ILLINOIS POLLUTION CONTROL BOARD

August 20,

1993

IN THE MATTER OF:

)

EMERGENCY AMENDMENTS TO THE

)

R93-15

OPEN-BURNING RULES,

35 ILL.

)

(Rulemaking)

ADM. CODE 237.121

)

ADOPTED EMERGENCY RULE.

FINAL ORDER.

OPINION

AND

ORDER OF THE BOARD

(by C.

A. Manning):

This matter comes before the Board on an August 18,

1993

proposal for emergency rulemaking filed by the Illinois

Environmental Protection Agency (Agency).

The purpose of the

Agency’s proposal is to allow the open burning, without permit,

of certain combustible non—hazardous waste generated in twenty

(20) designated “disaster area” counties which have been impacted

by the recent flooding of the Mississippi River and its

tributaries.

These counties are Adams, Alexander, Calhoun,

Carroll, Greene, Hancock, Henderson, Jackson, Jersey, Jo Daviess,

Madison, Mercer,

Monroe, Pike, Randolph, Rock Island,

Scott,

St.

Clair, Union and Whiteside.

For the reasons stated below, the Board finds, pursuant to

Section 27(c)

of the Environmental Protection Act

(Act)

Ill. Rev.

Stat.

1991 ch.

111

1/2,

par. 1027(c),

5 ILCS 5/27(c) and Section

5—45 of the Illinois Administrative Procedure Act

(APA)

(Ill.

Rev. Stat.

1991 ch.

127, par. 1005—45,

5 ILCS 100/5—45), that a

“situation exists which reasonably constitutes a threat to the

public interest, safety or welfare”.

The Board today adopts as

an emergency rule new section 237.121 Emergency Exemption for

1993 Flood—Generated Wastes.

This rule will become effective

upon filing with the Secretary of State for

a period of 150 days.

STATUTORY PROVISIONS

Open burning is governed by Section 9(c)

of the Act.

Section 9(c) provides that:

No person shall:

c.

Cause or allow the open burning of

refuse, conduct any salvage operation by

open burning, or cause or allow the

burning of any refuse in any chamber not

specifically designed for the purpose

and approved by the Agency pursuant to

regulations adopted by the Board under

this Act; except that the Board may

---

2

adopt regulations permitting open

burning of refuse in certain cases upon

a finding that no harm will result from

such burning,

or that any alternative

method of disposing of s~uchrefuse would

create a safety hazard so extreme as to

justify the pollution that would result

from such burning.

The Board’s regulations implementing this section are found

at 35

Ill. Adm. Code Part 327.

Subpart A establishes general

provisions including prohibitions and exemptions and Subpart B

establishes permit requirements.

The Board’s rulemaking requirements in this matter are

contained in the APA and the Act.

Section 5-45 Illinois

Administrative Procedure Act provides in pertinent part:

“Emergency” means the existence of any

situation that any agency finds reasonably

constitutes a threat to the public interest,

safety, or welfare.

If any agency finds that

any emergency exists that requires adoption

of a rule upon fewer days than is required by

Section 5-40 and states in writing its

reasons for that finding, the agency may

adopt an emergency rule without prior notice

or hearing upon filing of notice of emergency

rulemaking with the Secretary of State under

Section 5-70.

.

.

Subject to applicable

constitutional or statutory provisions,

an

emergency rule become effective immediately

upon filing under Section 5—65 or at a stated

date less than 10 days thereafter.

The

Agency shall take reasonable and appropriate

measures to make emergency rules shown to the

persons who may be affected by them.

An emergency rule may be effective for a

period of not longer than 150 days, but the

agency’s authority to adopt an identical rule

under Section 5—40 is not precluded.

Section 27(c)

of the Environmental Protection Act provides:

When the Board finds that a situation exists

which reasonably constitutes

a threat to

public interest, safety or welfare, the Board

may adopt regulations pursuant to and

in

accordance with Section 5.02 of the Illinois

Administrative Procedure Act.

---

3

Emergency rules are scrutinized by both the Joint Committee

on Administrative Rules and by the courts to determine whether

“there exists a situation which reasonably constitutes a threat

to the public interest, safety or welfare”.

Citizens for a

Better Environment v.

Illinois Pollution Control Board,

(1st

Dist.

1983)

162

Ill. App.3d 105,

504 N.~E. 2d 166,

169.

THE AGENCY’S PROPOSAL

Description of the Emergency

The Agency’s August

18,

1993 four page statement of

justification for its emergency rule proposal states that:

Due to a series of severe thunderstorms and

torrential rains throughout the Mississippi

River Basin, many Illinois counties have

experienced record flood levels that have

adversely impacted and continue to threaten

public health, safety and welfare.

The

flooding has resulted

in extensive damage to

homes,

farms, businesses,

livestock,

roads

and other property.

In an effort to aid

those counties affected by the adverse

weather, the President of the United States

and Governor Edgar have declared numerous

Illinois counties as federal and State

disaster areas.

In a number of Gubernatorial

Proclamations, Governor Edgar has sought to

coordinate the assistance of State agencies

in providing reasonably necessary emergency

measures to assist the flood victims.

T)his

Emergency Rulemaking is being proposed

in order to provide necessary assistance to

persons in various Illinois counties whose

health, welfare and safety have been and

continue to be directly impacted by the

Mississippi River and its tributaries....

Under the current open burning restrictions,

this waste may have to be stored and

stockpiled for many weeks while an

application for a permit is prepared by the

applicant and submitted to and acted upon by

the Agency.

The physical storage of this

waste has and may continue to create a severe

hardship for many flood victims.

Since the

waste products are often in contact and/or

soaked with raw sewage,

the stockpiling of

the waste may also pose a serious public

---

4

health risk.

The stockpiling of this flood-generated waste

could also critically hinder efforts toward

rebuilding homes and farms and re-

establishing communities.

The expeditious disposal of this flood waste

through the safe buring practices provided in

this proposal will mitigate the risks to

public health,

safety and welfare and the

obstacle to rebuilding and restoration

created by the excessive waste.

(Proposal,

p.

1—2,

3.)

Description of the Proposed Amendments

The Agency describes its proposed amendments as follows:

The current open burning regulations at 35

Ill. Adm. Code 237 allow persons to lawfully

engage in open burning under very specific

conditions;

otherwise,

a person may engage in

open burning only if a permit for such

activity has been issued by the Agency.

The

flooding of the Mississippi River and its

tributaries has resulted in the generation

and accumulation of excessive amounts of

landscape,

agricultural and other combustible

waste.

Under the current rules,

much of this

waste could not be burned until a permit had

been applied for and issued by the Agency.

This Emergency Rulemaking proposal exempts

open burning of flood generated waste from

these permit requirements, while expanding

the provisions for lawful open burning of

agricultural and landscape waste caused by

the flood.

Conditions have been included in

this proposal that are necessary to assure

the protection of public health.

They

include a prohibition from open burning of

potentially dangerous materials such as weed

killers, electrical components, and asbestos

containing materials.

This Emergency

Rulemaking proposal

is applicable to the

counties all along Illinois’ western border,

which have been directly impacted and

threatened by the flooding of the Mississippi

River and

is tributaries.

(Proposal,

p.

2)

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5

THE BOARD’S ADOPTED RULES

Consistent with the Governor’s directive to the executive

agencies to coordinate flood relief activities, the Agency

advised the Board of its intent to file, this proposal.

Upon

receipt of the proposal,

on August 18 the Board scheduled this

special emergency meeting.

The staff of the Administrative Code

Unit of the Division of Index,

for its part,

has graciously

agreed to give prior review for format of the copy for filing

with the Secretary of State to avoid paperwork delays.

In prior regulatory proceedings1 the Board has given

exhaustive consideration to the dangers to public health posed by

unmanaged waste, which may become a breeding ground for disease

vectors including mosquitoes,

vermin and birds.

The

decomposition of unmanaged putrescible wastes can lead to

contamination of surface water and groundwater.

The sheer volume

of waste created by the recent flooding which must be relatively

quickly and efficiently handled is unprecedented in the state’s

history and, more specifically in the Board’s 23—year history.

While landfill disposal of all flood-generated wastes may be

possible given extended periods of time and unlimited funds,

this

disposal must be made at the same time that individuals and

governments are struggling to restore essential community

elements and services including drinking water supplies and

sewage treatment systems, housing and medical facilities,

and

highways and bridges.

Under these circumstances, while

controlled burning of certain wastes may have potential adverse

impacts on air quality, any such impacts are outweighed by the

more immediate impacts on surface water and groundwater quality

in the most heavily flood-impacted areas.

Having considered these factors and the information provided

by the Agency, the Board finds that “a situation exists which

reasonably constitutes a threat to the public interest, safety or

welfare”, within the meaning of Section 27(c)

of the Act and

Section 5-45 of the APA.

The Board further finds, as required by Section 9(c)

of the

Act,

that:

“no harm will result from such burning,

or

that any alternative method of disposing of

such refuse would create a safety hazard so

extreme as to justify the pollution that

1

See,

e.g.

In the Matter

of:

Development,

Operating and

Permit

Requirements

for

Non—Hazardous

Waste

Landfills,

R88—7

(Opinion

and

Order

of

March

1,

1990)

and

In

the

Matter

of:

Managing Tire Accumulations to Limit The Spread of the Asian Tiger

Mosquito, R88-12

(Emergency Opinion and Order of April

2,

1988).

---

6

would result from such burning”.

The Board is aware that today’s rule does not allow

controlled open burning in all disaster counties

(Section

237.121(a)).

While the Agency has not.presented a county-by—

county assessment,

the Board will defer to the Agency’s

assessment of the field conditions

in the affected counties.

Further, the Board agrees with the Agency’s assessment that

combustion of asbestos and chemical—laced wastes

is not in the

best interests of the People of the State even under the current

emergency, disaster conditions.

The Board, as proposed by the Agency, has adopted language

in many of the rules which

is somewhat familiar to the community

which will be using these rules.

Examples of such language

include Section 237.121(b), which duplicates language found in

the permanent exemption found in Section 237.120(a) (6), and

Section 237.121(b), and

(c)(2).

Similarly, the wording of the

conditions found in Section 237.121(e-i)

is taken from language

which has been appearing as standard conditions on Agency—issued

open burning permits since at least 1985.

(See IEPA form APC171,

dated July

1,

1985)..

Finally, the Board observes that today’s emergency rule will

expire within 150 days of its filing the maximum term of any

emergency rule.

The APA prohibits adoption of an emergency rule

“more than once in any 24 month period”

(5 ILCS 100/5—45), so

that any extension of this five month emergency exemption must be

obtained through regular rulemaking or through the Act’.s other

regulatory relief mechanisms.

ORDER

The Board hereby adopts the following emergency rule.

The

Clerk is directed to cause its filing with the Secretary of

.State.

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE B:

AIR POLLUTION

CHAPTER

I:

POLLUTION CONTROL BOARD

SUBCHAPTER

i:

OPEN BURNING

PART 237

OPEN BURNING

SUBPART A:

GENERAL PROVISIONS

Section

237.101

Definitions

237.102

Prohibitions

237.103

Explosive Waste

---

7

237.110

Local Enforcement

237.120

Exemptions

237.121

Emergency Exemptions for 1993 Flood-Generated Waste

EMERGENCY

237.130

Freeport Air Curtain Destructor

SUBPART B:

PERMITS

Section

237.201

Available Permits

237.202

Permit Application

237.203

Permit Conditions

237.204

Standards of Issuance

237.205

Duration and Renewal

237.206

Revision

237.207

Revocation

Appendix A

Rule into Section Table

Appendix B

Section into Rule Table

AUTHORITY:

Implementing Sections 9(c) and 10 and authorized by

Section 27 of the Environmental Protection Act (Ill.

Rev. Stat.

1991,

ch.

111½,

pars.

1009(c), 1010 and 1027

415

ILCS 5/9(c),

5/10 and 5/27).

SOURCE:

Adopted as Rules 401 through 406, R70-1l,

2 PCB 373,

filed and effective September 7,

1971; Renumbered as Chapter

2:

Air Pollution,

Part V:

Open Burning, R72-11,

6 PCB

199, filed

and effective November 10,

1972; amended at 3

Ill. Reg.

51,

p.

117, effective December 7,

1979; amended at 6 Ill.

Reg.

14521,

effective November

8,. 1982; codified at 7 Ill. Reg.

13579;

emergency amendment in R93-15 at 17

Ill. Reg.

_______,

effective

______________________ for a maximum of 150 days.

SUBPART A:

GENERAL PROVISIONS

Section 237.121

Emergency Exemptions for 1993 Flood-Generated

Waste

EMERGENCY

The burning of wooden building debris, landscape and agricultural

wastes,

as defined in this Part, and other combustible waste,

caused by the 1993 Mississippi River flood disaster, without

obtaining a permit from the Agency shall not constitute a

violation of Section 9(c)

of the Act or of this Part,

if

the

following criteria are met:

~

Burning and generation of materials burned occurs only

in the following counties:

fl

Adams

---

8

21

Alexander:

~j

Calhoun:

iL

Carroll

~

Greene

j).

Hancock

fl

Henderson

.~j,.

Jackson

IL

Jersey

.3&1

Jo Daviess

ill

Madison

)~2J..

Mercer

.~1L

Monroe

iii

Pike

j~J.

Randolph:

,j~j Rock Island

~fl

Scott

j~J.

St. Clair

121

Union: and

IQI

Whiteside.

~j

No other economically reasonable alternative method of

disposal

is available.

~j

Atmospheric conditions will readily dissipate the

contaminants.

~j

In an incorporated area,

notification is provided to

the appropriate fire protection district or fire

department prior to burning.

~L

The burning site

is provided with adequate fire

protection and with such equipment as is necessary to

control the fire and the burning is conducted safely.

---

9

fi

The burning will not result

in the production of

obnoxious odors or excessive emissions of ~articu1ate

matter so as to cause

a violation of Section 9(a)

of

the Act.

gj

Wind velocity at the time of burning exceeds

5 miles

per hour.

hi

Burning shall not create a visibility hazard on

roadways. railroad tracks or air fields.

j),.

Burning is supervised at all times.

jj

Ashes,

residue, and other by—products of burning are

disposed of

in

a manner consistent with the Act and

regulations promulgated thereunder.

id

Materials burned do not include asbestos containing

products, tires, household appliances,

electrical

components,

carpets, weed killers,

paints,, drain

cleaners, motor oil,

fuel solvents,

or insect poisons.

(Source:

Emergency rule added at 17

Ill. Reg.

_________

effective

_____________________

for

a maximum of 150 days)

IT IS SO ORDERED.

J. Anderson concurred.

Sections

29 and 41 of the Environmental Protection Act,

415

ILCS 5/41

(1992), provides for appeal of final orders of the

Board within

35 days.

The Rules of the Supreme Court of Illinois

establish filing requirements.

(See also 35 Ill. Adm. Code

101.246, Motions for Reconsideration.)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certify that the a~oveopinion and order was

adopted on the

.~7’-~

day ~of

-~7

,

1993, by a vote

~

Dorothy M.

c~4hn,Clerk

Illinois Pollution Control Board