ILLINOIS POLLUTION CONTROL BOARD
March 20, 1997
IN THE MATTER OF:
)
)
LIVESTOCK WASTE REGULATIONS
)
R97-15 (A) & (B)
35 ILL. ADM. CODE 506
)
(Rulemaking - Land)
DISSENTING OPINION (by G. T. Girard):
I agree with large portions of the majority opinion, especially those sections that
closely follow the emergency rules adopted by the Board, those additional sections flowing
from the rules proposed by the Department of Agriculture, and other provisions clearly
supported by the record developed in this proceeding. However, I dissent from the
majority opinion and order because critical portions of the document are not authorized by
the Livestock Management Facilities Act (LMFAct) or supported by the evidence in this
proceeding. In addition, the majority did not exercise their authority under the LMFAct to
craft rules which “make distinctions for the type and size of livestock management and
livestock management handling facilities and operations” (510 ILCS 77/55(c)) and, as a
consequence, large portions of the livestock industry in Illinois will be over-regulated
without addressing the crux of the problem.
Definition of Populated Area
I disagree with the majority definition of populated area, and the consequences that
flow from the definition in terms of how setbacks are measured. The majority definition
of populated area is not authorized by the LMFAct, is not supported by the record,
introduces more ambiguity, is not economically reasonable, and does not address those
aspects of the livestock industry that are creating problems. In addition, the majority
opinion that setback waivers can be obtained from persons other than owners of residences
is contrary to the clear language of the LMFAct. Finally, the record in this proceeding
does not provide evidence to support a finding that the definition is economically
reasonable.
The definition of populated area is a key concept in this rulemaking because it is
used to determine setbacks from livestock management or livestock waste facilities. In the
LMFAct, setbacks apply to all new livestock facilities with more than 50 animal units (510
ILCS 77/35 (c)(2)). Setback distances are determined by measuring “from the nearest
corner of the residence or place of common assembly to the nearest corner of the earthen
waste lagoon or livestock management facility, whichever is closer.” (510 ILCS
77/35(c)(1).) For example, for a livestock facility with greater than 50, but less than 1000
animal units, the minimum setback is one-half mile from the nearest populated area. (510
ILCS 77/35 (c)(3).)
Section 10 of the LMFAct states that “[i]n this Act words and phrases have
meanings set forth in the following Section, unless the context clearly requires otherwise.”
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(510 ILCS 77/10). The majority opinion circumvents the General Assembly’s intent by
using a strained analysis of the imbedded phrase “common place of assembly” to fashion a
meaning for populated area that is not supported by the language of the LMFAct or the
context in which the phrase is used. This contradicts the legislative instruction that the
definitions in the LMFAct are explicitly set forth unless the context clearly requires
otherwise.
I agree that the definition of populated area proposed by the Department of
Agriculture should have been adopted by the Board. However, the majority exceeded their
authority under the LMFAct by including “land managed for recreational or conservation
purposes” (Section 506.103) in the definition of populated area. The Department of
Agriculture’s definition of populated area reduces the ambiguity of the phrase “common
place of assembly” within the context of the LMFAct. On the other hand, the majority’s
definition circumvents the legislative intent by adopting the proposal advanced by the
Illinois Department of Natural Resources (IDNR) to have setbacks ultimately measured
from the legal property lines of land managed for recreational or conservation purposes.
The majority’s definition of populated area also introduces major new ambiguities which is
contrary to their stated goal of reducing ambiguity.
The IDNR proposal was based on the two concerns; that odor pollution from large
livestock facilities would negatively impact visitors’ outdoor experience and that leakage or
overflow of waste lagoons potentially threatened the natural resources of state managed
lands. (Tr. 1 at 143). While these are valid concerns, they do not justify going beyond
the specific language and context of the LMFAct to fashion a definition of populated area
which unnecessarily burdens thousands of Illinois landowners.
A clear reading of the statutory definition of populated area in the context of the
LMFAct indicates that the General Assembly did not intend to measure setbacks to lands
“managed for recreational or conservation purposes” unless there was a facility which
served as a “common place of assembly.” The majority goes far beyond the intent of the
LMFAct by finding that setbacks should be measured to the legal property line when the
common place of assembly is primarily an outdoor activity. (Section 506.702(c)(2).) The
LMFAct clearly states that setbacks are measured from the nearest corner of the residence
or common place of assembly to the nearest corner of the livestock management facility or
waste lagoon. (510 ILCS 77/35(c)(1).) The majority argument that measuring to property
lines is a way to reduce ambiguity is not supported by the clear context of the LMFAct:
setbacks to residences and common places of assembly are to be measured corner to
corner, not to adjacent real property lines.
The record in this proceeding does not provide information for the majority to
determine the true impact of expanding setbacks by changing the definition of populated
area and by measuring setbacks from the property lines of lands managed for recreational
or conservation purposes. IDNR testified that their properties comprise less than 1.2
percent of Illinois land area. (Tr. 1 at 148.) However, there is no testimony or other
evidence about how much land area is included when the definition of populated areas is
changed to include all lands managed for recreational or conservation purposes. There is
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not even a definition of these new terms in the majority opinion. Without this definition,
and a classification of such lands in Illinois, the majority cannot make a finding that the
new regulation is economically reasonable because the majority does not know the extent
of such lands in Illinois. Thousands of Illinois landowners could be unreasonably burdened
by the necessity of dedicating one-half mile strips on their property contiguous to
recreational and conservation lands as setbacks when establishing new livestock facilities or
expanding beyond 50 animal units.
Setback Waivers
The majority argues that the potential impacts of new setback exclusions would be
minimized because livestock producers would get waivers from adjacent landowners,
including owners of recreational and conservation lands. Their argument ignores the
specific language of the LMFAct, and is not consistent with the underlying purpose of
setbacks. Their argument fails because the LMFAct states that “[a] setback may be
decreased when waivers are obtained from owners of residences that are occupied and
located in the setback area.” (510 ILCS 77/35(a).) The LMFAct clearly does not provide
that owners of common places of assembly may grant setback waivers.
Restricting setback waivers to owners of residences is in keeping with the public
policy and intent of the LMFAct which provides setbacks to lessen odors from livestock
operations. (Tr. 1 at 102.) Since the purpose of setbacks from common places of
assembly is also to lessen the odors from livestock facilities before they reach surrounding
persons, why should the owner of a common place of assembly be able to waive the
statutory rights to a setback for persons who might assemble at their establishment?
Therefore, the argument that livestock operators who want to expand beyond 50 animal
units would not be burdened by the half-mile setback from all recreational and conservation
lands because setback waivers are available is without statutory authority and is not
consistent with the purpose of setbacks.
Setback Notification
Section 506.703 of the rules requires that all livestock owners notify the
Department of Agriculture and neighboring property owners in the setback area if they
intend to build a new livestock facility for more than 50 animal units. I agree that this
Section would be appropriate if it was voluntary, as requested by the Farm Group (PC 60
at 6). But to require such notification for all livestock owners with greater than 50 animal
units, irregardless of animal type is over-regulation. There is no evidence in the record
that there is a compelling public interest to require all livestock owners to go through this
notification process. The record only supports a finding that this notification requirement
should be required of new, large hog facilities. The rationale for this finding is explained
in the following paragraphs.
Distinctions By Type and Size of Operation
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The majority failed to take advantage of its clear authority under the LMFAct to
adopt rules that “make distinctions for the type and size of livestock management and
livestock management handling facilities and operations.” (510 ILCS 77/55(c). In this
proceeding the Board was told by many citizens including farmers, who live close to hog
operations, that hog odor negatively impacts their enjoyment of life and property. Many
others testified that they are concerned about new hog facilities being planned or
constructed near their homes or communities. The legislative debate before enactment of
the LMFAct also demonstrated that the primary impetus for the LMFAct’s sponsors was
the potential environmental impact of large hog facilities.
The major environmental concerns about large hog operations are potential
contamination of ground or surface water, and odor. I agree with the additional safeguards
against ground or surface water contamination contained in the majority’s rules. However,
until the Board distinguishes hog operations from other livestock operations in terms of
odor, the Board will over-regulate large segments of the livestock industry in Illinois,
without addressing the specific potential problems created by new large hog operations.
The record in this proceeding, including the testimony of citizens and experts,
demonstrates that hog odor is in a different class from other livestock odor, and should be
regulated separately.
Opening Docket B
The majority opinion opens a Docket B in this proceeding to receive a proposal
from the Department of Agriculture on financial assurance rules. The majority should
have also placed the new sections not previously seen by the public into Docket B, and
entertained proposals to make regulatory distinctions based on number and type of animal.
For example, several new sections place specific administrative requirements on the
Department of Agriculture. These rules would be better supported with additional
testimony from the Department of Agriculture.
For these reasons, I respectfully dissent.
____________________________________
G. Tanner Girard
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify
that the above dissenting opinion was filed on the _____ day of ________________, 1997.
____________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board