
Recordkeeping Requirements
(Section 811. 112)
The recordkeeping requirements applicable to MSWLF units are
prescribed in Section 811.112.
The Board notes that these
requirements are in addition to the existing recordkeeping
requirements of Parts 812 and 813.
Section 811.112 requires the
owner or operator to maintain an operating record at the site or
in a location specified by the Agency.
Further,
the amendments
specify the type of information that must be retained in the
operating record,
which includes location restriction
demonstrations,
inspection records,
gas monitoring results,
groundwater monitoring,
financial assurance documentation,
etc.
The Agency noted that all of the information requested in
Section 811.112
(a) through
(g)
are not requested in Parts 812
and 813.
In order to avoid any confusion, the Agency suggested
that the Board clarify the informational requirement under
Section 811.112.
(PC #9 at
11.)
Also,
the Agency’s noted that
the informational requirements relating to location restrictions
at subsection 811.112(a) must include the
FAA
notification
required by Section 811.302(e)
to satisfy the federal requirement
at 40 CFR 258.10(c).
(PC #9 at 13.)
Finally, the Agency
suggested the addition of certain specific references to Parts
812 and 813 for the purposes of clarity.
(PC #9 at
13.)
The
Board agrees that certain changes are required to clarify the
informational requirements at Section 811.112.
Today’s
regulations under Section 811.112 reflect the changes suggested
by the Agency.
Location Standards
(Section 811.302)
Today’s regulations include an additional Section
311.302(f), which requires an owner or operator of
a MSWLF unit
to submit to the Agency a copy of the Federal Aviation
Administration’s approval obtained pursuant to Section
811.302(e).
The Board added the notification requirement in
response to the Agency’s comments, which note that the proposed
amendment to Section 811.302 does not satisfy the federal
notification requirement at 40 CFR 258.10(c).
Also,
the Board
notes that the requirement at Section 811.302(f)
in the proposal
28
for public comment has been re-numbered as Section 811.302(g)
in
the today’s rules.
Design period
(Section 811.303)
The amendments at Section 811.303
reflect the minimum 30—
year postclosure care period required for MSWLF units under the
Subtitle D Regulations.
Section 811.303(a)
clarifies that the
minimum postclosure care period for putrescible waste landfills
is 30 years.
The Board notes that it had requested comments on
the proposed Section 811.303(d), which allowed a reduction of the
minimum postclosure care period upon an Agency determination.
The Board wanted to know whether such
a determination should be
addressed through an adjusted standard procedure.
As noted
earlier
(see discussion relating “Agency or Board Action?” under
major issues), the Board concludes that an adjusted procedure is
an appropriate procedure to address requests for the reduction of
the postclosure care period at a MSWLF unit,
whenever such
reduction involves all the elements of postclosure care,
i.e.
inspection and maintenance, leachate collection, gas monitoring,
and groundwater monitoring.
The adjusted standard requirements prescribed in the
regulations at Section 811.303(d)
allow an owner or operator of a
MSWLF unit to petition the Board for a reduction of the minimum
postclosure care period in accordance with Section 28.1 of the
act and
35 Ill. Adm. Code 106.Subpart
G.
Leachate Treatment and Disposal system
(Section 811.309)
Today’s regulations at Section 811.309(h)
includes an
additional provision comparable to the federal requirement at 40
CFR 258.61 (a) (2)
in response to the Agency’s comments.
The
Agency noted that the existing requirement at Section 811.309(h),
which specifies the requirements for the time of operation of
leachate management system does not satisfy the federal
requirement at 40 CFR 258.61
(a)(2).
(PC
#9
at
7.)
Even though
the Board regulations require a demonstration that treatment is
no longer required to terminate leachate collection, the Agency
states that additional evidence would be required to satisfy the
federal requirement.
The Agency suggested the inclusion of
a
provision comparable to the federal requirement.
The instant
regulations at Section 811.309(h)
reflect the Agency’s
recommendations, and also includes the adjusted standard
provision for reduction of postclosure care period.
(see
discussion relating to “Agency or Board Action?” under major
issues)
Landfill Gas Monitoring
(Section 811.310)
Today’s regulations
at subsection 811.310(c)
includes an
additional provision comparable to the federal requirement at 40
29
CFR 258.61(a)(4).
The Board notes that the addition under
subsection
(c) (4)
requires gas monitoring to be continued for a
minimum period of thirty years after closure at MSWLF to be
consistent with federal requirement at 40 CFR 258.61(a).
The
Board notes that the minimum gas monitoring period for MSWLF
units was not specified in the proposed regulations due to an
oversight.
In addition, today’s regulations also prescribe
conditions
for reducing the thirty year minimum monitoring
period, which are comparable to the federal criteria.
These
conditions are similar to the ones specified for the reduction of
the monitoring period for other elements of postclosure.
Landfill Gas Management System
(Section 811.311)
The instant -regulations include an additional requirement
relating to gas management at Section 811.311(b).
Essentially,
the amendment prescribes the actions to be taken by an owner or
operator of a MSWLF unit in the event of an exceedance of the
allowable methane gas levels.
The Board made this change in
response to Agency’s comments that the existing requirements do
not satisfy the federal requirement at 40 CFR 258.23(c) (1).
(PC
#9 at 4.)
Groundwater Monitoring Program
(Section 811.319)
The amendments to Section 811.319 include a number of
additional requirements applicable to MSWLF units.
The
amendments are described below.
Detection Monitoring:
Section 811.319(a) (1) (A) requires groundwater monitoring to
be continued for a minimum period of
30 years after closure at
MSWLF units.
This change reflects the 30—year minimum
postclosure care period required by the Subtitle D Regulations.
A similar change
is included at Section 811.319(a) (1) (C).
Today’s regulations also include additional clarifying
language at Section 811.319
(a) (1) (A)
and
(a) (1) (C)
.
The new
language at Section 811.319(a) (1) (A)
notes that the minimum
postclosure care period may be reduced in accordance with Section
811.319(a)(l)(C).
The changes to Section 811.319(a) (1) (C)
reflect that groundwater monitoring at a MSWLF unit may be
discontinued after thirty years
if certain conditions of Section
811.319 (a) (1) (C)
are met.
The Board made these changes in
response to the Agency’s comments, which notes that the reduction
of groundwater monitoring period
is consistent with the federal
requirement at 40 CFR 258.61(b)(1).
(PC #9 at 13-14).
(see
also,
the discussion relating to “Agency or Board Action?” under
major
issues)
30
Section 811.319(a) (3) (C)
requires an operator of a MSWLF
unit to monitor each monitoring well for the organic chemicals
listed
in Section 811.319(a) (3) (A)
on an annual basis, which
is
the minimum monitoring frequency under the Subtitle D
Regulations.
The Agency’s comments also suggest that the citation to
Section 811.319(a) (1) (A)
at Sections 811.319 (a) (3) (B)
and
811.319(a) (3) (C) must be change:~to Section 811.319(a) (3) (A).
The Agency contends that Section 811.319 (a) (3) (A)
is the
appropriate reference,
since the organic constituents that need
to be monitored are listed in this Section.
The Board disagrees.
The citation to Section 811.319(a) (1) (A)
is
intended to ensure
that the monitoring will begin as soon as waste is placed at a
new unit or within one year of the effective date at an existing
unit,
and continue for a period of at least thirty years after
closure.
Further, the Board notes that Section 811.319(a) (3)
clearly states that organic chemical monitoring must be conducted
in accordance with Sections 811.319 (a) (3) (A)
through
811.319(a) (3) (C), which includes the list of constituents to be
monitored under organic chemical monitoring.
Therefore, the
Board will not make any additional changes.
Assessment Monitoring:
The additional requirements applicable to MSWLF units have
been proposed at Section 811.319(b)(5).
Essentially, an owner or
operator of a MSWLF unit
is required to monitor the groundwater
for the constituents listed
in 40 CFR 258.Appendix II during
assessment monitoring
(Section 8l1.319(b)(5)(A)).
The list
contains approximately 300 inorganic and organic constituents.
If any constituent
is detected, within 14 days obtaining the
sampling results, the owner or operator must place a notice
identifying the such constituents in the operating record,
and
notify the Agency
(Section 811.319(b)(5)(B)).
The owner or
operator is required to establish background concentrations for
the detected constituents
(section 811.319(b) (5) (C)).
If any constituent concentration exceeds an applicable
groundwater quality standard,
the owner or operator must place a
notice
in the operating record identifying such constituents,
and
notify the Agency, officials of the local municipality or county,
and all persons who own land or reside on land that directly
overlies any part of the plume of contamination
if the plume has
migrated off-site.
Today’s regulations also include two additional provisions
relating to assessment monitoring under Section 811.319(b) (5).
First,
Section 811.319(b) (5) (D)
requires an owner or operator to
monitor the constituents listed
in
40 CFR 258.Appendix II on a
semi-annual
basis.
Second,
Section 811.319(b) (5) (E)
allows an
owner or operator of
a MSWLF unit to request the Agency to delete
31
any of the of
the
40 CFR 258.Appendix II constituents by
demonstrating to the Agency that the deleted constituents are not
reasonably expected to be in,
or derived from, the waste
contained in the leachate.
The Board included these additions in
response to WNI’s comments.
WNI
noted that 40 CFR 258.Appendix
II allowed for deletion of constituents that are not expected to
be in,
or derived from, the waste contained
in the unit.
WMI
stated that the inclusion of the federal requirement eliminates
wasteful groundwater monitoring practices.
(PC #5 at 3.)
The Agency also suggested some clarifying changes to the
assessment monitoring requirements.
Essentially, the Agency
recommended that Section 811.319(b) (5) (A) must be referenced in
the appropriate subsections dealing with the additional
requirements for MSWLF units.
Today’s regulations reflect the
Agency’s suggestions.
Reinedial/’Corrective Action:
At the outset, the Board notes that the term “remedial
action” used in the Board’s existing regulations has the same
meaning as the term “corrective action” used in the Subtitle D
Regulations.
However,
the term “corrective action” has been used
in the instant proposal
in relation to the MSWLF5 since the same
terminology has been used in the Act.
Since the remedial action requirements under the existing
landfill regulations at Section 811.319(d)
do not prescribe
detailed requirements for the corrective action procedures,
the
Board has added the requirements of the Subtitle D Regulations
relating to assessment of corrective action measures
(40 CFR
258.56),
selection of remedy
(40 CFR 258.57),
and implementation
of corrective action
(40 CFR 258.58)
in the new Sections 811.324,
811.325,
and 811.326.
Assessment of corrective actionmeasures
(Section 811.324):
The assessment of corrective action measures is triggered
whenlthe groundwater impact assessment, performed in accordance
with Section 811.319(c),
indicates that corrective action is
needed or if the assessment monitoring indicates that a confirmed
exceedance above the applicable groundwater quality standard is
attributable to the facility.
The Board notes that these
triggers for assessment of corrective action measures, specified
at Section 811.324(a)
are the same as those specified for
remedial action under Section 811.319(d).
Further, the Board
concludes that the corrective action trigger specified in Section
811.324
are consistent with the triggers specified in the
Subtitle D Regulations.
Today’s regulations at Section 811.324(a)
require the owner
or operator to initiate the assessment of corrective action
32
within
14
days of
a determination that remedial action
is needed
at the site,
instead of 90 days as proposed.
Also,
Section
811.324(b)
requires the assessment of corrective action to be
completed within 90 days of initiating the assessment,
instead of
a reasonable time period as proposed.
The Board made these
changes to address Agency’s comments.
The Agency noted that the
proposed 90 day period to initiate the assessment of corrective
action would result in unnecessary delay.
(PC #9 at
16.)
Also,
the Agency suggested that the Board require an owner or operator
to complete the assessment within a specified number of days.
The Agency recommended 90 days.
(PC #9 at 16.)
Section 811.324(c)
requires the owner or operator to
continue monitoring in accordance with the assessment monitoring
program.
-
Section 811.324(d)
requires the evaluation of corrective
action measure to meet the requirements and objectives of Section
811.325 and specifies
a list of items that the owner or operator
must address in the assessment.
The items include time required
to complete the remedy, cost of implementation,
reliability, ease
of implementation,
and institutional requirements.
Finally, Section 811.324(e)
requires the owner or operator
to hold a public meeting, prior to the selection of a remedy, to
discuss the results of the assessment of corrective measures.
Today’s amendments at Section 811.324(e) require an owner
or
operator to submit to the Agency
a report describing the results
of the assessment of corrective action measures.
The Board notes
that additional provision was added in response to Agency
comments.
The Agency noted that even though
it will not be
involved with the public meeting,
a report of the assessment
would assist the Agency in tracking the progress of remedial
action and also respond to public inquiries.
(PC #9 at 17.)
Further,
the Agency maintains that submittal of a copy to the
Agency would require only minimal burden.
Selection of Remedy
(Section 811.325):
The owner or operator
is required to select one or more
remedies based on the results of the assessment of corrective
measures.
Today’s regulations
include an additional provision at
Section 811.325(a) (2) that requires the owner or operator to
submit to the Agency an application for significant modification
of the permit describing the selected remedy.
The instant
regulations also specify that the application must be submitted
within 90 days of completion of the assessment of corrective
actin measures.
The Board included the additional requirement to
address the Agency’s comments.
The Agency noted that the changes
are necessary to bring the corrective action procedures within
the significant modification requirement.
(PC #9 at 18.)
The
Board agrees that the Agency should make the final determination
33
as to the
appropriateness of the selected remedy subject to an
appeal to the Board.
The selected remedy must meet
the objectives specified
in
Section 811.325(b),
which require that the remedy must be
protective
of human health and environment, attain groundwater
quality standards,
control the sources
of release, and comply
with the standards of waste management during the implementation
phase.
Section 811.325(c)
specifies the criteria that must be
considered in selecting the remedy.
Section 811.325(d)
requires the owner or operator to specify
the time schedules for initiating and completing the selected
remedy.
The Agency is required by Section 811.325(d) (2) to
specify the time schedules in the facility’s permit.
The factors
that must considered by the owner or operator to specify the time
schedules are prescribed in Section 811.325(d) (3).
Section 811.325(e)
requires the Agency to determine that
rexnediation of
a release is not required upon
a demonstration by
the owner or operator that:
(i) groundwater is contaminated by
multiple sources and cleanup of the contamination resulting from
the MSWLF will not result in significant reduction in risk;
(ii)
contaminated groundwater is not a source currently or reasonably
expected to be used as source of drinking water and is not
hydraulically connected to other sources of drinking water;
(iii)
remediation
is not technically feasible; or
(iv) unacceptable
cross media impact would result from remediation.
However, an
Agency determination will not affect the State’s authority to
require the owner or operator to undertake source control or
other measures.
The Board also corrects a typographical
oversight at Section 811.325(f).
Implementation of Corrective Action
(Section 811.326):
The requirements relating to the implementation of the
corrective action at MSWLF units are set forth in this Section.
Section 811.326(a) (1) requires the owner or operator to establish
a corrective action groundwater monitoring program, which at a
minimum meets the assessment monitoring requirements, indicates
the effectiveness of the remedy, and demonstrates compliance with
the groundwater quality standards.
The owner or operator is
required by Section 811.326(a) (3)
to take any necessary interim
measures to protect human health and environment.
Section
811.326(b) requires the owner or operator to implement
alternative methods to achieve compliance
if the selected remedy
fails to achieve compliance.
The Agency must be notified prior
to the implementation of any alternative methods.
If the owner or operator determines that compliance cannot
be achieved by currently available methods, the owner or operator
is required by Section 811.326(c)
to obtain
a certification to
34
that effect,
by a qualified
groundwater scientist or a
determination by the Agency.
The owner or operator is required
to implement alternate measures to control the source of
contamination or for removal of equipment,
units,
devices,
or
structures.
The
instant regulations require an owner or operator to
submit to the Agency an application for significant modification
of the permit:
in order to implement alternative measures in
accordance with requirements at Sections 811.326(b)
and
811.326(c); and upon the completion of the remedy in accordance
with requirements of Section 811.326(f).
As discussed under the
selection of remedy, the Board included these requirements to
ensure the Agency’s oversight during the implementation of the
corrective action.
Today’s regulations at Section 811.326(c)
also include a definition of the term “qualified groundwater
scientist,” which
is derived from 40 CFR 258.50(f).
The remedy or corrective action
is considered to be complete
when compliance is achieved with the groundwater quality
standards over a period of three years.
Section 811.326(e)
allows the Agency to specify an alternative time period by giving
consideration to the factors listed under Section 811.326(e) (2),
which include extent and concentration of release, contaminant
characteristics, groundwater flow,
etc.
Upon completion of the
remedy, the owner or operator is required to obtain a
certification by a qualified groundwater scientist or
a
determination by the Agency that the remedy is completed.
Load checking
(Section 811.323)
The amendments at section 811.323 require the load checking
program at NSWLF units to include the inspection of incoming
waste loads for polychlorinated biphenyl
(PCB) wastes in addition
to checking for hazardous wastes.
Today’s regulations include
clarifying changes at Section 811.323(b), which reflect that
unacceptable wastes include PCBS.
Financial Assurance Requirements
(Section Sll.Subpart
C)
Applicability
(Section 811.700):
The amendments to Section 811.700 remove the exemption
applicable to units of local governments from providing financial
assurance for MSWLF units.
Section 811.700(f)
requires the
owners or operators of MSWLF units to provide financial assurance
for closure, postclosure,
and corrective action.
The Board notes
that the existing regulations do not require financial assurance
for corrective action.
Finally,
today’s regulations at Sections
811.700(f)
and 811.700(g)
reflect the delayed compliance date for
financial assurance requirements,
as proposed by the USEPA.
(see
discussion relating to “compliance dates” under major issues)
35
Upgrading Financial Assurance
(811.701)
Today’s regulations
include an additional provision at
Section 811.701(c)
that requires an owner or operator a MSWLF
unit to make annual adjustments for inflations
if required
pursuant to Section 811.704(k) (2)
or 811.705(d).
Written Cost estimate (Section 811.704):
The instant regulations include additional language at
Section 811.704(g)
that clarifies that the requirements for
preparing the postclosure monitoring and maintenance cost do not
apply to MSWLF units.
The amendments at Section 811.704(k)
specify the
requirements for the written cost estimate for corrective action
at MSWLF5.
Essentially, the owner or operator of a MSWLF unit is
required to prepare a detailed cost estimate,
in current dollars,
of the cost hiring a third party to perform the corrective
action.
The owner or operator is required to adjust the cost
estimate annually for inflation.
The cost estimate must be
increased if changes in the corrective action program increases
the maximum cost of corrective action.
Requirements are also
prescribed to allow the owner or operator to reduce the
corrective action cost estimate if such estimate exceeds the
maximum remaining costs of the corrective action.
Lastly, the
owner or operator is required to provide coverage until released
from the financial assurance requirements.
Revision of Cost Estimate
(Section 811.705):
The instant amendments at Section 811.705(d)
require an
owner or operator of a NSWLF unit to adjust the cost estimates of
closure, postclosure, and corrective action for inflation on an
annual
basis.
Section 811.705(d)
also specifies the time period
during which such adjustments must be made.
Mechanisms for Financial Assurance (Section 811.706):
The amendments clarify the applicability of the various
mechanisms for providing financial assurance for corrective
action at MSWLF units.
In addition,
Section 811.706(b)
requires
an owner or operator to ensure that:
(i) the amount assured is
sufficient to cover the costs of closure, postclosure care,
and
corrective action sufficient funds;
and
(ii) the funds will be
available
in a timely and fashion when needed.
Section
811.706(c)
specifies the dates at which the owner or operator
must provide financial assurance.
The amendments to Sections 811.710
(trust fund),
811.71l(surety bond guaranteeing payment), 811.712
(surety bond
performance), and 811.713
(letter of credit)
clarify the
36
applicability of the different mechanisms for providing financial
assurance for closure, postclosure care and corrective action at
MSWLFs.
The substantive requirements of the mechanisms have not
been changed.
Editorial Changes:
The existing regulations under Section 811.Subpart G
prescribe requirements applicable to the operator of a facility.
However,
the Subtitle D Regulations refer to “owner and
operator.”
The Board notes that its intent has always been that
the owner is the operator if there is no other person operating
the disposal facility operator,
as indicated by the definition of
“owner” at 35
Ill. Adm.
Code 807.104
(see discussion under
Definitions-Section 810.103).
Today’s amendments under Subpart G
include the terms “owner and operator” at all locations of the
text where the term “operator
“
has been used in order to avoid
any confusion regarding the applicability of the regulations.
The Board also notes that it has defined the term “owner” under
Section 810.103 to clarify its intent.
Part 814
General Requirements
(Sections 814.101,
814.107,
814.108.
and
814.109)
The amendments to the existing landfill regulations of Part
8l4.Subpart A prescribe additional requirements for existing
MSWLF units and lateral expansions.
These additional
requirements are A are discussed in detail under major issues.
Applicability (Section 814.101)
Section 814.101 clarifies the applicability of the Part 814
regulations to existing MSWLF units and lateral expansions.
The
existing MSWLF units are required to comply with the interim
permit requirements
in addition to complying with permitting
requirements under the existing regulations
(see discussion under
permitting scheme).
Compliance Date (Section 814.107)
The instant regulations specify compliance dates for
existing MSWLF units and lateral expansions.
The compliance
dates are consistent with the USEPA’s proposed compliance dates
(58 FR 40568).
The issues relating to compliance dates are
discussed in greater detail under major issues.
37
Permit Requirements for Existing MSWLF Units and Lateral
expansions fSections 814.107 and 814.108)
The Board notes that
a detailed discussion regarding the
permitting requirements has been provided in the section
addressing the permitting scheme in today’s opinion.
Standards for Existing landfills that Remain Open for more than
Seven Years
(814.Subpart
C,
Section 814.302)
Today’s regulations at Section 814.302(c) prescribe
additional location restrictions derived from the federal
Subtitle D regulations
(40 CFR 258.10)
for existing MSWLF units
and lateral expansions pertaining to airports.
The Board notes
-
that under the proposed regulations, the existing MSWLF units and
lateral expansions were required to comply with the airport
location restriction under the Board’s existing regulations at
35
Ill.
Adm.
code 811.302(e).
The changes to the proposed regulations relating to the
airport location restriction were made in response to the
WNI’s
comments, which noted certain inconsistencies in the proposed
regulations.
(PC #5 at 4.)
Upon further review, the Board
concludes that it would be inappropriate to require existing
MSWLF units and lateral expansions to comply with the Board’s
existing airport location restrictions at Section 811.302(e).
This is because the Board’s existing airport location restriction
is more stringent than that required under Subtitle
D,
particularly in that the Board requires written permission from
the
FAA
to go within certain distances and Subtitle D does not.
Moreover, the existing Board regulations exempts existing
landfill facilities from the airport safety requirements.
Section 814.302(c) (1)
requires the owner or operator of an
existing NSWLF unit or a lateral expansion locatted within
certain distances
of a airport runaway to demonstrate that the
unit is designed and operated so that the unit does not pose a
bird hazard to aicraft.
Section 814.302(c) (2) requires an owner
or operator seeking a lateral expansion within
a five—mile radius
of an airport to notify the affected airport and the FAA.
The existing MSWLF units are also subject to the foundation
mass stability standards at Sections 811.304 and 811.305.
The amendments at Section 814.302(e) prescribe additional
requirements for lateral expansions.
The lateral expansions are
subject to foundation mass stability standards (Sections 811.304
and 811.305),
liner and leachate collection system (Sections
811.306,
811.307,
and 811.308),
and groundwater impact assessment
requirements
(Section 811.317).
38
Today’s regulations also include the closure requirement for
existing MSWLF units and lateral expansions that are unable to
demonstrate compliance with the location standards relating to
floodplains and airports.
Section 814.302(f)
requires the
closure of existing NSWLF units that are unable to comply with
the location restrictions by October 9,
1996.
Section 814.302(g)
sets forth conditions under which the Agency may grant an
extension of an additional two years for noncomplying units.
The
Board added the closure provisions
in response to comments from
WMI and the Agency.
(PC #5 at
4 and PC #9 at 47.)
Standards for Existing landfills that must Initiate closure
Within Seven Years
(Section 814.Subpart
D,
Section 814.402)
Today’s regulations at Section 814.402(c)
prescribe
additional location restrictions derived from the federal
Subtitle D regulations
(40 CFR 258.10)
for existing MSWLF units
and lateral expansions pertaining to airports.
The Board notes
that under the proposed regulations, the existing MSWLF units and
lateral expansions were required to comply with the airport
location restriction under the Board’s existing regulations at 35
Ill. Adm. code 811.302(e).
The rationale for the changes to
proposed airport location restriction is explained above under
Section 814.302.
Section 814.402(c) (1)
requires the owner or operator of an
existing MSWLF unit or a lateral expansion locatted within
certain distances of a airport runaway to demonstrate that the
unit
is designed and operated so that the unit does not pose a
bird hazard to aicraft.
Section 814.402(c) (2)
requires an owner
or operator seeking a lateral expansion within a five-mile radius
of an airport to notify the affected airport and the FAA.
The existing MSWLF units are also subject to the foundation
mass stability standards at Sections 811.304 and 811.305.
The amendments at Section 814.402(e)
prescribe additional
requirements for lateral expansions.
The lateral expansions are
subject to foundation mass stability standards
(Section 811.304
and 811.305),
liner and leachate collection system
(Sections
811.306,
811.307,
and 811.308),
and groundwater impact assessment
requirements
(811.317), groundwater monitoring system
requirements
(Section 811.318),
and groundwater quality standards
(Section 811.320).
Today’s regulations include some minor changes and additions
made in response to comments from the Agency and WMI.
First,
the
Board added Section 814.402(b) (3) (I)
to address Agency’s concerns
relating to zone
of compliance.
The Agency noted that the
alternate compliance boundary requirements under Section
814.402(b) (3)
must
be limited to 150 meters beyond the edge a
39
MSWLF unit in order to be consistent with federal requirement at
40 CFR 258.51(a)(2).
(PC #9 at 5.)
Second,
Section 814.402(e) (4)
has been clarified to require
a groundwater impact assessment only
if a unit is equipped with
a
compacted earth liner in accordance with Section 811.306(d).
The
Board clarified this requirement in response to comments from the
Agency and WNI, which noted that under Subtitle D regulations
only units equipped with
a liner other than a composite liner
must comply with the groundwater impact assessment.
(PC #5 at
4
and PC #9 at 49.)
The final addition to Section 814.402 addresses the closure
requirement for existing MSWLF units that are unable to
demonstrate compliance with the location standards relating to
floodplains and airports.
Section 814.402(f) requires the
closure of existing MSWLF units that are in compliance with
location restrictions by October
9,
1996.
Section 814.402(g)
sets forth conditions under which the Agency may grant an
additional two years extension for noncomplying units.
The Board
added the closure provisions in response to comments from
WMI
and
the Agency.
(PC #5 at 4 and PC #9 at 47.)
This opinion accompanies the order of this same day in this
matter.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion was adopted on the
~-
day of
~
1993,
by a vote of
.~—-
-~-~~--
~
~“
‘~
Dorothy H. Gunn,
Clerk
Illinois Pollution Control Board
