1
2
3 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
4
5
6 IN THE MATTER OF:
7
8 LIVESTOCK WASTE REGULATIONS R97-15
9 35 Illinois Adm. Code 506 (
Rulemaking)
10
11
12
13 Proceedings held on January 14, 1997, at
14 9:10 a.m., at
Blackhawk Village, 1111 East Morton
15 Street, Jacksonville, Illinois.
16
17
18
19
20
21 Reported by: Darlene M.
Niemeyer, CSR, RPR
CSR License No.: 084-003677
22
23 KEEFE REPORTING COMPANY
11 North 44th Street
24 Belleville, IL 62226
(618) 277-0190
1
KEEFE REPORTING COMPANY
Belleville, Illinois
1 A P
P E A R A N C E S
2
Illinois Pollution Control Board:
3
4 Claire A. Manning, Board Chairman
5 Ronald C.
Flemal, Ph.D., Presiding Board Member
6 G. Tanner
Girard, Ph.D., Board Member
7 Marili McFawn, Board Member
8 Joseph
Yi, Board Member
9 Anand Rao, Environmental Scientist for the Board
10 Marie
Tipsord, Attorney for the Board
11 Audrey Lozuk-Lawless, Hearing Officer
12
13
14
15
16
17
18
19
20
21
22
23
24
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 I N D E X
2 WITNESSES PAGE NUMBER
3 Chester S.
Boruff 15, 97
4 Warren D.
Goetsch 28, 90
5 Scott Frank 62, 94
6 James B. Park 108
7 Clinton C.
Mudgett 117
8 John Marlin 122
9 Donald A.
Keefer 130
10 Michael R.
McCulley 143
11 Deanna M.
Glosser 149
12 Renee
Robinson 158
13 Ted Funk 168
14 Lawrence Judd 173
15 Prefiled Q&A Segment of Hearing 180
16 E X H I B I T S
17 NUMBER MARKED FOR IDENTIFICATION
18 Exhibit 1 61
Exhibit 2 61
19 Exhibit 3 61
Exhibit 4 121
20 Exhibit 5 130
Exhibit 6 173
21 Exhibit 7 178
Exhibit 8 217
22 Exhibit 9 233
Exhibit 10 234
23 Exhibit 11 235
24
3
KEEFE REPORTING COMPANY
Belleville, Illinois
1 P R O C E
E D I N G S
2 (January 14, 1997; 9:10 a.m.)
3 HEARING OFFICER LOZUK-LAWLESS: Good
4 morning and welcome.
5 Today is the first hearing of five, which
6 the Board will be holding in this matter. This
7 proceeding is entitled the Illinois Department of
8 Agriculture Livestock Waste Regulations Proposal,
9 35 Illinois Administrative Code 506.
10 The Illinois Department of Agriculture
11 proposed this
rulemaking to the Board on November
12 21st, 1996, and the Board docketed this matter, and
13 it is R97-15.
14 If you would like to file any motions or
15 testimony or comments with the Board, please do
16 note on those filings R97-15.
17 My name is
Audrey Lozuk-Lawless, and I am
18 the Hearing Officer in this matter. There are
19 several members from the Board present here today.
20 I would like to introduce Board Chairman
21 Claire Manning.
22 BOARD CHAIRMAN MANNING: Good morning.
23 HEARING OFFICER LOZUK-LAWLESS: Board
24 Member Dr. Ronald
Flemal.
4
KEEFE REPORTING COMPANY
Belleville, Illinois
1 PRESIDING BOARD MEMBER FLEMAL: Good
2 morning.
3 HEARING OFFICER LOZUK-LAWLESS: Board
4 Member Joseph
Yi.
5 BOARD MEMBER YI: Good morning.
6 HEARING OFFICER LOZUK-LAWLESS: Board
7 Member Dr. Tanner
Girard.
8 BOARD MEMBER GIRARD: Good morning.
9 HEARING OFFICER LOZUK-LAWLESS: Board
10 Member
Marili McFawn.
11 BOARD MEMBER
McFAWN: Good morning.
12 HEARING OFFICER LOZUK-LAWLESS: And we
13 also have an attorney with the Board here, Marie
14 Tipsord.
15 MS. TIPSORD: Good morning.
16 HEARING OFFICER LOZUK-LAWLESS: So I
17 would just like to start off by saying that the
18 hearing today will be conducted pursuant to the
19 Board's procedural rules. Any information which is
20 relevant and not repetitious will be admitted into
21 the record.
22 Any witnesses will be sworn in by the
23 court reporter and subject to cross-questioning.
24 Anyone in the audience can ask a question of any of
5
KEEFE REPORTING COMPANY
Belleville, Illinois
1 the witnesses. You do not need to sign in ahead of
2 time.
3 All right. Today the general procedure
4 we would like to follow will be, first, we will
5 have the Department of Agriculture present their
6 witnesses. They have three witnesses who have
7 prefiled testimony in this matter.
8 After the Department of Agriculture
9 presents their witnesses they will be followed by
10 the Illinois Environmental Protection Agency, and
11 their witness, followed then by the Department of
12 Health and, finally, the Department of Natural
13 Resources.
14 After those proponents have testified we
15 will then go to the two individuals who have
16 prefiled testimony in this matter earlier with the
17 Board, and that would be the testimony from the
18 Illinois Stewardship Alliance, Renee
Robinson, and
19 from Ted Funk from the University of Illinois.
20 Following that testimony, we will then
21 turn to questions from anyone in the audience. If
22 you have a question we would just like you to raise
23 your hand and come -- and I will acknowledge you,
24 and then come to the second table there. There is
6
KEEFE REPORTING COMPANY
Belleville, Illinois
1 a microphone. And go there and state your name and
2 if you represent any organizations, and then go
3 ahead and ask your question.
4 The agencies will be sitting up in panel
5 form. Right now the Department of Natural
6 Resources is not up there, but they will be up
7 there, and you can ask a question of any of the
8 different agencies or of any of the witnesses who
9 have testified.
10 Okay. The Board Members may, from time
11 to time, ask questions. I just wanted everyone to
12 be clear that those questions are to complete the
13 record for any Board Members or staff that may not
14 be present with us here today, not to represent any
15 preconceived notions or bias.
16 And, lastly, to remind everyone that if
17 they don't want to say anything today on the record
18 or don't want to file
prefiled testimony, that
19 there will be four additional hearings which are
20 being held in this matter. And those hearings will
21 be held in Champaign,
DeKalb, Galesburg and Mt.
22 Vernon.
23 And so right now I would like to turn the
24 program over to Dr.
Flemal.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 PRESIDING BOARD MEMBER FLEMAL: Thank
2 you. I want to extend a welcome on behalf of the
3 Board to all of you. We look forward to your
4 participation in this
rulemaking.
5 It is very important to us when we are
6 doing our -- we are undertaking our
rulemaking
7 charge that we hear from those people who are
8 affected by the rule. We can factor in all of the
9 appropriate information we can to make the best
10 rule possible. It certainly is encouraging to see
11 this large turn out, and it certainly augurs well
12 for our ability to make a good decision on the
13 matter before us.
14 Since most of you are new to the Illinois
15 Pollution Control Board process, I am going to take
16 just a short time to run through who we are, what
17 we do, and what specifically we are about in the
18 current
rulemaking.
19 The Pollution Control Board consists of
20 seven members that are appointed by the governor
21 with the consent of the Illinois Senate. Five of
22 the Board Members are presented today. Two of our
23 other two Board Members are off attending to other
24 matters this morning, but will participate fully in
8
KEEFE REPORTING COMPANY
Belleville, Illinois
1 the ultimate decision that the Board is faced with
2 in this matter.
3 The Board has a broad range of duties. A
4 substantial portion of our time is involved in
5 various quasi-judicial activities. We stand as
6 boards of review. We look at and make decisions in
7 a variety of enforcement actions and so on.
8 The second hat that we wear is a
9 quasi-legislative one. It is that activity that we
10 are engaged in today. The Board is charged with
11 adopting the environmental standards for the State
12 of Illinois. Most of the regulations that you know
13 as environmental regulations that are state
14 regulations have come through and been adopted by
15 this Board.
16 In the matter at hand we have been
17 charged by the General Assembly with developing the
18 regulations that will flesh out the Livestock
19 Management Facilities Act. That is, of course, the
20 activity that we are engaged in at the moment.
21 We will proceed in this matter by
22 conducting the hearings that are beginning at the
23 moment, by gathering other information through
24 public comments that are submitted by the Board,
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 and when this record is completed, which will be in
2 mid February, the Board will deliberate over the
3 content of that record, that is, what you are
4 telling us today and what we gather through the
5 other processes, and determine what the ultimate
6 fate of the proposal before us is.
7 Now, that proposal may have one of three
8 fates. We may find that the appropriate decision
9 is to adopt the rule as proposed to us. We might
10 adopt the rule with modifications; those
11 modifications based upon the testimony and, again,
12 other aspects of the record that we develop in this
13 process. Or, conceivably, we might make the
14 decision to not move forward at all.
15 At any rate, that is the task that the
16 Board is presented with ultimately in this
17 rulemaking procedure. The
rulemaking is a fairly
18 normal one for the Pollution Control Board, perhaps
19 with one exception. We all ought to note that this
20 is a somewhat unusual proposal or process, in that
21 we have a fairly short time frame. The General
22 Assembly has mandated that this
rulemaking be
23 completed in a term of six months.
24 At first blush it may appear that six
10
KEEFE REPORTING COMPANY
Belleville, Illinois
1 months is a long time and provides lots of extra
2 elbow room. It, in fact, does not. If one looks
3 at the various steps that are mandated by law
4 before any
rulemaking can become law in the State
5 of Illinois, six months becomes a relatively short
6 time frame.
7 We have had already, for example, had to
8 consume several weeks simply in the notice process
9 for these hearings to be sure that everybody is
10 aware that hearings are happening and that they
11 have adequate time to prepare. We are actually in
12 the eighth week at the moment of a 26-week period
13 to adopt these rules. Ahead of us are substantial
14 blocks of time that are set aside for activity, so
15 we have to move rather expeditiously in the
16 decision.
17 We appreciate the cooperation that the
18 people who have participated in the
rulemaking so
19 far have shown us in accommodating to this rather
20 tight time frame.
21 With that, let me pass the microphone
22 over to Chairman Manning, who, as well, has a few
23 words of introduction she would like to make.
24 CHAIRMAN MANNING: As we need to get
11
KEEFE REPORTING COMPANY
Belleville, Illinois
1 started soon, I will make this short. I did,
2 however, want to welcome all of the members here,
3 as well as Dr.
Flemal has already done.
4 I wanted to welcome all the members of
5 the public, all the members of the livestock
6 industry, and all of the persons in government who
7 have been very busy throughout the last several
8 months working with this rule and working with this
9 issue.
10 Particularly, I would like to recognize
11 the legislative interest and the good legislative
12 work that has been done already on the Livestock
13 Management Facilities Act. I know several
14 legislators may be in and out today. I know my own
15 representative, Representative
Poe is here in the
16 back of the room, Ray
Poe.
17 My understanding is that Representative
18 Myers may be here later and Representative
Tenhouse
19 and Representative
Ryder, as well.
20 We appreciate that legislative interest
21 and we appreciate all of the work that you have
22 done in terms of the Act and trying to get this
23 issue to the public forefront and resolving it in a
24 way that makes sense for everyone.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 The Board's role, as well, is one of
2 working with that Act within the confines of that
3 Act and working with the Department of
4 Agriculture's proposal and ensuring that the
5 proposal is protective of the environment, while at
6 the same time economically reasonable for the
7 industry that is in question; this time the
8 livestock industry.
9 I would like to also recognize the good
10 work of the state agencies that has been done in
11 terms of presenting this proposal and in presenting
12 the emergency rule that we had earlier,
13 specifically the Department of Agriculture.
14 I know the Director is here this morning,
15 as well. I don't know if Becky is still here, but
16 I would like to recognize Director
Doyle. Becky,
17 if you would stand up so that everybody knows who
18 you are. Director
Doyle is here this morning.
19 Thank you.
20 Becky and her Department have done an
21 excellent job in terms of dealing with this issue,
22 and we will hear from
Chet Boruff and Warren
23 Goetsch and the other people in Agriculture this
24 morning.
13
KEEFE REPORTING COMPANY
Belleville, Illinois
1 I would like to also recognize, of
2 course, The Department of Natural Resources, the
3 Environmental Protection Agency, and the Department
4 of Public Health, who really have shown that
5 government working together can really work well in
6 terms of resolving some rather difficult issues
7 that we all face environmentally and economically
8 in this State.
9 Without further ado, I am going to turn
10 over to Presiding Board Member and his Hearing
11 Officer for us to begin the testimony this
12 morning. Thank you.
13 HEARING OFFICER LOZUK-LAWLESS: I would
14 just like to tell people that if you are unable to
15 hear any of the witnesses, just raise your hand and
16 we can adjust the microphones, because we want
17 everyone to be able to hear everything that people
18 are saying.
19 So we will now begin with the Department
20 of Agriculture's witnesses. I will turn to Mr.
21 Chet Boruff, and ask if you have an opening
22 statement or if you would like to call your first
23 witness.
24 And if the court reporter could then
14
KEEFE REPORTING COMPANY
Belleville, Illinois
1 please swear in all the Department's witnesses.
2 (Mr. Chester
Boruff, Mr. Warren
3
Goetsch and Mr. Scott Frank
4 were sworn in by the court
5 reporter.)
6 MR. BORUFF: Good morning. Before I
7 would offer my prepared testimony this morning, I
8 would like to, on behalf of the Illinois Department
9 of Agriculture, offer our thanks to the Illinois
10 Pollution Control Board for your interest and
11 activity in this and especially, as was mentioned,
12 in view of the compressed schedule that you are
13 working within, and knowing that there are other
14 pressing matters that you are dealing with at the
15 same time that this issue is before you. So thank
16 you for that.
17 I would also like to, on behalf of the
18 Department, offer our thanks to the other three
19 departments that served as members of the Advisory
20 Committee established by the Act, the Livestock
21 Management Facilities Act, those being the
22 Department of Natural Resources, the Environmental
23 Protection Agency, and the Department of Public
24 Health.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 The representatives of those departments,
2 who you will hear from later on this morning, all
3 put a great deal of time and effort as well as
4 staff support that came from
enumerable people to
5 put these regulations together. So I would just
6 like to, on behalf of our Department, issue our
7 thanks to them.
8 And also to those of you in the audience
9 today, people who represent the industry, folks
10 from around the state and a variety of different
11 interests for the great deal of concern that you
12 have had in this issue and many hours that I know
13 that many of you personally have spent with the
14 whole development of the Act and on the regulations
15 today.
16 My name is
Chet Boruff and I am employed
17 by the Illinois Department of Agriculture as Deputy
18 Director for the Division of Natural Resources and
19 Ag Industry Regulation. I entered the Illinois
20 Department of Agriculture in my current position in
21 July, 1992. As Deputy Director, I am responsible
22 for the program areas of the Department dealing
23 with animal health and welfare, natural resource
24 protection, regulation of the feed, seed and grain
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 industry, and the weights and measures program.
2 I was raised on a grain and livestock
3 farm in Rock Island County, Illinois. I received a
4 Bachelor's Degree in Agriculture from Iowa State
5 University, and prior to coming to the Illinois
6 Department of Agriculture, I have worked in
7 agriculture finance, real estate, and agricultural
8 supply sales, as well as operating a diversified
9 grain and livestock farm.
10 Illinois has long been recognized as one
11 of the leading livestock producing states in the
12 nation. Due to its access to abundant feed
13 supplies, strong markets, and a well developed
14 infrastructure, the Illinois livestock industry has
15 been a major contributor to the state's overall
16 economy.
17 Livestock production accounts for
18 approximately 2 billion dollars or 25 percent of
19 the total gross income received for Illinois farm
20 commodities. Several types of livestock species
21 are produced in the state, but especially pork,
22 beef cattle, and dairy production are major
23 contributors to the agricultural industry.
24 The livestock industry is undergoing
17
KEEFE REPORTING COMPANY
Belleville, Illinois
1 major changes in structure due to economic and
2 marketing forces which are not unique to the State
3 of Illinois. As a result, it has become common for
4 many operations to expand, to specialize, and to
5 invest in capital-intensive production units in
6 recent years. Production and marketing trends have
7 shown a major shift in livestock production from
8 areas historically known for livestock production
9 to newer production areas of the country where
10 livestock units are becoming more prevalent.
11 The livestock industry has been faced
12 with challenges regarding market structure, access
13 to capital, a limited supply of trained employees,
14 and increased regulations. In many cases, in
15 Illinois as well as in other states, traditional
16 and long-established livestock producers have
17 chosen to leave the industry rather than to address
18 the challenges listed above.
19 In an effort to strengthen the industry
20 and to position Illinois to be a continuing leader
21 in livestock production, Governor Edgar convened
22 the Livestock Industry Task Force in July of 1995.
23 The task force, chaired by Becky
Doyle, Director of
24 Agriculture to the State of Illinois, includes
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 representatives of the major livestock commodity
2 sectors, as well as representatives from the
3 supporting industries, including processing,
4 veterinary medicine, livestock supplies, and grain
5 producers.
6 The charge given to the Task Force was to
7 consider those factors affecting the livestock
8 industry in the State of Illinois and to make
9 recommendations to Governor Edgar and to the
10 legislature on ways that Illinois could continue to
11 foster a healthy livestock industry. The Task
12 Force has addressed a wide range of topics focusing
13 on areas of economic development, technology
14 transfer, and environmental concerns regarding
15 livestock production.
16 Intensified livestock production has led
17 to larger operations which, by nature of their
18 size, generate large volumes of animal waste.
19 Concerns have been raised regarding the impact
20 these large volumes of animal waste might have on
21 water, soil and air resources. The Livestock
22 Industry Task Force designated a working group to
23 deal with these environmental issues, and as a
24 result of its deliberations, the Task Force played
19
KEEFE REPORTING COMPANY
Belleville, Illinois
1 a major role in the development of legislation,
2 known as the Livestock Management Facilities Act,
3 which was ultimately passed by the Illinois General
4 Assembly and signed into law as Public Act 89-456
5 by Governor Edgar on May 21st, 1996.
6 During the public discussions which led
7 to the development and eventual passage of the Act,
8 it was noted that any new legislation regarding
9 livestock waste and livestock management facilities
10 should be preventive in nature, since Illinois
11 currently has statutes in place to deal with
12 situations once pollution has occurred. By being
13 preventive, the Livestock Management Facilities Act
14 will help Illinois and its livestock producers
15 avoid problems which have occurred in other states
16 regarding contamination of natural resources from
17 livestock production.
18 The Livestock Management Facilities Act
19 sets in place statutes providing for the proper
20 siting, construction, operation, and management of
21 livestock management facilities and associated
22 waste handling structures. It is the intent of the
23 Livestock Management Facilities Act to "maintain an
24 economically viable livestock industry in the State
20
KEEFE REPORTING COMPANY
Belleville, Illinois
1 of Illinois while protecting the environment for
2 the benefit of both the livestock producer and
3 persons who live in the vicinity of a livestock
4 production facility".
5 The Livestock Management Facilities Act
6 complements existing statutes contained within the
7 Illinois Environmental Protection Act and
8 regulations adopted thereunder regarding the
9 operation of livestock management facilities and
10 focuses on preventing pollution from these
11 facilities before it may occur. Not only does the
12 Livestock Management Facilities Act address design
13 and operational aspects of livestock production,
14 but it allows for the education and certification
15 of livestock managers, provides for research, and
16 provides for the proper disposal of livestock
17 waste. Once again, the goal being to prevent
18 pollution before it may occur.
19 Section 55 of the Livestock Management
20 Facilities Act established a Livestock Management
21 Facilities Advisory Committee -- I will be
22 referring to this as Committee -- made up of the
23 Directors of the Department of Agriculture, Natural
24 Resources, Public Health, and the Illinois
21
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Environmental Protection Agency or their designees.
2 I was designated by Director
Doyle to serve as the
3 Chair of the Committee.
4 The Members of the Committee were charged
5 to review, evaluate and make recommendations to the
6 Department of Agriculture for rules necessary for
7 the implementation of the Livestock Management
8 Facilities Act. The Department was mandated by
9 statute to propose rules to the Board for the
10 implementation of the Livestock Management
11 Facilities Act within six months of the effective
12 date of the Act.
13 Since the effective date of the
14 legislation was May 21st, 1996, the Department
15 prepared its proposal for filing date of November
16 21, 1996. Section 55 of the Livestock Management
17 Facilities Act also requires that the Board hold
18 hearings on and adopt rules for the implementation
19 of the Act within six months of the Department
20 filing of a rule proposal for that purpose.
21 The Committee met five times during the
22 summer and fall of 1996 to review, evaluate and
23 recommend amendments to various draft proposals
24 developed by the Department. The departments and
22
KEEFE REPORTING COMPANY
Belleville, Illinois
1 the agency represented on the Committee provided a
2 vast amount of professional knowledge and
3 experience on a broad spectrum of topics pertinent
4 to the subject matter of the Livestock Management
5 Facilities Act. The Department recognizes them for
6 their efforts and appreciates their recommendations
7 and input throughout the rule proposal development
8 process.
9 The Committee considered several sources
10 of information, such as technical papers, published
11 design standards, pertinent information from other
12 states, and information provided by industry and
13 private individuals as it made recommendations to
14 the Department regarding the rule proposal.
15 The effective dates of several sections
16 of the Livestock Management Facilities Act are
17 coupled to the effective date of rules promulgated
18 for their implementation. During the time period
19 that the Committee was deliberating possible rule
20 proposals, concerns in several areas of the state
21 were being raised regarding whether or not adequate
22 levels of environmental protection were in place
23 during the interim period between the effective
24 date of the statute and the final adoption of the
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 rules that were to be submitted by the Department
2 to the Board.
3 As a result of these concerns, the
4 Department developed and proposed to the Board an
5 emergency rule pertaining to portions of the
6 Livestock Management Facilities Act, namely, lagoon
7 registration, livestock facility siting, waste
8 lagoon design criteria, waste management plans, and
9 certified livestock management training and
10 certification. After allowing for public comment,
11 the Board adopted emergency rules allowing for the
12 implementation of various sections of the Livestock
13 Management Facilities Act on October 31, 1996, with
14 an effective period of 150 days unless extended by
15 the Illinois General Assembly.
16 Currently, legislation is pending, and I
17 might mention at this point in time, the
18 legislation did pass, so that the rule has been
19 extended, to my knowledge, which would extend the
20 emergency rules and from all indications, as I
21 mentioned, it did pass in General Assembly. During
22 the development of the emergency rule proposal, the
23 Department considered recommendations which had
24 been made by the Livestock Management Facilities
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Advisory Committee.
2 In addition, during the development of
3 the proposal, which is the subject of this
4 document, the Department carefully considered the
5 scope and the design of the emergency rules adopted
6 by the Board. As a result, the adopted emergency
7 rule and the several sections of the rule proposed
8 with this document are very similar in content and
9 regulatory direction.
10 However, the Department has included
11 sections in this proposal which were not considered
12 relevant during the emergency rule adoption
13 process, and has attempted to develop and propose
14 enhancements or clarifications to sections that
15 were included in the adopted emergency rule. In
16 all cases, the Department proposes to recognize the
17 appropriate regulatory standing of any actions
18 taken by individuals and facilities under the
19 emergency rules.
20 Prior to the passage of the Livestock
21 Management Facilities Act, regulatory issues
22 associated with livestock waste primarily were
23 addressed by the Illinois Environmental Protection
24 Agency under authorities present in the
25
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Environmental Protection Act and the rules
2 promulgated thereunder. The Livestock Management
3 Facilities Act provides authorities to the Illinois
4 Department of Agriculture relative to livestock
5 waste and facility management and, thus, the
6 Department believes the most appropriate approach
7 is to set the rules implementing the statute in a
8 separate Part.
9 Part 506 is organized in several
10 subparts, each with its own applicability section
11 and specific requirements. The initial three
12 subparts provide the bulk of this proposal for the
13 Board's consideration regarding: General
14 provisions; lagoon registration, construction
15 standards and construction certification; and waste
16 management plan development, implementation and
17 maintenance.
18 The final four subparts in the proposal
19 provide a framework for the Department's
20 administration of each of the following: The
21 certified livestock manager program; penalties
22 associated with the Livestock Management Facilities
23 Act; owner or operator financial responsibility
24 requirements; and setback waivers.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Each of the final four subparts set forth
2 authorities for the Department to develop and
3 pursue direct adoption of rules under the Illinois
4 Administrative Procedures Act. In each of the
5 Subparts D, E, F, and G, the rules which we are
6 proposing state that the Department may adopt and
7 promulgate by rule all procedures reasonably
8 necessary to perform its duties and
9 responsibilities under the specific subpart.
10 This approach was reviewed and
11 recommended by the four-agency advisory committee,
12 in order to give the Department of Agriculture the
13 ability to adopt rules and procedures in a timely
14 fashion and to relieve the Pollution Control Board
15 of being required to consider and act upon minute
16 administrative details. The Livestock Management
17 Facilities Act does not prohibit this approach and
18 the Illinois Department of Agriculture routinely
19 adopts and promulgates rules in a variety of its
20 other programs.
21 The Illinois Department of Agriculture is
22 requesting that the Pollution Control Board endorse
23 this approach in order that the Department of
24 Agriculture may continue upon its anticipated
27
KEEFE REPORTING COMPANY
Belleville, Illinois
1 course of developing administrative rules, which
2 will complement these proposed Rules.
3 From this point on, I will be sharing the
4 microphone with Scott Frank and Warren
Goetsch,
5 both of whom are members of the staff at the
6 Illinois Department of Agriculture. They and I
7 will be reviewing specific subparts of the proposed
8 rules. Mr.
Goetsch will be providing testimony on
9 Subpart A: General Provisions and Subpart B:
10 Standards for Livestock Waste Lagoon, and Subpart
11 D: Certified Livestock Manager. Mr. Frank will be
12 providing testimony on Subpart C: Waste management
13 Plan and Subpart E: Penalties.
14 I will be finishing our presentation with
15 testimony regarding Subpart F: Financial
16 Responsibility, Subpart G: Setbacks, and final
17 comments by the Illinois Department of
18 Agriculture.
19 Thank you.
20 HEARING OFFICER LOZUK-LAWLESS: Thank
21 you, Mr.
Boruff.
22 You may begin, Mr.
Goetsch.
23 MR. GOETSCH: My name is Warren
Goetsch.
24 I am employed by the Illinois Department of
28
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Agriculture as the Chief of the Bureau of
2 Environmental Programs, a position that I have held
3 since December of 1991. I joined the Department in
4 July of 1989 and served as the Bureau Chief of
5 Laboratories until assuming my present position.
6 The responsibilities of the position
7 include providing administrative oversight and
8 technical guidance to the Department's pesticide,
9 nursery, and
agrichemical facility containment
10 programs. In addition, I represent the Department
11 on the Interagency Pesticide Committee, the
12 Interagency Coordinating Committee on Groundwater,
13 the Illinois Hazardous Materials Advisory Board and
14 the
Agrichemical Facility Response Action Program
15 Board.
16 Prior to joining the Department, I was
17 employed for over nine years as an Area Extension
18 Engineer by the University of Illinois Cooperative
19 Extension Service. During that time I worked with
20 various agricultural producers on various areas of
21 agricultural engineering including farmstead
22 design, alternative energy systems, livestock
23 housing and waste management, grain drying and
24 tillage systems.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 I received both a Bachelor of Science
2 Degree in Agricultural Engineering and a Master of
3 Science Degree in Agricultural Engineering from the
4 University of Illinois at
Urbana-Champaign,
5 Illinois. I have been a member of the American
6 Society of Agricultural Engineers since 1980, and
7 have been a Registered Professional Engineer in the
8 State of Illinois since 1984.
9 Today I come before this group to provide
10 testimony on behalf of the Illinois Department of
11 Agriculture relative to certain provisions of
12 Subpart A, B and D of the proposal.
13 Subpart A sets forth the applicability,
14 severability, definitions and
incorporations by
15 reference for the rule proposal. The applicability
16 statement indicates that each subpart includes its
17 own specific statement of application. Section
18 506.102 indicates that each section shall be
19 considered on its own merit and does not directly
20 affect the validity of the other subparts.
21 Section 506.103 contains various
22 definitions of terms used in the rule proposal and,
23 in general, follows concepts developed and included
24 in the emergency rules adopted by the Board under
30
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Docket R97-14.
2 All but six terms defined within this
3 section have been taken directly from the Livestock
4 Management Facilities Act, thus no additional
5 discussion of them will be offered here. The terms
6 "Aquifer material," "Gravel" or "Sand and gravel,"
7 and "Sand" have been included in the proposal for
8 use with the site investigation requirements
9 included at Section 506.202 relative to the design
10 and construction of livestock waste lagoons. These
11 definitions were adopted by the Board as part of
12 the emergency rules and have been proposed in this
13 rulemaking without changes.
14 Mr. Don
Keefer, a hydro-geologist with
15 the Illinois State Geological Survey section of the
16 Illinois Department of Natural Resources, was the
17 principal author of this concept and will provide a
18 discussion of the derivation of these terms, their
19 associated meanings and use with a site
20 investigation during the Department of Natural
21 Resources testimony, which follows later.
22 Another term included in both the
23 emergency rules and proposed here is the term
24 "placed in service." No changes from the
31
KEEFE REPORTING COMPANY
Belleville, Illinois
1 emergency rule definition are proposed here. The
2 Department believes that it is necessary to tightly
3 define any compliance date from an easily
4 determined point in time and feels that this
5 definition is adequate to serve that purpose.
6 Also, the Department has offered a
7 definition of the term "Livestock pasture
8 operation" to assist in the interpretation of the
9 statutory definition of a "Livestock management
10 Facility." The Livestock Management Facilities
11 Act, under the definition of a "Livestock
12 Management Facility," specifically exempts
13 "Livestock pasture operations" from compliance
14 with its provisions or those of this
rulemaking,
15 but does not provide a specific definition of such
16 facilities.
17 The Department has developed the proposed
18 definition of "Livestock pasture operations" by
19 modifying various components of the definition of
20 an "animal feeding operation" found at 35 Illinois
21 Administrative Code 501.225. The proposed language
22 requires that to qualify as a "Livestock pasture
23 operation" some form of vegetation must remain
24 present over most of the lot area and that the
32
KEEFE REPORTING COMPANY
Belleville, Illinois
1 animals have free access to the lot areas, both
2 provisions which are in direct opposition of the
3 requirements for classification as an "animal
4 feeding operation" and are consistent with what the
5 Department believes was the type of facility to be
6 exempted by the statute.
7 The final two definitions that I will
8 briefly discuss today are associated with the terms
9 "Populated Area" and "Residence." The Department
10 proposes to expand the definition of "Populated
11 Area" beyond the statutory definition by:
12 (1) providing a clear method to follow in
13 determining whether a particular situation
14 qualifies as being within the statutory definition;
15 and
16 (2) recognizing the seasonal use of
17 either a common place of assembly or a non-farm
18 business should not exclude it from the setback
19 protections afforded under the original
20 definition.
21 The Department proposes that the
22 existence of a "Populated Area" be determined by
23 considering the setback distance which would be
24 applicable to the livestock facility in question,
33
KEEFE REPORTING COMPANY
Belleville, Illinois
1 as shown in Figures 1 and 2 included in my
prefiled
2 testimony.
3 First, the applicable setback distance is
4 identified as measured from the proposed facility.
5 Then, the number of residences, the existence of a
6 non-farm business or the existence of a common
7 place of assembly within the setback distances are
8 then determined. If at least ten inhabited
9 non-farm residences, a non-farm business or a
10 common place of assembly are located within the
11 determined setback distances, the "Populated Area"
12 definition would apply.
13 In addition, during discussions with the
14 Advisory Committee, a question was presented
15 relative to whether facilities, such as schools or
16 businesses which have a predetermined seasonal
17 operational shutdown, would fail to be included
18 within the "Populated Area" definition because of
19 those seasonal shutdowns.
20 In response to this issue, the Advisory
21 Committee has recommended to the Department and the
22 Department has proposed language as part of the
23 "Populated Area" definition which would recognize
24 that the seasonal nature of an operation would not
34
KEEFE REPORTING COMPANY
Belleville, Illinois
1 disqualify them from consideration as common places
2 of assembly or non-farm businesses.
3 The Department has also proposed a
4 definition for the term "residence." Several
5 either statutory or proposed regulatory definitions
6 include this term as part of a broader definition,
7 but do not clearly specify an exact interpretation
8 of residence as a base term. Specifically, the
9 inclusions of all attachments as being part of the
10 structure for setback measurement purposes is
11 deemed necessary.
12 In addition, a requirement that the
13 structure be in use as a place of human habitation
14 was deemed as a necessary addition to the final
15 definition. Further, the Department would
16 respectfully suggest that the Board consider a
17 further clarification to the rule, either as part
18 of this definition or as a component of another
19 section of the rule relative to the timing of the
20 application of a setback distance.
21 The Advisory Committee discussed, on
22 several occasions, the possible need for a
23 clarification regarding when a structure would be
24 considered a residence and thus impact the siting
35
KEEFE REPORTING COMPANY
Belleville, Illinois
1 of a proposed facility. However, a final consensus
2 was never reached. Since the Department's proposed
3 filing, a situation has developed wherein an entity
4 purchased a large parcel of land and initiated the
5 construction of a livestock management facility and
6 lagoon.
7 At about the same time, other
8 individuals, which opposed the construction of the
9 facility, purchased a small parcel of land directly
10 adjacent to the facility site and within the
11 projected setback distances. Those individuals
12 then located a house trailer on the small parcel of
13 land and are claiming that it qualifies as a
14 residence.
15 This situation suggests that further
16 clarification is necessary to ensure that the
17 rights of both rural residents and the livestock
18 industry are protected. The long construction
19 period which precedes a facility being "placed in
20 service" renders this possible point in time as
21 unsuitable as a reference point. Another option
22 might be to key the application of setbacks to the
23 date of the lagoon registration receipt by the
24 Department.
36
KEEFE REPORTING COMPANY
Belleville, Illinois
1 This approach would also have a secondary
2 benefit in that proposed facilities would be
3 encouraged to submit their registration request
4 prior to any substantial construction beyond the
5 initial site investigation boring. This would
6 allow for a more constructive and timely
7 interaction between the owner/operator and the
8 Department than is specifically required under the
9 statute, which is rather passive in this area.
10 However, this approach would not solve
11 potential conflicts relative to facilities being
12 planned which do not incorporate the use of lagoons
13 as part of their livestock waste storage and
14 treatment systems. Nor, would it consider the
15 mobile nature of manufactured housing, which could
16 be moved within a setback zone and established
17 during the construction period associated with a
18 livestock management facility.
19 In any event, the Department urges the
20 Board to consider a clarification in this area to
21 minimize confusion which could result under the
22 current provision of the statute.
23 Section 506.104 of the proposal includes
24 documents to be incorporated into the
rulemaking by
37
KEEFE REPORTING COMPANY
Belleville, Illinois
1 reference. The Department is proposing two
2 references relative to the analysis of samples
3 collected from monitoring wells which may be
4 required as part of a lagoon design. These
5 references are from the American Public Health
6 Association and the National Technical Information
7 Service for the United States Environmental
8 Protection Agency and are standard references
9 utilized by both government and private
10 laboratories throughout the country.
11 The final two references are from the
12 American Society of Agricultural Engineers and the
13 United States Department of Agriculture Natural
14 Resources Conservation Service. Both these
15 documents are specifically referenced in the
16 Livestock Management Facilities Act and are
17 required to be used as the basis for lagoon
18 design.
19 Subpart B of the proposal is organized
20 into eight major sections and outlines the approach
21 required of owners and operators of new or modified
22 livestock waste lagoons for the registration,
23 design, construction, closure, and ownership
24 transfer of such facilities. The proposal closely
38
KEEFE REPORTING COMPANY
Belleville, Illinois
1 follows the emergency rule adopted by the Board and
2 begins with a site investigation designed to
3 determine the degree of environmental protection
4 necessary for incorporation into the design of a
5 lagoon at a specific location based on
6 site-specific
hydro-geology.
7 The proposal then outlines the design
8 standards applicable to each condition, including
9 general lagoon design specifications, liner
10 requirements and groundwater monitoring program
11 components. The lagoon registration and
12 construction certification process are also defined
13 within the subpart. Finally, the proposal provides
14 requirements for ownership transfer and lagoon
15 closure if these actions become necessary.
16 The Department has attempted to provide
17 additional detail in several areas beyond the
18 adopted emergency rule to assist the livestock
19 producer in achieving compliance with the
20 requirements of the Livestock Management Facilities
21 Act. Section 506.201 sets forth the applicability
22 of the subpart and indicates that these
23 requirements shall apply to all new or modified
24 lagoons not placed in service as of the effective
39
KEEFE REPORTING COMPANY
Belleville, Illinois
1 date of the proposal.
2 This is a change from the adopted
3 emergency rule which only applied to a lagoon
4 serving a livestock management facility with a
5 design capacity of 300 animal units or more. This
6 proposed change from the emergency rule makes the
7 permanent rule consistent with the requirements of
8 the Livestock Management Facilities Act. The
9 Department has also proposed language in Section
10 506.201 which will provide the appropriate
11 regulatory recognition of lagoon registrations
12 issued under the authorities of the emergency
13 rule.
14 Section 506.202 provides a description of
15 the site investigations required at each and every
16 proposed new or modified lagoon location. The
17 purpose of the investigation is to determine the
18 degree of sensitivity to groundwater contamination
19 from livestock waste exhibited by a site and to
20 then base the required design criteria on that
21 degree of sensitivity.
22 In its emergency rule proposal under
23 Docket R97-14, the Department proposed the use of
24 maps contained in an Illinois State Geological
40
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Survey publication in making this sensitivity
2 evaluation. At that time, the Department
3 understood the various limitations of the mapping
4 and attempted to weigh the cost of more
5 site-specific data collection with the resulting
6 environmental protection.
7 As an alternative to that proposal, the
8 Illinois Department of Natural Resources proposed
9 the concept included in the Board-adopted emergency
10 rule and thus proposed here. The Department is
11 wholly supportive of this concept but defers to Mr.
12 Keefer of the Illinois State Geological Survey for
13 a detailed description and explanation of its
14 scientific basis.
15 In general terms, the proposal requires
16 at least one soil boring be conducted to a depth of
17 at least 50 feet below the proposed lagoon bottom.
18 The resulting data from the boring log is to be
19 analyzed for the presence of aquifer material as
20 designed under Subpart A as follows:
21 (1) If aquifer material is present within
22 50 feet of the lagoon bottom, a liner as described
23 in a subsequent section will be required to be
24 incorporated into the lagoon design; or
41
KEEFE REPORTING COMPANY
Belleville, Illinois
1 (2) if aquifer material is determined to
2 be present within 20 feet of the lagoon bottom a
3 groundwater monitoring program will also be
4 required to be included in the design of the
5 lagoon; or
6 (3) if aquifer material is not determined
7 to be present within 50 feet of the lagoon bottom,
8 no requirements beyond those specified in Section
9 506.204 are required to be incorporated into the
10 lagoon design.
11 The proposal requires that the site
12 investigation soil boring be located within the
13 final lagoon area or within 20 feet of the final
14 exterior
berm toe. This requirement, although
15 absent in the adopted emergency rule, has been
16 included in this proposal to ensure that the
17 results of the boring are representative of the
18 actual lagoon site.
19 The proposal also provides for possible
20 alternatives to the soil boring with prior approval
21 from the Department. This provision was included
22 to allow for instances where other site subsurface
23 investigations may have been conducted as part of
24 the installation of a site water supply well or
42
KEEFE REPORTING COMPANY
Belleville, Illinois
1 other facility planning processes. In those
2 instances, the data to be used as a basis for site
3 sensitivity analysis must result in a site
4 investigation at least as protective of the
5 environment as would have resulted from a soil
6 boring and will be reviewed by the Department prior
7 to its approved use.
8 The final provision of this section
9 requires that the site investigation be conducted
10 under the direction of a Licensed Professional
11 Engineer or Registered Professional Geologist and
12 that the supervising professional certify the
13 results of the investigation. The results of the
14 site investigation will have a major impact on the
15 design of a lagoon, both in terms of the initial
16 construction costs and the ongoing operation and
17 maintenance costs.
18 Thus, the interpretation of the boring
19 data and the final classification of the site must
20 be both accurate and
documentable. It is for these
21 reasons that the Department proposes a third party
22 professional be directly responsible for this
23 determination. A copy of the site investigation
24 certification form for use by the Licensed
43
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Professional Engineer has been provided within the
2 lagoon registration forms packet currently in use
3 as a result of the emergency rule and attached to
4 my testimony as Exhibit A.
5 The Department anticipates either a
6 modification of the form or the development of a
7 new form for use by a Registered Professional
8 Geologist as that professional registration program
9 further develops.
10 Section 506.203 provides the details
11 relative to the lagoon registration process which
12 in almost all cases are predefined by the Livestock
13 Management Facilities Act. Additional items
14 proposed for inclusion in the registration process
15 include disclosure of the location and associated
16 distances to potential routes of groundwater
17 contamination, such as abandoned or plugged wells,
18 drainage wells, injection wells, or subsurface
19 drainage lines in close proximity to the proposed
20 lagoon site.
21 These have been included in the proposal
22 to ensure that the owner or operator of the lagoon
23 considers whether these items are possibly present
24 at the site and that the appropriate setback is
44
KEEFE REPORTING COMPANY
Belleville, Illinois
1 maintained. Language requiring the submittal of
2 the site investigation certification is also found
3 within this section. If a synthetic liner is
4 included as part of the lagoon design, a
5 manufacturer's compatibility statement and
6 associated maintenance guidelines are required as
7 part of the registration submittal.
8 The final portion of this section
9 provides the Department authority to conduct
10 periodic site inspections of a livestock waste
11 lagoon to assess the compliance status of the
12 lagoon. The Department suggests that, especially
13 in the case of facilities required to utilize
14 synthetic liners where periodic maintenance is
15 required or where monitoring wells are periodically
16 sampled, follow-up site visits by Department
17 personnel may become necessary.
18 The Livestock Management Facilities Act
19 clearly mandates the Department to visit the lagoon
20 site at least once during the
preconstruction,
21 construction and post construction phases.
22 However, it does not specifically mandate
23 additional site visits nor does the statute
24 prohibit such site inspections. The Department
45
KEEFE REPORTING COMPANY
Belleville, Illinois
1 suggests that the inclusion of liners and
2 monitoring wells as part of the lagoon design
3 warrants the need for possible Department site
4 visits beyond the initial statutory language.
5 Section 506.204 provides the design
6 standards for all new or modified lagoons placed in
7 service after the effective date of this proposal.
8 The Department's proposal again closely mirrors the
9 Board-adopted emergency rule with some additional
10 refinements or clarifications. This section of the
11 rule proposal includes the requirement for the site
12 investigation, and based on its results, requires
13 liners and/or the inclusion of groundwater
14 monitoring in the lagoon design pursuant to the
15 Livestock Management Facilities Act at Section
16 15(a) which allows the Department discretion to
17 require additional design standards beyond those
18 expressly included in the Act.
19 Also, the Livestock Management Facilities
20 Act specifically requires the design of new or
21 modified lagoons be based on one of two documents,
22 as earlier included in my testimony. These
23 documents, in many cases, provide ranges of
24 acceptable design values which may be in conflict
46
KEEFE REPORTING COMPANY
Belleville, Illinois
1 with each other if some components of a design are
2 allowed to be based on one reference while other
3 components of the same design are based on the
4 second document.
5 Thus, the Department has included in the
6 proposal further requirements to minimize these
7 potential conflicts. First, the Department
8 proposes that the lagoon minimum
berm top width
9 measure eight feet, which is consistent with both
10 reference documents. The interior and exterior
11 walls of the lagoon are required to be not steeper
12 than a three to one ratio of horizontal to vertical
13 with a vegetative cover to be established on any
14 exposed
berm areas.
15 These requirements are within the slope
16 ranges allowed in both documents but are somewhat
17 more restrictive in that a vegetative cover is
18 required in all cases and a steeper grade is not
19 allowed on the submerged portion of the interior
20 slope. The Department believes that this somewhat
21 more restrictive standard will simplify the overall
22 design of the lagoons and, more importantly, ensure
23 that all portions of lagoon
berms are accessible to
24 mowing and other appropriate maintenance. These
47
KEEFE REPORTING COMPANY
Belleville, Illinois
1 requirements should enhance the ability of facility
2 managers to continually monitor the condition of
3 lagoon
berms, properly maintain the structures and
4 thus prevent possible
berm failures.
5 In terms of the actual design volume of a
6 lagoon, the ASAE or American Society of
7 Agricultural Engineers publication seems to provide
8 a more complete approach than the USDA-NRCS
9 document. Thus, the Department proposes that the
10 lagoon design volume be based on the summation of
11 the four components defined within the ASAE
12 document and, in some cases, customized for use in
13 Illinois as follows:
14 (1) a minimum design volume as calculated
15 pursuant to the ASAE reference;
16 (2) a livestock waste volume equal to at
17 least the volume of waste generated by the facility
18 for a period of not less than 270 days;
19 (3) a runoff and wash down volume which
20 is based on the volume of a six inch rainfall
21 covering the lagoon surface area and any other
22 exposed surfaces which are so located as to
23 contribute runoff to the lagoon plus the volume of
24 any wash down liquids utilized within the facility;
48
KEEFE REPORTING COMPANY
Belleville, Illinois
1 and
2 (4) a sludge accumulation volume as
3 calculated pursuant to the ASAE document. This
4 approach should allow for ease of calculation by
5 the facility representative, ease of Department
6 review as part of the registration process, and is
7 consistent with the approach utilized in the ASAE
8 document.
9 In addition to the total design volume,
10 the Department has incorporated a freeboard
11 requirement with two options dependent on the size
12 and configuration of the specific lagoon. A one
13 foot freeboard beyond the elevation of the total
14 design volume fluid surface level is required for
15 lagoons which serve less than 300 animal units and
16 do not collect runoff from areas other than the
17 lagoon surface. A two foot freeboard beyond the
18 elevation of the total design volume fluid level is
19 required for all other lagoons.
20 This approach is somewhat more
21 restrictive than the ASAE design guidance in that
22 all lagoons serving over 300 animal units are
23 required to provide the two foot freeboard,
24 regardless of whether areas other than the lagoon
49
KEEFE REPORTING COMPANY
Belleville, Illinois
1 surface contribute to the runoff volume. The ASAE
2 document does not differentiate the freeboard
3 amount based on lagoon size. The Department has
4 included this provision based upon the advice of
5 the Advisory Committee which suggested that size
6 should be a consideration in the amount of
7 freeboard to be incorporated into the design.
8 The Department has also included a
9 requirement for the removal of all drainage lines
10 within 50 feet of the outermost extent of the
11 lagoon. Much of Illinois is underlain with
12 drainage lines which may have been installed 50 to
13 100 years ago. Many of these systems continue to
14 serve a very useful purpose in Illinois agriculture
15 by providing drainage to crop production areas and
16 farmsteads.
17 However, an active or inactive line in
18 very close proximity to a livestock waste lagoon
19 can provide an unwanted conduit from the lagoon to
20 surface water or groundwater. The proposed minimum
21 separation distance of 50 feet is based on one-half
22 of a typical value for drainage tubing lateral
23 spacing used in drainage system design. The
24 Department recognizes that drainage lateral
50
KEEFE REPORTING COMPANY
Belleville, Illinois
1 spacings are indeed dependent on a number of
2 variables such as the drainage coefficient, line
3 slope, line length, tube diameter as well as
4 others, but certainly in many parts of the state, a
5 100 foot lateral spacing is typical and its use
6 here is therefore appropriate.
7 A 100 foot separation distance between
8 the outermost extent of the lagoon relative to
9 other potential routes of groundwater
10 contamination, as identified in the Illinois
11 Groundwater Protection Act, has also been included
12 in the proposal. In addition, the same separation
13 distance is applied to non-potable wells, abandoned
14 or plugged wells, drainage wells or injection
15 wells. These have also been included as further
16 protective measures of groundwater.
17 To assist the livestock waste lagoon
18 operator, the Department has proposed the inclusion
19 of a lagoon liquid level board or staff gauge in
20 the design and construction of the structure. The
21 purpose of this device is to serve as a visual
22 reminder to the lagoon manager of the specific
23 design volumes associated with the lagoon. It
24 should assist in the maintenance of freeboard by
51
KEEFE REPORTING COMPANY
Belleville, Illinois
1 indicating when design capacities are becoming
2 short and lagoon unloading should therefore
3 commence.
4 Also, this visual reminder should play a
5 positive role in the reduction of odors by
6 indicating when the removal of waste should be
7 discontinued to ensure adequate dilution volumes
8 remain present within the lagoon. Additionally,
9 the Department is proposing that all lagoons be
10 pre-charged with a water depth of at least 60
11 percent of the design depth prior to the initial
12 addition of waste. This practice should also
13 decrease the potential of odors during the initial
14 startup of operations at a site by ensuring
15 dilution volumes are present as the lagoon is
16 placed in service.
17 Section 506.205 of the proposal outlines
18 the requirements relative to the design and
19 construction of liners when their use is required
20 pursuant to the results of the site investigation.
21 In the case of in-situ clay, borrowed clay or
22 clay/
bentonite mixtures, the Department has
23 proposed specific construction standards based, in
24 part, on the solid waste landfill liner system
52
KEEFE REPORTING COMPANY
Belleville, Illinois
1 requirements of 35 Illinois Administrative Code
2 811.306.
3 The proposed synthetic liner standards
4 include the same hydraulic conductivity
5 requirements as other liners. In addition, the
6 synthetic liner manufacturer is required to provide
7 seam specifications, installation and maintenance
8 guidelines and a certification of chemical
9 compatibility. The design, construction and
10 installation of any liner is to be conducted under
11 the direction of a Licensed Professional Engineer
12 who is also required to provide a certification of
13 compliance to the Department upon completion of the
14 liner installation.
15 The engineer is also required to submit
16 supporting justification and data with the
17 certification. The Department suggests that this
18 third party oversight relative to liner
19 construction and installation is warranted due to
20 the sensitivity to groundwater contamination of
21 sites where the additional protection of liners are
22 being required under the proposal.
23 Section 506.206 of the proposal outlines
24 the requirements relative to the design and
53
KEEFE REPORTING COMPANY
Belleville, Illinois
1 construction of groundwater monitoring programs
2 when their use is required pursuant to the results
3 of the site investigation. This section closely
4 follows the provisions of the adopted emergency
5 rules with various additional refinements.
6 Basically, a minimum of three monitoring wells must
7 be installed within 20 feet of the outermost extent
8 of the lagoon with at least two of the wells
9 located down gradient of the groundwater flow
10 direction.
11 The 20 feet limitation is proposed to
12 attempt to ensure that the wells will provide an
13 early detection of a possible lagoon liner failure.
14 This provision has been included in response to
15 consultant inquiries received by the Department
16 during the initial effective period of the
17 emergency rules relative to monitoring well site
18 limitations. Other construction details relative
19 to the monitoring wells are proposed to provide
20 consistency with the Illinois Water Well
21 Construction Code and to, again, attempt to provide
22 early detection of possible lagoon liner failure.
23 The Department has proposed an
analyte
24 list based on consultations with the Advisory
54
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Committee. The Department continues to question
2 the need for all the listed
analytes, such as
3 bacteria, when inclusion of the other
analytes
4 should provide for the detection of the presence of
5 lagoon
leachate in the monitoring wells. The
6 Department anticipates comment from other
7 interested parties relative to this issue.
8 In addition to regular owner or operator
9 sampling and analysis, a provision allowing the
10 Department to periodically sample the wells has
11 been included in the proposal. This provision
12 represents a continuation of the Department's
13 commitment to the appropriate monitoring of the
14 facilities located within areas determined to be
15 potentially sensitive to groundwater contamination.
16 Subsections F and G outline the
17 methodology to be used in the reporting of
18 analytical results, the interpretation of those
19 results, and the development of appropriate
20 response actions in the event a liner failure is
21 suspected. First, the owner or operator is to
22 provide results to the Department within 45 days of
23 sampling. The submittal is to include a comparison
24 of those results with the initial sampling
55
KEEFE REPORTING COMPANY
Belleville, Illinois
1 conducted prior to the lagoon being placed in
2 service.
3 If impacts to groundwater are suspected,
4 the owner or operator is also to propose possible
5 response actions necessary to mitigate potential
6 impacts to groundwater. The Department is then
7 required to review the submittal and advise the
8 owner or operator of the appropriateness of those
9 response actions. As a result of the review, the
10 Department has the authority to make changes in
11 sampling frequency or
analyte list and ultimately
12 require changes to the design, construction, or
13 operation of the lagoon or management facility.
14 This is intended to provide specific authority to
15 the Department to oversee the correction of any
16 problems identified through the groundwater
17 monitoring process.
18 In addition, the Department is proposing
19 language within these subsections to clearly
20 identify failures on the part of the owner or
21 operator to either sample or report on a timely
22 fashion or to properly implement corrective actions
23 approved by the Department as punishable violations
24 of the provisions of the rule.
56
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Section 506.207 contains the requirements
2 for the various certifications of construction and
3 are, in most cases, reiterations of the language
4 contained in the Livestock Management Facilities
5 Act. The Department is required to make at least
6 one site visit during the pre-construction,
7 construction, or post-construction phases and is to
8 require modifications when needed to ensure
9 compliance with the Act and this proposal.
10 If a liner was required as a result of
11 the site investigation, a certification by a
12 Licensed Professional Engineer relative to the
13 construction or installation of the liner is
14 required to be submitted to the Department prior to
15 the lagoon being placed in service. The owner or
16 operator of the lagoon is required to provide a
17 certification to the Department that the lagoon has
18 been constructed or modified in accordance with the
19 Act and the rule.
20 In addition, the owner or operator is to
21 certify that the information submitted to the
22 Department on the registration form, which is
23 attached to my written comments as Exhibit A, is
24 correct. Finally, the section reiterates that the
57
KEEFE REPORTING COMPANY
Belleville, Illinois
1 lagoon may be placed in service no sooner than ten
2 days, ten working days after the submission of the
3 certification of compliance statement.
4 Section 506.208 contains statutory
5 language relative to the failure to register or
6 construct a lagoon in accordance with the standards
7 contained in the Act and this proposal. The
8 Department is not proposing further details or
9 refinements of the process contained in the
10 original statutory language.
11 The final section of Subpart B deals with
12 possible lagoon closures and ownership transfers.
13 In the case of a lagoon closer, the Department is
14 proposing that a closure plan be developed by the
15 owner or operator of the livestock waste handling
16 facility and submitted to the Department for review
17 and approval.
18 The plan shall include the sampling,
19 analysis and reporting of nutrient content of all
20 waste, sludge, and a six inch thickness of soil
21 from the lagoon interior; plans for the removal and
22 land application at agronomic rates of these
23 materials; plans for the removal of all waste
24 conveyances associated with the operation of the
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1 lagoon; plans for the proper management of any
2 impounded precipitation collected during the
3 closure process; plans for the proper abandonment
4 of monitoring wells associated with the lagoon; and
5 a proposed time frame for the closure activity.
6 Upon approval of the closure plan by the
7 Department, the owner or operator is allowed to
8 complete the closure activities. The Department is
9 then required to make a site inspection and notify
10 the owner or operator in writing whether the
11 closure is deemed complete or whether additional
12 activities are needed to complete closure. In
13 addition, the Department is given the authority
14 within the Livestock Management Facilities Act to
15 consider requests for the use of the lagoon for
16 other purposes and to grant waivers to any of the
17 closure requirements to allow for that alternative
18 use.
19 The overall purpose of the closure
20 process is to provide for the orderly,
21 environmentally responsible, economically
22 reasonable, proper and complete abandonment of a
23 lagoon and its appurtenances once its use is no
24 longer needed.
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1 The final subsection of the lagoon
2 closure and ownership transfer section simply
3 reiterates the ownership transfer provisions of the
4 Livestock Management Facilities Act and,
5 additionally, specifically requires that it is the
6 responsibility of the new owner to notify the
7 Department in writing of the ownership transfer.
8 This should ensure that the Department's files
9 remain current relative to registered facilities
10 and that the owner is knowledgeable relative to the
11 regulatory status of the facility.
12 This concludes my prepared comments
13 relative to the provisions of Subparts A and B of
14 the proposal.
15 Thank you for your kind attention.
16 HEARING OFFICER LOZUK-LAWLESS: Thank
17 you, Mr.
Goetsch. Because you have read your
18 prefiled testimony into the record, there is no
19 need to submit it as an exhibit at this time, but
20 you may want to submit your exhibit which has the
21 setback diagram for the facilities, Exhibit A, into
22 the record.
23 Would you like to move to admit those?
24 MR. GOETSCH: Yes.
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1 HEARING OFFICER LOZUK-LAWLESS: Okay.
2 Then we will mark as Exhibit Number 1 the setback
3 diagram from Mr.
Goetsch's testimony. And we will
4 mark as Exhibit Number 2 the "Application for the
5 Registration of New or Modified Livestock Waste
6 Lagoons."
7 Do you have copies of those you could
8 give to us?
9 MR. GOETSCH: Yes.
10 HEARING OFFICER LOZUK-LAWLESS: As well
11 as Exhibit Number 3, which will be the
12 "Registration of New or Modified Livestock Waste
13 Lagoons."
14 (Whereupon said documents were
15 duly marked for purposes of
16 identification as Exhibit
17 Numbers 1, 2 and 3 as of this
18 date.)
19 HEARING OFFICER LOZUK-LAWLESS: Thank
20 you, Mr.
Goetsch. Thank you.
21 Okay. Mr. Frank, would you like to
22 begin?
23 MR. FRANK: Yes.
24 HEARING OFFICER LOZUK-LAWLESS: You may
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1 proceed. Thank you.
2 MR. FRANK: My name is Scott Frank and I
3 am employed by the Illinois Department of
4 Agriculture as an assistant to the Deputy for the
5 Division of Natural Resource and Agriculture
6 Industry Regulation. I have worked for the
7 Department for three years.
8 During this time I have been involved
9 with the Livestock Industry Task Force and have
10 assisted in the development of the emergency rules
11 and the proposed permanent rules for the Livestock
12 Management Facilities Act. I also supervise the
13 apiary inspection program for the Department.
14 I was born and raised on a grain and
15 livestock farm. I earned a Bachelor's degree in
16 Agronomy from Iowa State University and a Master's
17 degree in Agronomy/Plant Breeding also from Iowa
18 State University. Prior to my employment with the
19 Illinois Department of Agriculture, I worked for
20 seed companies developing corn and soybean
21 varieties.
22 I will be providing testimony regarding
23 the Subparts of proposed rules dealing with waste
24 management plans (Subpart C) and penalties, which
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1 are Subpart E.
2 Waste management plans have been produced
3 for livestock operations for many years by
4 producers, the Cooperative Extension Service, the
5 Natural Resources Conservation Service of the
6 U.S.D.A., which was formerly the Soil Conservation
7 Service, private consultants, and others. This is
8 not a new concept and plan development assistance
9 is available to livestock facility owners or
10 operators. Regulations in other states require a
11 waste management plan, and university and extension
12 service publications exist providing the basics for
13 plan development.
14 The application of livestock waste to the
15 land is one of the oldest forms of recycling.
16 Livestock waste has been used for generations to
17 supply nutrients for crop growth and development.
18 When properly applied, livestock waste can be a
19 valuable resource. When improperly applied at
20 excessive rates, surface and groundwater pollution
21 may result. The purpose of the waste management
22 plan regulations is to ensure that producers have
23 adequate land area available for the application of
24 livestock waste at agronomic rates.
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1 The Livestock Management Facilities Act
2 states that it will be considered acceptable to
3 prepare and implement a plan based on the nitrogen
4 rate. The plan does not have to be based on
5 nitrogen. It can be based on other nutrients.
6 However, whichever nutrient is chosen, the rate
7 cannot exceed the agronomic nitrogen demand of the
8 crops to be grown when averaged over a five-year
9 period.
10 Whereas Subpart B of these proposed rules
11 applies to new or modified lagoons, this Subpart
12 applies to new and existing livestock management
13 facilities of 1,000 or greater animal units
14 regardless of the type of waste storage system
15 utilized. Facilities with deep pits, lagoons,
16 holding ponds, manure stacks, tanks, and other
17 structures and systems may be subject to these
18 regulations. The Livestock Management Facilities
19 Act states that a livestock management facility
20 owner or operator at a facility of less than 1,000
21 animal units does not have to prepare a waste
22 management plan.
23 The owner or operator of a facility of
24 1,000 or greater but less than 7,000 animal units
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1 shall prepare, maintain, and implement a plan and
2 certify to the Department that a plan has been
3 prepared. This plan does not have to be filed with
4 the Department, but it has to be kept on file,
5 along with records of livestock waste disposal, at
6 the facility for a period of three years and be
7 available for inspection by Department personnel
8 during normal business hours.
9 Waste management plans are required to be
10 prepared under the emergency rules. Existing
11 facilities would have been required to have a plan
12 prepared before the effective date of these
13 permanent rules even if the full six month period
14 to prepare a plan under the emergency rules was
15 utilized. Six months after the effective date of
16 the emergency rules is April 30th, 1997. These
17 permanent rules are not scheduled to be effective
18 prior to this date.
19 The proposed permanent rule states that
20 facilities that begin operation or expand to 1,000
21 animal units or more but less than 7,000 animal
22 units, and this change occurs within six months of
23 the effective date of the permanent rules, shall
24 prepare a plan within 60 working days of beginning
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1 operations or reaching or exceeding 1,000 animal
2 units, or within six months of the effective date
3 of the permanent rules.
4 For facilities that begin operations or
5 expand to this size following the six month period
6 after the effective date of these rules, a plan
7 shall be prepared within 60 working days after
8 achieving this size. Sixty working days was
9 selected as a reasonable period of time and it is
10 also referenced in the Livestock Management
11 Facilities Act as a time frame for plan preparation
12 in the 7,000 and greater animal unit category.
13 The requirement of the certification of
14 plan preparation is to assist the Department in
15 determining compliance and identify the producers
16 who are required to prepare a plan.
17 Facilities with 7,000 or greater animal
18 units. The owner or operator of the livestock
19 management facility with 7,000 or greater animal
20 units shall prepare, maintain, and implement a plan
21 and also submit the plan to the Department for
22 approval. The emergency rules require preparation
23 of a plan, so existing facilities of this size are
24 to have a plan prepared prior to the effective date
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1 of the permanent rules.
2 For facilities that begin operation after
3 the effective date of the permanent rules, the plan
4 will have to be approved by the Department prior to
5 the commencement of operations at the facility. As
6 is also stated in the Livestock Management
7 Facilities Act, owners or operators of existing
8 facilities that reach or exceed 7,000 animal units
9 through growth must submit a plan to the Department
10 for approval within 60 working days of reaching or
11 exceeding 7,000 animal units.
12 As with the smaller size category, the
13 waste management plan and records of livestock
14 waste disposal must be kept on file at the facility
15 for a period of three years.
16 Due to the variability in nutrient
17 content of livestock waste from different species
18 and from different types of storage structures,
19 separate plans shall be prepared or separate
20 sections of one plan shall be developed for each
21 different type of livestock waste storage structure
22 or system. The table 10-7 on page 10.5 of the
23 Livestock Waste Facilities Handbook, which is put
24 out by Midwest Plan Service, MWPS-18, 1993,
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1 indicates approximate nutrient contents of
2 livestock waste from different species and waste
3 handling systems.
4 Ammonium nitrogen values can vary by a
5 factor of six for swine depending on whether a
6 lagoon or liquid pit was utilized. Different
7 species can also produce different nutrient
8 contents. Ammonium nitrogen content of swine
9 versus beef in a liquid pit may vary by a factor of
10 about 2.5. Separate plans or sections are needed
11 to differentiate these major differences.
12 It is proposed in these rules that an
13 owner or operator who prepared a waste management
14 plan pursuant to the emergency rules would not have
15 to immediately prepare a plan to comply with these
16 permanent rules. The emergency rule requirements
17 are very similar to the proposed permanent rule
18 requirements.
19 However, the owner or operator would have
20 to comply with the provisions of the permanent
21 rules for maintaining the plan. This would include
22 the testing of the waste for nutrient content prior
23 to application and the updates to the plan as
24 required in Section 506.313. These areas will be
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1 discussed further later in the testimony.
2 Section 506.303, waste management plan
3 contents. The waste management plan can be
4 visualized as three major segments; a segment for
5 administrative and narrative items, a segment for
6 the calculation of an application rate and the land
7 area required for application, and a segment
8 dealing with restrictions and requirements.
9 Section 506.303 lists the items that are to be
10 included in a waste management plan. The section
11 506.304 through Section 506.309 describe or further
12 identify some of the items listed in Section
13 506.303.
14 The first segment of the plan deals with
15 the administrative and narrative areas such as
16 names and addresses, type of waste storage for the
17 facility, species and size of the animals, number
18 of animal units at the facility, maps and aerial
19 photos of the fields available and intended for
20 livestock waste application with residences and
21 water sources indicated, waste application
22 agreements, cropping schedules for the application
23 fields, optimum crop yields for each crop in each
24 application field, waste application methods,
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1 amount of waste to be disposed of annually, and the
2 nutrient content of the livestock waste.
3 Waste application agreements with other
4 landowners are important to ensure that the
5 livestock owner or operator has adequate land
6 acreage available for the disposal of the waste.
7 These agreements are to be obtained for any land
8 that is not owned or rented by the livestock owner
9 or operator, and are to be included in the plan.
10 An aerial photo is to provide
11 site-specific information for the application
12 areas. These can be obtained from the USDA-Farm
13 Service Agency local offices either at no charge to
14 landowners or at a minimal charge. A map of the
15 area is to provide a general perspective of the
16 application areas and to add features on adjacent
17 land that may not be evident or available from the
18 aerial photos.
19 A listing of the cropping schedules is
20 needed to identify any nitrogen contribution from a
21 legume crop grown during the previous year. This
22 is to be used in the nitrogen credits section to be
23 discussed later. These cropping schedules are also
24 needed to determine the nutrient requirements for
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1 the current crop year. Listing anticipated crops
2 for future years is to be used for planning
3 purposes and to give the owner or operator an
4 indication if more land may be needed in future
5 years because of a cropping change that may reduce
6 the amount of livestock waste that could be applied
7 to a particular field.
8 The second segment of the waste
9 management plan involves calculations to determine
10 the application rate for the livestock waste and
11 also the amount of land area that will be required
12 to properly apply the waste at the determined
13 rate. An explanation of the components involved in
14 these calculations will be provided. The basic
15 plan involves determining the amount of waste
16 available for application, determining the nutrient
17 content of the waste, adjusting the nitrogen
18 content for losses due to method of application and
19 conversion of organic forms to available forms,
20 determining an optimum crop yield and therefore the
21 crop nitrogen requirements, and determining any
22 nitrogen credits from previous manure applications
23 or legume crops. From these figures the total
24 amount of nitrogen available for application can be
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1 determined. A waste application rate can then be
2 calculated for each field based on the crop needs
3 and the nitrogen credits. Multiplying this rate by
4 the number of acres in the field provides the total
5 amount of waste applied to that field. Summing
6 these application amounts from the different fields
7 will allow the owner or operator to determine if
8 adequate land area is available for the application
9 of the total amount of waste.
10 In the proposed rule, I will be jumping
11 ahead to Sections 506.304 through 309 as they
12 relate to the calculation portion of the waste
13 management plan. I will then come back to finish
14 out the third segment of the plan content section.
15 Section 506.304, livestock waste volumes.
16 The volume of livestock waste to be disposed of is
17 to be determined by actual measurements of the
18 storage structure. Book values do exist for
19 determining the amount of waste generated by
20 different species and sizes of animals on a daily
21 basis. These could then be used to calculate the
22 amount of waste generated over the period of time
23 between livestock waste applications to determine
24 the total volume.
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1 However, these book values are based on
2 averages and each individual livestock operation is
3 different. Different sources of book values exist,
4 such as Midwest Plan Service, Natural Resources
5 Conservation Service, and Cooperative Extension
6 Service, and variability exists within these
7 sources. For example,
Purdue University data shows
8 a gestating sow will contribute 1.2 gallons of
9 waste a day to a liquid type of storage system
10 while data from Iowa State University shows a
11 gestating sow will contribute 1.6 gallons per day.
12 Midwest Plan Service shows a slightly
13 smaller gestating sow will produce 1.1 gallons of
14 waste per day, but that these values may vary by 30
15 percent or more, and that the addition of water may
16 double the actual total amount. Data exists for
17 other species and storage systems. The amount of
18 water used in different facilities can vary greatly
19 which will affect the overall volume. Therefore,
20 the Department believes that actual on-site
21 measurements is the better approach.
22 Section 506.305, nutrient content of
23 livestock waste. Nutrient content of the livestock
24 waste is to be determined by a laboratory analysis
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1 of waste samples from the storage facility.
2 However, for new facilities initially preparing a
3 plan or facilities preparing a plan after reaching
4 or exceeding 1,000 animal units, estimated values
5 from the University of Illinois Cooperative
6 Extension Service or the Natural Resources
7 Conservation Service of the United States
8 Department of Agriculture may be used. These
9 values would be used only for the initial plan
10 preparation. Actual sample analysis values would
11 have to be obtained prior to waste application and
12 the plan may have to be updated to reflect any
13 changes as a result of the use of these sample
14 analysis values.
15 The waste to be disposed of shall be
16 sampled and analyzed within 60 working days prior
17 to the waste application, but analysis is required
18 only on an annual basis. The 60 working day period
19 should allow adequate time to allow the owner or
20 operator to obtain a sample, have it analyzed,
21 receive the results, make any changes to the plan,
22 and still have enough flexibility in application
23 times which could be greatly affected by the
24 weather. As with the volumes of livestock waste
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1 produced, book values are available for nutrient
2 content of the waste.
3 Many of the same problems that were
4 discussed above with waste volumes are relevant
5 with nutrient content book values. Different
6 sources of book values have greatly varying data
7 for nutrient content. The nutrients in livestock
8 waste can vary greatly from facility to facility
9 due to number of animals, diet fed, and the size
10 and species of animals. Differences in storage and
11 the amount of water added can also affect the
12 nutrient content.
13 The sampling of the waste is to be
14 conducted under the direction of a certified
15 livestock manager. Some problems may exist such as
16 obtaining a representative sample, however, topics
17 such as these can be addressed in the certified
18 livestock manager training. By requiring the
19 involvement of a certified manager, these problems
20 should be reduced.
21 Another approach could be to obtain
22 livestock waste samples for laboratory analysis
23 during the actual application process. This could
24 alleviate the representative sampling problem, but
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1 analysis results would not be available for that
2 application period. The results could be
3 incorporated into the plan for the next application
4 period, but that may be a year or so later.
5 Laboratory analysis of the livestock
6 waste sample is to include total nitrogen, ammonium
7 nitrogen, total phosphorus, total potassium, copper
8 and zinc. By subtracting the ammonium nitrogen
9 amount from the total nitrogen amount, the amount
10 of organic nitrogen can be determined. This figure
11 will be used in the plan for determining the amount
12 of plant-available nitrogen through the
13 mineralization of the organic nitrogen. Phosphorus
14 and potassium are included so producers will have
15 an indication of the amount of those nutrients
16 applied so supplemental fertilizer can be applied
17 at the proper rate, if needed.
18 Phosphorus is also included for those
19 producers who may want to base their plan on the
20 amount of phosphorus in the livestock waste.
21 Testing laboratories generally offer a package
22 which includes the testing of nitrogen, phosphorus
23 and potassium. The cost of this basic package may
24 range from $32.00 to $50.00. The addition of
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1 ammonium nitrogen may cost an additional $6.00 to
2 $20.00. Copper and zinc are common
micronutrients
3 added to livestock feed.
4 These elements are proposed to be added
5 to the
analyte list so the owner or operator can
6 monitor their levels or changes in the livestock
7 waste and use the results in combination with the
8 soil test results to be discussed later.
9 Section 506.306, adjustments to nitrogen
10 availability. Adjustments shall be made to
11 nitrogen availability to account for nitrogen
12 losses from livestock waste due to the method of
13 application. Nitrogen can be lost to the air if
14 the livestock waste is not injected or incorporated
15 into the soil. These losses can range from 0
16 percent to 40 percent depending on whether the
17 waste is in a liquid or solid form and the type of
18 application method.
19 The Department proposes to adopt factors
20 to adjust for the nitrogen loss in the plan. This
21 is to allow for a more responsive action should
22 these factors require changing based upon research
23 results. The Department will propose factors to
24 account for nitrogen loss during and after
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1 application similar to the factors listed in Table
2 10-2 on page 10.2 of the Livestock Waste Facilities
3 Handbook, MWPS-18.
4 Plant-available nitrogen can also be
5 gained in the soil through the
mineralization of
6 organic nitrogen. This
mineralization can occur on
7 the livestock waste just applied and also previous
8 livestock waste applications. The
mineralization
9 of previously applied livestock waste will be
10 accounted for under the nitrogen credits section.
11 The Department proposes to adopt the
mineralization
12 rates as listed in Table 10-5 on page 10.4 of the
13 Livestock Waste Facilities Handbook.
14 The Department desires to be able to more
15 quickly make changes to these values as further
16 research may suggest that rates should be changed.
17 The Midwest Plan Service prepares
18 publications under the direction of agricultural
19 engineers and consulting specialists. It is an
20 official activity of land-grant universities in 12
21 upper
midwest states with the United States
22 Department of Agriculture cooperating. The
23 participating states include Illinois, Indiana,
24 Iowa, Kansas, Michigan, Minnesota, Missouri,
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1 Nebraska, North Dakota, Ohio, South Dakota and
2 Wisconsin. The plans, specifications, and data
3 used in Midwest Plan Service documents have
4 undergone peer review. This document is used by
5 many dealing with waste management and facility
6 planning and design.
7 Section 506.307, optimum crop yields.
8 Optimum crop yields are to be determined for each
9 field where livestock waste is to be applied. The
10 optimum yield is to be obtained from proven yields
11 from the particular field, from crop insurance
12 yields, or from assigned yields from the Farm
13 Service Agency of the United States Department of
14 Agriculture. If yields are not available from the
15 previously listed sources, soils based yield data
16 from the Natural Resources Conservation Service of
17 the United States Department of Agriculture shall
18 be used.
19 Section 506.308, crop nitrogen
20 requirements. Crop nitrogen requirements are
21 proposed to be adopted by the Department. These
22 requirements will be based on the recommendations
23 contained in the Illinois Agronomy Handbook, and
24 from the recommendations of the staff from the
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1 Department of Agronomy at the University of
2 Illinois. The Pollution Control Board has a copy
3 of this document through the filing of the
4 emergency livestock waste rules.
5 Soybeans do not generally require
6 nitrogen fertilization since, being a legume, they
7 can fix nitrogen from the atmosphere and utilize
8 this for plant development. However, if soybeans
9 are fertilized with nitrogen, the plants will use
10 the added nitrogen before fixing their own. It
11 will, therefore, be proposed that soybeans can be
12 fertilized at the same rate as if corn was being
13 grown.
14 Section 506.309, nitrogen credits.
15 Credits to the amount of nitrogen for application
16 shall be calculated for any nitrogen-producing
17 crops grown the previous year, for any other
18 sources of nitrogen applied for the growing season,
19 and for mineralized organic nitrogen from livestock
20 waste applied during the previous three years.
21 Credits for nitrogen-producing crops will be
22 obtained from the Illinois Agronomy Handbook and
23 the staff from the Department of Agronomy at the
24 University of Illinois and will be adopted by the
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1 Department.
2 The Livestock Waste Facilities Handbook,
3 MWPS-18, lists the rates of nitrogen release
4 ( mineralization) during the second, third and
5 fourth growing seasons after the initial livestock
6 waste application of 50 percent, 25 percent, and
7 12.5 percent, respectively, of that mineralized
8 during the first growing season.
9 Calculations for the sections just
10 described are to be included in the waste
11 management plan. From these calculations, an
12 application rate is to be determined for the crops
13 scheduled to be grown. Due to different crops
14 grown in different fields with different yielding
15 abilities, an application rate needs to be
16 calculated for each field. The plan shall include
17 a listing of the fields for application and the
18 planned application amounts for each field.
19 The third segment of the waste management
20 plan contents deals with restrictions on livestock
21 waste application and other requirements. Most of
22 these restrictions listed in the proposed rules are
23 directly from the Livestock Management Facilities
24 Act. These are also listed in 35 Illinois
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1 Administrative Code 560. One proposed change is in
2 Section 506.303(r) dealing with the application of
3 livestock waste into waterways. Many types of
4 waterways exist. A common conservation practice is
5 the installation of grassed waterways in fields for
6 erosion control. Many fields contain these,
7 including fields with irrigation systems.
8 The use of irrigation systems is a common
9 practice for the application of large amounts of
10 liquid livestock waste from lagoons. Waterways
11 generally do not follow straight lines and an
12 irrigation system may be over different portions of
13 the waterway during much of the application
14 process. If no application is allowed in any
15 waterway, the use of irrigation systems may be
16 effectively eliminated for many facilities. Also,
17 the possibility exists that many waterways may be
18 eliminated to circumvent this restriction, thus
19 negating any progress that has been made over the
20 years in controlling soil erosion.
21 Therefore, additional language has been
22 proposed to allow for the application of livestock
23 waste in grassed waterways if the amount is
24 controlled such that there is no runoff and
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1 application is not made within prescribed distances
2 to potential routes of groundwater contamination.
3 Discussions among the Rules Advisory
4 Committee members after the proposed rules were
5 filed identified two areas where changes should be
6 made. One area dealt with Section 506.303(r)
7 regarding the application of livestock waste in
8 waterways. To be consistent with Section
9 506.204(g)(6) and to provide protection to
10 potential routes of groundwater contamination, the
11 following underscored language is proposed to be
12 included in Section 506.303(r):
13 A provision that livestock waste may not
14 be applied in waterways, however, livestock waste
15 may be applied through irrigation systems onto
16 grassed waterways if there is no runoff, the
17 distance from applied livestock waste to surface
18 water is greater than 200 feet, the distance from
19 applied livestock waste to potable water supply
20 wells is greater than 150 feet, and here is the
21 underscored language, the distance from applied
22 livestock waste to a non-potable well, an abandoned
23 or plugged well, a drainage well, or an injection
24 well is greater than 100 feet, end of underscore,
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1 and precipitation is not expected within 24 hours.
2 The other change involves adding a
3 subsection to Section 506.303 dealing with the
4 application of livestock waste onto saturated
5 soils. The following underscored language is
6 proposed to be added at 35 Illinois Administrative
7 Code 506.303(v):
8 Start of the underscore, a provision that
9 livestock waste may not be applied during a
10 rainfall or to a saturated soil and that
11 conservative waste loading rates will be used in
12 the case of a high water table or shallow earth
13 cover to fractured bedrock. Caution should be
14 exercised in applying livestock wastes,
15 particularly on porous soils, so as not to cause
16 nitrate or bacteria contamination of
groundwaters.
17 End of underscore.
18 These restrictions are currently in 35
19 Illinois Administrative code 560, however, to
20 maintain a continued awareness for groundwater
21 protection, the Committee felt that this language
22 deserved inclusion in this subpart and, therefore,
23 in waste management plans.
24 Additional requirements included in the
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1 proposed rules address an inspection of the
berm
2 tops and sides of earthen livestock waste storage
3 structures for evidence of erosion, burrowing
4 animal activity, and other conditions that may
5 jeopardize the integrity of the storage structure.
6 These inspections are to be performed by the owner,
7 operator or certified livestock manager at least
8 once every two weeks.
9 Conditions of zinc and copper toxicity in
10 sheep have been reported where sheep have grazed on
11 land that has received applications of livestock
12 waste. Concerns existed among the Rules Advisory
13 Committee members about the possible buildup of
14 relatively large concentrations of zinc and copper
15 in the soil where livestock waste was regularly
16 applied.
17 As a result, subsection (u) was added to
18 Section 506.303 requesting that the owner, operator
19 or certified livestock manager shall consider the
20 addition of zinc and copper for analysis during the
21 normal soil testing program for crop production
22 from the land where livestock waste is applied.
23 These results could then be used in conjunction
24 with the livestock waste analysis results to
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1 determine any buildup or potential problems with
2 copper and zinc in the soil.
3 Section 506.310, records of waste
4 disposal. Records of livestock waste disposal
5 shall be kept on file at the facility for a period
6 of three years. These records shall include the
7 dates and the fields where livestock waste
8 application was made, how it was applied, the rate
9 of application, the number of acres receiving
10 waste, and the amount of livestock waste applied.
11 Section 506.311, approval of waste
12 management plans. For waste management plans
13 subject to approval by the Department, approval
14 shall be based upon the application rate for
15 nitrogen not exceeding the crop nitrogen
16 requirements to obtain optimum yields,
17 demonstration of adequate land area for livestock
18 waste application based upon the nitrogen content
19 of the waste and the determined application rate,
20 and completeness and accuracy of the plan contents.
21 The owner or operator of the livestock management
22 facility shall be notified by the Department within
23 30 working days of receipt of the plan that the
24 plan has been approved or that further information
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1 or changes are needed. The owner or operator shall
2 provide the information to the Department within 30
3 working days.
4 Section 506.312, sludge removal. Sludge
5 removal from a lagoon can occur periodically as
6 sludge builds up or as a result of a lagoon
7 closure. This section requires testing of the
8 sludge prior to application.
9 Section 506.313, plan updates. Waste
10 management plans are to be reviewed annually by the
11 owner or operator. The plan is to be updated, if
12 needed, after the laboratory analysis results are
13 received but prior to the application of the
14 livestock waste to the land using the most recent
15 analysis results. Section 506.313(b) lists
16 conditions when the plan must be updated such as
17 changes in the amount of land required for
18 disposal, changes in the land available for
19 disposal, changes in the method of disposal, and
20 changes in the cropping sequence which may alter
21 the amount of livestock waste to be applied.
22 Section 506.314, penalties. Penalties
23 for violations of the requirements of the waste
24 management plan section are taken from the
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1 Livestock Management Facilities Act, begin with a
2 warning letter from the Department, and progress to
3 a $500.00 fine and possibly a cease and desist
4 order. Further details on penalties will be
5 discussed in Subpart E.
6 This concludes my testimony on Subpart C.
7 Thank you.
8 HEARING OFFICER LOZUK-LAWLESS: Thank
9 you, Mr. Frank.
10 Mr. Frank, would you please re-read the
11 first sentence in the underscored language on page
12 13? I think you misspoke. It begins with, "a
13 provision."
14 MR. FRANK: A provision that livestock
15 waste may not be applied during a rainfall or to a
16 saturated soil and that conservation (sic) waste
17 loading rates will be used in case of a high water
18 table or shallow earth cover to fractured bedrock.
19 HEARING OFFICER LOZUK-LAWLESS: So you
20 did mean "conservation" and not "conservative"?
21 MR. FRANK: "Conservative."
22 HEARING OFFICER LOZUK-LAWLESS:
23 "Conservative." Okay. Thank you.
24 I would request that the changes which
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1 are requested in the proposed language be filed in
2 your final comments later. Would that be all
3 right?
4 MR. FRANK: Okay.
5 HEARING OFFICER LOZUK-LAWLESS: Thank you
6 very much.
7 This would be an excellent opportunity to
8 take a five-minute break. If you have any
9 questions on the proceedings today or any questions
10 about the Board in general, I would be happy to
11 answer those questions.
12 There are also several attorneys from the
13 Board that are present here today in the audience.
14 We have in the second row Attorney K.C.
Poulos,
15 Cynthia
Ervin, Kevin Desharnais, Michael Wallace,
16 and Chuck
Feinen. If you would like to approach
17 any of those people with any questions you may
18 have, feel free to.
19 There are washrooms if you go in the back
20 of the room downstairs, as well as washrooms here.
21 And if we could please reconvene in about five
22 minutes. Thank you.
23 (Whereupon a short recess was
24 taken.)
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1 HEARING OFFICER LOZUK-LAWLESS: Mr.
2 Boruff, if you would like to call your next
3 witness. Is it Warren
Goetsch?
4 MR. BORUFF: Yes, Warren
Goetsch.
5 HEARING OFFICER LOZUK-LAWLESS: Okay.
6 Thank you. You may begin.
7 MR. GOETSCH: I have previously provided
8 my qualifications relative to this testimony.
9 Thus, I will directly proceed to provide testimony
10 in support of the Department's proposal relative to
11 Subpart D, the certified livestock manager
12 program.
13 The statutory language included in the
14 Livestock Management Facilities Act at Section 30
15 mandates the Department to "establish a Certified
16 Livestock Manager Program in conjunction with the
17 livestock industry that will enhance management
18 skills in critical areas, such as environmental
19 awareness, safety concerns, odor control techniques
20 and technology, neighbor awareness, current best
21 management practices, and the developing and
22 implementing of manure management plans." Based on
23 that mandate, the Department proposed and the Board
24 adopted, under Docket 97-14, emergency rules
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1 relative to the establishment of a certification
2 and education program targeted towards the managers
3 of livestock management and waste handling
4 facilities.
5 The Department has convened an ad hoc
6 committee of livestock industry representatives,
7 University of Illinois Cooperative Extensive
8 Service Educators, and the Department
9 representatives in an attempt to further refine an
10 educational curriculum for this purpose and
11 anticipates that during the month of March 1997 the
12 first training and testing clinics will be
13 offered.
14 The Department has included within this
15 rule proposal a subpart dealing with the certified
16 livestock manager program. Subpart D includes two
17 sections, the first outlining the applicability of
18 the subpart and the second providing for Department
19 development of procedures necessary to conduct the
20 program.
21 Under the applicability section, the
22 Department proposes to clarify the statutory
23 language relative to all livestock waste handling
24 facilities being operated "under the supervision"
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1 of a certified livestock manager. The Department
2 proposes to require that a certified livestock
3 manager be immediately available to workers at the
4 livestock handling facility either in person or by
5 telecommunications and shall have the ability to be
6 physically present within one hour of
7 notification.
8 This proposal is based on the
9 Department's current policy associated with it's
10 commercial pesticide applicator and operator
11 licensing program operated under authorities
12 granted in the Illinois Pesticide Act. In it,
13 licensed operators are required to work under the
14 direct supervision of a licensed applicator. In
15 many instances, a company may employ only one or
16 two applicators at each branch office and have
17 several operators at each of these sites required
18 to work under the supervision of the applicator.
19 The allowance for immediate contact via
20 telecommunication augmented with the requirement of
21 an on-site contact within a small time period has
22 seemed to allow for both safe and efficient
23 utilization of those individuals with specific
24 training and skills. The Department proposes that
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1 a similar approach would be successful in the
2 livestock industry.
3 In addition, the Department proposes that
4 the certification status of individuals
5 participating in the program authorized under the
6 Board-adopted emergency rule would be so recognized
7 under this proposal. Also, the Department offers a
8 statement which clarifies that the number of animal
9 units served by a livestock waste handling facility
10 shall be the maximum design capacity of the
11 livestock management facility served by the
12 livestock waste handling facility. This
13 clarification will assist the potential manager in
14 determining which method of certification is
15 required in his or her specific situation.
16 The second and final section of the
17 Subpart D provides authority to the Department to
18 adopt and promulgate procedures necessary to
19 perform its duties and responsibilities related to
20 the Certified Livestock Manager Program. As
21 referenced earlier, the Department anticipates
22 further development of a program very similar to
23 the existing private and commercial pesticide
24 applicator and operator programs.
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1 As mandated by the Livestock Management
2 Facilities Act, the Department intends to work
3 closely with the livestock industry as well as our
4 current partners in the pesticide programs, the
5 University of Illinois Cooperative Extension
6 Service, as this program is developed. We believe
7 that it will become the "hitch pin" that will
8 secure together the various components of the
9 Livestock Management Facilities Act. It should
10 provide both a forum for the delivery of new
11 technologies as well as for the delivery of
12 regulatory updates.
13 This concludes my remarks to Subpart D of
14 the rule proposal. Thank you for your kind
15 attention.
16 HEARING OFFICER LOZUK-LAWLESS: Thank
17 you, Mr.
Goetsch.
18 Okay. Mr. Frank.
19 MR. FRANK: I have previously provided my
20 qualifications relative to this testimony. Thus, I
21 will directly proceed to provide testimony in
22 support of the Department's proposal relative to
23 Subpart E: Penalties.
24 Subpart E deals with penalties associated
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1 with violations of three areas of the Livestock
2 Management Facilities Act: Lagoon registration and
3 certification, certified livestock manager, and
4 waste management plans. These three areas have
5 cease and desist orders listed as penalties in the
6 Livestock Management Facilities Act, and this
7 subpart is primarily devoted to this type of
8 penalty.
9 Two types of cease and desist orders may
10 be issued by the Department. One involves a
11 stoppage of work during construction of a lagoon if
12 violations of the Livestock Management Facilities
13 Act or rules occur during construction. Violations
14 may include failure to register the lagoon prior to
15 construction, failure to construct according to the
16 plans and specifications, false site investigation
17 information and others. An operational cease and
18 desist order may be issued by the Department for
19 violations that have been detected after the
20 facility has been put into operation.
21 Since living animals are involved, the
22 issuance of a cease and desist order is not as
23 straightforward as closing the doors to a
24 business. Animals of different ages and with
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1 different purposes must be considered, plus the
2 feeding and caring of the animals must continue.
3 The movement of animals out of a facility may not
4 be immediate due to their size, the availability of
5 space at other facilities, and because of
6 biosecurity risks. For these reasons, the
7 Department will develop procedures for the orderly
8 movement of livestock out of a facility in the
9 event a cease and desist order is issued.
10 This Subpart also proposes that a waste
11 management plan that is prepared as a result of a
12 warning letter from the Department or a compliance
13 agreement shall be subject to review and approval
14 by the Department regardless of the size of the
15 facility. Also proposed is a statement indicating
16 that penalties will not be imposed for excessive
17 nitrogen application for unplanned cropping changes
18 due to the weather or other unforeseeable
19 circumstances.
20 This concludes my testimony on Subpart E.
21 HEARING OFFICER LOZUK-LAWLESS: Thank
22 you, Mr. Frank.
23 Mr.
Boruff, would you like to continue?
24 MR. BORUFF: I have previously provided
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1 my qualifications relative to this testimony.
2 Thus, I will directly proceed to provide testimony
3 in support of the Department's proposal relative to
4 Subpart F: Financial responsibility, Subpart G, and
5 also offer our Department's closing remarks.
6 Subpart F: Financial responsibility of
7 the proposed rules relates to Section 17 of the
8 Livestock Management Facilities Act. The intent of
9 this section of the Act is to ensure that in the
10 event of the closure of a lagoon associated with a
11 livestock management facility, that the cost of
12 that closure shall be borne by the owner of the
13 lagoon, versus a unit of local government.
14 During the deliberations of the Livestock
15 Industry Task Force and its working groups,
16 concerns were raised relevant to this issue. It
17 may be possible that the owners of a livestock
18 waste lagoon would be unable to properly close a
19 lagoon and dispose of its contents due to the lack
20 of financial resources. As such, the situation
21 could possibly exist whereby the ownership of the
22 property could revert back to the county in which
23 it is located and the county would then become
24 responsible for the closure of the lagoon.
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1 The legislation outlines several types of
2 surety instruments which may be used to ensure
3 financial responsibility. The legislation further
4 states that the level of surety to be required
5 shall be determined by rule and based upon the
6 volumetric capacity of the lagoon.
7 In the rules which the Illinois
8 Department of Agriculture is proposing to the
9 Pollution Control Board, the Department is
10 requesting that it be allowed to adopt and
11 promulgate procedures and criteria reasonably
12 necessary to perform its duties and
13 responsibilities under this subpart through a
14 separate
rulemaking process. In establishing the
15 level of financial responsibility a lagoon owner
16 would be required to carry, several factors need to
17 be taken into account.
18 The likelihood of the type of scenario
19 occurring which I have outlined above, even though
20 possible, is very remote. In our review of the
21 issue, the Illinois Department of Agriculture has
22 been unable to find any evidence of this type of
23 occurrence happening before in the State of
24 Illinois and very few documented cases of this
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1 occurrence in other states.
2 In the event of a financial failure on
3 the part of the owner of a livestock management
4 facility, the title of the property transfers to
5 the lenders or creditors of the operation. As
6 such, the new owners become responsible for the
7 lagoon and any closure requirements connected with
8 it. Since the property would retain some economic
9 value, the likelihood of title being transferred to
10 the local county is very slim.
11 Based upon our inquiries, the commercial
12 insurance industry does not offer policies which
13 would provide the type of coverage intended in this
14 section of the Livestock Management Facilities
15 Act. However, livestock producer organizations are
16 currently considering the development of a fund
17 which would afford coverage for participants in
18 this industry-sponsored program.
19 As in the case of commercial insurance,
20 guarantees and surety bonds are difficult to
21 acquire for this type of coverage. Our Department
22 has been able to estimate the cost of cleanup and
23 closure for lagoons based on volumetric capacity
24 making use of current charges for soil excavation
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1 and land application. Through a separate
2 rulemaking process, we intend to develop a formula
3 relating to the level of coverage required on
4 individual lagoons, taking into consideration
5 current projected removal costs and actuarial
6 information based upon rate of incidence.
7 Since these factors may change from time
8 to time, it was the recommendation of the Advisory
9 Committee that the Illinois Department of
10 Agriculture be allowed to promulgate rules relative
11 to this section in order to allow for revisions
12 from time to time as factors may change. In this
13 rulemaking process we will call upon experts from
14 the financial, insurance, engineering, and
15 livestock industries in order to develop a
16 meaningful program which will afford the type of
17 coverage intended by the General Assembly.
18 I will now move into our comments
19 relative to the support of Subpart G: Setbacks.
20 As I mentioned earlier in my testimony,
21 one of the principal objectives of the Livestock
22 Management Facilities Act is to prevent negative
23 impacts to the environment as a result of livestock
24 production and to protect Illinois natural
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KEEFE REPORTING COMPANY
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1 resources. Earlier subparts of the rules tend to
2 deal with the protection of water and soil
3 resources, and in Subpart G regarding setback
4 distances, it is the intent to protect air quality
5 and to control odors which result from livestock
6 production but may be offensive to neighbors of
7 individual operations.
8 The establishment of setbacks distances
9 from livestock operations to the residences and
10 populated areas was addressed in the Illinois
11 Environmental Protection Act, Title 35, Subtitle E,
12 entitled "Agriculture-related pollution." The
13 Livestock Management Facilities Act expands upon
14 the setback requirements established under the
15 Illinois Environmental Protection Act by providing
16 for incremental increases in distances from both
17 individual residences and populated areas as the
18 size of proposed livestock operations increases.
19 It is very likely that any livestock
20 operation, regardless of size, will generate some
21 level of odor by the very nature of the operation.
22 Many factors contribute to the level of odor
23 resulting from an operation including but not
24 limited to size, species, type of waste handling
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1 methods, waste removal and application, management,
2 and climatic conditions. Oftentimes, management at
3 a livestock operation has a large impact on the
4 level of odor which may be produced.
5 The intent of establishing setback
6 distances is to provide for a dilution effect which
7 will lessen odors coming from a livestock operation
8 before they reach surrounding persons or homes.
9 Due to the fact that the interpretation of odors by
10 individuals is subjective and varies from one
11 individual to the next and since there is no known
12 reliable test which will quantify odor content, it
13 is not possible to prove or disprove that setback
14 distances as outlined in the Act are adequate.
15 However, the setback distances as
16 outlined in the Livestock Management Facilities Act
17 seem reasonable in the level of isolation which
18 they provide from a livestock unit to a neighboring
19 residence or community and take into account the
20 makeup of rural Illinois, in that setbacks extended
21 beyond current legislation may have a negative
22 impact upon the livestock industry by excluding
23 large portions of the state from production
24 activities.
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1 In the rules which the Illinois
2 Department of Agriculture is proposing to the
3 Pollution Control Board, the Department is
4 requesting that it be allowed to adopt and
5 promulgate all procedures reasonably necessary to
6 perform its duties and responsibilities under
7 Subpart G. For operations which violate setback
8 distance requirements, the Department may issue a
9 cease and desist order which prohibits further
10 construction of the livestock management facility
11 or livestock waste handling facility if either is
12 in the construction phase.
13 If the livestock operation is subject to
14 the setback provisions within the Livestock
15 Management Facilities Act and has violated setback
16 distance requirements, the Department may issue an
17 operational cease and desist order. The specifics
18 of this type of an action have been covered in
19 testimony relative to the subpart dealing with the
20 penalties provision of the proposed rules. As
21 outlined in our proposal, the Department may cancel
22 a cease and desist order in the event that the
23 owner or operator of a livestock management
24 facility or of a livestock waste handling facility
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1 provides a valid waiver of setback as provided for
2 in Section 506.702(b) or when the Department has
3 verification of compliance with the appropriate
4 setback distances as described in Section 35 of the
5 Livestock Management Facilities Act.
6 In summary, and on behalf of the Illinois
7 Department of Agriculture, I appreciate the
8 opportunity to provide testimony to the Pollution
9 Control Board relative to the rules which we have
10 proposed. Clearly, the issues which we face are
11 complex, have far reaching impacts, and are not
12 easy to resolve. As discussions have been held at
13 several locations around the state over the last
14 year and a half, it seems that two main themes have
15 emerged regarding livestock production in the State
16 of Illinois.
17 First, is one of providing protection of
18 the environment and natural resources of the State
19 of Illinois from adverse impact from livestock
20 production. This concern is not unique to
21 Illinois, and other states have dealt with the same
22 issues in a variety of ways. In many regards, the
23 solutions which we are proposing in Illinois are
24 common to ones being implemented in other
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1 livestock-producing states.
2 As livestock production units grow in
3 size, the use of lagoons for manure storage have
4 become a cost-efficient way of handling large
5 volumes of waste. The regulations which we have
6 proposed to the Pollution Control Board use the
7 best information we have available to us at this
8 time to ensure that the environment is protected
9 and groundwater resources remain free from
10 livestock waste contamination.
11 By using soil borings and the information
12 they provide, we have been able to recommend a
13 differential, site-specific approach to the
14 protection of groundwater by the use of liners and
15 monitoring wells in the construction and siting of
16 lagoons. The lagoon design criteria and management
17 criteria which we have proposed are based upon
18 current guidelines established by the American
19 Society of Agricultural Engineers and the United
20 States Department of Agriculture Natural Resource
21 Conservation Service, both of which are recognized
22 as authoritative sources in the area of soils
23 engineering and lagoon design. In developing the
24 proposal, we have attempted to anticipate potential
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1 sources of pollution, based upon experiences in
2 other states, and develop a regulatory structure
3 which will prevent these types of occurrences in
4 Illinois.
5 In many cases, the management of a
6 livestock management facility or a livestock waste
7 management facility is key to ensuring that natural
8 resources are protected. As a result, the
9 regulations have addressed this need for a high
10 level of management by providing for manure
11 management plans and by providing for the certified
12 livestock management program. Illinois livestock
13 producers have traditionally been good stewards of
14 our resources and these two components of the
15 regulations will provide the awareness and training
16 to continue this sound stewardship.
17 The proposed regulations also address the
18 need for penalties in order to ensure that the
19 rules can be enforced and also allow for financial
20 responsibility to provide for cleanup in those
21 cases where the owner or operator of a livestock
22 management facility may not be able to properly
23 close and clean up a livestock lagoon.
24 Another theme has developed over the
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KEEFE REPORTING COMPANY
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1 course of the discussion regarding this issue which
2 relates to the social and economic changes
3 occurring within the livestock industry. Much has
4 been said about protecting the family farm and
5 restricting the size of
mega-farms as they are
6 being considered in Illinois. The rules which we
7 are proposing to the Pollution Control Board have
8 not attempted to address these social and economic
9 concerns.
10 However, there are many producers and
11 industry experts who would warn that the increased
12 cost of regulations may actually lead to an
13 acceleration of small to mid-sized livestock
14 operations leaving the industry. As a result, the
15 Illinois Department of Agriculture recognizes that
16 the rules which will be adopted need to be fair in
17 their approach, economically reasonable in their
18 implementation, and based upon sound scientific
19 information to provide a high level of protection
20 to the environment and our natural resources.
21 Once again, on behalf of the Department
22 of Agriculture, we appreciate the opportunity to
23 provide these comments to the Pollution Control
24 Board.
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1 Thank you for your time.
2 HEARING OFFICER LOZUK-LAWLESS: Thank
3 you, Mr.
Boruff.
4 Does that conclude the testimony of the
5 Department of Agriculture, Mr.
Boruff?
6 MR. BORUFF: Yes, it does at this time.
7 Thank you.
8 HEARING OFFICER LOZUK-LAWLESS: Thank
9 you. We will then continue with the testimony of
10 the Illinois Environmental Protection Agency.
11 Would the court reporter please swear in
12 the witness.
13 (Mr. James B. Park was
14 sworn in by the court
15 reporter.)
16 MR. PARK: My name is James B. Park. I
17 am the Chief of the Bureau of Water for the
18 Illinois Environmental Protection Agency. I am
19 responsible for all water pollution control
20 programs and the community drinking water
21 regulation programs, including groundwater
22 regulation in the State of Illinois.
23 I have been with the agency in various
24 positions for 25 years. I hold a Bachelor of
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KEEFE REPORTING COMPANY
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1 Science and a Master of Science Degree in
2 Engineering from Southern Illinois University and I
3 am a Registered Professional Engineer.
4 The regulations developed by the Illinois
5 Department of Agriculture follow an extended public
6 debate concerning the role of government in the
7 establishment of criteria and guidance for the
8 livestock industry that culminated in the passage
9 of the Livestock Management Facilities Act. At the
10 same time, significant changes in this industry
11 have taken place, realigning and consolidating
12 livestock operations nationwide and in Illinois,
13 and leading to the concern for the structure of
14 this industry and for its effect on the
15 environment.
16 The Illinois EPA believes the
17 promulgation of these proposed rules will have a
18 positive impact on the public and its understanding
19 of the livestock industry, on the livestock
20 industry itself and its capacity to address the
21 waste management portion of these operations in a
22 consistent and scientifically sound environmental
23 manner, and lastly, on the environment itself,
24 which must be protected in terms of soil, surface
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1 and groundwater, without unduly harming the
2 dynamics and economics of the changing livestock
3 industry.
4 The livestock industry is changing and
5 doing so rapidly. This is most evident in the
6 swine operations and can be demonstrated in the
7 most recent statistics of this growing segment of
8 the industry. Overall, total hog production in the
9 state has declined one to two percent per year over
10 the last decade. The operations producing these
11 hogs have not remained static, however. There are
12 today fewer small operations, those with less than
13 1,000 head, than there were in 1985. There are
14 more large operations, those with greater than
15 1,000 head than there were ten years ago.
16 These statistics of the swine industry
17 show a trend toward large confinement operations.
18 This trend stands in stark contrast to the
19 environmental regulations that were first adopted
20 in the early 1970s as Chapter 5 of the Illinois
21 Pollution Control Board's Rules and Regulations,
22 and later became 35 Illinois Administrative Code:
23 Subtitle E, when many of the state's hog operations
24 were much smaller and were operated on open lots.
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1 The Illinois EPA supports the adoption of
2 R97-15. The addition of operator certification and
3 the mandate for livestock waste management plans
4 for the largest of these facilities is a positive
5 step in establishing consistent and responsible
6 operation of livestock waste handling facilities in
7 this state. We endorse and encourage the training
8 and education programs set forth in these rules, as
9 a meaningful approach to making the agricultural
10 community aware of the responsibilities and
11 beneficial aspects of sound livestock waste
12 management.
13 This program, when fully developed,
14 promises to allow for the communication and the
15 evaluation of innovative technology, as it affects
16 the development of the operators' waste management
17 plans. The expansion of the setback limits, as
18 mandated under the Act, is also a necessary step in
19 addressing the potential detrimental aspects of
20 large livestock facilities.
21 The Agency has several specific
22 recommendations related to the proposal presented
23 by the Illinois Department of Conservation. Soil
24 boring requirements are satisfactory for the vast
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1 majority of sites in Illinois, as prescribed under
2 35 Illinois Administrative Code 506.202(b).
3 However, the Department of Agriculture needs
4 adequate flexibility to require additional borings
5 in the case of disturbed or mined land that may
6 have altered hydrologic and soil conditions, or
7 routes to groundwater via abandoned shafts. In
8 these circumstances, a single boring for a large
9 four to six acre lagoon would be insufficient.
10 35 Illinois Administrative Code
11 506.204(g) specifies the requirements for lagoon
12 design, most of which were derived from the
13 American Society of Agricultural Engineers or the
14 U.S. Department of Agriculture, Natural Resources
15 Conservation Service, guidance documents. The
16 Illinois EPA believes that by specifying these
17 requirements the operators will be better served
18 and better informed. Where conflicts occur between
19 the two sources, the Illinois Department of
20 Agriculture has appropriately identified specific
21 criteria in this Section.
22 Based on experiences in Illinois and
23 other states, the Illinois EPA recommends two
24 further criteria be specified in the design
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1 standards of this Subpart, both of which are
2 addressed in the reference documents. These are:
3 First, a prohibition on the use of outlet
4 piping through the lagoon
berm. Section 4.6.2 of
5 the ASAE Standards states "An overflow device with
6 a minimum capacity of 1.5 times the peak daily
7 inflow may be installed at the lagoon surface level
8 only if the overflow is to be contained in another
9 lagoon cell or other treatment facility. Outlet
10 devices should be installed in a way that allows
11 effluent to be taken at a level of 150 to 450
12 millimeters below the surface." This seems to
13 suggest that a subsurface outlet may be approved.
14 The Illinois EPA is aware of a recent
15 example in North Carolina where lagoon slope
16 failure was related to, and possibly directly
17 caused by, an outlet pipe design of this type. The
18 NRCS recently changed the North Carolina guidance
19 document so that, quote, "if any pipes are to be
20 placed through the embankment, the location and
21 method of installation shall be approved by the
22 designer of the embankment... The installation
23 shall be certified by the inspector." It should be
24 noted that this guidance document, although
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1 designated as an NRCS document, was developed
2 specifically for and applies only to North
3 Carolina.
4 The Illinois EPA recommends that in
5 addition to R97-15 that either:
6 Prohibits the use of through the
berm
7 outlet piping unless the piping discharges to
8 another lagoon or,
9 Requires Department of Agriculture's
10 specific approval, as called for in the North
11 Carolina example.
12 The second addition is a requirement for
13 emergency spillway. The NRCS document very clearly
14 specifies under what conditions this is to be
15 present. "Lagoons having a maximum design liquid
16 level of three feet or more above the natural
17 ground shall be provided with an emergency spillway
18 or an overflow pipe to prevent
overtopping." Since
19 this is not addressed in the ASAE document, a
20 potential point of confusion exists that could be
21 corrected by adding a provision to R97-15 for the
22 design to include an emergency spillway.
23 The Illinois EPA, acting in its role
24 through the LMFA Advisory Committee, has evaluated
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1 and made recommendations on a wide variety of
2 issues presented on the subject of livestock waste
3 management in the course of our deliberations.
4 Those on this Committee, the Department of Public
5 Health, the Department of Natural Resources and, in
6 particular, the Department of Agriculture, are to
7 be commended for their efforts in drafting a well
8 reasoned set of proposed rules for the Illinois
9 Pollution Control Board consideration.
10 R97-15 represents a strong step forward
11 in the effective management and prevention of
12 pollution from large livestock facilities in
13 Illinois. We encourage the Illinois Pollution
14 Control Board to adopt R97-15 and include the above
15 noted additions.
16 As a supplemental comment to these
17 proceedings, the Illinois EPA notes that there are
18 a number of potential inconsistencies between the
19 rules set forth in R97-15 as mandated by the
20 Livestock Management Facilities Act and the
21 existing provisions of Subtitle E. Most notable
22 are the setbacks that apply to livestock facilities
23 and certain definitions. At some point, it will be
24 necessary to revise these issues in detail to
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1 determine -- or to review these issues in detail to
2 determine if changes to Subtitle E are needed. The
3 interrelationships between the existing Subtitle E
4 requirements and those contained in R97-15 are
5 complex and require a level of analysis that may be
6 beyond the scope of these proceedings.
7 We would encourage the Illinois Pollution
8 Control Board to solicit input from the full range
9 of parties that may have an interest in this
10 subject and open a separate docket, if necessary,
11 to address any substantive proposals to resolve
12 conflicts or clarifications.
13 Thank you.
14 HEARING OFFICER LOZUK-LAWLESS: Thank
15 you, Mr. Park.
16 Mr.
Warrington, is there anyone else from
17 the --
18 MR. WARRINGTON: No, that concludes our
19 testimony.
20 HEARING OFFICER LOZUK-LAWLESS: Okay.
21 Thank you very much.
22 Mr.
Mudgett, from the Department of
23 Health, would you like to just admit your
prefiled
24 testimony into the record or would you like to give
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1 testimony?
2 MR. MUDGETT: I would like to just
3 briefly summarize it, if I could.
4 HEARING OFFICER LOZUK-LAWLESS: Fine.
5 Thank you.
6 Would the court reporter please swear Mr.
7 Mudgett in.
8 (Mr. Clinton C.
Mudgett was
9 sworn in by the court
10 reporter.)
11 MR. MUDGETT: My name is Clint
Mudgett.
12 I am Chief of the Division of Environmental Health
13 for the Department of Public Health. I do have
14 written testimony, so I thought I would just
15 summarize the major points that I included.
16 First, we are happy to have participated
17 on the committee that developed the rules. We
18 think it was an excellent process. We believe the
19 protection of public health is of primary
20 importance in siting construction and operation of
21 these types of facilities. Protection of drinking
22 water supplies is our most important concern, and
23 we believe that these rules very carefully consider
24 requirements for siting and construction and they
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1 will provide that protection.
2 Secondly, we were concerned about
3 potential releases from lagoons and following
4 environmental harm. These are not areas of our
5 expertise, but we do believe that the information
6 provided to agriculture was the best available, and
7 the rules proposed provide the best protection we
8 can have at this point.
9 We also wanted to briefly mention odors.
10 We know it is a major concern. There is little
11 research that supports evidence of physical illness
12 with odors, but that certainly is not to consider
13 that they are not important matters for the people
14 who live around these types of facilities. The
15 anecdotal reports are certainly valid that we hear
16 in this regard.
17 We also believe the odor control measures
18 provided by the Act and by reference to Illinois
19 EPA rules are probably the best approach, along
20 with training of certified livestock managers that
21 the Department of Agriculture has proposed to try
22 to address these, again, very legitimate concerns
23 about odors and the potential health affects that
24 do follow.
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1 We don't want to imply that because there
2 is a lack of scientific evidence for health affects
3 related to odors that they do not occur. There is
4 certainly adequate testimony that has been provided
5 at other hearings that would verify that people do
6 experience symptoms when they encounter severely
7 adverse odors.
8 The question, and I think Mr.
Boruff has
9 addressed this as well in his testimony, is what is
10 the best approach to trying to deal with that.
11 And, again, the livestock facilities or the
12 Livestock Management Facilities Act itself
13 establishes the necessary setbacks. The reference
14 to IEPA rules to deal with odors seem to be an
15 appropriate approach, as well as training of the
16 people that will operate these types of
17 facilities.
18 In conclusion, again, I would reiterate
19 that the process that was developed by the Act
20 itself and the manner in which the Department of
21 Agriculture conducted the Rules Committee I thought
22 was laudable. Certainly, it was an open
23 opportunity for people and visitors to have their
24 input. I personally believe that the Department of
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1 Public Health was well represented and the majority
2 of comments that we offered were included in the
3 rules.
4 I might mention one other thing since
5 there was an issue about the use of bacteriological
6 monitoring in monitoring wells. There certainly
7 has been question as to whether or not that is an
8 appropriate requirement and it was suggested, in
9 fact, that perhaps some other less expensive, less
10 problematic chemical tests could suffice in lieu of
11 bacteriological monitoring.
12 The Public Health believes the major
13 possible concern as a result of these types of
14 facilities would be waterborne illness. And
15 traditionally the quality of drinking water, the
16 quality of water in monitoring wells, has been
17 dictated by indicator bacteria. And we had
18 proposed that some combination of E.
Coli or E.
19 Coliform bacteria and E.
Coli streptococcus
20 bacteria be included in the list of perimeters that
21 would be monitored for in monitoring wells when
22 they are required. We stand very strongly by that
23 recommendation.
24 These are simple tests that virtually any
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1 laboratory that does
microbiological testing can
2 do, and they are also very inexpensive. We did
3 check prior to preparation of this testimony with
4 two private laboratories. The cost for each test
5 is $12.00 and $16.00, so we think that is a rather
6 modest cost for bacteriological testing that we
7 believe is important.
8 With that I would conclude my remarks.
9 Again, I appreciate the opportunity to have
10 participated on the Advisory Committee and to
11 present this testimony for the Board.
12 HEARING OFFICER LOZUK-LAWLESS: Thank
13 you, Mr.
Mudgett. Would you like to submit your
14 prefiled testimony as an exhibit?
15 MR. MUDGETT: Yes.
16 HEARING OFFICER LOZUK-LAWLESS: Okay.
17 Mr.
Mudgett's prefiled testimony on behalf of the
18 Illinois Department of Public Health will be marked
19 as Exhibit Number 4.
20 (Whereupon said document was
21 duly marked for purposes of
22 identification as Exhibit
23 Number 4 as of this date.)
24 HEARING OFFICER LOZUK-LAWLESS: We will
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1 now continue with the witnesses from the Department
2 of Natural Resources.
3 Mr. Marlin, would you like all of the
4 witnesses to be sworn in at the same time?
5 MR. MARLIN: Yes.
6 HEARING OFFICER LOZUK-LAWLESS: Okay.
7 Would the court reporter please swear the witnesses
8 in.
9 (Mr. John Marlin, Mr. Donald
10
Keefer, Mr. Michael
McCulley
11 and Ms. Deanna
Glosser were
12 sworn in by the court
13 reporter.)
14 HEARING OFFICER LOZUK-LAWLESS: Mr.
15 Marlin, you may begin.
16 MR. MARLIN: On behalf of the Department
17 of Natural Resources I want to thank the Board for
18 this opportunity to comment on the proposal and
19 participate in this process.
20 My name is John Marlin, assistant to the
21 director of the Waste Management and Research
22 Center, a Department of Natural Resources Division
23 based in Champaign, Illinois. I hold a Ph.D. in
24 entomology from the University of Illinois. I
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1 represent DNR Director Brent Manning on the
2 Livestock Management Facilities Advisory Committee,
3 which helped formulate this proposed rule. DNR is
4 pleased to have this opportunity to appear before
5 the Board and participate in this process.
6 DNR is aware of the economic importance
7 of the livestock industry to Illinois. Likewise,
8 we are aware of the threat that livestock
9 facilities can pose to neighbors and natural
10 resources if they are not properly constructed and
11 operated.
12 We appreciate the Board's leadership in
13 this important matter and commend the Department of
14 Agriculture for its effort in drafting the proposed
15 rules. Our comments on the emergency rule noted
16 several areas where ambiguities in the Livestock
17 Management Facilities Act (LMFA) could lead to
18 confusion. These areas include enforcement and the
19 relationship between the LMFA and the Environmental
20 Protection Act especially Subtitle E: Agriculture
21 Related Pollution Rules. The status of two design
22 documents cited in the LMFA "Design of Anaerobic
23 Lagoons for Animal Waste Management" and "Waste
24 Treatment Lagoon" relative to Subtitle E may lead
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1 to additional confusion, since they cover similar
2 concerns differently.
3 There are a number of ways a design or
4 structural failure at a livestock facility may
5 cause environmental contamination. Contaminants
6 may leak into the groundwater from lagoons or other
7 structures. Structural failure of a lagoon may
8 result in millions of gallons of waste moving
9 across fields and entering a stream or lake. Gases
10 and dust leaving a facility may cause odor and
11 contaminant deposition problems for a significant
12 distance. Additionally, waste applied to the soil
13 may run off the fields and contaminate nearby land
14 and surface water.
15 The LMFA along with the implementing
16 rules address a number of these concerns. The
17 proposed design criteria, when followed, will
18 provide significant protection to groundwater
19 resources and substantially reduce the risk of
20 structural failure of lagoons. The management
21 plans required of larger facilities require
22 consideration or implementation of a number of
23 criteria which should increase the amount of
24 nutrients utilized by plants while decreasing the
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1 amount lost to runoff.
2 Finally, the operator training and
3 certification provisions allow the Department of
4 Agriculture great flexibility for designing
5 programs to train livestock facility managers. The
6 training program can be utilized to address
7 techniques to better control odor and improve the
8 effectiveness of such vital activities as lagoon
9 managment and nutrient handling.
10 While the bulk of the detailed supporting
11 testimony for the proposal will come from the
12 Illinois Department of Agriculture, another DNR
13 witness will provide technical testimony on certain
14 geological and monitoring well location issues that
15 are addressed in the proposed rules.
16 DNR generally supports the livestock
17 regulation proposal before the Board today. We
18 participated fully in the discussions of the
19 Advisory Committee upon which the Department of
20 Agriculture proposal is based. The proposal, if
21 adopted, will significantly improve the level of
22 protection to ground and surface water resources.
23 DNR proposes modifying the definition of
24 "Populated Area" contained within the proposal.
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1 The statutory definition is ambiguous. IDOA
2 recognized this fact when it proposed the
3 clarifying language. DNR believes the definition
4 needs further clarification to make it clear that
5 setback protection is required for certain
6 properties. Our proposed definition is attached as
7 DNR Exhibit A. We realize that the acceptance of
8 our suggestions are dependent upon a favorable
9 interpretation of the LMFA by the Illinois
10 Pollution Control Board as it pertains to our
11 proposed definition of populated area. We believe
12 these issues need to be considered and we would
13 like to offer the following points for
14 consideration.
15 The State of Illinois has made a
16 significant investment in lands that are managed
17 for conservation and recreational purposes. The
18 definition of "Populated Area" as proposed in the
19 rules begins to address concerns regarding these
20 lands. However, the definition does not provide
21 for some of the characteristics of large sites used
22 primarily for outdoor activities.
23 Our first change addresses the concept of
24 "place of common assembly." The DNR contends that
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1 the Populated Area definition should include
2 examples of "places of common assembly and non-farm
3 businesses." Because the term "places of common
4 assembly" has not been defined either in the
5 statute or the rules, the
DNR's proposed list of
6 examples will provide guidance to livestock
7 management facilities owners about the general type
8 of area which qualifies as a common place of
9 assembly under the definition.
10 The list is not exhaustive, but makes
11 clear that 4H and Scout camps as well as parks can
12 be populated areas. Likewise, there is no
13 distinction between public or private ownership.
14 This language recognizes that a populated area can
15 include a large acreage rather than just a
16 building, provided that the requisite 50 persons
17 per week visit.
18 The second change adds the concept of
19 seasonal fluctuations in attendance.
IDOA's
20 definition logically recognizes that schools and
21 businesses with vacations or seasonal shutdowns
22 qualify as populated areas even if they are not
23 open 52 weeks per year. DNR believes the
24 interpretation of the statutory language should
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1 provide the same consideration to areas which
2 experience reduced attendance during portions of
3 the year.
4 Schools, parks, and 4H and Scout camps
5 have seasonally reduced attendance but should be
6 protected. These places may have the 2600 people
7 annually, which represents 50 persons times 52
8 weeks, but will not meet the required attendance of
9 50 or more people every week of the year due to
10 vacation periods or winter weather.
11 The third change recognizes that some
12 populated areas cover large acreage rather than a
13 specific point like a building. The size, shape,
14 and use of these areas are such that the Department
15 of Agriculture's proposed definition will not
16 provide adequate protection from odors and other
17 environmental factors associated with livestock
18 management facilities. Within a park, attendance
19 is not limited solely to the visitor centers or
20 picnic areas.
21 People use the entire designated area for
22 activities such as hiking, nature appreciation,
23 hunting and picnicking. Because of the way these
24 sites are used, DNR proposes that the property
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1 lines of recreational and conservation areas serve
2 as the measuring point when determining setback
3 distances.
4 In many ways this is comparable to the
5 way the measuring point from a livestock farm is
6 determined. The law does not require a setback
7 from the boundary of the farm, but from the
8 lagoon. This recognizes that much of the farmland
9 upon which the lagoon is located is suitable to act
10 as part of a buffer. This is not true in the case
11 of land used for recreational purposes. Thus, we
12 contend that land at a park or camp which is used
13 by visitors should be protected by a buffer, rather
14 than being considered part of the buffer for a
15 specific building or gathering point.
16 Finally, the proposed definition of
17 Populated Areas does not address how to determine
18 the appropriate measuring point from places of
19 common assembly for setback requirements. The Act
20 states "minimum distances shall be measured from
21 the," there is some words missing, and then "place
22 of common assembly to the nearest corner of the
23 earthen waste lagoon or livestock management
24 facility, whichever is closer." The Department
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1 recommends that the legal boundary lines of a place
2 of common assembly should serve as the measuring
3 points when determining setback distances at areas
4 used primarily for outdoor activities.
5 Our next witness will be Donald
Keefer.
6 HEARING OFFICER LOZUK-LAWLESS: Mr.
7 Marlin, would you like to introduce your Exhibit A
8 into the record?
9 MR. MARLIN: Yes, I would. It is
10 attached.
11 HEARING OFFICER LOZUK-LAWLESS: The
12 Department of Natural Resources' exhibit, "
DNR's
13 Proposed Alternative Definition of Populated Area"
14 will be marked as Exhibit Number 5.
15 (Whereupon said document was
16 duly marked for purposes of
17 identification as Exhibit
18 Number 5 as of this date.)
19 MR. KEEFER: My name is Don
Keefer. I am
20 a hydrogeologist in the Groundwater Resources and
21 Protection Section of the Illinois State Geological
22 Survey Division of the Illinois Department of
23 Natural Resources. I have been with the
24 Groundwater Section at the Survey since October,
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1 1985.
2 My work at the Survey has focused on two
3 areas; field observations of chemical movement
4 through the unsaturated and saturated zones; and
5 evaluations of aquifer sensitivity to
6 contamination. In both of these areas, I have
7 focused primarily on the movement and occurrence of
8 agricultural chemicals.
9 My educational background includes both a
10 Bachelor of Science Degree in Geology and a Master
11 of Science Degree in Agronomy from the University
12 of Illinois at
Urbana. My master's degree focused
13 on the fate and transport of pesticides in a
14 tile-drained farm field.
15 My testimony today addresses the
16 technical justification for portions of Sections
17 506.103, 202, 204 and 206.
18 Section 506.103 covers definitions in the
19 proposed rule. The definitions of aquifer
20 material, sand, gravel, and sand and gravel are
21 critical to the successful application of the
22 proposed siting criteria and lagoon design
23 standards. The intent of these definitions is to
24 provide consistent, appropriate identification of
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1 the kinds of geologic materials that allow rapid
2 transport of water and dissolved chemicals. The
3 proposed use of these defined materials will allow
4 for the consistent protection of vulnerable
5 groundwater resources.
6 "Aquifer materials" are defined and used
7 in this proposed rule rather than "aquifers"
8 because when chemicals leak from a source like a
9 livestock waste lagoon, their rates of travel
10 through unsaturated aquifer materials are very
11 similar to those through saturated aquifer
12 materials. A lagoon leaking livestock waste into a
13 deposit of aquifer material could contaminate a
14 very large volume of the subsurface, regardless of
15 whether the material were saturated or not.
16 The proposed definitions rely on textural
17 and thickness criteria for defining aquifer
18 materials. Most definitions of aquifers, however,
19 rely on specific measurements of flow
20 characteristics, also known as hydraulic
21 characteristics. The proposed definitions were
22 chosen in order to provide a simple, easily
23 recognizable definition that would offer
24 appropriate protection to groundwater resources.
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1 These definitions did not include hydraulic
2 characterization in order to avoid the significant
3 expense of these measurements, and because these
4 measurements would be of limited additional value.
5 Section 506.202 addresses site
6 investigations for livestock waste lagoons.
7 Subsections (a) and (b) discuss the collection of
8 soil borings and the subsequent evaluation of
9 geologic materials at the lagoon site, and the
10 determination of the presence or absence of aquifer
11 material within 50 feet of the planned lagoon
12 bottom. Subsection (c) allows for alternative site
13 investigation plans, and Subsection (d) requires
14 qualified professionals to direct and evaluate the
15 site investigation.
16 In siting any facility that contains a
17 potential source of groundwater contamination, it
18 is critical to evaluate the contaminant transport
19 characteristics of the geologic materials at the
20 facility location. Existing maps of geologic
21 deposits are not detailed enough to provide a
22 reliable characterization for facilities which
23 could contaminate such a significant volume of
24 groundwater. For this reason, the collection of
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1 on-site information is necessary to determine the
2 types of geologic materials present and to evaluate
3 the potential impact to groundwater resources in
4 the event of a leak.
5 In addition to the need for site-specific
6 geologic information, the amount and chemical
7 nature of the potential contaminants must be
8 considered. This information will allow a better
9 evaluation of the potential impact of any leaks to
10 groundwater. The primary components of livestock
11 waste that are a health or environmental concern
12 include solid organic particles, bacteria,
13 ammonium, and several trace metals, for example,
14 zinc and copper.
15 In general, solid organic particles will
16 remain in the lagoon due to their large size.
17 Bacteria can transport through some geologic
18 deposits, but will generally be filtered out
19 quickly in fine-grained, non-aquifer materials.
20 Ammonium and the trace metals are chemically
21 charged, and will tend to stick, or adsorb to clay
22 and organic matter particles. For these
23 components, therefore, the greater thickness of
24 non-aquifer materials around the lagoon, the more
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1 likely they are to be removed from the groundwater.
2 Subsection (a) of the proposed final rule
3 requires on-site geologic information be used to
4 identify any sensitive groundwater resources. This
5 subsection also requires that the geologic
6 materials be evaluated to a depth of 50 feet below
7 the planned lagoon bottom. This depth was selected
8 based on a study of rural private well water
9 quality conducted by the Illinois State Geologic
10 and Water Surveys, with the assistance by the
11 Illinois Department of Agriculture and Public
12 Health.
13 I was personally involved in the design
14 and early implementation stages of this project.
15 This water quality study was designed so that any
16 potential agricultural chemical spills would be
17 avoided. This meant that any detected chemicals
18 were probably due to leaching from the agricultural
19 use of fertilizers and pesticides. The results
20 from this study found that agricultural chemicals
21 were occasionally present in the well water when
22 the top of the uppermost aquifer was mapped as
23 being within 50 feet of land surface. In addition,
24 the greater the thickness of non-aquifer materials
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1 between a contaminant source and an aquifer, the
2 less likely the contaminants were to reach an
3 underlying aquifer.
4 The observation of agricultural chemicals
5 in shallow aquifers suggests that these aquifers
6 would also be vulnerable to contamination from
7 large point sources, such as leaking livestock
8 waste lagoons. The 50 foot depth limit observed in
9 the ISGS/ISWS water quality study was used for the
10 required depth of characterization in the proposed
11 rule because of the relatively innocuous and
12 immobile nature of the primary contaminants in
13 livestock waste. A more hazardous contaminant
14 stream would require a greater depth of
15 characterization to ensure adequate protection of
16 groundwater resources.
17 Subsection (b) specifies the requirements
18 for the collection of on-site borings. The borings
19 are to be made to a depth of 50 feet below the
20 lagoon bottom, or to bedrock. This means that the
21 initial boring need not continue into bedrock
22 material. The definitions of aquifer material have
23 clear thickness criteria for bedrock aquifer
24 materials. Subsection (b)(2) is included to
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1 clarify that additional drilling below bedrock
2 surface may be necessary to determine the thickness
3 of bedrock materials at a site. This subsection is
4 included because when bedrock is not expected
5 within the boring, a drill rig may be used to
6 obtain the necessary samples that may not be
7 suitable for drilling in bedrock.
8 The collection of continuous samples from
9 the boring in subsection (b)(3) is required to
10 ensure that small sand layers are not missed. A
11 series of small sand layers in any five foot
12 section of core could potentially meet the aquifer
13 materials definition. Based on this definition, it
14 is essential to collect continuous samples from
15 each boring.
16 In subsection (d), it is stated that the
17 site investigation must be directed and certified
18 by either a certified Professional Engineer, or a
19 Registered Professional Geologist. This
20 requirement is essential to ensure that the
21 geologic materials found in the soil borings will
22 be accurately characterized. Without certification
23 by a qualified professional, it is impossible to
24 guarantee that the definitions for aquifer material
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1 will be understood and correctly applied. These
2 definitions are the foundation of the siting and
3 lagoon design criteria.
4 Section 506.204 addresses lagoon design
5 standards, of which subsection (d) addresses the
6 criteria for lagoon liner and groundwater
7 monitoring requirements.
8 The results of the Illinois State
9 Geological Survey and the Water Survey water
10 quality study were again considered in developing
11 guidelines on the need for lagoon liners and
12 groundwater monitoring wells. In the water quality
13 study, significantly higher detection rates were
14 found in wells where the depth to uppermost aquifer
15 material was mapped as less than 20 feet from the
16 ground surface versus areas where the depth was
17 mapped as 20 to 50 feet, or greater than 50 feet.
18 The detection rates were also significantly higher
19 in areas where the depth to uppermost aquifer was
20 between 20 to 50 feet from the ground surface
21 versus areas where the depth to uppermost aquifer
22 was greater than 50 feet. These observations were
23 of chemicals applied in relatively small
24 concentrations over a very large land area. The
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1 observations of different detection rates at
2 different depths demonstrates that these increasing
3 depth ranges are effective for predicting different
4 "aquifer sensitivities" to contamination. Lacking
5 specific data regarding aquifer sensitivity to
6 contamination by livestock waste lagoons, the
7 Illinois State Geological Survey and the Water
8 Survey observations of agricultural chemicals were
9 accepted as useful surrogates.
10 Accordingly, the more sensitive category
11 of aquifers within 20 feet of the bottom of the
12 lagoon require the use of a lagoon liner. Because
13 of the short distance that leaking contaminants
14 would have to travel to reach an aquifer that was
15 within 20 feet of the lagoon bottom, and because of
16 the rapid transport characteristics of aquifer
17 materials relative to non aquifer materials,
18 groundwater monitoring is also required in these
19 areas.
20 In areas where an aquifer exists between
21 20 and 50 feet from the lagoon bottom, only a liner
22 is required. The greater distance between the
23 lagoon and the aquifer material is expected to
24 dramatically reduce the potential for contamination
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1 of the aquifer in these areas, so groundwater
2 monitoring is not required. In areas where no
3 aquifer is found within 50 feet of the lagoon
4 bottom, neither a liner nor groundwater monitoring
5 are required.
6 Regarding Section 505.206, the minimum of
7 three groundwater monitoring wells are required
8 whenever aquifer materials are identified within 50
9 feet of the proposed lagoon bottom. The purposes
10 of these wells are to identify the local, shallow
11 groundwater gradient at the site, and to allow the
12 collection of groundwater samples for identifying
13 background chemical concentrations and monitoring
14 for evidence of leaks in the liner.
15 To ensure that the analytical results
16 from these samples are meaningful, the wells must
17 be located and constructed according to some
18 relatively consistent guidelines. These guidelines
19 will also allow the results from the different
20 wells at any site to be more readily compared over
21 time.
22 The slotted portion of a monitoring well,
23 called the well screen, is where groundwater is
24 able to flow into the well. In order to ensure
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1 that the wells will generally be below the water
2 table, and therefore able to be sampled, the top of
3 the well screens should be set below the depth of
4 the seasonal low water table. To ensure that each
5 well sample is taken from approximately the same
6 volume of geologic materials, the wells should have
7 a consistent well screen length. A five foot
8 screen is proposed and is intended to provide an
9 optimal volume of water for analysis.
10 The wells should be constructed
11 consistent with the Illinois Department of Public
12 Health monitoring well construction guidelines.
13 Well construction and sampling requirements suggest
14 that sand be used to fill the space between the
15 boring wall and the monitoring well. This sand is
16 referred to as a sand pack, and should be used on
17 each well. To ensure consistency between wells,
18 the sand pack should be of a relatively consistent
19 length, of no less than five feet and no greater
20 than seven feet.
21 This concludes my testimony today. I
22 appreciate the opportunity to participate in this
23 process and to provide this testimony today.
24 HEARING OFFICER LOZUK-LAWLESS: Thank
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1 you, Mr.
Keefer.
2 PRESIDING BOARD MEMBER FLEMAL: Mr.
3 Keefer, actually, I have a question. You stopped
4 at the beginning of the second to the last
5 paragraph.
6 MR. KEEFER: Right. I was just about to
7 mention that. I believe that is a typo. It says
8 "within 50 feet." It is to be "within 20 feet."
9 PRESIDING BOARD MEMBER FLEMAL: To be
10 "within 20 feet." Okay. Thank you.
11 HEARING OFFICER LOZUK-LAWLESS: Thank
12 you. At this time we are going to break for lunch
13 for one hour, after which we will resume the
14 Department of Natural Resources' testimony, finish
15 their testimony, and the two remaining witnesses.
16 Then we will continue with the
prefiled
17 testimony of Renee
Robinson and Ted Funk, followed
18 by the testimony of any persons who have signed the
19 witness sign-in list who are here today and wish to
20 testify on the record, after which we will then
21 open the floor for questions of any of the
22 witnesses.
23 (Whereupon a lunch recess was
24 taken.)
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1 HEARING OFFICER LOZUK-LAWLESS: Okay. We
2 will continue with the Department of Natural
3 Resources. Thank you. If I could just please
4 remind you that you are still under oath at this
5 time.
6 We will be beginning with the testimony
7 of Mr. Mike
McCulley followed by the testimony of
8 Deanna
Glosser, and then we will proceed with the
9 prefiled testimony of the other persons who have
10 filed. Okay. Thank you.
11 MR.
McCULLEY: Good afternoon. My name
12 is Mike
McCulley, and I am the Administrative Chief
13 of the Division of Land Management within the
14 Illinois Department of Natural Resources. The
15 Division I represent manages 245 of the 283
16 properties that the IDNR leases.
17 Two important concerns of the Illinois
18 Department of Natural Resources in the future
19 siting of large livestock management facilities is
20 the odor pollution that will negatively impact the
21 visitor's outdoor experience and subsequent visitor
22 attendance to the property and the potential impact
23 to natural resources from leakage or overflow of
24 the waste lagoon.
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1 Section 35 of the Livestock Management
2 Facilities Act defines the setback distances and
3 how they are applied when siting new livestock
4 management facilities. The Act defines "populated
5 area" as one where at least 50 persons frequent a
6 common place of assembly or a non-farm business per
7 week," (Section 10.60). The proposed rule further
8 states that "a common place of assembly or a
9 non-farm business based on 50 persons or more
10 frequenting the said place once per week shall
11 include places that operate less than 52 weeks per
12 year, such as schools with seasonal vacation
13 periods and businesses or other places which
14 experience seasonal shutdowns."
15 Minimum setbacks established by the LMFA
16 vary from a half to one mile depending on facility
17 size. (Section 35(c)). In determining setback
18 distances, the LMFA states that "minimum distances
19 shall be measured from the nearest corner of the
20 residence or place of common assembly to the
21 nearest corner of the earthen waste lagoon or
22 livestock management facility, whichever is
23 closer." (Section 35(c1)).
24 With regard to the setback requirements
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1 of the proposed rule, the Illinois Department of
2 Natural Resources requests that the proposed rule
3 be further clarified to:
4 Ensure that IDNR owned, leased and
5 managed properties (which meet the 50 person
6 requirement) are clearly included and referenced
7 under the proposed rule definition of "Populated
8 Area." IDNR properties are worthy of being
9 protected for these reasons:
10 Attendance at the 283 IDNR managed
11 properties exceeded 40 million visitors in 1995,
12 according to the IDNR Attendance report.
13 IDNR properties include state parks,
14 recreation areas, fish and wildlife areas, forests,
15 natural areas and trails. Visitors come to these
16 areas to participate in outdoor recreation such as
17 camping, picnicking, trail use, hunting, fishing,
18 boating and swimming. Key to the enjoyment of
19 these outdoor recreation pursuits is the natural
20 and aesthetic qualities that make each property
21 unique.
22 IDNR properties should not be viewed and
23 utilized as buffers from other populated areas when
24 siting new livestock management facilities.
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1 IDNR properties are inextricably linked
2 to the economies of the local communities in which
3 they reside. Visitors to these properties
4 contribute to the economic health of the
5 surrounding communities. Declines in attendance
6 due to increased odor pollution would result in
7 reduced economic benefits to these communities.
8 IDNR properties are a key component of the tourism
9 industry within the state.
10 It is important that the seasonal
11 definition of common place of assembly apply to
12 IDNR properties as attendance widely varies between
13 seasons and the types of recreation that visitors
14 participate in.
15 For purposes of applying the setback
16 distances for construction of future livestock
17 management facilities, the entire property should
18 be considered as the "common place of assembly"
19 with the legal property lines utilized as the point
20 of measurement. This is important for these
21 reasons:
22 Boundaries are defined legal points on
23 the landscape and utilization of them as the
24 measuring point would expedite the siting process
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1 in that boundaries are readily available.
2 Utilizing less defined boundaries would increase
3 the potential for disagreement over whether the
4 proper setback distance was being applied.
5 Using property boundaries as measuring
6 points is preferred over the use of individual
7 campgrounds, picnic areas, beaches, overlooks and
8 other designated points. The boundaries of these
9 areas and the definition of what constitutes these
10 different types of facilities is confusing and
11 ambiguous.
12 Using boundaries as the measuring point
13 would not preclude future recreation development in
14 other parts of the property as the setback buffer
15 would start outside the site boundaries.
16 IDNR properties are utilized by visitors
17 year around for a variety of recreational pursuits
18 and personal enjoyment. Trails are constructed in
19 remote parts of properties with use by hikers,
20 bikers, and equestrians occurring in the spring,
21 summer and fall and winter use by cross country
22 skiers and
snowmobilers in the winter. Fishermen
23 utilize the lakes and streams during warm weather
24 and ice fish in the winter.
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1 Hunters and trappers enjoy their
2 recreation pursuits during the fall and winter.
3 Birdwatchers, nature lovers, and sightseers visit
4 all parts of a site for their aesthetic enjoyment
5 of the natural and cultural resources. Walking is
6 the most popular form of physical activity in the
7 United States and visitors seek our properties for
8 this experience to gain fitness, relieve stress,
9 and simply enjoy the scenery.
10 IDNR properties held in trust for the
11 citizens of Illinois comprise less than 1.2 percent
12 of the state's total land area in a state with a
13 population exceeding 11 million citizens. This is
14 according to the IDNR Land & Water Report from the
15 1994 State Blue Book. Establishing the boundaries
16 as the measuring point for determining the setbacks
17 would impact less than an estimated two percent of
18 the state's total land area (utilizing the half
19 mile setback distance). This estimate is based on
20 calculation of a doughnut shaped buffer area
21 surrounding each IDNR property with a known
22 acreage. This method overstates the acreage
23 because it does not take into account the fact that
24 much of this land is already within a setback
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1 generated by an existing residence or building.
2 In conclusion, the IDNR recommends that
3 the properties that it manages be clearly
4 referenced under the definition of "populated
5 areas" and that the setback distances from these
6 properties be determined by measuring from the
7 boundaries of these properties.
8 Thank you.
9 HEARING OFFICER LOZUK-LAWLESS: Thank
10 you, Mr.
McCulley.
11 We now have the final witness from the
12 Department of Natural Resources, Ms. Deanna
13 Glosser.
14 MS. GLOSSER: My name is Dr. Deanna
15 Glosser and I am the Chief of the Illinois
16 Department of Natural Resources' Division of
17 Natural Resource Review & Coordination. This
18 Division is responsible for conducting the
19 environmental reviews for federal, state and local
20 units of government. We implement the Endangered
21 Species Consultation Process, the Interagency
22 Wetlands Policy Act, the Transportation Review
23 Program, the internal Comprehensive Environmental
24 Review Process, and other review processes.
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1 In addition, I hold a position as Adjunct
2 Assistant Professor within the Department of Urban
3 & Regional Planning at the University of Illinois,
4 Urbana-Champaign. Prior to serving as Division
5 Chief, I was the Endangered Species Program Manager
6 within
IDNR's Division of Natural Heritage from
7 February of 1990 through July of 1996. Prior to
8 that, I served as the Director of the Environmental
9 Technical Information System, a computerized
10 environmental impact assessment service that was
11 supported by the
U.S. Army Corps of Engineers at
12 the University of Illinois. I received my doctoral
13 degree from the University of Illinois Department
14 of Urban and Regional Planning in 1988.
15 Section 35 of the Livestock Facilities
16 Management Act defines the setback distances and
17 how they are applied when siting new livestock
18 management facilities. The LMFA defines "populated
19 area" "as one... where at least 50 persons frequent
20 a common place of assembly or a non-farm business
21 per week" (Section 10.60). The proposed rule
22 further states that "a common place of assembly or
23 a non-farm business based on 50 persons or more
24 frequenting the said place once per week shall
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1 include places that operate less than 52 weeks per
2 year, such as schools with seasonal vacation
3 periods and businesses or other places which
4 experience seasonal shutdowns."
5 Minimum setbacks established by the LMFA
6 vary from one half to one mile depending on
7 facility size (Section 35(c)). In determining
8 setback distances, the LMFA states that "minimum
9 distances shall be measured from the nearest corner
10 of the residence or place of common assembly to the
11 nearest corner of the earthen waste lagoon or
12 livestock management facility, whichever is
13 closer." (Section 35(c1)).
14 With regard to the setback requirements
15 of the proposed rule, the Illinois Department of
16 Natural Resources recommends that the proposed rule
17 be clarified to ensure protection for sites owned,
18 leased and managed by public natural resource
19 agencies, such as state parks and fish and wildlife
20 areas (which meet the 50 person requirement). IDNR
21 recommends the rule clearly provide setback
22 protection to IDNR properties under the definition
23 of "populated areas" and that the setback distances
24 from these properties be determined by measuring
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1 from the boundaries of these properties.
2 The acquisition, enhancement, and
3 management of the 283 properties IDNR owns,
4 manages, and leases, totaling approximately 422,566
5 acres statewide, represent a significant investment
6 by IDNR and the State of Illinois to provide
7 recreational opportunities and to protect natural
8 resources for the benefit of the public. This
9 public investment should not be jeopardized with
10 the siting of a livestock facility within
11 sufficient distance to negatively impact the
12 visitor's outdoor experience, as mentioned by Mike
13 McCulley of IDNR, or to adversely impact the
14 natural resources which are protected on IDNR
15 properties. The potential for adverse impacts
16 include the following:
17 (1) The introduction of nutrients (such
18 as nitrogen, phosphorus, and ammonia) and other
19 chemicals (such as heavy metals, steroids,
20 antibiotics) at levels sufficient to affect
21 terrestrial and aquatic systems, including
22 groundwater. In the past, most concern has
23 revolved around effects on aquatic systems, but
24 terrestrial organisms and communities can also be
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1 impacted. Among these sensitive organisms and
2 communities, those of particular concern are
3 species listed as endangered and threatened within
4 the State of Illinois and those lands designated as
5 either Illinois Natural Area Inventory Sites and/or
6 Illinois Nature Preserves.
7 These compounds can be released into the
8 environment in a variety of ways:
9 (a) The most direct would be the overflow
10 of the lagoon or a break in the lagoon embankment
11 such that the effluent is discharged into the
12 surrounding landscape. Examples of the problems
13 that have resulted from such events, including
14 massive fish kills, are found across the country,
15 most notably from North Carolina.
16 (b) The land application of the effluent
17 at greater rates than plants can utilize on the
18 chosen application site or in the wrong season can
19 result in runoff to nearby bodies of water, thereby
20 contributing to the introduction of excess nitrogen
21 (ammonia) and phosphorus to rivers, streams and
22 lakes.
23 (c) Land application of the effluent can
24 also result in an excessive level of nutrients in
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1 the soil which can adversely impact natural
2 communities. The build-up of phosphorus, for
3 example, can impede the uptake of other nutrients,
4 thus limiting growth of plant material. Minor
5 changes in soil chemistry can also lead to the
6 introduction of exotic plant species into high
7 quality natural communities, altering their
8 structure and composition.
9 (d) Compounds such as nitrogen,
10 phosphorus, and ammonia, heavy metals, steroids and
11 antibiotics found in most animal feeds are excreted
12 with animal waste or can leave the facility as
13 airborne molecules or dust. These materials could
14 be deposited onto IDNR or other public properties.
15 Some of these materials, particularly heavy metals,
16 accumulate in plant and animal tissues, reaching
17 levels that can interfere with metabolic processes
18 and reproduction.
19 (2) Ammonia contained in the effluent can
20 adversely impact plant communities in close
21 proximity to livestock lagoons. Ammonia's tendency
22 to form a layer near the ground can burn leaves,
23 increase transpiration rates, cause nutrient
24 imbalances, increase frost damage, and increase
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1 susceptibility of plants to disease.
2 (3) There are also concerns with the
3 release of pheromones and hormones. Even at minute
4 levels, they can affect the growth and behavior of
5 animal species, and alter reproductive behavior.
6 The LMFA provides for research pertinent
7 to livestock production. An area which warrants
8 research is the potential impact of nutrients,
9 pheromones and other chemicals released from
10 livestock facilities on nearby plants and animals.
11 The decline of the prairie chicken population near
12 the state's largest egg production facility in
13 Marion County would be a good candidate for study.
14 This facility was constructed in 1987 and
15 is immediately adjacent to the IDNR Prairie Chicken
16 Sanctuary. The local prairie chicken population
17 declined dramatically on three adjacent tracts
18 after the egg laying facility opened, going from 26
19 males in 1986 to one in 1989. Research is needed
20 to determine whether the decline of this endangered
21 species is due to the operation of the egg
22 production facility or some other factor such as
23 parasites or
predation.
24 In conclusion, certain habitat types
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1 throughout Illinois are particularly sensitive to
2 even slight changes in factors such as groundwater
3 or soil chemistry. Providing a setback as defined
4 in the LMFA would minimize the adverse impacts to
5 natural resources which were acquired and are
6 managed for the public good. Further, using the
7 boundary of these properties as the measuring
8 point, would protect both the recreational uses and
9 natural resources of our sites.
10 Based on the testimony by Mike
McCulley,
11 establishing the measuring point for the setback
12 would impact less than an estimated two percent of
13 the state's total land area. This is further
14 reduced when considering other provisions of the
15 LMFA since much of this land already falls under
16 setback for residences and non-farm businesses. If
17 all dedicated Illinois Nature Preserves and
18 publicly held Illinois Natural Area Inventory Sites
19 were also provided with a one half mile setback,
20 the total area covered would be approximately three
21 percent of the state's land area.
22 That ends my testimony, and I thank you
23 for the participation.
24 HEARING OFFICER LOZUK-LAWLESS: Thank
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1 you, Ms.
Glosser.
2 Ms.
Bushur-Hallam, was there anything
3 else you would like to say on behalf of the
4 Department of Natural Resources?
5 MS. BUSHUR-HALLAM: The Department has
6 brought along extra copies of the
prefiled
7 testimony if anyone is interested.
8 HEARING OFFICER LOZUK-LAWLESS: I don't
9 know if everyone was able to hear her. She said
10 that the Department had brought along extra copies
11 of the
prefiled testimony of all of their
12 witnesses, and if you would like to get a copy that
13 she would have those with her.
14 Thank you. That concludes the testimony
15 from the Department of Natural Resources, the
16 Illinois Environmental Protection Agency, the
17 Illinois Department of Public Heath, as well as the
18 Department of Agriculture.
19 You may have noticed at our break that we
20 were joined by two more members here. As part of
21 our technical unit is Mr.
Anand Rao. And Cynthia
22 Ervin, who is Claire
Manning's attorney assistant,
23 also has joined us at the front here. So if you
24 were wondering who those people were.
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1 Now we will begin with those persons who
2 have
prefiled testimony who were not part of the
3 four agencies involved in the
rulemaking.
4 First we would like to call forward Renee
5 Robinson from the Illinois Stewardship Alliance, if
6 she would like to give testimony at this time.
7 If the court reporter could swear her in,
8 please.
9 (Ms. Renee
Robinson was sworn
10 in by the court reporter.)
11 HEARING OFFICER LOZUK-LAWLESS: You may
12 begin.
13 MS. ROBINSON: My name is Renee
Robinson
14 and I am the Executive Director of the Illinois
15 Stewardship Alliance based in Rochester. On behalf
16 of the Alliance, I am pleased to have the
17 opportunity to input into the
rulemaking for the
18 Livestock Management Facilities Act and applaud the
19 Board for scheduling a number of hearings to allow
20 for broad public input. We also applaud the
21 Illinois Department of Agriculture and the
22 Inter-Agency Committee's hard work to produce the
23 proposed rule.
24 The Alliance is a 22-year-old citizen
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1 organization working statewide for healthy rural
2 communities through the stewardship and responsible
3 development of Illinois' natural resources. We are
4 here today because of the dramatic increase in
5 large-scale hog facilities moving into the state --
6 and their ultimate impact on the environment,
7 family farmers, and rural communities' health and
8 quality of life.
9 The Alliance promotes environmentally
10 responsible farming -- using farming techniques
11 that prevent pollution and creates sustainable
12 farming systems. The concentration of livestock at
13 the scale we are seeing in Illinois creates a
14 situation for dramatic pollution of our ground and
15 surface waters, as well as our air and soil. For
16 example, Pig Improvement Company/
Hanor Corporation
17 is building facilities in
Greene County which will
18 concentrate up to 200,000 pigs at three locations.
19 Millions of gallons of hog urine and feces will be
20 collected in holding lagoons. In sustainable
21 agriculture terms, this is not pollution
22 prevention, but an attempt to control pollution.
23 The Board must recognize that these
24 livestock facilities are industrial plants, not
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1 farms. Therefore, environmental regulations for
2 these industries should be considered part of the
3 cost of doing business. Representatives for the
4 industry will argue that environmental regulations
5 will place an excessive burden on family farmers
6 and cause undue economic harm to Illinois. While
7 promulgating livestock waste regulations, we urge
8 the Board to recognize that the majority of the
9 industrialized farms are not family owned and
10 operated, and the supposed economic benefits they
11 bring to the state and to rural communities is
12 unproven.
13 The Alliance has participated to the
14 greatest extent allowed in the Livestock Industry
15 Task Force which ultimately was responsible for the
16 statute that we have today. We were allowed one
17 seat out of 19 on the full Task Force. However,
18 many critical issues have been left out of the
19 final Act -- issues that cannot be dealt with in
20 rulemaking.
21 Unfortunately, the Act was written with
22 very specific language that falls short in many
23 areas pertinent to protecting the public health and
24 rural economies from industrialized farms.
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1 Therefore, in order to protect Illinois' livestock
2 industry, the environment, and public health,
3 issues such as siting, raising setbacks, creating
4 an indemnity fund, and local control will have to
5 be addressed through new legislation this spring
6 that builds upon the current statute and
7 regulations.
8 There are some issues, however, pertinent
9 to this process that I would like to address. I
10 should mention now that my testimony is only a
11 portion of our organizations issues with the
12 rules. Other members of our organization will
13 testify at later hearings on other key issues.
14 Also, when I refer to the testimony from State
15 Agencies, I am referring to the testimony that they
16 have filed for these hearings.
17 Definitions. In regard to the definition
18 of a "residence," the Board should maintain the
19 definition as proposed. The discussion that took
20 place within the Advisory Committee raised several
21 concerns with narrowing the definition because a
22 narrow rule may very well exclude
bonafide
23 residences.
Moveover, to the best of our
24 knowledge, there is not a single situation in
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1 Illinois where neighbors have deliberately moved in
2 a mobile residence within the setback distance
3 solely to prevent an operation from building on a
4 particular site. If what appears to be a home is
5 used as a place for human habitation, it is a
6 residence.
7 In its testimony for these hearings, the
8 Department of Agriculture raised an option to deal
9 with this issue which we find agreeable -- key the
10 application of setbacks to the date of lagoon
11 registration receipt by the Department. This will
12 minimize potential conflict between operators and
13 neighbors by clearly letting potential neighbors
14 know that if they build or move in a residence
15 within the setback after the operator registers
16 with the Illinois Department of Agriculture, they
17 are moving in at their own risk. Moreover, the
18 rule would prevent operators from beginning costly
19 construction without a clear go-ahead from the
20 Department. Any narrowing of the definition of a
21 residence could risk sacrificing the rights of the
22 owners of
bonafide residences.
23 Site investigation. Section 506.202(c)
24 in the proposed rules gives the Department
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1 authority to exempt operators from performing soil
2 borings to determine the extent of aquifer material
3 beneath the livestock waste handling facility. The
4 Alliance recommends not including this specific
5 section in the final rule or specifying under which
6 conditions the Department of Agriculture may grant
7 a waiver.
8 Performing borings is a part of the cost
9 of doing business and is critical to determine the
10 potential risks to groundwater. Moreover, existing
11 information is insufficient. The Illinois
12 Department of Natural Resources testified that
13 "existing maps of geologic deposits are not
14 detailed enough to provide a reliable
15 characterization for facilities which could
16 contaminate such a significant volume of
17 groundwater." IDNR also testified that "collection
18 of on-site information is necessary." If an
19 operator has conducted a subsurface investigation
20 as part of the installation of a site water supply
21 well, for example, that investigation must have
22 been performed in accordance with the Section
23 506.202(b) for IDOA to grant a waiver.
24 In addition, the Alliance recommends
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1 including a section that would require operators to
2 perform more than one boring in certain cases. The
3 Illinois Environmental Protection Agency also
4 recommends giving the Department of Agriculture
5 flexibility to require more borings in certain
6 cases, specifically in the case of disturbed or
7 mined land that may have altered hydrology and soil
8 conditions, or routes to groundwater via abandoned
9 shafts. They go on to say that "in these
10 circumstances, a single boring for a large (four to
11 six) acre lagoon would be insufficient."
12 Registration. The Illinois Department of
13 Agriculture testified that in the case of
14 facilities required to utilize synthetic liners
15 where periodic maintenance is required or where
16 monitoring wells are periodically sampled,
17 follow-up site visits by the Department personnel
18 may become necessary... and warrants the need for
19 possible Department site visits beyond the initial
20 statutory language. In these cases, the rules
21 should require follow-up visits. We recommend that
22 the rules should be very clear as to when
23 inspections will be performed so operators and the
24 public know exactly when the inspections will take
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1 place.
2 Lagoon design standards. Regarding
3 lagoon design standards, the Alliance agrees with
4 the
IEPA's recommendations for specifying the ASAE
5 and NRCS standards in the regulations in order to
6 reduce confusion. The IDOA has already specified
7 the criteria where conflicts occur between the two
8 sets of standards.
9 The Alliance also agrees with
IEPA's
10 recommendation for prohibiting the use of outlet
11 piping through the lagoon
berm and their
12 recommendation for lagoon design to include an
13 emergency spillway.
14 Section 506.204(h) of the proposed rule
15 gives IDOA the flexibility to allow operators to
16 deviate from these standards as long as the
17 operator can guarantee that the deviation will be
18 at least as protective of groundwater, surface
19 water and the structural integrity of the livestock
20 waste management facility as the requirements of
21 this Part. We recommend that before the IDOA
22 approve any deviation, a Professional Engineer be
23 required to specifically approve the deviation and
24 certify that the lagoon construction standards are
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1 as protective as the standards in the regulations.
2 The Alliance also recommends the same
3 language for Section 506.205(f) on liner standards,
4 and Section 506.206(h) on groundwater monitoring.
5 Groundwater monitoring. IDOA questioned
6 the need for including bacteria in the list of
7 analytes to be tested by operators required to have
8 groundwater monitoring wells. We believe the list
9 of
analytes should be approved as proposed by the
10 Department. Testing for bacteria is critical
11 simply because it is important for the Department
12 and the public to know if bacteria is present in
13 water samples. The response process should also be
14 affected if the test for bacteria comes back
15 positive.
16 Currently, if impacts to groundwater are
17 suspected, the owner or operator is to propose
18 possible response actions necessary to mitigate the
19 potential impacts to groundwater. The Department
20 is then required to review the submittal and advise
21 the owner or operator of the appropriateness of
22 those response actions. As a result of the review,
23 the Department has the authority to make changes in
24 sampling frequency or
analyte list and ultimately
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1 require changes to the design, construction or
2 operation of the lagoon or management facility.
3 This process can take a long time. If groundwater
4 tests come back with indications that the lagoon
5 may be leaking, it is important to know as soon as
6 possible if bacteria is present, so that immediate
7 and appropriate responses and follow-through
8 actions can take place.
9 Conclusion. We appreciate the
10 opportunity to testify publicly on these
11 regulations. We also appreciate the attention the
12 Board has given to helping groups like ours to
13 understand the process and to prepare for the
14 hearings.
15 Precious hours and taxpayer dollars have
16 been spent preparing the statute and proposed
17 regulations which have been identified by lawmakers
18 and key Administration officials as a first step in
19 the process to deal with the impacts of the
20 large-scale livestock industry. Preparing these
21 regulations and implementing the law in the best
22 way possible is important in order to simplify the
23 task of building upon the regulations in the
24 future.
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1 We look forward to our continued
2 relationship with the Pollution Control Board
3 throughout the rest of these hearings and in the
4 future.
5 HEARING OFFICER LOZUK-LAWLESS: Thank you
6 very much, Ms.
Robinson. Is there anything else?
7 MS. ROBINSON: No.
8 HEARING OFFICER LOZUK-LAWLESS: We will
9 have the questions after the next two witnesses
10 testify.
11 MS. ROBINSON: Okay.
12 HEARING OFFICER LOZUK-LAWLESS: Okay.
13 Now we will have the testimony of Mr. Ted Funk on
14 behalf of the University of Illinois.
15 Will the court reporter swear the witness
16 in, please.
17 (Mr. Ted Funk was sworn in by
18 the court reporter.)
19 MR. FUNK: My name is Ted Funk. I am an
20 Extension Agricultural Engineer and Assistant
21 Professor in the Department of Agricultural
22 Engineering, University of Illinois at
23 Urbana-Champaign. I have worked as an agricultural
24 engineer for the Illinois Cooperative Extension
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1 Service since July of 1980. My responsibilities
2 include statewide Extension programming in
3 livestock structures and waste handling systems.
4 I have earned the following degrees:
5 B.S. in Mechanical Engineering,
M.S. in
6 Agricultural Engineering and Ph.D. in Agricultural
7 Engineering all from the University of Illinois at
8 Urbana-Champaign. I am licensed as a Professional
9 Engineer in the State of Illinois.
10 I represent the U of I Department of
11 Agricultural Engineering on the North Central
12 Region Committee NCR-09, Midwest Plan Service, a
13 consortium of 12 member state land grant
14 universities in the North Central Region. The
15 Midwest Plan Service authors many publications on
16 agricultural production practices, including
17 livestock waste management.
18 As a committee member, I have had many
19 opportunities to exchange information with other
20 engineers regarding waste management. I am a
21 member of the American Society of Agricultural
22 Engineers Swine Housing Committee, which is
23 involved with swine waste management issues. I am
24 also one of the two University of Illinois
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1 Department of Agriculture Engineering
2 representatives to the Southern Regional Experiment
3 Stations Project S-239 on animal waste management,
4 a research and information exchange group which
5 includes scientists from 21 state universities.
6 I would like to voice support for the
7 Illinois Department of Agriculture's proposed
8 rules, in its entirety, with two minor exceptions:
9 The first is in Section 506.204, the
10 lagoon design standards, Subsection (g)(2). The
11 maximum embankment slope of three to one is not
12 steep enough for the interior side of the
13 embankment. Two widely recognized sources on
14 lagoon information, Midwest Plan Service Livestock
15 Waste Facilities Handbook MWPS-18, 1993 printing,
16 and American Society of Agricultural Engineers
17 Engineering Practice 403.1, Design of Anaerobic
18 Lagoons for Animal Waste Management, allow for
19 steeper slopes than three to one on the wetted
20 embankment below the freeboard. Tabulated values
21 for design computations of lagoon dimensions
22 include interior embankment slopes of 2.5 to one or
23 two to one. I admit that the three to one slope is
24 appropriate for the parts of the interior
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1 embankment slopes where vegetation will be
2 established, but the rule should allow some design
3 flexibility in terms of using steeper slopes on the
4 part of the embankment below the liquid surface.
5 And the second, the Section 506.305,
6 nutrient content of livestock waste, Subsection
7 (d). I believe it is an unnecessary burden on the
8 industry to require sampling of copper and zinc in
9 addition to N, P, and K. I have calculated the
10 manure application rates necessary to achieve a
11 certain per-acre loading of copper and zinc. I
12 find that even using worst-case simplifying
13 assumptions it would require 50 years of continuous
14 manure application, at rates of 2.4 to 13 times
15 higher than the phosphorus-based application rate
16 (depending on livestock species), for Illinois
17 soils to exceed the EPA copper and zinc
loadings
18 allowable for municipal sewage sludge.
19 The Council for Agricultural Science and
20 Technology 1996 report, Integrated Animal Waste
21 Management, states that there is no evidence to
22 suggest any concern about copper and zinc buildup
23 in soil due to manure application.
24 I have contacted two laboratories, one
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1 private and one university, to inquire about the
2 cost of having copper and zinc analyzed in manure
3 samples. The private laboratory would require 25
4 percent higher fees to test copper and zinc. The
5 university laboratory would more than double the
6 cost per sample, and must send the samples to a
7 second laboratory on another campus to perform the
8 copper and zinc testing.
9 Because it appears to be both unnecessary
10 and costly for the additional tests, I suggest that
11 copper and zinc be removed from the list of
12 analytes for manure tests.
13 I appreciate very much the opportunity to
14 submit this testimony today. I am willing to
15 accept questions regarding Subparts B and C of the
16 proposed rules.
17 I would also like to submit as an exhibit
18 the attached report that I mentioned in my
prefiled
19 testimony.
20 HEARING OFFICER LOZUK-LAWLESS: Thank
21 you, Professor. Are there any objections to
22 entering this report into the record?
23 Okay. Then we will mark as Exhibit
24 Number 6 the Integrated Animal Waste Management
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1 submitted by Professor Funk.
2 (Whereupon said document was
3 duly marked for purposes of
4 identification as Exhibit
5 Number 6 as of this date.)
6 HEARING OFFICER LOZUK-LAWLESS: Now we
7 will have the last individual who has signed up to
8 testify this afternoon, and that would be Dr.
9 Lawrence Judd, if you could come forward.
10 Could the court reporter please swear in
11 Dr. Judd.
12 (Mr. Lawrence Judd was sworn in
13 by the court reporter.)
14 MR. JUDD: Before introducing myself, I
15 would like to say that I have written a written
16 report, which I have given and will give another
17 copy to the Hearing Officer today. However,
18 because we have all been sitting here a long time,
19 I would like to give only a summary statement,
20 which is a bit more brief. It doesn't give the
21 references to various papers and such that are
22 given in the written report, but if anybody later
23 would like to ask questions, you are welcome to do
24 so.
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1 I am Lawrence Judd. I am an Emeritus
2 Professor of Sociology at Illinois College. I hold
3 two graduate degrees in agriculture, relating to
4 agriculture, from
Cornell University. I have been
5 engaged in rural development work in Thailand for
6 22 years prior to coming to Illinois College. I am
7 currently active in what is called the Jacksonville
8 Peace Coalition or Jacks-
Pacs environmental project
9 leadership, and also I am the chairman of the local
10 rotary club's environmental committee. The further
11 detail of my background is given in the printed
12 testimony.
13 To summarize my written comments, I would
14 like to make these following comments, but I would
15 like to say first that I want to thank each of you
16 that have gone to the work you have done in
17 preparing, because I think you have done a lot of
18 good work. My criticisms or suggestions today are
19 not so much on what you have done, but on what you
20 have not yet done.
21 I feel very strongly that the comments
22 made earlier are all useful. I hope you will pay
23 attention to them, particularly those of the groups
24 that were not so directly responsible for writing
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1 up the paper, that is, the Department of Natural
2 Resources, the Department of Public Health and the
3 Department of Environmental Protection.
4 Especially at this time I would like to
5 mention the four people that reported from the
6 Department of Natural Resources. I felt that they
7 gave very specific things that were left out of
8 your report that are pertinent, that I hope you
9 will develop, listen to, and develop to include
10 into the statement that you have.
11 My first comment, control of livestock
12 waste has relevant agricultural and business
13 aspects, but it is primarily an environmental
14 concern and thereby has serious social, community,
15 health, welfare and other statewide and even
16 worldwide implications. This is stated and/or
17 implied in the Illinois Pollution Control Board
18 emergency rules currently in use, and briefly
19 acknowledged in .1 of the
prefiled testimony of Ron
20 Morcil (spelled phonetically) on behalf of three
21 farmer groups. Thus, the permanent rules for such
22 control being framed must respond to these other
23 concerns and not merely to the economic and
24 agricultural factors that are focused on by the
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1 state's livestock industry.
2 Two, the permanent rules being considered
3 at these hearings should clearly distinguish
4 between those applicable to family owned and
5 personally operated small-scale facilities and
6 large-scale livestock operations owned by absentee
7 corporations which are more properly classed as
8 rural industrial plants. These latter
9 installations should conform to much stricter
10 regulations in each aspect of operation, such as
11 siting, lagoon construction and operation, air
12 pollution and public health dangers from flooding
13 and other acts of nature. And in granting waivers
14 they should be much more strict if they are for the
15 larger operations.
16 Three, claims of technical feasibility
17 and export potential should be given minor weight
18 in setting waste regulation rules. Of much more
19 significance is making livestock and other
20 industrial production meet environmental standards,
21 and letting the price of such products include the
22 true full costs of the same rather than directly or
23 indirectly creating additional subsidies. If such
24 industries cannot compete without paying the full
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1 environmental cost of production, they should not
2 operate at the expense of us Illinois citizens.
3 Four,
mega-farms owned by out-of-state
4 corporations might well be made to conform to the
5 standards for such livestock waste handling
6 facilities in their home state as well as the
7 Livestock Management Facilities Act in R97-15
8 Regulations. We do our citizens, state and nation
9 no good by reducing environmental standards to
10 attract industries.
11 Five, any aspects of hog
mega-farm
12 regulation, including those mentioned by Ms. Renee
13 Robinson of the Illinois Stewardship Alliance,
14 which are beyond the current mandate of the
15 Illinois Pollution Control Board should not be
16 beyond its concern. Please strongly support
17 legislation this spring in the Illinois legislature
18 to bring these concerns under your mandate or
19 otherwise deal effectively with any such problems.
20 I will just close with a little personal
21 note. My youngest son currently serves as the
22 Pollution Control and Alternative Energy Project
23 Manager for the China Program of World Wildlife
24 Fund International. He is meeting similar problems
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1 out in China today. And I just had a fax from him
2 this morning, and among other things he is saying
3 that for pig and hog installations like this the
4 Chinese are now requiring that these larger firms
5 also produce their own electricity using the
6 methane gas that is involved.
7 Thank you very much for this
8 opportunity.
9 HEARING OFFICER LOZUK-LAWLESS: Thank
10 you, Dr. Judd. Maybe you would like to stay there
11 for a few minutes for questions. Would you like to
12 admit this as an exhibit?
13 MR. JUDD: Yes.
14 HEARING OFFICER LOZUK-LAWLESS: Okay. Do
15 you have more copies?
16 MR. JUDD: I have a few more, and if
17 anybody would like copies I will give them those.
18 HEARING OFFICER LOZUK-LAWLESS: Could you
19 give one to the Department of Agriculture?
20 MR. JUDD: Surely.
21 HEARING OFFICER LOZUK-LAWLESS: Thank
22 you. We will mark the testimony of Dr. Lawrence
23 Judd as Exhibit Number 7.
24 (Whereupon said document was
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1 duly marked for purposes of
2 identification as Exhibit
3 Number 7 as of this date.)
4 HEARING OFFICER LOZUK-LAWLESS: At this
5 time is there anyone in the audience that did not
6 sign on the witness sign-up sheet that would like
7 to give testimony today on the record? There is
8 certainly time if anyone wants to come forward.
9 No? Okay. Then seeing none what we will
10 do now is we will proceed to the questioning
11 portion of today's hearing.
12 I would like to say in advance that the
13 Board Members will probably defer asking questions
14 right now to those members of the audience who
15 would like to ask questions. It is not to say that
16 they won't be asking any questions later at the
17 other hearings, but for now to just allow an
18 opportunity for anyone who is here at this hearing
19 who won't be able to attend any other hearings, we
20 would like to give you a chance to go ahead and ask
21 any of the witnesses questions.
22 Although the testimony is concluded for
23 today, there will be additional testimony at the
24 other hearings for certain areas already
prefiled
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1 testimony from the Illinois Farm Bureau, the Pork
2 Producers and the Beef Association who will be
3 testifying at a later date as well.
4 What I would like to do first, then, is
5 actually ask if there are any questions for Dr.
6 Judd, because he is leaving early today. If there
7 are any questions -- yes, Mr.
Harrington. If you
8 could, when you approach the microphone, please
9 just identify yourself on the record. Of course, I
10 know Mr.
Harrington already, but anyone else please
11 do so. Thank you.
12 MR. HARRINGTON: Jim
Harrington, a
13 question for Dr. Judd.
14 The question that is probably in yours
15 and some other testimony is how do we define the
16 family farm in contrast to -- how do we draw a
17 distinction between that and the industrial? Can
18 you give some answer to that?
19 MR. JUDD: I would be happy to. I think
20 we were given good leadership on this thought by
21 the testimony of the Department of Natural
22 Resources. They were saying that the statements of
23 the -- the two terms there, the population -- how
24 it is given in there, I am not sure. I think it is
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1 based on whether it is -- personally, the way I am
2 doing it is if it is owned by the person that
3 operates it, and is actually -- the work is done by
4 their family, that's a family farm.
5 If it is something which is either owned
6 out-of-state or owned by a corporation, owned by
7 people who are not directly involved in the work,
8 that is not a family farm.
9 MR. HARRINGTON: Would you agree, then,
10 that a family farm that has been in the same family
11 for a couple generations and they employed four or
12 five hired help under the direction of the owner,
13 that that would still constitute a family farm?
14 MR. JUDD: That is something I believe
15 that whoever is administrating this program will
16 have to determine, but generally, yes. If the
17 family itself is working at it, not if the family
18 has retired and hired somebody else to do it, but
19 is not actually involved personally in the
20 operation.
21 MR. HARRINGTON: That would be true even
22 if they had 1,000 hogs on the farm, wouldn't it?
23 MR. JUDD: From what I have heard from
24 the testimony, 1,000 pigs is fairly common in the
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1 state by many family farms, so I am not ruling out
2 1,000. If you are talking about 100,000 or
3 200,000, I certainly would rule those out.
4 MR. HARRINGTON: Thank you very much. I
5 have no further questions.
6 HEARING OFFICER LOZUK-LAWLESS: Thank
7 you. Are there any further questions for Dr.
8 Judd?
9 Seeing none, I would like to say thank
10 you, sir. There are no further questions.
11 MR. JUDD: Okay.
12 HEARING OFFICER LOZUK-LAWLESS: Now we
13 will be expecting questions of any of the other
14 witnesses.
15 All right. Please come forward. Mr.
16 Harrington, if you could go into the questions for
17 Renee
Robinson first, because she will not be at
18 the other hearings, and we know that she is here
19 today.
20 Ms.
Robinson, would you like to sit up in
21 the front, or whatever is more comfortable for
22 you.
23 I would like to also note for the record
24 that Mr.
Harrington is here on behalf of the
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1 Illinois Pork Producers, Illinois Beef Association
2 and the Illinois Farm Bureau.
3 MR. HARRINGTON: Thank you. Good
4 afternoon.
5 MS. ROBINSON: Hello.
6 MR. HARRINGTON: Thank you for your
7 testimony. Did you receive these
prefiled
8 questions that I sent through?
9 MS. ROBINSON: Yes.
10 MR. HARRINGTON: I don't know whether,
11 for the record, it would be easier if I would read
12 the questions out loud.
13 HEARING OFFICER LOZUK-LAWLESS: Yes, that
14 would be a nice idea. Thank you.
15 MR. HARRINGTON: The first question is
16 what qualifications or experience do you have that
17 would qualify you as an expert to give expert
18 testimony regarding the performance of soil borings
19 to determine the extent of aquifer material?
20 MS. ROBINSON: I would answer this as we
21 had quoted from our experts at the Department of
22 Natural Resources, that our geologic maps are not
23 that specific that we based our comments on.
24 MR. HARRINGTON: Perhaps I can cut
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1 through some of these questions. I understand you
2 are here as a spokesman for an interested group?
3 MS. ROBINSON:
Uh-huh.
4 MR. HARRINGTON: But do I understand that
5 the technical portion of your testimony is based on
6 that given by the DNR, the Department of
7 Agriculture, and the EPA?
8 MS. ROBINSON: We had cited those in
9 those cases, right.
10 MR. HARRINGTON: Well, what I am getting
11 at is that you are not, yourself, testifying as a
12 technical expert on those subjects; is that
13 correct?
14 MS. ROBINSON: I don't understand the
15 question.
16 MR. HARRINGTON: Let me see if I can
17 reword it. In legal parlance the expert witness is
18 someone who brings a technical expertise in
19 whatever the field is that they are talking about.
20 There are other witnesses that can also testify
21 that have knowledge of the facts in hearings like
22 this where people are here to express their views
23 and their concerns, all of which are proper before
24 the Board.
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1 I was just trying to get -- determine
2 whether you, yourself, are giving technical
3 testimony or were you relying on others, as quoted
4 in your testimony?
5 MS. ROBINSON: Well, I think,
6 appropriately, we quoted where we were making our
7 recommendations from. I represent an organization
8 that brings together interests from a variety of
9 sources, and I have an environmental background
10 myself.
11 MR. HARRINGTON: You do?
12 MS. ROBINSON: Yes.
13 MR. HARRINGTON: You have environmental
14 training?
15 MS. ROBINSON: Environmental -- I worked
16 on an Environmental Master's Degree. I have
17 completed all my classes for an Environmental
18 Master's Degree, at the University of Illinois at
19 Springfield.
20 MR. HARRINGTON: What is the basis -- I
21 am skipping to question seven in the
prefiled
22 questions. What is the basis for your statement
23 that the rules should require a follow-up visit at
24 facilities utilizing synthetic liners?
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1 MS. ROBINSON: One was citing the
2 Department of
Ag's testimony. We are concerned --
3 you know, there is no case that we know of
of
4 studies of lagoon performance overall. And we have
5 talked with communities in other states, such as
6 Oklahoma, who have had facilities, lagoons that
7 were lined, actually leak. And common sense would
8 dictate that we need follow-up checkups to ensure
9 that leaking is not occurring.
10 MR. HARRINGTON: Would a provision, which
11 I believe is in the proposed rule, allowing the
12 Department to have follow-up visits be sufficient?
13 MS. ROBINSON: I think we are coming from
14 it that if site visits are known and everyone's
15 interests are then protected, because they are
16 mandatory versus voluntary.
17 MR. HARRINGTON: At what point does a
18 livestock facility stop being a farm and become an
19 industrial plant?
20 MS. ROBINSON: That's a very interesting
21 question. I think agriculture is at a crossroads
22 where it is trying to figure out what is a family
23 farm, because the definition is changing so much.
24 There is a combination of issues at stake here.
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1 The size of the facility, the management,
2 who is managing these farms, are they outside
3 interests, are the people who are part of these
4 farms actually living at the facility, you know,
5 and where is the money plugged from. These are
6 questions that can't be answered today.
7 And I think it is an issue that we have
8 to struggle with as we address agriculture in the
9 future, because we don't have a clear indication of
10 what is a family farm, yet we see these trends
11 towards concentration and production which have a
12 larger scale impact on rural communities.
13 MR. HARRINGTON: Well, for example, would
14 a family farm, a farm where the owner lives and
15 works on the farm and supervises the operation, but
16 yet raises 1,000 pigs or 2,000 pigs still be a
17 family farm?
18 MS. ROBINSON: Sure.
19 MR. HARRINGTON: Those would be within
20 the gamut of what you are seeking to protect?
21 MS. ROBINSON: Well --
22 MR. HARRINGTON: As opposed to the
23 industrial part of it?
24 MS. ROBINSON: Well, in effect, any
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1 regulations that are imposed would be regulations
2 that would guide a farmer to site and manage a
3 facility to prevent pollution, so regulations do
4 not stop a farmer from farming. What it does is it
5 sets the rules in place no matter what size.
6 MR. HARRINGTON: I gather, from what you
7 are saying, that it is not your intent or your
8 organization's intent to develop rules that are
9 technically
infeasible or economically impossible
10 to comply with except to the extent necessary to
11 protect human health and the environment; is that
12 right?
13 MS. ROBINSON: Correct.
14 MR. HARRINGTON: And your consideration
15 of the economic impact of the rules on the farmers
16 would be a legitimate concern of your organization,
17 as well?
18 MS. ROBINSON: Yes.
19 MR. HARRINGTON: I think I will drop the
20 rest of the
prefiled questions. I think they have
21 been covered. Thank you very much.
22 MS. ROBINSON: Thank you.
23 HEARING OFFICER LOZUK-LAWLESS: Are there
24 any other questions for this witness at this time,
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1 for Ms.
Robinson? Are there any members of the
2 public that have questions for her today?
3 Okay. Thank you, Ms.
Robinson, very
4 much.
5 MS. ROBINSON: Thank you.
6 HEARING OFFICER LOZUK-LAWLESS: At this
7 time I would like to ask are there any questions
8 for Professor Funk, because he may not be able to
9 attend any of the other hearings either. If you
10 have any questions for him this would be a good
11 time to ask.
12 CHAIRMAN MANNING: I have just a general
13 question for Dr. Funk, if I might.
14 Dr. Funk, you talked about the sampling
15 of the manure sampling. I was wondering if you
16 could -- we talked briefly about your laboratories
17 at the University of Illinois. I was wondering
18 whether those laboratories, as well, drew sampling
19 of the groundwater. We do have an issue that
20 Public Health has raised in terms of the E.
Coli
21 sampling of the groundwater, and that sort of
22 thing. I was wondering if you had any position on
23 that in terms of what the University does or
24 doesn't do in terms of the sampling?
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1 MR. FUNK: Okay. I think you
2 misunderstood about my inquiries about the
3 university laboratory. It was not the University
4 of Illinois laboratory.
5 CHAIRMAN MANNING: Okay.
6 MR. FUNK: It was the University of
7 Wisconsin.
8 CHAIRMAN MANNING: Okay.
9 MR. FUNK: And they are listed as a
10 laboratory that does manure sampling as well as
11 soil testing. I am not in a position to address
12 what the University of Illinois laboratories and
13 whatever colleges would be able to --
14 CHAIRMAN MANNING: So your testimony
15 really went to the manure sampling when you showed
16 the zinc and the copper, and did not have anything
17 to do with the issue of the --
18 MR. FUNK: No.
19 CHAIRMAN MANNING: -- groundwater sampling
20 in terms of the issue raised by the Department of
21 Public Health?
22 MR. FUNK: That is correct.
23 CHAIRMAN MANNING: Then you have no
24 position today on that particular issue raised by
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1 the Department of Public Health; is that correct?
2 MR. FUNK: That's correct.
3 CHAIRMAN MANNING: Thank you.
4 BOARD MEMBER RAO: I have a question for
5 Dr. Funk. Dr. Funk, in your testimony you cite a
6 report published by the Council for Agricultural
7 Science and Technology, a 1996 report about copper
8 and zinc. Would it be possible for you to give us
9 a copy of your report?
10 MR. FUNK: You have it.
11 BOARD MEMBER RAO: We have it? Okay.
12 HEARING OFFICER LOZUK-LAWLESS: That's
13 the copy.
14 BOARD MEMBER RAO: Okay. Thanks.
15 HEARING OFFICER LOZUK-LAWLESS: Any other
16 questions for Professor Funk? Thank you.
17 BOARD MEMBER GIRARD: I have a question.
18 I am trying to find it. I think maybe I remember
19 it.
20 The first question I have goes to the
21 question of copper and zinc. You talked about --
22 you know, you made some calculations and you used
23 some worst-case simplifying assumptions and you
24 came up with some values here in your testimony. I
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1 just wondered if there is some way you could work
2 out those calculations and put them down on paper
3 with those assumptions and file them with the Board
4 so that we could see how you calculated it.
5 MR. FUNK: I would be happy to do that.
6 BOARD MEMBER GIRARD: Thank you.
7 MR. FUNK: When would you like those?
8 BOARD MEMBER GIRARD: Well, what's the
9 process for doing that?
10 HEARING OFFICER LOZUK-LAWLESS: Any time
11 until the record closes. As soon as possible but
12 before February 14th.
13 MR. FUNK: That can be done.
14 MR. GIRARD: Okay. My second question is
15 similar. You talked about how maybe a slope of
16 less than three to one might be appropriate for the
17 portions of the lagoon under water.
18 MR. FUNK:
Uh-huh.
19 MR. GIRARD: I just wondered if you could
20 flesh that out a little more also in a comment.
21 Maybe you could say something here. But why do you
22 think it is appropriate in the under water sections
23 of the lagoon to have the slope be less than three
24 to one?
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1 MR. FUNK: Well, I think in certainly
2 some kinds of soils those soils will stand up at
3 steeper slopes than the three to one, and that it
4 reduces the surface area of the lagoon in order
5 to -- when you make the slope steeper for the same
6 amount of volume. It will reduce the cost of
7 construction of the lagoon to some degree, and it
8 will also, by reducing the surface area, if we
9 looked at the potential, whether it be odor
10 potential or whatever, from the surface of that
11 lagoon, anything we can do to reduce that surface
12 area, we should probably do it.
13 BOARD MEMBER GIRARD: Where would someone
14 find a list of those soils that you feel are
15 appropriate?
16 MR. FUNK: I would defer to NRCS to make
17 that determination or some other engineer, someone
18 that regularly does construction work of that sort
19 of thing, whether it be ponds or lagoons. That is
20 not really my expertise to look at soil types.
21 BOARD MEMBER GIRARD: Okay. Thank you.
22 HEARING OFFICER LOZUK-LAWLESS: Thank
23 you.
24 BOARD MEMBER
McFAWN: To follow-up on
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1 that, what do you mean by appropriate? What is it
2 you are trying to prevent or that you are worried
3 about when you think about how steep the sides
4 would be? Is it erosion of those sides or
5 filtration through the sides under water?
6 MR. FUNK: I think the
steepness is not
7 so important as -- in other words, getting too
8 steep is not so much of a concern as is being able
9 to maintain the parts of the slope above the water
10 line so that you can grow vegetation on them.
11 BOARD MEMBER
McFAWN: Okay.
12 MR. FUNK: I think that was established
13 in the Department's testimony. In the proposed
14 rules they made sure that anything that -- any part
15 of the lagoon
berm that is above water level should
16 be no steeper than three to one, so it can be mowed
17 with mechanized equipment, and it is generally
18 accepted that it should be no steeper than three to
19 one, otherwise it is not safe for a tractor to be
20 on it, a tractor and mower.
21 BOARD MEMBER
McFAWN: Okay. I understand
22 that. Please go on.
23 MR. FUNK: So my point is that there is
24 no reason that we can't go steeper than that. It
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1 will reduce the cost and it will reduce the surface
2 area of the lagoon to increase those slopes.
3 Okay?
4 BOARD MEMBER
McFAWN: I think so. Thank
5 you.
6 HEARING OFFICER LOZUK-LAWLESS: Any other
7 additional questions for Professor Funk?
8 Okay. Thank you, sir, very much.
9 I will ask again if there are any general
10 questions before we get to the
prefiled questions.
11 Any general questions by anyone?
12 CHAIRMAN MANNING: I have a general
13 request of the Advisory Committee, if I might, on
14 behalf of the Board.
15 A number of you -- I know the Department
16 of Agriculture and I think as well Jim Park's, in
17 your testimony from the Agency, referred to the
18 speculations of other states regarding livestock
19 management facility regulations. We, too, have
20 been looking at regulations of other states.
21 In order that we are all looking at the
22 same regulations in comparing what we are doing in
23 Illinois to the other states, I was wondering if
24 one of you, if not
Ag or the Agency, if you would
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1 mind putting into evidence those regulations that
2 you have looked at in terms of the other states
3 that you are using as a basis for the conclusion
4 that you have in your testimony about how we are
5 similar, dissimilar from other states.
6 We would like to make sure that we are
7 all looking at the same
regs and the same statutes
8 when we make these comparisons as well. So if I
9 could ask one of you to take the lead in doing
10 that, and just filing them with the Board. That
11 would be much appreciated.
12 MR. BORUFF: If it is okay with the other
13 members of the Advisory Committee, as the Chair, we
14 would offer to do that for you, and we will make
15 sure our files are current and get that to you.
16 CHAIRMAN MANNING: Okay. Thank you.
17 HEARING OFFICER LOZUK-LAWLESS: Okay.
18 Thank you.
19 Seeing no other questions, I think that
20 it would be appropriate to start with the
prefiled
21 questions, because there are a number of other
22 agency personnel here that may be helpful in
23 answering questions if for some reason Mr.
24 Warrington or Mr. Park can't answer it, I know we
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1 have some other people here that may be able to
2 help out.
3 While Mr.
Harrington is asking his
4 questions, if other people have follow-up questions
5 in regards to his, please raise your hand and I
6 will acknowledge you, and you can certainly feel
7 free to go ahead and ask your question. Thank
8 you.
9 Mr.
Warrington, if you want to sit up
10 there or, Mr. Park, if you want to stay there, that
11 is fine, whatever you prefer.
12 MR. HARRINGTON: Good afternoon. Have
13 you had a chance to review the
prefiled questions
14 that we submitted earlier and review them with
15 other people in the Agency?
16 MR. PARK: Yes, I have.
17 MR. HARRINGTON: Is it your opinion and
18 that of the IEPA that the proposed regulations,
19 when read together with the existing Pollution
20 Control Board's regulations, it would ensure the
21 protection of the public health and the
22 environment?
23 MR. PARK: As we have stated in our
24 testimony, we do support the adoption of the rules
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1 and believe that the addition of such provisions as
2 operator certification requirements and waste
3 management plans, it is a very positive step in the
4 right direction toward regulation of this
5 industry.
6 Two examples are it is important that
7 they represent new and necessary parts of a
8 complete livestock waste management program. No
9 regulation, in and of itself, can guarantee
10 protection of the public health and the
11 environment. It relies on effective implementation
12 and, in a sense, part of the producers of planned
13 stewardship. We feel those are necessary
14 components also.
15 MR. HARRINGTON: In terms of the
16 regulations as proposed, do they fulfill the
17 functions to provide that level of protection if
18 they are complied with in the context of good
19 agriculture?
20 MR. PARK: Well, as I said, the
21 regulations cannot anticipate every possible
22 contingency. However, these are very significant
23 steps toward appropriate regulation.
24 MR. HARRINGTON: Does 35 Illinois
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1 Administrative Code 560 cover substantially the
2 same activities as Section 506.304 through 506.309
3 of the proposed rules?
4 MR. PARK: It is generally consistent
5 with the proposed rules, but much less specific in
6 its nature.
7 MR. HARRINGTON: Is it the Agency's
8 position that Section 560 has ensured the
9 protection of the public health and the
10 environment?
11 MR. PARK: We believe that Section 560
12 has played a role in the protection of the
13 environment. I must point out, however, that the
14 provisions of Section 560 were developed and
15 written as advisory and for guidance use by the
16 livestock industry. They are not regulations.
17 They are not used as such by the Agency. We
18 believe the proposed rules provide a much more
19 structured regulatory approach to this important
20 aspect of livestock management.
21 MR. HARRINGTON: Does the Agency keep any
22 data regarding the livestock waste management
23 program under 560?
24 MR. PARK: Well, as I say, Part 560 is
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1 not a regulatory program, therefore, we don't have
2 any compliance and reporting statistics. Our
3 experience over the last 20 years or so has been
4 that when problems do occur they often can be
5 traced -- in the area of livestock management or
6 waste management, they often can be traced to
7 violations of the guidelines contained in Section
8 560.
9 MR. HARRINGTON: Do you know whether
10 there are any statistics that have been kept with
11 respect to Subtitle E?
12 MR. PARK: General compliance with
13 Subtitle E?
14 MR. HARRINGTON: Yes.
15 MR. PARK: Yes, statistics have been
16 maintained on violations there.
17 MR. HARRINGTON: Do you have any
18 knowledge of those statistics?
19 MR. PARK: I don't have the information
20 on violations and excursions from Subtitle E at
21 hand today. We can furnish them at future
22 hearings.
23 MR. HARRINGTON: Okay. Skipping to
24 question ten, since the other deal with the
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1 statistics that -- to the extent that you have them
2 and they will be made available later. Does the
3 IEPA have an opinion as to whether the
4 incorporation of Part 560 in the proposed rules
5 would fulfill requirements or replace the
6 requirements of 506.304 to 506.309?
7 MR. PARK: It is difficult for us to
8 evaluate the enforceability of such an approach
9 because, as I have mentioned earlier, 560 was
10 developed as a guidance document as opposed to a
11 regulatory requirement. We are unable to provide
12 examples of how a similar approach might have been
13 used elsewhere in the state. We believe that the
14 specificity contained in the proposed rules is much
15 more effective as a regulatory tool than Section
16 560.
17 MR. HARRINGTON: This question is not in
18 the
prefiled questions, but which I would like to
19 follow-up with, and deals with your testimony
20 concerning a spillway or an emergency spillway from
21 the lagoons.
22 I believe you testified that the Agency's
23 opinion is such that the emergency spillway should
24 be included in all lagoons; is that correct?
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1 MR. PARK: Yes.
2 MR. HARRINGTON: Would it be appropriate
3 in the case of lagoons which do not receive runoff
4 from any other area, to eliminate that requirement
5 so that the material would have to be pumped from
6 the lagoon in order to be removed?
7 MR. PARK: Well, certainly, it is more
8 critical for lagoons that receive an overload
9 runoff to have some structure for emergency
10 overflows. Our primary concern here is for the
11 protection of the lagoon
berm itself.
12 If, for whatever reason, the volume of
13 waste in the lagoon reaches a point where it is
14 about to
overtop the lagoon, we feel that it is
15 critical that there be some emergency structure
16 available to minimize the damage to the
berm
17 itself.
18 In some cases that we have investigated,
19 the primary cause of lagoon
berm failure has been
20 overtopping. And when you don't provide an
21 emergency spillway, you have that potential danger,
22 and then you have the problem not only of the
23 overflow from the lagoon, but potentially the loss
24 of the entire volume of the lagoon.
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1 So there are situations that could occur,
2 whether that lagoon receives only waste manure,
3 waste, or a combination of manure, waste and land
4 runoff, where you could have a situation where you
5 were in danger of
overtopping the lagoon and
6 couldn't effectively pump that waste down. We
7 think it is a desirable component of lagoon design
8 to have that emergency spillway structure there to
9 deal with those situations.
10 MR. HARRINGTON: In these situations you
11 are aware of where there was an
overtopping of the
12 lagoon, did that involve any lagoons that did not
13 receive other runoff?
14 MR. PARK: I am not familiar with the
15 specific sources of waste that were going into
16 those lagoons where the failures occurred.
17 MR. HARRINGTON: Do you have any idea
18 what additional costs might be involved in
19 providing such a facility?
20 MR. PARK: I don't have specific dollar
21 figures in front of me today. We can try to
22 provide those in general terms. It should not be a
23 particularly expensive component of the lagoon
24 design.
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1 MR. HARRINGTON: May I have just a
2 moment, please?
3 HEARING OFFICER LOZUK-LAWLESS: Yes,
4 certainly.
5 MR. HARRINGTON: Okay. Thank you very
6 much. That's all we have.
7 HEARING OFFICER LOZUK-LAWLESS: Mr. Park,
8 to the extent that the statistics are available on
9 the costs, which Mr.
Harrington requested, do you
10 think you could file those perhaps before the
11 DeKalb hearing, and that would give them an
12 opportunity to look at them, to the extent that
13 they are available?
14 MR. PARK: We will file both information
15 on the cost of overflow structures and any
16 information we have available on violations of
17 Subtitle E, also.
18 HEARING OFFICER LOZUK-LAWLESS: Okay.
19 Thank you.
20 PRESIDING BOARD MEMBER FLEMAL: As long
21 as they have got you here, Jim, I have a couple of
22 general questions I might ask to sort of set the
23 scene for how your Agency has dealt with livestock
24 waste lagoons in the past.
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1 Let's first explore the area. It is my
2 understanding that your Agency is responsible for
3 initiating enforcement against violations of water
4 quality regulations, and there have been occasions
5 in the past when those regulations -- where
6 enforcement has been pursued where the source of
7 the pollution is a livestock waste facility?
8 MR. PARK: That's correct.
9 PRESIDING BOARD MEMBER FLEMAL: Do you
10 have, off the top of your head, any idea of how
11 frequently your Agency has had to pursue such type
12 of enforcement activities?
13 MR. PARK: I was going to try to provide
14 that information in more detail in summary of the
15 violations that we have identified for Subtitle E,
16 and I just don't have that information off the top
17 of my head. I would rather go back and gather it
18 for you and furnish it to you later, if I could.
19 PRESIDING BOARD MEMBER FLEMAL: Do you
20 have any idea at this stage how -- what kinds of
21 events have occasioned you to pursue enforcement
22 activities?
23 MR. PARK: Well, we have had a variety of
24 situations occur. Obviously, we have a lot of
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1 complaints related to odor problems. And those
2 odors are traced to a variety of sources. The
3 lagoons are certainly one of the sources. But also
4 other facilities on the property, and perhaps most
5 significantly the land application of manure waste
6 is often a source of odor problems.
7 PRESIDING BOARD MEMBER FLEMAL: I know
8 you have oftentimes had to investigate odor
9 problems. Have you actually taken any of those to
10 the extent of enforcement against the --
11 MR. PARK: I believe there have been some
12 odor complaints pursued before the Board.
13 PRESIDING BOARD MEMBER FLEMAL: Okay. So
14 those are basically air violations that your Agency
15 has dealt with? In the area of water you have also
16 pursued enforcement?
17 MR. PARK: Yes. We have had situations
18 where spills have occurred, where misapplication of
19 liquid manure waste to land has resulted in
20 violations of water quality standards. We have had
21 fish kills and just general water quality
22 violations.
23 PRESIDING BOARD MEMBER FLEMAL: At some
24 time you can give us some idea of how frequently
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1 these events have been?
2 MR. PARK: Yes. I will provide that
3 information as far as enforcement actions as well
4 as violations that have been --
5 PRESIDING BOARD MEMBER FLEMAL: Okay.
6 MR. PARK: That have been given
7 notification.
8 PRESIDING BOARD MEMBER FLEMAL: To your
9 knowledge, has the Agency ever pursued a
10 groundwater enforcement action that has stemmed
11 from a livestock waste management facility?
12 MR. PARK: I can't think of one right off
13 the top of my head but, again, I do want to check
14 up on our --
15 PRESIDING BOARD MEMBER FLEMAL: If I
16 might just add to this, it is my understanding that
17 the area of groundwater enforcement is a much newer
18 area than air or surface water has been, so maybe
19 there is just a lesser history for that reason?
20 MR. PARK: Yes, and we historically have
21 never had the ability to go in and demand
22 monitoring wells at sites where groundwater
23 violations potentially could have existed and,
24 therefore, about the only way you are going to find
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1 a groundwater problem is it turns up in somebody's
2 private well or something.
3 PRESIDING BOARD MEMBER FLEMAL: As well,
4 are you aware of whether there has been any cleanup
5 efforts undertaken of a site that has been
6 contaminated as a result of this type of --
7 MR. PARK: Not to the best of my
8 knowledge.
9 PRESIDING BOARD MEMBER FLEMAL: In
10 contrast to a fairly large number of cleanups that
11 have been related to the other kinds of activities
12 other than agriculture?
13 MR. PARK: Industrial sites and that sort
14 of thing, yes.
15 PRESIDING BOARD MEMBER FLEMAL: Okay.
16 CHAIRMAN MANNING: I was just going to
17 ask, if I might, Mr. Park, if you could explain for
18 the record the NPDES permit program, and how it
19 relates to agricultural -- to the Livestock
20 Management Facilities Act, if at all?
21 MR. PARK: It has very limited
22 application. The
U.S. EPA has published guidance
23 documents related to this. NPDES permits are only
24 required when the facility is designed to discharge
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1 under any reasonable precipitation event
2 conditions. In the vast majority of cases for the
3 lagoons that we are talking about here today, they
4 don't discharge. They are designed to hold the
5 waste, water and then it is pumped out and land
6 applied. So for the most part NPDES permits are
7 not needed for this type of facility or they are
8 not required for this type of facility.
9 PRESIDING BOARD MEMBER FLEMAL: Are there
10 some exceptions? Do we have livestock waste
11 management facilities that do have NPDES permits?
12 MR. PARK: We do have some that have
13 NPDES permits. Those are discharging facilities.
14 CHAIRMAN MANNING: Discharging directly
15 to surface water?
16 MR. PARK: Right.
17 CHAIRMAN MANNING: And they have a pipe?
18 MR. PARK: Yes.
19 CHAIRMAN MANNING: Okay.
20 PRESIDING BOARD MEMBER FLEMAL: Any other
21 follow-up?
22 BOARD MEMBER RAO: I have a question.
23 Mr. Park, you cited an NRCS guidance document that
24 applies only to North Carolina?
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1 MR. PARK: Yes.
2 BOARD MEMBER RAO: And the changes you
3 are suggesting regarding the spillways are based on
4 that document, is it?
5 MR. PARK: Yes.
6 BOARD MEMBER RAO: Is this document part
7 of your testimony or has it been submitted to the
8 Board earlier?
9 MR. PARK: It was not included in our
10 testimony, but we will be happy to furnish it as an
11 exhibit.
12 BOARD MEMBER RAO: Yes. If you could,
13 that will be helpful.
14 MR. PARK: Sure.
15 BOARD MEMBER RAO: Thank you.
16 PRESIDING BOARD MEMBER FLEMAL: Let me
17 come back to my original line of questioning that
18 had to do with the Agency's enforcement experience
19 with livestock facilities.
20 If you were to be operating under the
21 rules as proposed to us, do you foresee that there
22 would be a substantial reduction in the occurrences
23 of events that would lead to enforcement?
24 MR. PARK: Well, I think the inclusion of
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1 effective livestock waste management plans
2 certainly has a potential to reduce odor complaints
3 that we have received in the past. Lagoon
4 failures, where lagoons actually break and dump
5 waste into surface waters, we believe can be
6 reduced. Those incidences can be reduced by
7 incorporating sound engineering design practices
8 similar to the ones that are included here.
9 So we think, yes, this will be certainly
10 a step in the right direction. As with any other
11 regulation, it is difficult to eliminate all
12 possible problems that might occur, but these
13 certainly are going in the right direction.
14 PRESIDING BOARD MEMBER FLEMAL: We never
15 want to be in a position where required action is
16 enforcement, because that means we have got a
17 problem.
18 MR. PARK: Right.
19 PRESIDING BOARD MEMBER FLEMAL: We want
20 to head off that problem beforehand.
21 MR. PARK: Yes.
22 PRESIDING BOARD MEMBER FLEMAL: In yet
23 another direction, the last statement in your
24 prepared testimony had to do with a suggestion that
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1 the Board be alert to the possibility of opening up
2 a separate docket to, in effect, I believe, bring
3 the existing Subtitle E regulations into accord
4 with anything which might be developed as a result
5 of today's proposal.
6 MR. PARK: That's correct.
7 PRESIDING BOARD MEMBER FLEMAL: Has your
8 Agency, in any way, looked at what kind of steps or
9 amendments might be necessary to --
10 MR. PARK: We have made an attempt to
11 preliminarily identify some areas where there are
12 apparent inconsistencies between Subtitle E and the
13 Livestock Management Facilities Act and the
14 associated proposed rules. We will be happy to
15 share those with you.
16 PRESIDING BOARD MEMBER FLEMAL: Okay.
17 MR. PARK: My concern is that this is a
18 very complex issue, and we have identified certain
19 things that we think are problems, but I am sure
20 that the Department of Agriculture, the Department
21 of Natural Resources and the producers and the
22 citizens who have tried to work within these
23 regulatory structures can also provide some very
24 valuable input to this.
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1 I think it would be helpful to have that
2 available to us as a docket so we could look at the
3 entire universe of potential issues, rather than
4 just trying to put something on the table by the
5 Agency and then finding out there is a lot of other
6 issues.
7 PRESIDING BOARD MEMBER FLEMAL: The Board
8 is not, at this stage, suggesting that we open up
9 another document. I think we all have to be aware
10 that the existing regulations that we operate
11 under, which we have been calling Subtitle E, it is
12 the Board's existing Livestock Waste Management
13 Regulations, date back to the mid 1970s, in
14 substantial part. There has been a lot of activity
15 that has occurred. The world has gone on during
16 that period of time.
17 Particularly now, with the current effort
18 that we are undertaking, what we do want to make
19 sure is that when we are done with this exercise,
20 we have a coherent body of regulations that does
21 not leave the
fella out there in the field
22 confused, because if he opens up one part he finds
23 a statement and then turns a few pages later and
24 finds something different. It is very important, I
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1 think, that we get everything in sync.
2 I would encourage not only you folks,
3 Jim, at the Agency, but all interested persons in
4 this
rulemaking to pay attention to the fact that
5 there are some existing regulations and advise us,
6 either through this proceeding or if the Board
7 ultimately does follow this up with a housekeeping
8 kind of docket, that you alert us to the kinds of
9 things that are necessary to get everything on the
10 same page.
11 MR. PARK: We will certainly be happy to
12 participate in that.
13 PRESIDING BOARD MEMBER FLEMAL: All
14 right. Thank you.
15 HEARING OFFICER LOZUK-LAWLESS: Are there
16 any other questions for Mr. Park?
17 None? Okay. Thank you, Mr. Park.
18 PRESIDING BOARD MEMBER FLEMAL: You guys
19 are an easy audience out there today.
20 CHAIRMAN MANNING: I would just indicate,
21 too, on behalf of the Board, that because this
22 proceeding is going to be a month long proceeding
23 and we have other days of hearing, just because we
24 don't ask something today doesn't mean we won't ask
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1 it. We might ask in another proceeding.
2 We also may regroup ourselves and come up
3 with some sort of written document of written
4 questions for the participants. We have not
5 decided if we are going to do that yet or not, but
6 that is certainly a possibility, that we would pose
7 written questions to the Advisory Committee. We
8 have that option open. For purposes of the public,
9 if we have questions we will ask them.
10 HEARING OFFICER LOZUK-LAWLESS: I don't
11 want to discourage anyone simply because you have
12 not
prefiled any questions, you certainly can come
13 up and ask any questions that you have.
14 Are there any general questions of any of
15 the witnesses right now?
16 Okay. Then we will move on to another
17 section of the
prefiled questions. Why don't we
18 move on to the
prefiled questions addressed to the
19 Department of Natural Resources. Is that okay?
20 MR. HARRINGTON: That is fine.
21 HEARING OFFICER LOZUK-LAWLESS: Why don't
22 we take a five-minute break.
23 (Whereupon a short recess was
24 taken.)
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1 HEARING OFFICER LOZUK-LAWLESS: We
2 have a few preliminary matters before we start with
3 questions directed to the Department of Natural
4 Resources.
5 First, I would like to recall back to the
6 microphone, if that is possible, Ms. Renee
Robinson
7 from the Illinois Stewardship Alliance.
8 MS. ROBINSON: I would like to submit
9 "Understanding the Impact of
Large-Scale Swine
10 Productions, Proceedings from an Interdisciplinary
11 Scientific Workshop." I apologize for missing this
12 earlier.
13 A year ago last summer scientists who had
14 been studying large-scale swine operations came
15 together in Iowa to talk about what they knew about
16 the environmental, economic, social and
17 occupational health impacts of large-scale swine
18 productions, and these are the proceedings and
19 their recommendations and research, identified
20 research area.
21 HEARING OFFICER LOZUK-LAWLESS: Okay.
22 Thank you.
23 MS. ROBINSON: Thank you.
24 HEARING OFFICER LOZUK-LAWLESS: Are there
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1 any objections to entering this into the record as
2 an exhibit?
3 Okay. Then we will mark it as Exhibit
4 Number 8, "Understanding the Impacts of
Large-Scale
5 Swine Production, Proceedings from an
6 Interdisciplinary Scientific Workshop."
7 (Whereupon said document was
8 duly marked for purposes of
9 identification as Exhibit
10 Number 8 as of this date.)
11 HEARING OFFICER LOZUK-LAWLESS: Thank
12 you, Ms.
Robinson.
13 MS. ROBINSON: Thank you.
14 HEARING OFFICER LOZUK-LAWLESS: Next we
15 have a request from the Illinois Environmental
16 Protection Agency to bring Mr. Park back up to the
17 stand to clarify some issues from his earlier
18 answers.
19 Okay. Mr. Park.
20 MR. PARK: Well, I guess it is more than
21 to clarify. I screwed up, and my staff didn't
22 hesitate to remind me that I had.
23 In fact, we have issued no NPDES permits
24 from long-term discharges from livestock lagoon
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1 facilities. What happens is when a lagoon facility
2 discharges -- we find them discharging waste from
3 their lagoon under conditions less than a 25 year
4 storm event, we issue them a short-term NPDES
5 permit for that discharge, and require that
6 discharge to be eliminated within fourteen months.
7 The only other NPDES permits that we have
8 issued to livestock facilities are for open feeding
9 operations where there is significant potential for
10 pollution from runoff from the feeding areas, and
11 those have historically gotten NPDES permits with
12 the larger facility. I apologize for the error.
13 CHAIRMAN MANNING: I appreciate the
14 correction. Thank you.
15 HEARING OFFICER LOZUK-LAWLESS: Okay.
16 Any follow-up questions with regard to the
17 correction?
18 Okay. Thank you, Mr. Park.
19 MR. PARK: Thank you.
20 HEARING OFFICER LOZUK-LAWLESS: Now,
21 then, we will begin with the questions directed to
22 the Department of Natural Resources. We have
23 prefiled questions filed by the law firm of Ross &
24 Hardies on behalf of the Illinois Farm Bureau, the
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1 Illinois Beef Association and the Illinois Pork
2 Producers.
3 If you could just once again identify
4 yourselves for the record.
5 MR. KEEFER: I am Don
Keefer with the
6 Illinois State Geological Survey.
7 MR. MARLIN: John Marlin, Waste
8 Management and Research Center.
9 MR.
McCULLEY: Mike McCulley, Division of
10 Land Management.
11 MS. GLOSSER: Deanna
Glosser, Division of
12 Natural Resource Review & Coordination.
13 HEARING OFFICER LOZUK-LAWLESS: Thank
14 you.
15 Okay, Mr.
Harrington.
16 MR. HARRINGTON: I understand that the
17 Department is going to -- has various people
18 nominated to answer various questions, so I will
19 just pose the question as written, and whoever is
20 appropriate will give an answer to it.
21 HEARING OFFICER LOZUK-LAWLESS: That is
22 fine. I think that will work out best, just
23 answering in a panel form.
24 MR. HARRINGTON: I will go through them
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1 all essentially verbatim and in order, as the
2 Department has them, and has prepared their answers
3 that way.
4 HEARING OFFICER LOZUK-LAWLESS: Thank
5 you.
6 MR. HARRINGTON: Does the Illinois
7 Department of Natural Resources believe that the
8 rules, as they are proposed, are protective of the
9 environment and public health?
10 MR. MARLIN: The proposed rules, based on
11 the Livestock Management Facilities Act
12 requirements, will provide additional protection to
13 the environment and public health. IDNR believes
14 that limitations on the proposed regulation's
15 ability to provide protection for public health and
16 the environment include:
17 (1) Ambiguities between the requirements
18 of the LMFA and Title 35 rules.
19 (2) Over reliance on the design guidance
20 documents in Section 15 of the LMFA.
21 (3) Differences between the terms defined
22 in the LMFA and Title 35.
23 (4) Confusion over enforcement
24 responsibilities.
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1 (5) The lack of emphasis on odor
2 control.
3 These concerns could be addressed
4 legislatively providing a framework for development
5 of a more comprehensive internally consistent body
6 of regulations.
7 MR. HARRINGTON: Are you suggesting that
8 the rules, as proposed, subject to the
9 modifications the Department has already talked
10 about, meet the requirements of the Act, but that
11 additional legislation is necessary? Is that what
12 I understand?
13 MR. MARLIN: I am saying that the rules
14 are very good within the limitation of the Act.
15 Meaning, in plain English, we feel that we have
16 done as good a job as possible with the
17 environmental protection and public health, as
18 provided by the Livestock Management Facilities
19 Act, but that there are certain ambiguities that
20 remain outside of the issues that these rules
21 cover.
22 We believe these rules are extremely good
23 in the areas of the stability of the lagoons to
24 avoid breakage, spills and leaks. They are
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1 particularly good in relation to the improvements
2 of these rules over the existing situation in terms
3 of groundwater protection,
etcetera. The concerns
4 I raise just point out some of the limitations
5 where the rules being developed under this law
6 couldn't address some other areas. Several people
7 have mentioned that the law does not address
8 certain areas, thus, the rules don't.
9 But to the extent that these rules have
10 been developed, the Department is very supportive
11 of the general structure of these rules and
12 believes it is a significant step forward in
13 protecting the environment and public health.
14 Is that clear enough?
15 MR. HARRINGTON: Yes, thank you. Do the
16 design standards in the proposed rules adequately
17 protect the environment and public health from the
18 failure of the lagoon?
19 MR. MARLIN: The design standards that
20 address embankment stability and design hydraulic
21 capacity are consistent with today's design
22 standards and, thus, adequately protect the
23 environment and public health from the failure of
24 the lagoon embankment.
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1 At this time we would also like to
2 comment on a recommendation by Professor Funk and
3 one of the
IEPA's, if this is an appropriate time.
4 Regarding Assistant Professor Funk's comments on
5 embankment slopes, the three to one embankment
6 slope criteria was established as an adequate,
7 non-designed minimum.
8 One of the reasons for choosing three to
9 one was for ease of maintenance. Steeper slopes
10 for the interior embankment slope below the liquid
11 surface line can be designed for adequate
12 performance. Allowing for design flexibility for
13 steeper interior slopes below the liquid surface
14 line is acceptable. That is based on the input
15 from our office of Water Resources Management,
16 which has considerable experience in dams, levees
17 and similar construction.
18 The second comment we would make regards
19 IEPA's comment regarding outlet pipes and emergency
20 spillways and, again, it is from our office of
21 Water Resources.
22 Prohibiting the installation of outlet
23 conduits through the embankment will reduce the
24 probability of embankment failure from piping.
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1 Inadequately designed and more typically,
2 inadequately installed conduits are a primary
3 source of piping failures of embankments.
4 Similarly, prohibition of outlet conduits
5 can also increase the probability of embankment
6 failure from
overtopping if adequate freeboard is
7 not included in the design and operation of the
8 facility. With adequate freeboard and insured
9 appropriate operation, prohibiting outlet pipes is
10 acceptable.
11 Requiring emergency spillways will
12 typically necessitate some additional site specific
13 design. Emergency spillways are best placed in
14 in-situ material. For any ring type embankment an
15 emergency spillway is really just a protective low
16 point in the embankment. Properly designed and
17 constructed emergency spillways are beneficial, but
18 for the typical structure being addressed, it is
19 more critical to design for and operate with
20 adequate freeboard.
21 MR. HARRINGTON: Do the design standards
22 in the proposed rules adequately protect the
23 environment and public health from contaminants
24 leaking into the groundwater from lagoons or other
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1 structures?
2 MR. KEEFER: In response, the proposed
3 design standards, the lagoon design standards, do
4 provide a reasonable level of protection to nearby
5 aquifer resources. The lagoon construction
6 requirements appear to be consistent with standard
7 engineering methods used in these types of
8 facilities. The widespread acceptance of earthen
9 liners by experts in livestock waste management
10 suggests that this technology offers protection of
11 human health and the environment.
12 However, it should be noted that an
13 unknown fraction of the installed liners will
14 likely fail, even when using the proposed design
15 standards. Any such failure will result in shallow
16 groundwater contamination and some may result in
17 contamination of aquifer resources.
18 As discussed in the Department's
19 testimony, in
IDNR's testimony, however, the
20 chemical nature of some constituents in these
21 anaerobic lagoons are such that they will tend to
22 be attenuated or filtered from the groundwater as
23 they move through geologic materials. Their
24 movement through non aquifer materials should
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1 provide more effective filtering than would occur
2 in aquifer materials. The second criteria portion
3 of the design standards are based on this idea.
4 Further, there are several technical
5 issues that should be evaluated regarding the
6 stability and the integrity of both earthen and
7 synthetic liners when used in livestock waste
8 lagoons. For example, earthen liners used in
9 lagoon systems have a potential for failure because
10 of:
11 (1) The potential for damage due to
12 drying out of exposed portions of the liner prior
13 to lagoon filling, during waste removal, and the
14 subsequent drought periods.
15 (2) Liner instability on the lagoon site
16 slopes.
17 (3) The adverse effects of freeze-thaw
18 cycles on the hydraulic properties of the liner.
19 These and other significant issues should
20 be addressed in the future. The proposed siting
21 criteria, design standards, and monitoring well
22 requirements should correspondingly provide
23 adequate means for preventing and identifying
24 groundwater contamination problems, and should be
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1 relied upon until more information is available
2 regarding appropriate liner technologies.
3 The proposed lagoon design standards
4 provide, therefore, a reasonable level of
5 protection within the context, again, of the LMFA.
6 The issue of leaking from other structures, as you
7 stated in your question, cannot be addressed,
8 because there are no proposed design standards for
9 the structures in the proposed rules.
10 PRESIDING BOARD MEMBER FLEMAL: Jim,
11 could I interrupt your train of thought on this
12 just to get our question in the right place.
13 Mr.
Keefer, it has been said that the
14 accumulation of sludge in the bottom of lagoons is
15 itself a sealing process, in effect, a self-liner
16 development. Do you give any petulance to that
17 kind of observation?
18 MR. KEEFER: That was definitely part of
19 our consideration when we were developing and
20 proposing, I guess, guidelines for design standards
21 and monitoring well requirements. Based on
22 expertise and the experience I guess of people at
23 the State Geological Survey in this issue there is
24 some feeling that -- basically, the short answer, I
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1 guess, would be we feel more work needs to be
2 done.
3 My opinion is, I guess, specifically with
4 regard to the hydraulic integrity of the
5 self-sealing characteristics, is that while they
6 probably do occur, to some degree, there is so
7 little known about them and the potential for
8 variability that probably would exist in these
9 self-sealing layers, at this point is significant
10 enough, you know, to not rely upon them as part of
11 the design standards or layers of protection within
12 the lagoon design.
13 PRESIDING BOARD MEMBER FLEMAL: Thank
14 you.
15 MR. KEEFER: If I may also, I guess, add,
16 referring back to lagoon siting criteria, that was
17 definitely one consideration we had when allowing
18 the -- when proposing, I guess, the absence of a
19 liner in situations where no aquifer material, as
20 defined, was present within 50 feet. And if you
21 look specifically at the definitions, you can have
22 course grain materials up to -- approximately up to
23 two feet within five, so there still could be
24 presence. And, again, it was the reliance on this
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1 self-sealing layer, I guess, for lack of other term
2 at this point.
3 PRESIDING BOARD MEMBER FLEMAL: Thank
4 you.
5 MR. KEEFER: That we felt offered
6 protection.
7 MR. HARRINGTON: Do the proposed rules
8 adequately protect the environment and public
9 health from gases and dust leaving the facility and
10 causing odor contaminant deposition problems beyond
11 the setback distance?
12 MS. GLOSSER: The regulations address the
13 odor issue only in regard to reducing or
14 eliminating lagoon management and waste application
15 practices that are potentially odor producing.
16 Given the complexity of odor production, odor
17 intensity levels, and the variability of odor
18 sensitivity in humans, the setback distances will
19 help reduce the adverse impacts of odor and dust.
20 However, in some circumstances odor may
21 be a nuisance beyond the setback distance. The
22 Midwest Plan Service Livestock Waste Facilities
23 Handbook recommends siting lagoons at least one
24 half mile from neighboring houses. Also, Minor
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1 (spelled phonetically) has suggested that odors can
2 be transported at least .93 miles. This is taken
3 from a 1982 publication, Research Results in Manure
4 Digestion Runoff Feeding and Odors by the North
5 Central Regional Research Publication.
6 In most cases under the proposed rule the
7 setbacks are less than 0.93 miles, suggesting the
8 potential for odor beyond the setback distance.
9 Additionally, witnesses at the legislative hearings
10 on the LMFA testified to odor problems beyond the
11 setback distances.
12 Regarding the environmental impact of
13 odor and dust transport, the ammonia emitted as gas
14 from hog operations returns to the earth in rain.
15 Release of gases and dust from a facility has a
16 potential of impacting plants and animals. For
17 example, excessive amounts of ammonia gas may act
18 as a fertilizer and change the fertility of soil,
19 influencing the types of plants which grow in
20 affected areas. Excessive amounts of ammonia gas
21 may result in avoidance and behavioral changes in
22 wildlife. Further research needs to be done to
23 more thoroughly understand the factors controlling
24 odor and dust transport from these facilities and
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1 their affects on nearby biotic communities.
2 MR. HARRINGTON: That's a long answer. I
3 am trying to think through it myself. Just so I am
4 clear, the Department continues to support the
5 recommended setback zone in the rules with the
6 changes you have already proposed; is that
7 correct?
8 MS. GLOSSER: I believe the setbacks are
9 established by statute, so what is in the rules
10 would be consistent with that.
11 HEARING OFFICER LOZUK-LAWLESS: I think
12 we have another follow-up question.
13 MS. K.C. POULOS: Can you give us an
14 example of the types of animals or plants or animal
15 behavior that would change due to odor or dust?
16 MS. GLOSSER: Well, there is not a lot of
17 research available on this, but animals that would
18 be heavily dependent on smell, such as deer, could
19 very easily be affected by their migration
20 patterns, or their use of an area may be greatly
21 altered by the odors associated with a facility
22 like this.
23 HEARING OFFICER LOZUK-LAWLESS: Any other
24 follow-up questions?
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1 MR. HARRINGTON: Are there any studies or
2 other material that you can cite to for -- that
3 have looked into the impact directly of odors
4 particularly associated with farming operations and
5 wildlife?
6 MS. GLOSSER: I believe the question
7 related both to odors and other particles that are
8 being emitted. There is fairly extensive
9 literature on certain things, such as I have one
10 article on toxicity of ammonia to plants, which
11 goes into great detail talking about how the
12 ammonia is emitted into the air and travels, lays
13 low to the earth, and can cause extensive damage.
14 One citation in here was extensive injury
15 done to a Spruce stand 400 meters from a facility
16 such as this. So there is some data, particularly
17 on plants. There is actually another bibliography
18 that was done by the State of Missouri that we have
19 a copy of that has extensive documentation on other
20 aspects of certain portions of this, not all of
21 them, such as the question of maybe the affects
22 of -- on the total affects of wildlife.
23 HEARING OFFICER LOZUK-LAWLESS: Would you
24 like to admit that into evidence as an exhibit?
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1 MS. GLOSSER: Yes, we can.
2 HEARING OFFICER LOZUK-LAWLESS: Okay. If
3 you want to give it to me now we can admit it.
4 MS. GLOSSER: Okay.
5 HEARING OFFICER LOZUK-LAWLESS: Okay.
6 Thank you.
7 We will admit the "Toxicity of Ammonia to
8 Plants" as Exhibit Number 9. It is from the
9 Agriculture and Environment Magazine, it looks
10 like, from 1982.
11 (Whereupon said document was
12 duly marked for purposes of
13 identification as Exhibit
14 Number 9 as of this date.)
15 MS. GLOSSER: Did you want the
16 bibliography, as well?
17 HEARING OFFICER LOZUK-LAWLESS: Yes, if
18 you have it.
19 MS. GLOSSER: Okay.
20 HEARING OFFICER LOZUK-LAWLESS: Are there
21 any objections to these reports being admitted?
22 MS. GLOSSER: Here is the copy of the
23 bibliography and these are abstracts of selected
24 items from that list.
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1 HEARING OFFICER LOZUK-LAWLESS: Okay. We
2 have to introduce into evidence as an exhibit "The
3 Impacts of Manure on Aquatics, a Bibliography."
4 Are there any objections to this being admitted?
5 Okay. Then we will mark that as Exhibit
6 Number 9 (sic).
7 (Whereupon said document was
8 duly marked for purposes of
9 identification as Exhibit
10 Number 10 as of this date.)
11 HEARING OFFICER LOZUK-LAWLESS: And
12 lastly, then, we have "The Summary of Manure Impact
13 Papers."
14 Are there any objections to this being
15 admitted into evidence?
16 Okay. Hearing none, we will mark this as
17 Exhibit Number 10.
18 MR. TABER: Excuse me.
19 HEARING OFFICER LOZUK-LAWLESS: Yes, Mr.
20 Taber?
21 MR. TABER: So Exhibit Number 9 is the --
22 HEARING OFFICER LOZUK-LAWLESS: "The
23 Impacts of Manure on Aquatics Bibliography."
24 MR. TABER: And the article, "The
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KEEFE REPORTING COMPANY
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1 Toxicity of Ammonia to Plants" is --
2 HEARING OFFICER LOZUK-LAWLESS: I
3 misspoke. I am sorry. So "The Toxicity of Ammonia
4 to Plants" will be Exhibit Number 9. "The Impact of
5 Manure on Aquatics Bibliography" will be Exhibit
6 Number 10. Then "The Summary of Manure Impact
7 Papers" will be Exhibit Number 11.
8 Thank you, Mr.
Taber.
9 (Whereupon said document was
10 duly marked for purposes of
11 identification as Exhibit
12 Number 11 as of this date.)
13 HEARING OFFICER LOZUK-LAWLESS: Mr.
14 Harrington, you can continue.
15 MR. HARRINGTON: I believe you have
16 essentially answered question six as we have gone
17 along, but if the Department has prepared
18 additional answers to it, I will be happy to
19 restate the question.
20 For the benefit of the audience, it was,
21 if the answer of any of the last five questions was
22 no, please explain in detail. Actually, I think
23 that was done.
24 MR. MARLIN: I think you are skipping
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1 five. But you are right, we are answering six as
2 we go along.
3 MR. HARRINGTON: Well, we will do five.
4 Do the proposed rules adequately protect the
5 environment and public health from waste applied to
6 the soil from running off the fields and
7 contaminating nearby land and surface water?
8 MR. KEEFER: In response, the proposed
9 rules provide a true protection from livestock
10 waste runoff into nearby land and into surface
11 waters. The enhanced requirements for waste
12 management plans and manager training, if followed
13 by the owner and operator and if enforced, will
14 improve these practices. Enhanced neighbor
15 awareness of the waste management plans provisions
16 may also improve compliance.
17 MR. HARRINGTON: Moving to
prefiled
18 question seven. In your testimony you state that,
19 quote, if all Dedicated Illinois Natural Preserves
20 and publicly held Illinois Natural Area Inventory
21 Sites were also provided with one half mile setback
22 the total area covered would be approximately three
23 percent of the state's land area. What evidence is
24 there to support this conclusion?
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1 MS. GLOSSER: The three percent estimate
2 of the acreage was determined by placing a one half
3 mile setback around the boundaries of all IDNR
4 properties and nature preserves and publicly owned
5 natural areas within Illinois Natural Area
6 Inventory Sites and was prepared by the following
7 two-step process.
8 First, for IDNR owned and leased
9 properties the acreage included in the setback
10 estimates was determined by calculating the
11 doughnut shaped area surrounding a circle with an
12 area equal to the acreage of a specific property.
13 Then, secondly, the acreage for publicly
14 held INAI Sites, because they are so much larger,
15 we identified and prepared an estimate calculated
16 to the one half mile buffer using the ratios that
17 were developed in the first step.
18 We believe this two-step process
19 overestimates the potentially effective areas for
20 two reasons. It includes all DNR properties and
21 nature preserves and publicly held INAI Sites of
22 which an undetermined number of these sites will
23 not meet the 50 persons per week as required by the
24 LMFA. And it includes land that is already
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1 protected by setbacks for existing residences and
2 businesses which are within a half mile of IDNR
3 property.
4 MR. HARRINGTON: Has the Illinois
5 Department of Natural Resources performed any study
6 regarding how much acreage would be taken out of
7 service if the
IDNR's changes were adopted? I take
8 it your answer is yes, and my question is how much
9 acreage would be taken out of service?
10 MR.
McCULLEY: The answer is that none
11 other than the estimate described in my previous
12 written testimony, where the acreage is calculated
13 to the doughnut shaped buffer surrounding each IDNR
14 property known
acreages. Furthermore, the acreage
15 will not be taken out of service, but will be
16 available for other uses, including crop
17 production.
18 MR. HARRINGTON: Do you know what
19 percentage of Illinois farmland would no longer be
20 available for use for animal feeding operations if
21 these rules were adopted, if your proposed changes
22 were adopted?
23 MR.
McCULLEY: What -- excuse me?
24 MR. HARRINGTON: I will rephrase the
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KEEFE REPORTING COMPANY
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1 question. Do you know what percentage of Illinois
2 farmland would be taken out of service for the
3 concentrated animal production if these rules were
4 adopted with the changes that you have requested?
5 You were talking about three percent of
6 the state as a whole would be affected by your
7 extended setback zones. My question is what
8 percentage of the farmland would be affected, if
9 you know?
10 MR.
McCULLEY: I do not know that
11 estimate. We can work on getting a better answer
12 to that last question you posed, but it would be
13 dependent upon the availability of information, if
14 we can find the information we need to make the
15 calculation.
16 MR. HARRINGTON: Thank you. As a
17 follow-up, many of the sites, I believe, that would
18 be protected under your proposal are not
19 necessarily compact in nature; is that correct?
20 MR.
McCULLEY: True.
21 MR. HARRINGTON: There are strip sites?
22 MR.
McCULLEY: There are some, but not
23 that many. There are some trail sites.
24 MR. HARRINGTON: Is it your proposal,
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KEEFE REPORTING COMPANY
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1 then, that the setback zone be calculated from the
2 edge of those trail sites?
3 MR.
McCULLEY: Yes, because they meet the
4 requirement of the 50 person per week attendance.
5 The two that come to mind, our heavily traveled
6 state trail along the canals in Northern Illinois
7 that, in one case, one of them has quite a bit of
8 houses along it and it runs through a number of
9 communities, so that it would be protected just by
10 its location near the municipalities.
11 MR. HARRINGTON: Has the Illinois
12 Department of Natural Resources done a study
13 regarding how much the IDNR property would be
14 covered by the setback requirements as contained in
15 the proposed rules, without your changes?
16 MR.
McCULLEY: No such assessment has
17 been conducted. The location of each common place
18 of assembly is not easily determined. It would
19 require a major undertaking to clearly identify and
20 calculate a one half mile setback around each of
21 these locations, such as individual campgrounds and
22 points of interest. The well defined nature of
23 property boundaries is one reason it supports the
24 Department's proposed use of property boundaries as
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1 a measuring point for common places of assembly and
2 non-farm businesses. We feel the use of property
3 boundaries would expedite the identification of
4 appropriate locations of new facilities.
5 MR. HARRINGTON: There is a large area
6 that is used by over 50 people a week, but all
7 their activity occurs in -- for most of those
8 people, occurs within a limited space, and the
9 surrounding areas are used very seldom and very
10 lightly by people visiting the site. Why would
11 that entire boundary need to be protected?
12 MR.
McCULLEY: I would disagree with your
13 assumption that just a small percentage of most of
14 our area is used. Take, for instance, a lot of our
15 sites have lakes. That is a major part of the
16 recreational activity. Those lakes may stretch
17 from one end of the site to the other.
18 Boaters,
sailers, people who use personal
19 water craft and fishermen use the entire lake
20 surface, different parts according to the different
21 times of year. In the spring they may be crappie
22 fishing on one end of the lake and may be canoeing
23 on another part of the lake at another time of the
24 year, depending on the use. They may be sailing in
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1 the main basin in the summer.
2 Trail use is an extremely popular use of
3 the Department sites. We have over 1,500 miles of
4 trails on our sites. The minimum length we strive
5 for on a horse trail is 10, 16 miles in length. So
6 you have trails that take into -- they impact a lot
7 of the acreage of a site. So you have use in a lot
8 of different areas of the site. It is not just the
9 campgrounds that is the only use of the site.
10 MR. HARRINGTON: For clarification -- I
11 don't really require a further answer -- I did not
12 assume that all sites were not used. I was
13 depositing a given site where that might be the
14 case.
15 Regarding getting a list of places of
16 common assembly, is that list necessary since it
17 does not change the definition of populated area
18 and really does not clarify the existing
19 definition?
20 MR. MARLIN: We believe it does clarify
21 the definition. The list is intended to clarify
22 the definition. The terms "common places of
23 assembly" and "non-farm business" have not been
24 defined in the statute nor in the proposed
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KEEFE REPORTING COMPANY
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1 regulations. The list of examples, which is not
2 all inclusive, provides explanation as to what
3 types of areas and establishments can be considered
4 either a common place of assembly or a non-farm
5 business. The Department believes its proposed
6 changes will be beneficial as they will provide
7 better guidance in determining that the location
8 meets the definition of a populated area.
9 Basically our answer is yes.
10 MR. HARRINGTON: Is the purpose of the
11 setback requirement from populated areas primarily
12 due to odor concerns?
13 MS. GLOSSER: Odor is the primary issue
14 of concern to IDNR with respect to setbacks. A
15 strong odor of manure is clearly incompatible with
16 many family picnics, camping, and other outdoor
17 activities that Illinois citizens enjoy when
18 visiting our facilities.
19 There are other concerns, however, such
20 as possible impacts from dust, noise and gases,
21 such as ammonia, which we discussed earlier, but
22 were not addressed in the statute or rule, but will
23 be reduced by the setbacks that exist in the rules.
24 MR. HARRINGTON: This is follow-up to an
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1 earlier question. Do the setback rules apply to
2 modified facilities as well as new facilities? Is
3 that not correct?
4 MR. MARLIN: That is my recollection, but
5 the statute will speak for itself.
6 MR. HARRINGTON: It is my understanding,
7 as well. So my follow-up question is, has any
8 effort been made to determine what number of
9 existing facilities would be prohibited from
10 expanding by the expanded definition of the setback
11 areas you are asking for?
12 MR. MARLIN: I think the fact that there
13 is no current or proposed requirement for existing
14 facilities to register, make it impossible to
15 answer that question. We don't know the location
16 of these facilities, and based upon my
17 participation on the Committee, I don't think that
18 such a list exists.
19 MR. HARRINGTON: Do you have a list of
20 facilities that have caused the Department to have
21 concern?
22 MR.
McCULLEY: We have no sites right now
23 other than one in Iroquois County where a facility
24 is under construction that we know to have received
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1 odor complaints.
2 MR. HARRINGTON: Are you saying you
3 received an odor complaint from a facility that is
4 not yet built?
5 MR.
McCULLEY: No. Let me clarify
6 that. We have a concern about it.
7 MR. HARRINGTON: Okay. Thank you. We
8 have heard of that happening where people have
9 gotten odor complaints before it is completed, but
10 that is another problem.
11 How would the Illinois Department of
12 Natural Resources propose prime season?
13 MR.
McCULLEY: For purposes of the
14 proposed rule, the Department defines prime season
15 as the period when the majority of public use
16 occurs at a property. In most instances this would
17 include the spring, summer and fall periods. At
18 sites where hunting is the primary recreational
19 activity, the late summer, fall, and early winter
20 months would be the prime season, although visits
21 for hiking and nature appreciation occur all year.
22 At the five designated state forests of
23 the IDNR, all have prime seasons longer than a week
24 or two because public use includes more than just
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1 hunting. State forests are utilized for camping,
2 trail use, picnicking, photography, and nature
3 appreciation.
4 We are not aware of any site that only
5 has a two-week prime season. It is incorrect to
6 assume that only one or two people a week visit any
7 of these sites.
8 MR. HARRINGTON: I am going to skip over
9 question 13.
10 HEARING OFFICER LOZUK-LAWLESS: Okay.
11 MR. HARRINGTON: Question 14, by taking
12 large portions of uninhabited property out of
13 service for use of setback zones, would not an
14 owner or operator of a livestock waste lagoon have
15 to move lagoons closer to an area with a denser
16 population?
17 MR.
McCULLEY: I will refer to the answer
18 in number 8 where we stated the acreage will not be
19 taken out of service. It will be available for
20 other uses, including crop production. Any
21 property within the setback zone under the LMFA
22 will be restricted from use only as a livestock
23 waste facility.
24 IDNR property and the publicly owned
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1 natural areas -- I can't read my own
2 writing -- within the Illinois Nature Inventory
3 Sites will affect less than three percent of the
4 total land available in Illinois. The Department
5 cannot speak to every possible facility site.
6 MR. HARRINGTON: In follow-up to that, if
7 someone does have a 160 acre farm bordering one of
8 the sites you want protected, and say it borders it
9 on one side, that whole area would become a
10 setback, would it not?
11 MR.
McCULLEY: It would be within the
12 appropriate setback, yes.
13 MR. HARRINGTON: So that farm could not
14 be used for animal production?
15 MR.
McCULLEY: According to the setback
16 of the size limits in the Act.
17 MR. HARRINGTON: So by expanding the
18 definition, the property line for all IDNR sites,
19 anybody who has a border section farm or similar
20 would be, in effect, taken out of business, of the
21 potential business of raising livestock in a modern
22 operation on their farm; is that not correct?
23 MR.
McCULLEY: For the size and, you
24 know, if they fell within the appropriate setback
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1 distance, and are going to construct a facility of
2 the size that applies to the setback.
3 HEARING OFFICER LOZUK-LAWLESS: Mr.
4 Harrington, there is a follow-up.
5 MS. TIPSORD: I would like to follow-up
6 with that. It is my recall, and I apologize if I
7 am recalling wrong. It has been a long day.
8 But my recall is that there is an ability
9 within the rules to allow for a waiver of the
10 setback zone, an appropriate waiver, under the
11 Department of
Ag's proposal.
12 How would the DNR anticipate allowing for
13 the potential of waivers for the setback zones if
14 the Board were to extend the definition to include
15 the DNR properties, or would you anticipate that
16 there would be a
waiverability?
17 MR.
McCULLEY: We would have to look at
18 that on a case-by-case basis.
19 MR. MARLIN: One thing I think we should
20 point out here is that there currently exists
21 setbacks and there is currently the use of a term
22 "populated area" in the existing body of
23 regulations. It would be our position that those
24 definitions have never been clarified to the point
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1 like we are talking today. And the expansion we
2 are talking about is really an expansion of the
3 definition as it currently exists. But the
4 definition today does not spell out what part of a
5 park or recreation area is considered a populated
6 area. That is part of the discussion we are having
7 here.
8 But I think it is important to remember
9 that setbacks exist now from populated areas. It
10 is just that there has never been a clear
11 definition of how populated area applies in the
12 case of the DNR facility. I don't really think
13 that's been an issue in the past.
14 MS. TIPSORD: As a further follow-up to
15 my question, if I might, I guess my question really
16 is would you anticipate that if someone wanted to
17 seek a setback that they would apply to the
18 Department of Natural Resources itself? I mean,
19 have you anticipated that?
20 MR. MARLIN: That's the type of thing
21 that would have to be worked out in the
rulemaking
22 process. And the Advisory Committee discussed this
23 in some detail and some of the other members of the
24 Department might want to chime in here, but
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1 basically, where there is an instance where a
2 waiver type situation is considered warranted by a
3 producer, that person would make the request to the
4 Department of Agriculture. That's the way I
5 understand it now.
6 The Department of Agriculture would
7 consult with DNR and other interested parties and
8 try to work something out. I am not aware of any
9 firm procedure, but I believe it would go through
10 the Department of Agriculture, and if I recall the
11 setback provisions in the proposed rule, the
12 Department of Agriculture is intending to
13 promulgate the rules that deal with some of the
14 details. So there is no firm answer to your
15 question. It is one of those things that is out
16 there looming.
17 MR. HARRINGTON: Just note for the record
18 that I believe the only waivers that are provided
19 for are 506.702 (b) and that speaks only of waivers
20 being obtained from owners of residences, and does
21 not provide for waivers from any other source. We
22 are missing something there. I appreciate it being
23 pointed out.
24 MR. MARLIN: That's another example of a
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1 situation where perhaps the statute needs some
2 clarification or tweaking to take into account
3 things that were not considered when the statute
4 was originally put together.
5 HEARING OFFICER LOZUK-LAWLESS: I think
6 Mr.
Boruff may have something to add to this.
7 Would you like to add anything?
8 MR. BORUFF: A couple of points. A good
9 point that Mr.
Harrington just brought up in terms
10 of the waiver, or the ability for someone other
11 than residents to grant that would need some
12 clarification. But if I understood Mr. Marlin
13 correctly, I think that maybe we, as the Department
14 of Agriculture, may have viewed that a little bit
15 differently. That if, in fact, there is a waiver
16 being considered, it would be negotiated between
17 the two property owners.
18 In the case -- in the question that I
19 think that Ms.
Tipsord had, it would be negotiated
20 between, in this case, IDNR and the producer
21 wishing to put in a livestock facility. We would
22 be brought into the matter after the negotiations
23 between the two parties for our approval of that.
24 I think that's the point where we would become
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1 involved.
2 HEARING OFFICER LOZUK-LAWLESS: Thank
3 you.
4 MR. HARRINGTON: Is there any reason to
5 believe that the impact to property owned or leased
6 by IDNR would be any different than the impact on
7 other property located in the same area?
8 MR. MARLIN: The difference in impact of
9 the property owned or leased by IDNR is that it is
10 land held in public trust for outdoor recreation
11 and for the protection of natural resources, many
12 of which are unique or have valuable natural
13 characteristics. These lands represent a major
14 public investment.
15 In the most basic terms IDNR facilities
16 are used annually by millions of citizens to get
17 away from urban areas and enjoy camping and other
18 outdoor social gatherings. Such experiences are
19 totally incompatible with the level of odor known
20 to occur near livestock facilities.
21 Citizen testimony at the legislative
22 hearings on the LMFA is replete with references to
23 families being unable to use their yards for
24 outdoor activities due to odor. Thus, the main
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1 difference regarding human impact is the much
2 larger number of people using the DNR facilities.
3 State owned and/or managed lands also
4 provide habitat for many plant and animal species.
5 Some properties, especially those designated either
6 as Illinois Natural Area Inventory Sites and/or
7 Illinois Nature Preserves contain aquatic or
8 terrestrial habitat with species listed as
9 endangered and threatened.
10 Factors such as species diversity and
11 richness reproductive capability and overall
12 ecosystem stability can be affected directly or
13 indirectly from the introduction of livestock waste
14 into the environment. Similar impacts would occur
15 to natural resources on other properties with
16 similar characteristics regardless of ownership.
17 MR. HARRINGTON: I believe you answered
18 16, as well, essentially. Question 17, with regard
19 to your statement and testimony that, quote,
20 Subsection D requires qualified professionals to
21 direct and evaluate the site investigation, do you
22 consider the NRCS staff and other similarly
23 qualified personnel to be, quote, qualified
24 professionals, close quote, that would be able to
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1 direct and evaluate site investigations?
2 MR. KEEFER: The requirement for
3 direction and certification by a Professional
4 Engineer or a Licensed Professional Geologist is an
5 attempt to ensure that the site investigation, the
6 groundwater monitoring well installation, and the
7 lagoon construction components are directed by
8 licensed professionals who are familiar with the
9 methods and problems in those issues. The
10 professional affiliation of a licensed professional
11 or those under their direction is not an issue,
12 from the Department's perspective. Certification
13 by a licensed professional does not require that
14 the certified professional directly conduct all
15 facets of the work.
16 So non licensed professionals are able to
17 conduct any component of these activities, assuming
18 their work is directed by a Professional Engineer
19 or a Licensed Professional Geologist. This means
20 that any NRCS staff and others similarly qualified
21 could be directly involved in any facet of the
22 activities.
23 MR. HARRINGTON: I understand, then, that
24 the licensed engineer and licensed professional
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1 geologist would both be considered qualified people
2 in your --
3 MR. KEEFER: For different facets,
4 correct, if I understand you correctly, yes.
5 MR. HARRINGTON: If they did not have a
6 state license, they would not be qualified to
7 direct such an investigation?
8 MR. KEEFER: To direct or certify.
9 Again, the Licensed Professional Engineer, I
10 believe, as the proposed rule reads, are the only
11 ones able to certify that lagoon construction
12 standards have been met. I believe that the
13 groundwater monitoring -- I believe that the
14 groundwater monitoring criteria must be approved by
15 a Licensed Professional Geologist, as well as the
16 site boring information.
17 But the intent was to make sure that in
18 those three facets, specifically, that they were at
19 least directed by licensed professionals. In other
20 words, to clarify, if you have a junior staff
21 member under your direction or even a non licensed
22 professional, again, an NRCS staff with a certified
23 professional or licensed professional is felt
24 competent to handle a component of the project as
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1 written, and it is our intent that that would be
2 acceptable.
3 MR. HARRINGTON: Do not licensed
4 geologists often serve to provide the basic
5 evaluation of the lagoon construction, where the
6 Licensed Professional Engineer is already required
7 by statute or regulation?
8 MR. KEEFER: If I understand your
9 question correctly, you are stating a hypothetical,
10 is that correct? I mean, we don't currently now --
11 to my understanding, we don't currently have these
12 type of lagoon design criteria standards in place.
13 MR. HARRINGTON: There are other lagoons
14 that are constructed for a variety of reasons.
15 Quite frankly, the reason for my question was that
16 I have been told by both engineers and geologists
17 that engineers are always certifying the work that
18 is really done by the geologist, and it makes them
19 both nervous.
20 MR. KEEFER: You are talking to a
21 geologist, so there is a bias involved here, I
22 suppose. There are facets of site characterization
23 efforts and other types of activities that are done
24 by geologists characteristically, but that is a
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1 generalization. There are -- I will leave it at
2 that, I guess.
3 Also, though, to address some confusion
4 that you may have, there currently is no Licensed
5 Professional Geologist classification in place in
6 Illinois. It has been accepted by the General
7 Assembly. They are working on getting the finals
8 in place so that people can begin registering, I
9 believe, sometime this summer. This language was
10 built around the expectation that in Illinois,
11 probably around the end of the year, those
12 professionals will be recognized by state statute
13 -- or excuse me -- state licensing, and would be
14 available in Illinois.
15 CHAIRMAN MANNING: On that note, if I
16 might interject, Mr.
Harrington and Mr.
Keefer.
17 Our rules have a definition of Licensed
18 Professional Engineer. We are absent the
19 definition of Registered Professional Geologist. I
20 would make this note to the Department of
21 Agriculture, the proponent, as well. Should you
22 choose to propose the definition of that geologist
23 to us, that may be better than us coming up with
24 it.
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1 But I do think that by the time we are
2 ready to go through with these rules we should have
3 a definition of Registered Professional Geologist
4 just like we have an accepted definition of
5 Licensed Professional Engineer. Should we accept
6 that portion of the rule, I think it should be
7 defined as specifically as we can what we mean by a
8 Registered Professional Geologist.
9 PRESIDING BOARD MEMBER FLEMAL: I would
10 certainly second that. The Board has, for quite
11 some time, in several
rulemakings had the
12 difficulty of dealing with work that would
13 seemingly be most appropriately
certificated by a
14 geologist, and not having a certified geologist
15 program in effect in the state. We all know it is
16 under development and perhaps this is a
rulemaking
17 where we might anticipate that kind of professional
18 person eventually being available. It is not now,
19 but the proper way to prepare for that, I think,
20 would be to at least have the definitions as to
21 what constitutes an appropriately qualified
22 geologist.
23 MR. HARRINGTON: Do you believe that the
24 50 foot depth needed to assess the potential impact
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1 of groundwater resources is sufficient to protect
2 the groundwater environment and the public health?
3 MR. KEEFER: Just to clarify that, in our
4 response I guess we wanted to state the protection
5 of the environment and public health, as referred
6 to in this question, are assumed to be limited only
7 to instances where they are threatened to exposed
8 groundwater, just to clarify that. Other exposure
9 routes are not considered in our response, as
10 well.
11 The siting criteria -- or the proposed
12 siting criteria limits the evaluation of only 50
13 feet below the lagoon. It is not the only lagoon
14 design factor or operating practice included in the
15 proposed rules that addresses the protection of
16 groundwater. The lagoon construction and operation
17 requirements, as well as the monitoring well
18 requirements in the proposed rule, will reduce the
19 likelihood of aquifer contamination, in our
20 opinion.
21 In addition, the evaluation of materials
22 to a depth of 50 feet below the proposed lagoon
23 will provide sufficient information to evaluate the
24 relative contamination potential of groundwater at
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1 proposed lagoon sites. Collectively, these factors
2 will be generally sufficient to protect groundwater
3 resources.
4 CHAIRMAN MANNING: Before you move on, I
5 have a question in that regard, too. The proposed
6 rules would require as much as the emergency rules
7 did, this concept of 0 to 20 feet and the liner and
8 a groundwater monitor required from 0 to 20 feet.
9 My question has to do with a situation
10 where the aquifer is actually above the bottom of
11 the lagoon. I am wondering whether the Department,
12 the Geological Survey, considers the rule
13 protective where the aquifer is actually above the
14 bottom of the lagoon?
15 MR. KEEFER: Yes, that is --
16 CHAIRMAN MANNING: In terms of the liner
17 requirement? Go ahead.
18 MR. KEEFER: There is specifically a
19 couple of aspects that we worked with in
20 discussions for the emergency rule, even, that
21 revolved around the concept that you just mentioned
22 of having an aquifer basically above the bottom of
23 the lagoon.
24 There is a couple of different situations
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1 where that could occur. A simple one would be in
2 areas of the state where you might have basically
3 sand from the surface to several hundred feet. In
4 that situation, again, that was one reason we went
5 to the use of the word "aquifer material" and
6 reliance of that as opposed to the word "aquifer."
7 In those situations you can easily have
8 the water table in a saturated zone not begin until
9 50 feet from the lining surface. So there was some
10 difficulty in worrying about the actual term
11 aquifer in that sense. According to the
12 Groundwater Protection Act, the aquifer doesn't
13 begin until 50 feet.
14 However, given the system involved in a
15 lagoon, where you have got basically millions of
16 gallons potentially, a large volume of water, above
17 a liner, whether it is synthetic or earthen, the
18 hydraulic characteristics effectively of that
19 aquifer material are not significantly different
20 than when they are unsaturated relative to when
21 they are saturated, if you have that much water
22 behind it. I am sort of generalizing to make the
23 point in this forum. But that is the gist of it
24 that we were concerned about.
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1 In other situations you may have a
2 thinner aquifer present. If you are a lagoon
3 excavationist, and 20 feet as an example, as a
4 hypothetical, you could have a five foot sand or
5 sand and gravel deposit within the upper 20 feet.
6 That would be aquifer material.
7 Again, because of fluctuations in the
8 water table, the definition of that as an aquifer
9 could be problematic, but the contaminant transport
10 characteristics of that material could be
11 potentially significant, and when they met, when
12 the materials, as observed in the boring, meet the
13 qualifications of our proposed aquifer material,
14 being at least two feet within five, we felt that
15 at that point they were thick enough to be
16 laterally continuous to a large enough degree to
17 allow a significant amount of transport should a
18 leak occur. And for that reason, again, we
19 recommended the use of -- we thought the liner was
20 necessary and would be protective if its integrity
21 were preserved.
22 MR. RAO: I have a follow-up question.
23 You talked about aquifer material. In situations
24 where the water table itself is very close to the
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1 lagoon bottom, do you think the design standards
2 that are being proposed, basically the liner
3 requirements are protective of the groundwater, the
4 appropriate thickness, the minus seven hydraulic
5 activity?
6 MR. KEEFER: I just wanted to make sure
7 we addressed that one. I believe that is in
8 question three, where we talked about some of the
9 concerns we still have with regard to the
10 appropriateness of specific liner technologies in
11 these facilities. So my answer is sort of two-part
12 in a sense.
13 I believe if the liner is able to be
14 constructed according to standards, that ten to the
15 negative seventh is probably as sufficient to
16 adequately protect the groundwater resources around
17 there. In other words, even assuming some kind of
18 abusive transport through the liner, you are going
19 to be moving into that aquifer, your aquifer in
20 saturated material at rates probably low enough to
21 assimilate enough of the waste.
22 MR. RAO: You think that attenuation will
23 take place due to the transport of leakage through
24 the liner?
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1 MR. KEEFER: Ten to the negative seventh
2 is actually permeable, in other words, is what you
3 are saying?
4 MR. RAO: Yes.
5 MR. KEEFER: Okay. I understand. I
6 guess what I am trying to say is that even given
7 that permeability let's assume that we can design
8 and maintain and control that and attain that and
9 keep that, let's assume that as a simple situation,
10 then the amount of material -- let's remove
11 attenuation as a concept. The amount of material
12 moving through is going to be probably small enough
13 to not be a -- we feel to not be a significant
14 threat to the groundwater resources.
15 Now, stating that again I want to
16 reference back to our number four concerns,
17 question number four concerns, that we still feel
18 that there are questions that need to be addressed
19 regarding the ability to ensure this type of
20 hydraulic characteristics within liners with these
21 types of facilities.
22 MR. RAO: Are you going to discuss your
23 concerns in future hearings or in your comments?
24 MR. KEEFER: At this point we had not
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1 intended to. We were going to leave that up to
2 follow-up, I guess, in response.
3 MR. RAO: Okay. Thank you.
4 HEARING OFFICER LOZUK-LAWLESS: Yes, you
5 have a question, sir?
6 MR. KENT ELWOOD. I am Kent
Elwood. I
7 may have lost the gist of the discussion. Could
8 you design a floating lagoon in a groundwater lake,
9 according to these rules?
10 MR. KEEFER: It makes me smile, getting
11 back to the arguments between geologists and
12 engineers. There is a little schism there, I
13 suppose. I guess, in short, sir, I don't have the
14 qualifications to respond to design capabilities.
15 MR. ELWOOD: I was just thinking about
16 the statute as being proposed, would that allow
17 that to occur?
18 MR. KEEFER: You mean in a surface water
19 body?
20 MR. ELWOOD: To design a floating lagoon
21 in a fresh water lake.
22 MR. KEEFER: Well, I don't -- first of
23 all, your ability to get a continuous boring within
24 20 feet of lagoon is going to be difficult, I would
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1 suggest.
2 CHAIRMAN MANNING: Excuse me. If I may
3 interject, as well. There has to be some sort of
4 presumption in terms of wisdom on the part of the
5 industry here in terms of what it is they are
6 proposing. I would interject -- Dr.
Flemal and I
7 were talking here on the side -- that whatever
8 design criteria -- I will say this for the record,
9 and we said this in our emergency rules, whatever
10 design
criterias we may or may not come up with,
11 the Board and the Department as proposing, those
12 design
criterias are intended to, to the best
13 degree possible, the best science possible, the
14 best wisdom possible, protect our environment.
15 They are not, however, a defense against
16 a potential violation if those design
criterias do
17 not, for whatever reason, adequately protect the
18 groundwater adequately or protect the surface
19 water. They are intended to do that. They are
20 intended to make sure that the environment is
21 protected, but, certainly, they don't act as an
22 absolute either.
23 So there is wisdom on the part of the
24 industry, obviously, when they go out and build
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1 these things with that knowledge that it is
2 important to keep these things safe, as well. And
3 I rather doubt that the livestock industry is going
4 to go build these in your example, in your
5 hypothetical.
6 HEARING OFFICER LOZUK-LAWLESS: Any
7 follow-up questions? Okay.
8 MR. HARRINGTON: Question 19, do you
9 believe the monitoring well guidelines proposed in
10 Section 505.206 are protective of the environment
11 and the public health? And you state that insofar
12 as monitoring wells are concerned they provide the
13 level of protection that one would expect.
14 MR. KEEFER: Right. Again, just in our
15 written response we have that same caveat that the
16 assumption that the present public health of the
17 environment is only through exposure to groundwater
18 as a threat. To clarify, the groundwater
19 monitoring requirements in the proposed rule are
20 only intended to provide a way of identifying when
21 the shallow groundwater is being contaminated near
22 lagoons in areas of comparably high aquifer
23 contaminations.
24 In other words, areas where aquifers are
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1 detected in borings within 50 feet of the proposed
2 lagoon bottom -- excuse me -- 20 feet. There is
3 that typo. They do not serve any protective
4 capacity by themselves, the monitoring wells. It
5 does not serve a protective capacity by itself.
6 When monitoring wells are located -- when they are
7 constructed and sampled properly, only then can
8 they be used to reliably provide information on
9 groundwater quality. Correct interpretation and
10 then more importantly action on these
11 interpretations determine whether or not
12 groundwater quality is protected.
13 The guidelines in the proposed rules, we
14 feel, are sufficient to identify when shallow
15 groundwater is being significantly contaminated.
16 Some additional guidance is needed, the Department
17 feels, separate from the proposed rules to address
18 the sampling protocol of these wells, the storage,
19 the transport, and the analysis of samples
20 collected from these wells, as well as the proper
21 interpretation of the monitoring well sample
22 results.
23 Regarding the specified guidelines, the
24 requirement of three monitoring wells is intended
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1 to be a minimum number at any location. Additional
2 wells can increase the ability to reliably detect
3 any leaks. It is not practical, however, to define
4 -- the Department feels it is not practical,
5 however, to define a single optimum number as
6 location of monitoring wells that will work best
7 for every site.
8 Areas with more variable geological
9 materials will generally benefit or require more
10 wells to adequately monitor that site than would
11 areas with very uniform geological materials.
12 Given this type of difficulty and the type of
13 contaminants in wells, the Department feels a
14 minimum of three wells should be sufficient and the
15 ability for the Department of
Ag to require
16 additional wells on specific sites should then also
17 be utilized when they feel it is necessary.
18 MR. HARRINGTON: I think question 21 has
19 already been addressed in earlier comment that you
20 have made, unless you have something that you wish
21 to add.
22 MR. MARLIN: What about 20? Are you
23 saying you want to bypass 20?
24 MR. HARRINGTON: No, I will come back to
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1 20. Is there any reason to believe that if the
2 proposed rules were adopted without the suggested
3 changes by IDNR that IDNR properties would be,
4 quote, viewed and utilized, closed quote, as stated
5 in the testimony, as buffers from other populated
6 areas when siting new livestock management
7 facilities?
8 MR.
McCULLEY: IDNR properties already
9 experience significant single family dwelling
10 construction next to the property boundaries of its
11 properties. This is due to the attractiveness,
12 green space, and perceived lack of future
13 residential or industrial encroachments or adverse
14 development of the IDNR properties. In a similar
15 manner to the extent livestock producers believe
16 that the boundaries of public lands are not subject
17 to setback production, we believe that they would
18 have an incentive to use them as buffers to avoid
19 future conflicts with residential property.
20 If I could interject here, too, Question
21 16 was skipped over. The Department found -- would
22 like to read into the record a couple studies that
23 we found that we feel illustrates additionally why
24 we feel the IDNR properties are important to be
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1 protected. A study completed for the then Illinois
2 Department of Conservation in 1990 by David M.
3 Griffith & Associates, titled, "Analysis of the
4 Economic Impact of Programs Administered by the
5 IDOC" reported that in 1989 the total economic
6 impact to the State's economy attributable to
7 Department programs equaled 2.7 billion dollars
8 from visitor spending.
9 A second study completed by the Texas
10 Parks & Wildlife Department in 1990 titled
11 "Estimated State and Federal Lands for Recreation"
12 reported that Illinois ranked 48th among the 50
13 states in terms of public land acres per 1,000
14 population of state and federal land for
15 recreation. We feel these two studies illustrate
16 the importance of protecting Illinois' limited
17 amount of publicly held property for recreation and
18 its associated economic impact to the state's
19 economy.
20 MR. HARRINGTON: Question 22, is there
21 any evidence to suggest that there would be
22 decreased attendance at Illinois Department of
23 Natural Resources' owned or leased property if the
24 livestock waste lagoons were located within the
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1 property setbacks as proposed in these rules?
2 Meaning, obviously, that the waste lagoon was the
3 proper distance from the populated area within the
4 IDNR property.
5 MR. MARLIN: Okay. By skipping 21 you
6 are throwing us out of sequence here.
7 MR. HARRINGTON: Okay. I will ask 21, if
8 you like.
9 MR. MARLIN: There were 20-some people
10 involved in putting this together. We have the
11 difficult job of trying to express the views of I
12 don't know how many divisions our department has
13 involved with this, so we tried to set this up the
14 way you presented it, so we are kind of stuck with
15 what you gave us.
16 MR. HARRINGTON: Moving back to 21, is
17 there any evidence that odor pollution would result
18 in the location of a livestock waste facility
19 within the proper setbacks, as defined by the
20 regulations?
21 MR. MARLIN: Okay. I have got new
22 bifocals. This is a little bit of a difficulty
23 here.
24 Before answering questions 21 through 24
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1 it is necessary to point out that the rules do not
2 provide a clear point from which to measure the
3 setback distance of a facility such as a state park
4 or a 4H camp, for that matter. Using a park as an
5 example, 50 persons per week congregate at great
6 numerous specific points, such as a parking lot,
7 visitor center, pavilion or boat ramp. Likewise,
8 50 or more people per week will use a perimeter
9 trail or open field, which does not have a single
10 point from which to measure. Other popular
11 activities such as nature appreciation and hunting
12 have even less clearly defined center points from
13 which to measure.
14 If boundary lines are not established as
15 measuring points it will be virtually impossible to
16 determine setback unless each common place of
17 assembly within a park is individually defined, and
18 a potential livestock operator measures from each
19 such point. Reaching agreement on the points would
20 be a major endeavor in itself.
21 To specifically answer question 21, then,
22 yes, there is evidence that odor pollution would
23 result. Prior answers have addressed our
24 contention that odor pollution can exceed the
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1 setback distances specified in the law. The
2 setbacks do not control odor pollution, but set a
3 distance which odor can dissipate before reaching a
4 residence or populated area. The proposed rules,
5 if followed, will help reduce but not eliminate
6 odor from lagoons and the field application of
7 manure.
8 The rules do not address odors
9 originating from other sources, such as the
10 confinement buildings and manure pits.
11 Additionally, odor pollution is difficult to define
12 due to the subjective judgments involved with the
13 issue and the variability of human sensitivity to
14 odor. The specific impacts that concentrated
15 livestock odor may have on the behavior of
16 wildlife, especially species dependent on the sense
17 of smell to avoid predators or find prey or mate,
18 need further consideration.
19 MR. HARRINGTON: Question 22, is there
20 any evidence to suggest there would be decreased
21 attendance at Illinois Department of Natural
22 Resources' owned or leased property if a livestock
23 waste lagoon were located within the proper
24 setbacks proposed under these rules?
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1 MS. GLOSSER: When siting a new
2 recreational facility, the IDNR would seek to
3 identify any potential sources of odor pollution.
4 It is our view that the majority of people will
5 find concentrated livestock waste to be offensive
6 and that they would not frequent an area where this
7 odor is strong. As stated before, odor is expected
8 to be at least an occasional problem beyond the
9 setback distances. If people testifying at the
10 legislative hearings would not use their yards for
11 cookouts and general recreation because of odor, it
12 is reasonable to assume that similar odors will
13 cause people to avoid IDNR facilities.
14 As an example, I want to reference back
15 to a situation that we referenced earlier which was
16 a livestock lagoon in Iroquois County, which is
17 currently under construction within 50 feet of the
18 property line of an IDNR State Conservation Area.
19 The IDNR staff that visited a lagoon in
20 service and operated by the same operator that is
21 constructing the one in Iroquois County has stated
22 that based on their experience of having been at
23 the operating facility, that when operational the
24 one in Iroquois County will certainly reduce the
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1 attendance at the Iroquois County Conservation
2 Area.
3 MR. HARRINGTON: Question 23, is there
4 any reason why the ambiguity and, quote, potential
5 for this agreement, close quote, mentioned in your
6 testimony could not be cleared up short of using
7 the legal property line, as has been suggested?
8 MR. MARLIN: IDNR is aware of no
9 practical alternative to using legal boundaries as
10 a measuring point. The difficulty is determining
11 and measuring points for the common places of
12 assembly. IDNR boundaries are legally defined.
13 IDNR properties are utilized for various types of
14 recreation including camping, picnicking, trail
15 use, boating, fishing and hunting. Activities like
16 trail use, boating and fishing and hunting occur in
17 remote areas of the site and the measuring point is
18 difficult, if not impossible, to determine.
19 Using existing buildings and campgrounds
20 as measuring points will limit future development
21 of new recreational facilities. For example, if a
22 lagoon is located one half mile from a campground,
23 which is one fourth mile from the IDNR property
24 boundary, additional expansion toward the property
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1 boundary would be limited as the new developments
2 are within a half mile of the lagoon.
3 MR. HARRINGTON: To avoid causing
4 confusion, I will just go through the rest of the
5 questions, although several I could skip easily.
6 Will a lagoon which is properly built and
7 operated, according to the standards set forth in
8 this proposal, be a source of significant odor
9 problems? And if so, why is that?
10 MR. MARLIN: Okay. Then answer number
11 25, when compared to less stringent practices, the
12 anaerobic lagoon operation requirements specified
13 in the proposed regulations are accepted practices
14 by agricultural engineers that will reduce, to some
15 extent, the production of odor from an anaerobic
16 lagoon. However, odor will continue to be produced
17 by the lagoon. The rule relies heavily on the
18 training of operators to ensure good management
19 practices.
20 Depending on the time of year, and the
21 management practices being utilized, i.e.,
22 agitation prior to waste removal, odors could
23 increase. Whether or not the odor emissions will
24 be a significant odor problem will depend on many
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1 variables, such as location of residences and
2 populated areas, weather, wind direction, and
3 sensitivity of potential receptors to odor.
4 On days when the wind is strong, odors
5 and waste gases, for example, ammonia, may be
6 carried for miles. Movement of gases off site have
7 the potential to impact sensitive plants, animals
8 and humans.
9 And Number 26, the question is why is
10 that? As discussed in our response to Question 21
11 and later in response to Question 29, livestock
12 facilities operating according to the proposed
13 guidelines will still have a significant odor. The
14 lagoon will still be a source of odor, particularly
15 during seasonal turnover and agitation.
16 MR. HARRINGTON: Question 27, are you
17 familiar with such lagoons being operated in
18 Illinois or in other states?
19 MR. MARLIN: The Department is familiar
20 with some lagoons being operated in Illinois.
21 MR. HARRINGTON: To your knowledge, have
22 the lagoons themselves been a source of significant
23 odor problems beyond the setback zones?
24 MR. MARLIN: The Department has no direct
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1 knowledge concerning the distance that odor will
2 travel from these facilities, and refers you to the
3 IEPA and their nuisance complaint staff. The
4 Department does, however, have staff members
5 involved with research on the impacts of hog waste
6 lagoons on shallow groundwater quality. These
7 researchers have identified published research
8 results from experts outside of Illinois that
9 document odor traveling more than 0.93 miles from
10 these facilities. It is unclear whether these
11 facilities were operated in a method consistent
12 with those in the proposed rule. This observation
13 was referenced in more detail in our response to
14 Question 4. Additionally, witnesses at the
15 legislative hearings on the LMFA testified to odor
16 problems beyond the setback distances.
17 MR. HARRINGTON: Question 29, would the
18 animal feeding operations themselves be a likely
19 source of significant odor problems if properly
20 carried out?
21 MR. MARLIN: Yes. The confined animal
22 feeding operations themselves are a source of
23 significant odor even when the proposed guidelines
24 are followed. Basically the rules don't address
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1 the other facilities.
2 MR. HARRINGTON: Would the odor problem
3 be minimized if the waste from the livestock
4 facilities was referenced to properly operated
5 waste lagoons?
6 MR. MARLIN: The extent and duration of
7 odor problems could be reduced if lagoons are
8 properly designed and operated according to the
9 proposed rules. However, other waste treatment
10 technology exists which would further reduce odor
11 generation at these facilities. Whether or not the
12 odor would be considered minimal is dependent on a
13 number of considerations, some of which are
14 subjective. Refer to the answers to questions 4
15 and 25 for additional considerations. Lagoons do
16 not necessarily address other sources of odor, such
17 as confinement buildings and animals themselves.
18 MR. HARRINGTON: Would you expect that a
19 properly operated facility would produce less odor
20 than a pasture or an open feeding facility that is
21 not equipped with a properly operating waste
22 lagoon, with the same number of animals?
23 MR. MARLIN: The Department has not
24 addressed this issue.
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1 MR. HARRINGTON: As follow-up on that,
2 there is no restriction on grass trained or feeding
3 animals in an open field anywhere near a Department
4 of Natural Resources facility, is there?
5 MR. MARLIN: I am not aware of one. It
6 would depend on -- some of the feeding operation
7 rules might kick in Under Title 35. Unless there
8 is something that speaks for itself, I will say,
9 no, I am not aware of one.
10 MR. HARRINGTON: Question 33, what would
11 be the usual principal source of odors, if any,
12 from the concentrated feeding operation built in
13 compliance with the proposed rules?
14 MR. MARLIN: Sources of odor in livestock
15 confinement facilities include but are not limited
16 to the lagoon, storage pits below confinement
17 buildings, which contain manure, manure on animals,
18 dust and gases from confinement buildings,
19 application of manure to fields and the decay of
20 dead animals. These sources are identified based
21 on those listed in the literature and the expertise
22 of several DNR staff members, due to their visits
23 to several operating facilities.
24 The rules basically address two of these
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1 sources, lagoon operating methods and field
2 application. They should reduce but not eliminate
3 odors from these sources. The other source will
4 remain but may be reduced to voluntarily address
5 through the education and training efforts.
6 It has just been pointed out that where I
7 said "expertise" of several department staff
8 members I should have said "experience."
9 MR. HARRINGTON: We will agree to both.
10 Question 34, would not the principal source of odor
11 be from the improper application of manure to
12 fields when it occurs?
13 MR. MARLIN: When it occurs, the improper
14 application of manure in the fields can be the most
15 acute, meaning short-term and intense source of
16 odor. We know that even proper application of
17 manure is a source of odor. However, the lagoon
18 and other structures would likely be the principal
19 source of chronic or long-term and either intense
20 or diffuse odor.
21 MR. HARRINGTON: Question 35, under the
22 proposed regulations what steps are taken to
23 minimize the potential of improper application of
24 manure in the field?
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1 MR. MARLIN: Overall, the management
2 plans, training provisions, and application
3 requirements of the regulations are steps taken to
4 minimize improper application. This also includes
5 the general policy stated in the LMFA which refers
6 to neighbor education and awareness programs. The
7 section regarding the criteria for waste management
8 plans addresses the steps which can be taken to
9 minimize the improper application to manure to
10 fields. In addition, the training and
11 certification of livestock managers will provide
12 guidance to the facility personnel regarding the
13 proper application of manure.
14 MR. HARRINGTON: Would the odor problems
15 from proper application of manure from the modern
16 feeding operation be any better or worse from the
17 historical practice?
18 MR. MARLIN: The response by IDNR to this
19 question would be speculative. The density of
20 animals per unit of area in large confinement
21 facilities is historically unprecedented.
22 MR. HARRINGTON: When you use the term
23 large confinement facility, what would you define
24 those as, in that answer?
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1 MR. MARLIN: For purposes of this
2 discussion, the Title 35, which, I believe, is
3 1,000 animal units. The basic response is we don't
4 want to speculate in that area.
5 MR. HARRINGTON: Okay. I believe
6 Question 37 has been answered, but I will ask it
7 again so we don't lose anything.
8 Do you have an opinion as to impact of
9 livestock waste lagoons on natural resources, and
10 what is the scientific basis for that opinion?
11 MS. GLOSSER: Livestock waste lagoons
12 collect large amounts of manure, animal feed
13 supplements and medications in small areas and
14 quantities which far exceed those found in nature.
15 The potential adverse impacts on environment and
16 natural resources are primarily associated with the
17 release of these materials at rates that cannot be
18 assimilated by the local, air, land or water
19 resources.
20 The direct release of lagoon contents by
21 spill, lagoon failure, illegal discharge or poor
22 operating methods can contaminate the local land
23 and water resources, thus, changing water and soil
24 chemistry. In water, the result can vary from a
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1 dramatic fish kill to long-term changes in the
2 species mix and population density of many aquatic
3 plants and animals.
4 A discharge on land can inundate local
5 habitat. The subsequent change in soil chemistry
6 can result in local plant species being replaced by
7 invaders better able to tolerate the contaminants.
8 Another impact to natural resources are
9 the gases released from lagoons. For example, a
10 large portion of the ammonia contained in livestock
11 waste is emitted into the atmosphere. Ammonia's
12 tendency to form a layer near the ground presents
13 the risk of adverse affects on vegetation in the
14 vicinity of lagoons. High ammonia can burn leaves,
15 increase transpiration rates, cause nutrient
16 imbalances, increase frost damage and increase
17 susceptibility of plants to disease. Chronic
18 exposure to ammonia can add nitrogen to soils,
19 which can adversely impact sensitive species and
20 habitat.
21 Finally, a leaking lagoon will
22 contaminate groundwater which, in turn, may enter a
23 stream or impact soil in low lying areas. Certain
24 habitat types in Illinois such as bogs, fins, and
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1 cave systems are particularly sensitive to even
2 slight changes in groundwater or soil chemistry.
3 MR. HARRINGTON: I believe that is the
4 last of the written questions. There was a
5 duplication at the end, but if I could have a
6 moment to confer with my clients to see if there is
7 any follow-up questions.
8 HEARING OFFICER LOZUK-LAWLESS:
9 Certainly.
10 MR. HARRINGTON: Thank you.
11 HEARING OFFICER LOZUK-LAWLESS: While Mr.
12 Harrington is conferring with his clients, are
13 there any other questions for any of the Department
14 of Natural Resources' witnesses?
15 Okay. Please stand up and state your
16 name so the court reporter can hear you.
17 MR. BALL: I am Gary Ball. Aren't there
18 some positives to lagoons? Do properly operated
19 lagoons bring wildlife in, such as deer?
20 MS. GLOSSER: We have seen no studies or
21 anything in the literature that would suggest that
22 there was a positive impact to deer, but if you
23 have any information that would, you know, lead us
24 to explore that we would be more than happy to see
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1 that.
2 MR. BALL: I have just seen some properly
3 operated lagoons that do attract a lot of deer for
4 purposes that I have no idea of, but except for
5 mineral reasons, I would say.
6 MS. GLOSSER: You say that they are
7 attracting the deer to the facilities?
8 MR. BALL: Yes.
9 MS. GLOSSER: Just as an observation, I
10 know one of the sites that I visited actually was
11 concerned about wildlife encroachment upon the
12 lagoons, because in this case they were using
13 synthetic liners, and they were concerned about the
14 deer actually getting onto the synthetic liner and
15 causing a rupture, so they were erecting fences
16 very near the edge of their lagoon to actually keep
17 out deer. So while I don't know if they attract
18 them, maybe it isn't always in the best interest if
19 they did.
20 HEARING OFFICER LOZUK-LAWLESS: Mr.
21 Harrington?
22 HARRINGTON: We have no further questions
23 at this time. Thank you very much, and thank you
24 very much to the panel and the Department.
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1 HEARING OFFICER LOZUK-LAWLESS: Thank
2 you. Are there any other questions, then, from
3 anyone else in the room for the Department of
4 Natural Resources?
5 Are there any questions for any of the
6 witnesses today? Of course, that includes the
7 Department of Agriculture, besides the
prefiled
8 testimony.
9 Okay. Thank you, DNR. I would like to
10 add at this time that if anyone came late and
11 wanted to provide any testimony on the record, if
12 you wanted to say anything on the record right
13 now.
14 No? Okay. Then what we will do is
15 explain what we will be doing in
Urbana. We are
16 continuing this hearing on Thursday in
Urbana and
17 that convenes at 9:00 in the morning. What we will
18 do is when we begin we will have the four agencies
19 give a very short summary of their testimony, very
20 short, and then we will continue with those persons
21 who have filed
prefiled testimony, and those
22 persons would be Ron
Warfield, Ellen Hanes, Jill
23 Apple and Danny
Wilret (spelled phonetically). We
24 will allow those people to testify and then we will
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1 begin the questioning period.
2 What I would like to see happen is each
3 one of the Departments could bring, say, 50 copies
4 of either the summaries which you are going to be
5 giving or 50 copies of your
prefiled testimony, if
6 you could bring that and then we can have those for
7 anyone who is coming and doesn't have access to the
8 whole proposal or may have questions. That would
9 be wonderful.
10 The hearings, which will be held for the
11 remainder of this month, the second hearing, as I
12 said, will be on January 16th. That is Thursday at
13 9:00 a.m. in
Urbana.
14 The third hearing on Monday, January
15 27th, also at 9:00 a.m. is in
DeKalb. The fourth
16 hearing will be held on January 29th at 9:00 a.m.
17 in Galesburg. Then the last hearing will be on
18 Friday, January 31st in Mt. Vernon.
19 If you need any addresses, where those
20 hearings will be held, or actually even I have a
21 map of how to get to all of those hearings, you can
22 come up and ask me for the address or you can look
23 on the Board's Web Page. And all of that
24 information, as well the Department of
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1 Agriculture's proposal is posted on the Web Page.
2 I would like to thank the Department of
3 Agriculture for being so patient. I know we will
4 finish then with
prefiled questions addressed to
5 the Department of Agriculture. It was nice to be
6 able to finish the three agencies and the three
7 witnesses. It has been very productive. Thank
8 you.
9 Also, if you have not signed up and if
10 you wish to be on the notice list, those lists are
11 at the door. Again, the service list, you will
12 receive copies of all the
prefiled testimony,
13 questions, court orders, hearing officer orders.
14 If you would like to put your name on the notice
15 list, you will receive copies of the hearing
16 officer orders and the board orders.
17 And after we finish with the second
18 hearing we will go ahead and distribute a new
19 service list and new notice list so everyone is
20 working on updated copies. I know there has been
21 some confusion. Now everyone will be on the same
22 page with all the new people that wanted to add
23 their names.
24 Are there any closing comments from any
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1 Board Members?
2 CHAIRMAN MANNING: Thank you all for your
3 attention. We look forward to seeing you in
4 Champaign-
Urbana.
5 HEARING OFFICER LOZUK-LAWLESS: Okay. We
6 will adjourn to 9:00 a.m. in
Urbana. Thank you.
7 (Whereupon, the proceedings
8 were adjourned at approximately
9 4:30 p.m.)
10 (Exhibits 1 through 11 were
11 retained by Hearing Officer
12
Lozuk-Lawless.)
13
14
15
16
17
18
19
20
21
22
23
24
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1 STATE OF ILLINOIS )
) SS
2 COUNTY OF MONTGOMERY)
3 C E R T I F I C A T E
4 I, DARLENE M. NIEMEYER, a Notary Public
5 in and for the County of Montgomery, State of
6 Illinois, DO HEREBY CERTIFY that the foregoing 291
7 pages comprise a true, complete and correct
8 transcript of the proceedings held on the 14th of
9 January
A.D., 1997, at Blackhawk Village, 1111 East
10 Morton Street, Jacksonville, Illinois, in the
11 matter of Livestock Waste Regulations, 35 Illinois
12 Administrative Code 506, Docket R97-15, in
13 proceedings held before the Honorable
Audrey
14 Lozuk-Lawless, Hearing Officer, and recorded in
15 machine shorthand by me.
16 IN WITNESS WHEREOF I have hereunto set my
17 hand and affixed my
Notarial Seal this 21st day of
18 January
A.D., 1997.
19
20
Notary Public and
21 Certified Shorthand Reporter and
Registered Professional Reporter
22
CSR License No. 084-003677
23 My Commission Expires: 03-02-99
24
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