ILLINOIS POLLUTION CONTROL BOARD
May 27,
1993
IN THE MATTER OF:
)
R93—1O
RCRA SUBTITLE D AMENDMENTS
)
(Identical in Substance Rule)
Proposal for Public Comment.
Proposed Opinion of the Board
(by J. Anderson):
The Board today adopts this proposed opinion in support of
the proposed Resource Conservation and Recovery Act
(RCRA)
Subtitle D amendments to the Board’s nonhazardous solid waste
landfill regulations.
The text of the proposed amendments
appears in a separate order,
adopted on May 20,
1993 pursuant
Section 7.2 of the Act.
They have been submitted for publication
in the Illinois Register, which initiates a 45 day public comment
period.
The Board initiated this rulemaking to amend its
nonhazardous waste landfill
(NWLF)
regulations in order to make
them at least as stringent as the USEPA regulations implementing
Subtitle D of the RCPA.
The USEPA regulations address Municipal
Solid Waste Landfill Facilities
(NSWLF).
The enabling State legislation, HB 299,
contains a new
Section 22.40 in the Environmental Protection Act
(Act) which
mandates Board rulemaking.
This mandate requires that the Board
adopt regulations pursuant to Section 7.2 of the Act that are
identical in substance to regulations adopted by the USEPA to
implement Sections 4004 and 4010 of the Resource Conservation and
Recovery Act
(RCRA)
of 1976
(P.L.
94-580, codified as 42 U.S.C.
para.
6944
& 6950).
Section 22.40 provides that Section
5 of the
Administrative Procedure Act
(5 ILCS 100/1-1 et seq.)
shall not
apply.
Because this rulemaking is not subject to Section 5 of
the APA,
it is not subject to first notice or second notice
review by JCAR.
The Board started the “public comment” phase of this
rulemaking by adopting the proposal for public comments on May
20,
1993.
The Board provides the justification and support for
the proposed amendments in today’s opinion.
AGENCY OR BOARD ACTION?
EDITORIAL CONVENTIONS
The Board appended two routine discussions at the end of
this opinion.
The first is a discussion of how the Board
codifies requirements that call for state determinations,
such as
for exemptions,
exceptions,
etc.
The second discussion relates
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2
codifies requirements that call for state determinations,
such as
for exemptions, exceptions,
etc.
The second discussion relates
to our use of language in the codification of identical—in—
substance rules.
We intend these as reference aids for
interested persons in the regulated community.
RCRA
SUBTITLE D PROGRAM
The USEPA promulgated on October
9,
1991, the final
municipal solid waste landfill regulations pursuant to the
requirements of the Resource Conservation and Recovery Act of
1976
(P.L.
94—580, codified as 42 U.S.C
§S
6944
& 6950)
(Subtitle
D landfill regulations).
The Subtitle D regulations
(Subtitle D
Regulations) establish minimum national criteria for municipal
solid waste landfill
(MSWLF) units.
Section 4005(c) (1)
of the
RCRA requires all RCRA authorized states including Illinois to
adopt and implement a permit program or other system of approval
that complies with the performance standards of the Subtitle D
Regulations on or before October
9,
1991.
The Subtitle 0 Regulations prescribe minimum criteria for
MSWLFs including location restrictions,
facility design and
operating criteria, groundwater monitoring requirements;
corrective action requirements, closure and
postclosure care
requirements, and financial assurance requirements.
The
regulations establish differing requirements for existing and new
units.
The states are required to seek a determination by the
USEPA that their state programs comply with the minimum standards
of the Subtitle 0 Regulations, within two years of the effective
date of the Subtitle 0 Regulations
(October
9,
1993).
The
Subtitle D Regulations provide flexibility to the states in
choosing any design standards that will secure compliance with
the federal rule’s performance standards.
BOARD ACTION
The new Section 22.40 of the Environmental Protection Act
(Act)
requires the Board to adopt regulations that are identical-
in-substance to the federal regulations relating to MSWLF program
in accordance with Section 7.2 of the Act.
However, where
federal regulations authorize the state to adopt alternative
standards, procedures or schedules to those contained in the
federal regulations,
Section 22.40 provides that the Board may
retain existing regulations that establish such alternative
standards.
Since the Board’s existing nonhazardous solid waste
landfill regulations prescribe comprehensive standards that
address all elements covered by the Subtitle D Regulations, the
Board intends to retain existing requirements as far as possible.
The approach taken by the Board in the instant proposal is
to:
(i)
clarify the applicability of existing regulations to
include
MSWLF
units; and
(ii) only where Board rules are
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deficient, prescribe additional requirements applicable only to
MSWLF units.
The Board concludes that this is consistent with
the identical in substance mandate.
Also,
it avoids the creation
of a dual permit program for MSWLF units, which may cause
considerable administrative difficulties to both the Agency and
the regulated community.
Moreover, extensive changes to the
existing regulations will not be not required to comply with the
Subtitle D Regulations since they are substantially equivalent to
the Subtitle D Regulations.
Existing Nonhazardous Solid Waste Landfill Regulations
Currently in Illinois,
landfills accepting municipal solid
wastes are regulated under the Board’s nonhazardous solid waste
landfill regulations found at 35 Ill. Adm. Code 807 and 810
through 815.
These regulations prescribe comprehensive standards
that use a mix of performance and minimum design standards,
so as
to protect the existing environment, both above and below ground,
from degradation.
Among the significant requirements are:
Interrelated systems of checks and balances to control
transport of contaminants, including a stringent groundwater
assessment program;
Liners of compacted earth,
or compacted earth and
geomembrane;
Leachate collection systems;
State of the art leachate treatment and disposal
requirements;
Landfill gas monitoring and management;
Detailed construction and operating oversight requirements;
Postclosure care for as many years as is necessary at each
landfill to demonstrate that contamination is no longer a
problem;
A groundwater monitoring system designed to quickly detect
potential problems, and to trigger prompt remedial action
where indicated;
Built-in provisions to avoid sensitive areas ranging from
airports to nature preserves;
More intensive permitting and reporting requirements; and
Phase-out of existing landfills timed to the level of
compliance with the new regulations.
4
Equivalency Determination and the Agency’s Application
At the outset, the Board notes that the proposed amendments
are based on the equivalency determination made by the Agency as
part of its application to the USEPA.
The Agency filed its solid
waste management permit program application with the USEPA for
determination of adequacy, pursuant to Section 4005(c)
of
Subtitle 0 of
RCRA
on March 31,
1993.
A significant portion of
the application consists of a demonstration of compliance of the
Board’s existing landfill regulations with the Subtitle 0
Regulations.
The demonstration includes a detailed section-by—
section evaluation of the Subtitle 0 Regulations and the
corresponding requirements in the Board’s existing NSWLF
regulations.
The Agency’s analysis shows that the Board’s
existing regulations are substantially equivalent to the Subtitle
O Regulations contained in 40 CFR 258.
However, the analysis
also identifies a number of deficiencies in relation to the NSWLF
regulations.
The Board’s review of the Agency’s application indicates
that,
except for
a few major items such as interpretation of
existing units/lateral expansions, corrective action procedures,
and financial assurance requirements, the deficiencies are minor
in nature.
The Board recognizes that the Agency’s application is
a preliminary filing and other deficiencies may come to light
upon the USEPA’s review.
However, the Board proposes to address
all the deficiencies identified in the Agency’s application.
If
additional shortcomings come to light upon the USEPA’s review,
the Board will address them during the comment period.
Due to the significant reliance on the Agency’s application
in this rulemaking, the Board will not discuss the details of the
equivalency determination in this opinion.
Instead, the Board
will incorporate the Agency’s application by reference.
The
Board notes that the Agency’s application is marked as Public
Comment #1
(PC #1).
The Board will limit its discussion to the
major issues associated with the proposed amendments, and the
actual changes in the rules.
FEDERAL ACTIONS COVERED BY THIS RULEMAKING
The
RCRA
Subtitle D regulations (Subtitle D Regulations) was
drawn from 40 CFR 258
(1992)
(Solid waste disposal facility
criteria).
The following USEPA actions are covered in this
rulemaking:
56 Fed. Reg. 50978, October 9,
1991
(Subtitle 0
Regulations)
57 Fed. Reg. 28626
February 22,
1992
(Subtitle D
Regulations
corrections)
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REGULATORY
FRAMEWORK
Under
the
instant
proposal,
the
MSWLFs
will
be
regulated
as
a
subset
of
the
putrescible
waste
landfill
category.
The
MSWLF
units will be subject to putrescible waste landfill requirements,
and the additional requirements adopted pursuant to this
rulemaking.
The framework for regulating the nonhazardous
landfills will remain the same,
i.e. the new MSWLFs will be
subject to the requirements of Part 811 and the existing NSWLFs
and lateral expansions will be subject to the requirements of
Part 814.
Permitting Requirements for MSWLFs
The Subtitle D Regulations require the State to implement a
permit program to regulate all MSWLFs including on-site
facilities, which are currently exempted from the landfill permit
program pursuant to Section 21
(d)
of the Act.
The legislative
amendments
(MB 299)
at Sections 21(d),
21(t), 22.42,
and 22.43
of
the Act provide for the implementation of the permit requirements
applicable to MSWLFs.
The statutory changes are reflected in
proposed amendments to Part 814 relating to the permit
requirements for MSWLF units.
The permitting procedures under
the instant proposal are explained below.
New MSWLF Units:
In the case of new MSWLF5, the owner or
operator, prior to waste disposal, will have to comply with
all the requirements of Part 811 and obtain a permit in
accordance with Parts 812 and 813.
Existing MSWLF Units:
The implementation of the permit
program in the case of existing units is more complicated
due to the existing transition rules of Part 814.
The
Board’s existing regulations at Sections 814.104 allow the
owners or operators of existing facilities until September,
1994 to file an application for a permit modification,
unless the Agency notifies the owners or operators to file
the application at an earlier date.
Such facilities are
allowed to operate under their Part 807 permit until the
approval of the permit modifications under Part 814.
Thus,
a facility may continue operation under a Part 807 permit
until September 1994 and still be in compliance with Part
814.
In order to bring existing MSWLFs under compliance with the
permitting requirements of the Subtitle D Regulations before
October
9,
1993, the Act was amended to include a new
section (Section 22.42)
dealing with the interim permit
requirements for existing MSWLF units.
Section 22.42
requires the owners or operators of existing MSWLF units to
submit a written application to the Agency for a permit
(if
no permit has been issued for the MSWLF unit under Section
6
21(d) of the Act) or a permit modification
(if a permit has
been issued under Section 21(d)
of the Act.
Such
applications must be filed by 30 days of the effective date
of the amendatory Act, or September
1,
1993, whichever
occurs first.
The owners or operators who file such
applications are deemed to have an interim permit on October
9,
1993 or 30 days after the Agency receives the
application, whichever occurs first.
Section 22.42 allows the Agency to impose conditions to
ensure compliance with the requirements of the MSWLF interim
rules of Section 22.41 of the Act.
The interim regulations
are essentially a combination of the most stringent
requirements of the Subtitle 0 Regulations and the Board
regulations, which ensures the compliance of the State
program with the Subtitle D Regulations.
The Board notes
that these interim rules will take effect on the effective
date of the amendatory Act of 1993 and expire when:
(i)
the
State receives full approval of its MSWLF program by the
USEPA; and
(ii) rules adopted by the Board in the instant
rulemaking have been reviewed by the USEPA.
Also, according to Section 22.42,
no interim permit or
interim permit modification are deemed issued if the Agency
provides a written notification that the application is
incomplete or the applicant must file an application for a
lateral expansion.
The Board notes that the deemed issued
permits are intended mainly to ensure compliance with the
Subtitle 0 Regulations.
The owners or operators of existing
MSWLF units are still required to submit applications for
significant modification of their permits in accordance with
Section 814.104 by September 9,
1994.
Finally, Section 22.42 sets forth the terms for the
termination of the interim permits.
The Board notes that it has proposed the requirements of
Section 22.42 of the Act in Section 814.107.
Lateral Expansions:
Section 21(t)
of the Act prohibits a
lateral expansion of a MSWLF unit on or after October 9,
1993 without a permit modification granted by the Agency.
The statutes do not prescribe any specific permitting
requirements for lateral expansions other than granting
authority to the Agency to issue such permit modifications
(Section 22.43 of the Act).
Also, the Board notes that the
interim permit requirements of Section 22.42 do not apply to
lateral expansions.
Since for the most part,
lateral
expansions are treated as new MSWLF units under the Subtitle
D Regulations, the Board has proposed permitting
requirements at Section 814.108, which parallels the
requirements for application for significant modification of
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7
permits at Section 814.104.
Section 814.108 requires owners or operators of MSWLFs
planning lateral expansions after October
9,
1993 to file an
application for a permit modification with the Agency.
The
permit application must comply with the requirements and
procedures of Parts 812 and 813.
The owners or operators
may begin lateral expansion of a MSWLF unit only upon the
Agency’s approval of the permit modification pursuant to the
procedures of Part 813.
MAJOR REVISIONS
Existing Units and Lateral Expansions
The new statutory definitions of the terms “existing MSWLF
unit” and “lateral expansion”,
proposed at Section 810.103,
change the existing interpretation of what constitutes a lateral
expansion,
as far as MSWLFs are concerned.
Under the existing
landfill program, an expansion beyond the existing permitted area
is considered as a lateral expansion.
However, under the
proposed definition of “lateral expansion,” a horizontal
expansion is considered as any area where solid waste is placed
for the first time directly upon the bottom liner of the unit on
or after october 9,
1993.
According to this definition, the
waste boundary is the actual foot print of the waste and not the
originally permitted area.
Thus,
any horizontal expansion beyond
the actual foot print of the waste at an existing MSWLF unit on
or after October 9,
1993 will be considered as a lateral
expansion, which will be subject to the additional requirements.
The Board notes that the proposed definition of “Existing
MSWLF unit” in Section 810 does not retain the language in the
Subtitle D definition, which specifies that expansion of an
“existing MSWLF unit1” would have to be consistent with past
operating practices or operating practices modified to ensure
good management.
This additional language was included by the
USEPA to discourage the owners and operators from prematurely
enlarging their facilities to avoid compliance, but at the same
time account for legitimate landfill expansions.
The Board notes
that even though the proposed statutory definition of “existing
MSWLF unit” does not contain the additional language, the USEPA’s
intent still applies.
The owners or operators of MSWLF units are
expected to continue their existing operating practices.
1”Existing MSWLF
unit”
is
defined in
40
CFR 258.2
as
any
municipal solid waste landfill unit that is receiving solid waste
as of the effective date
of this part
(October
9,
1993).
Waste
placement in existing units must be consistent with past operating
practices or modified practices to ensure good management.
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Groundwater monitoring and corrective Action
The proposed amendments to the groundwater monitoring
program requirements under Section 811.319 prescribe a number of
additional requirements applicable to MSWLF5.
These amendments
are incorporated within the framework of the existing groundwater
monitoring program.
The revisions include: more frequent
monitoring of organic chemicals,
additional assessment monitoring
requirements, notification requirements, and detail procedures
for assessment and implementation of corrective action.
The existing detection monitoring requirement at Section
811.319(a) (3) (B) specifies that organic chemicals must be
monitored once every two years.
However, the Subtitle D
Regulations require the monitoring frequency to be at least once
every year for the alternate list adopted by the State.
Therefore,
the Board is proposing to require monitoring of
organic chemicals at MSWLFs to be performed on an annual basis.
The assessment monitoring requirements at Section 811.319(b)
specify minimum requirements, which include monitoring of
additional constituents that indicate the source and extent of
contamination.
The Board’s existing regulations do not specify a
specific list of constituents.
However, the Subtitle D
Regulations specify a comprehensive list of constituents
(40 CFR
258, Appendix II) that must be monitored during assessment
monitoring.
In addition, the Subtitle D Regulations specify the
subsequent steps that must be taken based on the results of such
monitoring.
In order to make the existing regulations as
stringent as the Subtitle 0 Regulations, the Board proposes to
amend Section 811.319(b)
to incorporate the federal requirements
relating to monitoring of additional constituents during
assessment monitoring.
The Board’s existing regulations specify general performance
standards and time schedules for implementing remedial action.
The remedial action requirements do not address the various
aspects of the implementation of corrective action in detail, as
required by the Subtitle D Regulations.
In order to cure this
deficiency, the Board proposes to adopt,
in verbatim, the
corrective action requirements of the Subtitle D Regulations
found at 40 CFR 258.56,
258.57, and 258.58.
The federal
regulations specify detail requirements and procedures for
assessment of corrective action measures, selection of remedy,~
and implementation of corrective action.
Postclosure care
The Subtitle D Regulations require the owner or operator of
a MSWLF to conduct postclosure care for a minimum period of 30
years after closure.
The Board regulations also specify a
similar postclosure care period for putrescible waste landfills.
9
However, the Board regulations provide for the reduction of the
postclosure care period depending on the nature of the wastes
accepted or recycling of leachate.
In addition, the Board
regulations provide a reduced minimum time period of
15 years for
the implementation of certain elements of postclosure care such
as groundwater monitoring and postclosure maintenance.
The Board
notes that these reductions are not inconsistent with the
flexibility offered in the Subtitle D Regulations.
However, the
amendments to the statutory requirements relating to postclosure
care,
found at Section 22.17 of the Act, extends the minimum
postclosure care period to 30 years for MSWLFs.
Therefore,
in
order to be consistent with the statutes, the Board proposes to
amend the existing regulations to include a minimum postclosure
care period of 30 years.
The proposed amendments at Sections 811.111 and 811.319
require
a 30—year minimum period for postclosure maintenance and
groundwater monitoring, respectively.
The Board notes that the
instant proposal provides for reduction of the minimum
postclosure care period through an Agency determination.
Financial Assurance Requirements
The proposed amendments to the financial assurance
requirements under Section 811.Subpart G include two significant
changes.
First,
the scope of the financial assurance
requirements is expanded to include units of local governments.
Second, the proposed amendments require the owner or operator of
a MSWLF unit to provide financial assurance for corrective
action.
The board finds that these changes are necessary to
comply with the requirements of the Subtitle D Regulations.
The existing regulations at Section 811.700 exempt
facilities that are owned and operated by local units of
governments from the financial assurance requirements, pursuant
to Section 21.1(a)
of the Act.
However, the statute has been
amended to remove the financial assurance exemption provided to
units of local government
(Section 21.1(a.5)
of the Act).
The
statute requires any person, other than the State government and
its agencies, to provide financial assurance to conduct the
operation of a NSWLF unit on or after April 9,
19942.
The
proposed changes to Section 811.700(c)
reflect the statutory
requirements concerning the exemption to units of local
governments.
Section 21.1(a.5)
of the Act requires the owner or operator
of a MSWLF unit to provide financial assurance for closure, post
closure care, and corrective action.
The Board notes that the
2The
financial
assurance
requirements
of
the
SDR
become
effective on April 9,
1994.
10
existing regulations require financial assurance for only closure
and postclosure care.
The instant proposal incorporates the
statutory requirements relating to financial assurance for
corrective action at Section 811.700(f).
SECTION-BY-SECTION DESCRIPTION OF THE AMENDMENTS
TO PARTS
810,
811,
AND
814
Part 810
Definitions
(Section 810.103)
The Subtitle 0 amendments include the addition of the
following statutory definitions relating to municipal solid waste
landfill
(MSWLF) units to Section 810.103: “Existing MSWLF unit”,
“Household waste”,
“Lateral expansion”,
“Municipal solid waste
landfill unit”
or “MSWLF unit”,
“New MSWLF unit”,
and “Resource
conservation and recovery Act”.
These definitions are
substantially similar to the definitions contained in 40 CFR
258.2
(1992).
An “Existing MSWLF unit”
is defined as any municipal solid
waste landfill unit that has received household waste before
october 9,
1993.
This statutory definition does not provide any
limitation on waste placement similar to the federal definition
of “Existing MSWLF unit”.
However, the intent of the Subtitle 0
Regulations is maintained by the modified statutory definition of
“lateral expansion”.
A “Household waste”
is defined as any solid waste (including
garbage, trash,
and sanitary waste in septic tanks)
derived from
households (including single and multiple residences, hotels and
motels,
bunkhouses,
ranger stations, crew quarters, campgrounds,
picnic grounds, and day—use recreation areas).
A “lateral expansion”
is defined as
a horizontal expansion
of the actual waste boundaries of an existing NSWLF unit
occurring on or after October
9,
1993, where a horizontal
expansion is considered as any area where solid waste is placed
for the first time directly upon the bottom liner of the unit on
or after october 9,
1993.
According to this definition, the
waste boundary is the actual foot print of the waste and not the
originally permitted area.
Thus,
any horizontal expansion beyond
the actual foot print of the waste on or after October 9,
1993
will be considered as a lateral expansion, which is consistent
with the USEPA’s interpretation.
A “Municipal solid waste landfill unit” or “MSWLF unit”
is
defined as a contiguous area of land or an excavation that
receives household waste, and that is not a land application,
surface impoundment, injection well, or any pile of
noncontainerized accumulations of solid, nonflowing waste that is
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used for treatment or storage.
The definition notes that a NSWLF
unit may receive other types of RCRA Subtitle D wastes, such as
commercial solid waste,
nonhazardous sludge,
small quantity
generator waste and industrial solid waste.
Such a landfill may
be publicly or privately owned or operated.
A MSWLF unit may be
a new MSWLF unit, an existing mswlf unit or a lateral expansion.
A sanitary landfill is subject to regulation as a MSWLF if it
receives household waste.
“New MSWLF unit”
is defined as any municipal solid waste
landfill unit that receives household waste on or after october
9,
1993 for the first time.
In addition to the above statutory definitions, the Board
has the defined the term “owner”
in Section 810.103 for purposes
of clarity.
The Board notes that the terms “owner” and
“operator” have been used interchangeably,
and sometimes together
in various Sections of the existing landfill regulations at Parts
810 through 815.
However,
in the Subtitle D Regulations, both
the terms “owner” and “operator” are used together consistently.
The Board notes that its intent has always been that the owner is
the operator if there is no other person operating the disposal
facility operator, as indicated by the definition of
“owner” at
35 Ill. Adm. Code 807.104.
Therefore,
the Board proposes to
include the definition of “owner” in order to avoid any confusion
regarding the applicability of the regulations to NSWLF units and
other nonhazardous solid waste landfills.
The Board notes that
this definition is essentially the same as the definition of
“owner” found at 35 Ill.
Adm
Code 807.104.
“Owner” is defined as a person who has an interest, directly
or indirectly,
in land, including a leasehold interest, on which
a person operates and maintains a solid waste disposal facility.
Further, the “owner”
is the “operator”
if there is no other
person who is operating and maintaining a solid waste disposal
facility.
Finally, the Board proposes to include the statutory
definition of RCRA,
which means the Resource Conservation and
Recovery Act of 1976
(P.L.
94—580, codified as 42 usc.
§~
6901 et
seq.)
As amended.
Incorporation by Reference (Section 810.104)
The amendments to Section 810.104 includes the incorporation
by reference to two documents.
The first document is entitled
“Test Methods
for Evaluating Solid Waste, Physical/Chemical
methods,
EPA Publication SW-846”, which contains test methods for
evaluating solid waste.
The second document is a list of
hazardous organic and inorganic constituents found at 40 CFR
258.Appendix II
(1992).
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Part 811
Purpose. Scope and Applicability (Section 811.101)
The scope of the Board’s nonhazardous solid waste landfill
regulations is significantly broader than the Subtitle D
Regulations since it is not limited to only MSWLF units.
The
Board’s existing regulations cover all existing and new landfills
in the State that accept nonhazardous solid waste including
wastes that are characterized as inert, putrescible and chemical
waste.
However,
in order to incorporate the federal requirements
in the State’s existing landfill program, the statutes created a
new category of landfills, which is based on the federal
definition of municipal solid waste landfill (MSWLF) unit.
Under
the Board’s existing regulations, the MSWLF category is a subset
of putrescible waste landfills.
The applicability requirements relating to new landfills at
Section 811.101 is amended to reflect the applicability of the
Board’s exiting landfill regulations to new NSWLF units.
The
amendment at Section 811.101(d) specifies that the standards
applicable to new MSWLF units include:
(i) the standards
applicable to putrescible waste landfills under Part 811;
arid
(ii) the requirements adopted pursuant to this rulemaking, which
are identical-in-substance to the Subtitle D Regulations.
In
addition,
subsection 811.101(d) (2) notes the inclusion of a new
appendix to Part 811, which provides a section-by-section
correlation between the federal MSWLF regulations and the Board’s
NSWLF regulations.
Operating Standards
(Section 811.107)
The Subtitle D landfill amendments add a new Section
811.107(m) that prohibits the disposal of bulk or
noncontainerized liquid waste in NSWLF units, except for the
following exceptions:
(1)
household waste other than septic
wastes; and
(ii)
leachate and gas condensate derived form the
MSWLF unit where the unit is equipped with a composite liner and
leachate collection system designed and constructed to maintain
less than 30 centimeters of head above the liner.
Subsection
811.107(m), which is derived from 40 CFR 258.28
(1992) also
defines the terms “liquid wastes” and “gas condensate.”
Closure and Postclosure Care (Sections 811.110 and 811.110)
The proposed amendments prescribe additional requirements
for MSWLF units concerning closure and post closure care.
The
closure requirements for MSWLF units are specified at subsections
811.110(e) through 811.110(h).
Mainly, the proposed amendments
to closure requirements specify the deadlines for initiating and
completing closure, and require a deed notation to be made
regarding the property.
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An owner or operator is required to initiate closure within
30 days of the final receipt of waste, but no later than one year
if the unit has remaining capacity and there is reasonable
likelihood of receiving additional waste.
The amendments allow
the Agency to grant extensions beyond the 1-year deadlines if the
owner or operator of the affected unit demonstrates that the unit
does not pose a threat to human health and environment.
The
Board notes that Section 811.110(e),
which,
as presently
proposed, requires an Agency determination, but does not provide
adequate guidance to the Agency to consider in making its
decision.
The
Board particularly requests comments as to whether
such a determination might be addressed through a variance
(or
provisional variance) proceeding.
(see the discussion entitled
“Agency or Board Action?”,
at the end of this opinion)
The proposed amendment at Section 811.110(f) requires the
completion of closure within 180 days of beginning of closure.
The Agency is allowed to grant extensions beyond the 180-day
deadlines under limited circumstances.
The Board notes that
Section 811.110(f),
which, as presently proposed, requires an
Agency determination, but does not provide adequate guidance to
the Agency to consider in making its decision.
The Board
particularly requests comments as to whether such a determination
might be addressed through a variance
(or provisional variance)
proceeding.
(see the discussion entitled “Agency or Board
Action?”,
at the end of this opinion)
Subsection 811.110
(g) requires the owner or operator, upon
closure, to record a notation on deed to the property that
notifies any potential buyer of the property that the land has
been used as a landfill and that its use is restricted.
The
notation from the deed may be removed only if the owner or
operator demonstrates that all wastes are removed from the
facility.
Additional postclosure care requirements for MSWLF units are
specified at Sections 811.111(c) and 811.111(d).
Section 811.111
(c)
extends the minimum postclosure care period to 30 years from
15 years for NSWLF units to comply with the minimum federal
requirement at 40 CFR 258.61
(1992).
The Board notes that a
similar change has been proposed at Section 811.303, which
specifies the requirements for establishing the design period for
chemical and putrescible waste landfills.
Section 811.111(d) (1)
requires the owner or operator of MSWLF unit to provide
a
description of the planned uses of the property during the
postclosure care period.
Further,
Section 811.111(d) (2)
specifies that such uses must not disturb the integrity of the
final cover,
liner, or any other components of the containment
system, unless such uses are necessary to comply with the
requirements of Part 811.
Section 811.111(d) (3)
requires the
Agency to approve any other disturbances if the owner or operator
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demonstrates the disturbance will not increase the potential
threat to human health or the environment.
The Board notes that Section 811.111(d) (3), which,
as
presently proposed, requires an Agency determination, but does
not provide adequate guidance to the Agency to consider in making
its decision.
The Board particularly requests comments as to
whether such a determination might be addressed through a
variance
(or provisional variance) proceeding.
(see the
discussion entitled “Agency or Board Action?”, at the end of this
opinion)
Recordkeepinq Requirements
(Section 811.110)
The instant proposal prescribes recordkeeping requirements
applicable to MSWLF units at Section 811.112.
The Board notes
that these requirements are in addition to the existing
recordkeeping requirements of Parts 812 and 813.
Section 811.112
requires the owner or operator to maintain an operating record at
the site or in a location specified by the Agency.
Further, the
amendments specify the type of information that must be retained
in the operating record, which includes location restriction
demonstrations,
inspection records, gas monitoring results,
groundwater monitoring, financial assurance documentation, etc.
Design period (Section 811.303)
The revisions to Section 811.303 reflect the minimum 30-year
postclosure care period required for MSWLF units under the
Subtitle D Regulations.
The proposed changes to Section
811.303(a)
clarify that the minimum postclosure care period for
putrescible waste landfills is 30 years.
Further,
Section
811.303(a)
specifies that any reduction of the postclosure care
period at a MSWLF unit must be in accordance with Section
811.303(d), which as drafted requires an Agency determination.
Again,
the Board questions whether
Section 811.303(d)
provides
adequate guidance for the Agency to consider in making its
decision.
In view of this, the Board particularly requests
comments as to whether such a determination should be addressed
through an adjusted standard proceeding.
(see the discussion
entitled “Agency or Board Action?”, at the end of this opinion)
Also,
the Board notes that it has added the term “postclosure
care” at end of Sections 811.303(b)
and 811.303(c) for purposes
of clarity.
Groundwater Monitoring Program and Corrective Action
(Sections
811.319.
811.324. 811.325. and 811.326)
The proposed amendments to Section 811.319 include a number
of additional requirements applicable to MSWLF units.
The
proposed changes are described below.
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Detection Monitoring
Section 811.319(a) (1) (A) requires groundwater monitoring to
be continued for a minimum period of 30 years after closure.
This change reflects the 30—year minimum postclosure care
period required by the Subtitle D Regulations.
A similar
change
is proposed at Section 811.319(a) (1) (C).
Section 811.319(a) (3) (C) requires an operator of
a MSWLF
unit to monitor each monitoring well for the organic
chemicals listed in Section 811.319(a) (3) (A)
on an annual
basis, which is the minimum monitoring frequency under the
Subtitle 0 Regulations.
Assessment Monitoring
The additional requirements applicable to MSWLF units have
been proposed at Section 811.319(b) (5).
Essentially the owner or operator of a MSWLF unit is
required to monitor the groundwater for the constituents
listed in 40 CFR 258.Appendix II during assessment
monitoring
(Section 81l.319(b)(5)(A)).
The list contains
approximately 300 inorganic and organic constituents.
If
any constituents are detected, within
14 days obtaining the
sampling results,
a notice identifying the such constituent
must be placed in the operating record and the Agency must
be notified (Section 811.319(b)(5)(B)).
The owner or
operator is required to establish background concentrations
for the detected constituents (section 811.319(b) (5) (C)).
If any constituent concentration exceeds an applicable
groundwater quality standard, the owner or operator must
place a notice in the operating record identifying such
constituents and notify the Agency, officials of the local
municipality or county, and all persons who own land or
reside on land that directly overlies any part of the plume
of contamination if the plume has migrated off—site.
Remedial/Corrective Action
At the outset, the Board notes that the term “remedial
action” used in the Board’s existing regulations has the
same meaning as the term “corrective action” used in the
Subtitle D Regulations.
However, the term “corrective
action” has been used in the instant proposal in relation to
the NSWLFS since the same terminology has been used in the
Act.
Since the existing landfill regulations do not prescribe
detail requirements for the corrective action procedures,
the Board has proposed the requirements of the Subtitle 0
16
Regulations relating assessment of corrective action
measures
(40 CFR 258.56), selection of remedy
(40 CFR
258.57), and implementation of corrective action
(40 CFR
258.58)
in the new Sections 811.324,
811.325, and 811.326.
Assessment of corrective action measures (Section 811.324)
The assessment of corrective action measures is triggered
when the groundwater impact assessment,
performed in
accordance with Section 811.319(c),
indicates that
corrective action is needed or
if the assessment monitoring
indicates that a confirmed exceedance above the applicable
groundwater quality standard is attributable to the
facility.
The Board notes that these triggers for
assessment of corrective action measures,
specified at
Section 811.324(a)
are the same as those specified for
remedial action under Section 811.319(d).
The Board finds
them to be consistent with the triggers specified in the
Subtitle D Regulations.
Section 811.324(b) requires the owner or operator to
complete the evaluation alternative corrective action
measures within a reasonable period of time.
The Board
notes that the instant proposal requires the Agency to
specify the time period in the facility’s permit.
The Board
requests comments on whether specifying a specific time
limit would be a more workable alternative.
Section 811.324(c)
requires the owner or operator to
continue monitoring
in accordance with the assessment
monitoring program.
Section 811.324(d) requires the evaluation of corrective
action measure to meet the requirements and objectives of
Section 811.325 and specifies a list of items that the owner
or operator must address in the assessment.
The items
include time required to complete the remedy, cost of
implementation, reliability, ease of implementation, and
institutional requirements.
Finally, Section 811.324(e)
requires the owner or operator
to hold a public meeting, prior to the selection of a
remedy, to discuss the results of the assessment of
corrective measures.
Selection of Remedy
(Section 811.325)
The owner or operator is required to select one or more
remedies based on the results of the assessment of
corrective measures.
The selected remedy must meet the
objectives specified in Section 811.325(b), which require
that the remedy must be protective of human health and
17
environment, attain groundwater quality standards, control
the sources of release, and comply with the standards of
waste management during the implementation phase.
Section
811.324(c)
specifies the criteria that must be considered in
selecting the remedy.
Section 811.324(d)
requires the owner or operator to specify
the time schedules for initiating and completing the
selected remedy.
The Agency is required by Section
811.324(d) (2)
to specify the time schedules in the
facility’s permit.
The factors that must considered by the
owner or operator to specify the time schedules are
prescribed in Section 811.324(d) (3).
Section 811.324(e)
requires the Agency to determine that
remediation of a release is not required upon a
demonstration by the owner or operator that the:
(i) the
groundwater is contaminated by multiple sources and cleanup
of the contamination resulting from the MSWLF will not
result in significant reduction in risk;
(ii) contaminated
groundwater is not a source currently or reasonably expected
to be used as source of drinking water and is not
hydraulically connected to other sources of drinking water;
(iii)
remediation is not technically feasible; or
(iv)
unacceptable cross media impact would result from
remediation.
However,
an Agency determination will not
affect the State’s authority to require the owner or
operator undertake source control or other measures.
Implementation of Corrective Action
(Section 811.326)
The requirements relating to the implementation of the
corrective action is set forth in this Section.
Section
811.325 (a) (1)
requires the owner or operator to establish a
corrective action groundwater monitoring program, which at
minimum meets the assessment monitoring requirements,
indicates the effectiveness of the remedy, and demonstrates
compliance with the groundwater quality standards.
The
owner or operator is required by section 811.325(a) (3) to
take any necessary interim measures to protect human health
and environment.
Section 811.325(b)
requires the owner or
operator to implement alternative methods to achieve
compliance if the selected remedy fails to achieve
compliance.
The Agency must be notified prior to the
implementation of any alternative methods.
If the owner or operator determines that compliance cannot
be achieved by currently available methods, the owner or
operator is required by Section 811.325(c) to obtain a
certification to that effect, by a qualified groundwater
scientist or a determination by the Agency.
The owner or
operator is required to implement alternate measures to
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18
control the source of contamination or for removal of
equipment, units, devices, or structures.
The remedy is considered to be complete when compliance is
achieved with the groundwater quality standards over a
period of three years.
Section 811.325(e)
allows the Agency
to specify alternative time period by giving consideration
to the factors listed under Section 811.325(e) (2), which
include extent and concentration of release,
contaminant
characteristics, groundwater flow, etc.
Upon completion of
the remedy, the owner or operator is required to obtain a
certification by a qualified groundwater scientist or a
determination by the Agency that the remedy is completed.
Load checking
(Section 811.323)
The proposed amendments to section 811.323 require the load
checking program at MSWLF units to include the inspection of
incoming waste loads for polychiorinated biphenyl
(PCB) wastes in
addition to checking for hazardous wastes.
Financial Assurance Requirements
(Section 811.Subpart G)
Applicability (Section 811.700)
The amendments to Section 811.700 remove the exemption
applicable to units of local governments from providing financial
assurance at MSWLFs.
Section 811.700(f) requires the owners or
operators of MSWLFs to provide financial assurance for closure,
postclosure, and corrective action.
The Board notes that the
existing regulations do not require financial assurance for
corrective action.
Written Cost estimate (Section 811.704)
The amendments at Section 811.704(k)
specify the
requirements for the written cost estimate for corrective action
at MSWLFS.
Essentially, the owner or operator of a MSWLF unit is
required to prepare a detailed cost estimate,
in current dollars,
of the cost hiring a third party to perform the corrective
action.
The owner or operator is required to adjust the cost
estimate annually for inflation.
The cost estimate must be
increased if changes in the corrective action program increases
the maximum cost of corrective action.
Requirements are also
prescribed to allow the owner or operator to reduce the
corrective action cost estimate if such estimate exceeds the
maximum remaining costs of the corrective action.
Lastly, the
owner or operator is required to provide coverage until released
from the financial assurance requirements.
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Revision of Cost Estimate (Section 811.705)
The proposed amendments at Section 811.705(d)
requires the
owner or operator of a MSWLF unit to adjust the cost estimates of
closure, postclosure, and corrective action for inflation on an
annual basis.
Section 811.705(d)
also specifies the time period
during which such adjustments must be made.
Mechanisms for Financial Assurance (Section 811.706)
The proposed amendments clarify the applicability of the
various mechanisms for providing financial assurance for
corrective action at MSWLF units.
In addition, Section
811.706(b) requires the owner or operator to ensure that:
(i) the
amount assured is sufficient to cover the costs of closure,
postclosure care, and corrective action sufficient funds; and
(ii) the funds will be available in a timely and fashion when
needed.
Section 811.706(c) specifies the dates at which the
owner or operator must provide financial assurance.
The proposed amendments to Sections 811.710
(trust fund),
811.711(surety bond guaranteeing payment),
811.712
(surety bond
performance), and 811.713
(letter of credit) clarify the
applicability of the different mechanisms for providing financial
assurance for closure, postclosure care and corrective action at
MSWLFs.
The substantive requirements of the mechanisms have not
been changed.
Editorial Changes
The existing regulations under Section 811.Subpart G
prescribe requirements applicable to the operator of a facility.
However, the Subtitle D Regulations refer to “owner and
operator.”
The Board notes that its intent has always been that
the owner is the operator if there is no other person operating
the disposal facility operator, as indicated by the definition of
“owner” at 35 Ill.
Adm. Code 807.104
(see discussion under
Definitions-Section 810.103).
The Board proposes to amend the
Subpart G requirements to include the terms “owner and operator”
at all locations of the text where the term “operator
“
has been
used in order to avoid any confusion regarding the applicability
of the regulations.
The Board notes that it intends to make
similar changes to other sections of the regulations during the
comment period.
The Board also notes that it has proposed a
definition of the term “owner” under Section 810.103 to clarify
its intent.
Part 814
The proposed amendments to the existing landfill regulations
of Part 814 clarify the applicability of the rules, prescribe
permitting requirements, and additional landfill standards for
0
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existing NSWLF units and lateral expansions.
Applicability (Section 814.101)
Section 814.101 clarifies the applicability of the Part 814
regulations to existing MSWLF units and lateral expansions.
The
existing MSWLF units are required to comply with the interim
permit requirements in addition to complying with permitting
requirements under the existing regulations
(see discussion under
regulatory framework).
Compliance Date (Section 814.102)
The existing MSWLF units and lateral expansions are required
to comply with requirements of part 814 by October
9,
1993,
notwithstanding any delayed compliance requirement under the
existing regulations.
Permit Requirements for Existing MSWLF Units and Lateral
expansions (Sections 814.107 and 814.108)
The Board notes that a detailed discussion regarding the
permitting requirements has been provided under the section
addressing the regulatory framework in today’s opinion.
Standards for Existing landfills that Remain Open for more than
Seven Years (Section 814.Subpart C)
Applicable standards (Section 814.302)
The amendments at Section 814.302(c) prescribe additional
requirements for existing MSWLF units.
Section 814.302(c) (1)
requires the owner or operator to comply with the location
standard at Section 811.302(e), which deals with the airport
restrictions.
The existing NSWLF units are also subject to the
foundation mass stability standards at Sections 811.304 and
811.305.
The amendments at Section 814.302(d)
prescribe additional
requirements for lateral expansions.
The lateral expansions are
subject to the airport restrictions (Section 811.302(e)),
foundation mass stability standards (Sections 811.304 and
811.305),
liner and leachate collection system (Sections 811.306
811.307, and 811.308), and groundwater impact assessment
requirements (Section 811.317).
Standards for Existing landfills that must Initiate closure
Within Seven Years
(Section 814.Subpart
D)
Applicable standards (Section 814.402)
The amendments at Section 814.402(c) prescribe additional
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requirements for existing MSWLF units.
Section 814.402(c) (1)
requires the owner or operator to comply with the location
standard at Section 811.302(e), which deals with the airport
restrictions.
The existing MSWLF units are also subject to the
foundation mass stability standards at Sections 811.304 and
811.305.
The amendments at Section 814.402(d) prescribe additional
requirements for lateral expansions.
The lateral expansions are
subject to the airport restrictions
(Section 811.302(e)),
foundation mass stability standards (Section 811.304 and
811.305),
liner and leachate collection system
(Sections 811.306,
811.307, and 811.308), and groundwater impact assessment
requirements (811.317),
groundwater monitoring system
requirements (Section 811.318), and groundwater quality standards
(Section 811.320).
Editorial Correction
The Board notes that an editorial correction has been made
at Section 814.501(b), which specifies the closure requirement
for landfills that cannot meet the applicable standards of Part
814.
The Board notes that due to an oversight, Section
814.501(b)
does not provide any reference to Subpart 0 landfills,
which are also covered by this Section.
The Board notes that
Section 814.401 requires landfills that cannot comply with the
applicable requirements of Section 814.Subpart D to close
in
accordance with Section 814.Subpart E.
The Board is proposing to
make this correction to avoid any confusion regarding the
applicability of Subpart E requirements.
In this regard the
Board notes that it has received a number of calls from the
regulated community requesting clarification regarding Section
814.510(b).
In view of this,
Section 814.501(b)
has been
corrected by including Subpart D landfills.
APPENDIX
AGENCY OR BOARD ACTION?
Section 7.2(a) (5)
of the Act requires the Board to specify
which decisions USEPA will retain.
In addition,
the Board is to
specify which State agency is to make decisions,
based on the
general division of functions within the Act and other Illinois
statutes.
In situations in which the Board has determined that USEPA
will retain decision-making authority, the Board has replaced
“Regional Administrator” with USEPA,
so as to avoid specifying
which office within USEPA is to make a decision.
In a few instances in identical in substance rules,
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decisions are not appropriate for Agency action pursuant to a
permit application.
Among the considerations in determining the
general division of authority between the Agency and the Board
are:
1.
Is the person making the decision applying a Board
regulation,
or taking action contrary to
(“waiving”)
a Board
regulation?
It generally takes some form of Board action to
“waive” a Board regulation.
2.
Is there a clear standard for action such that the
Board can give meaningful review to an Agency decision?
3.
Does the action result in exemption from the permit
requirement itself?
If so, Board action is generally
required.
4.
Does the decision amount to “determining, defining or
implementing environmental control standards” within the
meaning of Section 5(b)
of the Act.
If so,
it must be made
by the Board.
There are four common classes of Board decision:
variance,
adjusted standard,
site specific rulemaking, and enforcement.
The first three are methods by which a regulation can be
temporarily postponed (variance)
or adjusted to meet specific
situations (adjusted standard or site specific rulemaking).
Note
that there often are differences in the nomenclature for these
decisions between the USEPA and Board regulations.
EDITORIAL CONVENTIONS
As a final note, the federal rules have been edited to
establish a uniform usage throughout the Board’s regulations.
For example, with respect to “shall”,
“will”, and “may”
—
“shall”
is used when the subject of a sentence has to do something.
“Must” is used when someone has to do something, but that someone
is not the subject of the sentence.
“Will” is used when the
Board obliges itself to do something.
“May”
is used when choice
of a provision is optional.
“Or” is used rather than “and/or”,
and denotes “one or both”.
“Either”...”or” denotes “one but not
both”.
“And” denotes “both”.
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23
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion was
adopted on the
7~
day of
~
,
1993,
by a vote of .4~C
I
________________
Thorothy M. /Gunn,
Clerk
Illinois c~bl1utionControl Board
0tL,2-~3~5
