ILLINOIS POLLUTION CONTROL
BOARD
September 23, 1993
IN THE MATTER OF:
EMERGENCY AMENDMENTS TO THE
)
R93-25
LANDFILL RULES FOR ON-SITE
)
(Rulemaking)
BURIAL OF DEAD ANIMALS IN
)
FLOOD-DISASTER COUNTIES
)
35 ILL. ADM. CODE 807.106
)
ADOPTED EMERGENCY RULE. FINAL ORDER.
OPINION AND ORDER OF THE BOARD (by C. A. Manning):
This matter comes before the Board on an September 15, 1993
proposal for emergency rulemaking filed by the Illinois
Environmental Protection Agency (Agency). The purpose of the
rulemaking is to allow the burial, without permit but subject to
conditions designated to protect human health and the
environment, of dead animals on the property upon which they are
found in all designated state and federal “disaster area”
counties,which have been impacted by the recent flooding of the
Mississippi River and its tributaries. As of September 15,
forty-three (43) counties had been so designated: Adams,
Alexander, Boone, Brown, Calhoun, Carroll, Cass, Cook, DuPage,
Fulton, Greene, Hancock, Henderson, Henry, Jackson, Jersey, Jo
Daviess, Kane, Knox, Lake, Lee, Madison, Mason,
Massac,
McHenry,
Mercer, Monroe, Morgan, Ogle, Peoria, Pike, Pope, Pulaski,
Randolph, Rock Island, Schuyler, Scott, Stephenson, St. Clair,
Union, Warren, Whiteside and Winnebago.
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
807.106 Emergency Exemption for On—Site Burial of Dead Animals in
Flood-Disaster Counties. The rule exempts the burial of dead
animals on the property on which they are found from the landfill
design, construction, operation and reporting requirements of 35
Ill. Adm. Code 807 through 815. Such burial must be conducted in
a manner which will not cause water pollution. Burial must also
be in compliance with the Illinois Dead Animal Disposal Act.
(Ill. Rev. Stat. 1991 ch. 8, par. 149—167(a), 225 ILCS 610/1.2—
19(a) (1992)). This rule will become effective upon filing with
the Secretary of State for a period of 150 days.
2
STATUTORY PROVISIONS
The Board presently anticipates rule filing will occur on or
about September 27, 1993.
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.
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.
3
THE AGENCY’S PROPOSAL
Description of the Emergency
The Agency’s September 15, 1993 three-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.
This 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.
The flooding of the Mississippi River and its
tributaries has resulted in dead animals that
have accumulated in areas affected by the
flood. Under the current landfill
regulations, the burial of these dead animals
may be considered conducting a waste disposal
operation without a permit. These dead
animals continue to pose a serious public
health risk. The purpose of this is to
exempt the burial of these dead animals from
the landfill regulations at 35 Ill. Adm. Code
Parts 807 through 814.
The expeditious disposal of these dead
animals through on-site burial will mitigate
the risks to public health, safety and
welfare. (Proposal, p. 1—2)
4
Description of the Proposed Amendments
The Agency describes its proposed amendments as follows:
The current landfill regulations at 35 Ill.
Adm. Code Parts 807 through 814 require
persons to obtain an Agency permit in order
to lawfully conduct a waste disposal
operation. The flooding of the Mississippi
River and its tributaries has resulted in
numerous dead animals that have accumulated
in areas affected by the flooding.
This Emergency Rulemaking proposal exempts
those persons who bury dead animals on the
property upon which they are found from
complying with the landfill permit
requirements.
Conditions have been included in this
proposal that are necessary to assure the
protection of public health. They include a
provision against the burial of dead animals
in a manner so as to cause or threaten to
cause water pollution. This Emergency
Rulemaking proposal is applicable to the
counties along Illinois’ western border,
which have been directly impacted and
threatened by the flooding of the Mississippi
River and its tributaries. (Proposal, p. 2)
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. 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 proceedings 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
5
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. The rule as proposed by the Agency and
adopted by the Board will allow for environmentally sound
disposal of dead animals, but will not require compliance with
the full range of standards applicable to general household waste
(which often contains chemicals which require disposal with
greater environmental precautions). The emergency exemption is
from rules in 35 Ill. Adm. Code Parts 807 through 815.
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 rule adopted by the Board is essentially the rule
proposed by the Agency. Some format changes and additions have
been made to comport with APA requirements. In consultation with
the Agency, the Board has moved the exemption section into Part
807, rather than placing it in Part 811 as proposed. The Board
believes that its placement in Part 807 will make the exemption
section easier for the affected community to locate, as Part 807
is the first of the series of Parts to which the exemption
applies, and is the Part which explains the inter—relationship of
all of the landfill rules. Additionally, as amendments to Part
811 are extensively involved in two other pending proceedings,
1
placement of the exemption in Part 807 will minimize
administrative problems.
Another change made in consultation with the Agency is
extension of the scope of the amendment. The proposal as filed
exempted on-site burial from the requirements of Parts 807
through 814, but not from the extensive recordkeeping and
reporting requirements applicable to on-site, unpermitted
landfills in Part 815. The Board and the Agency believe that
this recordkeeping and reporting would be unduly burdensome given
the nature of the dead animal waste being buried, and the
continuing requirement that burial be made in accordance with the
Illinois Dead Animal Disposal Act and in a manner to prevent
water pollution.
Finally, the Board observes that today’s emergency rule will
1
See In the Matter of: RCRA Subtitle D Amendments, R93—10
(September 15, 1993) and In the Matter of: Steel and Foundry
Industry Amendments to the Landfill Regulations (Parts 810—8151,
R90—26 (September 23, 1993.)
6
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 G: WASTE DISPOSAL
CHAPTER I: POLLUTION CONTROL BOARD
SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING
PART 807
SOLID WASTE
SUBPART A: GENERAL PROVISIONS
Section
807. 101
807
•
102
807.103
807.104
807
•
105
807.106
EMERGENCY
Authority, Policy and Purposes
Repeals
Severability
Definitions
Relation To Other Rules
Emergency Exemption for On-Site Burial of Dead Animals
in Flood-Disaster Counties
SUBPART B: SOLID WASTE PERMITS
Section
807.201
807
.
202
807.203
807.204
807.205
807
•
206
807. 2 07
807.208
807.209
807.210
807.211
807.212
807. 213
807. 214
Development Permits
Operating Permits
Experimental Permits
Former Authorization
Applications for Permit
Permit Conditions
Standards for Issuance
Permit No Defense
Permit Revision
Supplemental Permits
Transfer of Permits
Permit Revocation
Design, Operation, and Maintenance Criteria
Revised Cost Estimates
7
SUBPART C: SANITARY LANDFILLS
Section
807.301
807
.
302
807.303
807.304
807.305
807.306
807.307
807.308
807.309
807.310
807.311
807.312
807.313
807 .314
807.315
807.316
807.317
807.318
Section
807.501
807.502
807.503
807.504
807.505
807.506
807.507
807.508
807.509
807.523
807.524
Prohibition
Compliance with Permit
Methods of Operation
Equipment, Personnel and Supervision
Cover
Litter
Salvaging
Scavenging
Animal Feeding
Special Wastes
Open Burning
Air Pollution
Water Pollution
Standard Requirements
Protection of Waters of the State
Application
Operating Records
Completion or Closure Requirements
SUBPART
E: CLOSURE AND POST-CLOSURE CARE
Purpose, Scope and Applicability
Closure Performance Standard
Closure Plan
Amendment of Closure Plan
Notice of Closure and Final Amendment to Plan
Initiation of Closure
Partial Closure
Certification of Closure
Use of Waste Following Closure
Post—Closure Care Plan
Implementation and Completion of Post—Closure Care Plan
SUBPART F: FINANCIAL ASSURANCE FOR CLOSURE
AND POST—CLOSURE CARE
Section
807.600
807.601
807. 602
807.603
807.604
807.605
807.606
807.620
807.621
807.622
807.623
807.624
Purpose, Scope and Applicability
Requirement to Obtain Financial Assurance
Time for Submission of Financial Assurance
Upgrading Financial Assurance
Release of Financial Institution
Application of Proceeds and Appeal
Release of the Operator
Current Cost Estimate
Cost Estimate for Closure
Cost Estimate for Post-closure Care
Biennial Revision of Cost Estimate
Interim Formula for Cost Estimate
B
807.640
807. 641
807.642
807.643
807.644
807.661
807.662
807.663
807.664
807.665
807.666
Mechanisms for Financial Assurance
Use of Multiple Financial Mechanisms
Use of Financial Mechanism for Multiple Sites
Trust Fund for Unrelated Sites
RCPA Financial Assurance
Trust Fund
Surety Bond Guaranteeing Payment
Surety Bond Guaranteeing Performance
Letter of Credit
Closure Insurance
Self—insurance for Non—commercial Sites
SUBPART G:
SITE-SPECIFIC RULES AND EXCEPTIONS NOT OF
GENERAL
APPLICABILITY
Cretex Pressure Pipe, Inc. Concrete Waste Disposal Site
Financial Assurance Forms
A Trust Agreement
B Certificate of Acknowledgment
C Forfeiture Bond
D Performance Bond
E Irrevocable Standby Letter of
Credit
F Certificate of Insurance for Closure and/or
Post—Closure Care
G Operator’s Bond Without Surety
H Operator’s Bond With Parent Surety
I Letter from Chief Financial Officer
Old Rule Numbers Referenced
AUTHORITY: Implementing Sections 5, 21.1 and 22 and authorized
by Section 27 of the Environmental Protection Act (Ill. Rev.
Stat. 1991, ch. 111 1/2, pars. 1005, 1021.1, 1022 and 1027) 415
ILCS 5/5, 5/21.1, and 5/27 (1992)).
SOURCE: Adopted as an emergency rule and filed with the
Secretary of State July 27, 1973; amended at 2 Ill. Reg. 16,p.
3, effective April 10, 1978; codified at 7 Ill. Reg. 13636;
recodified
from Subchapter h to Subchapter i at 8 Ill. Reg.
13198; emergency amendment in R84—22A at 9 Ill. Reg. 741,
effective January 3, 1985, for a maximum of 150 days; amended in
R84—22B at 9 Ill. Reg. 6722, effective April 29, 1985; amended in
R84—22C at 9 Ill. Reg. 18942, effective November 25, 1985;
amended in R84—45 at 12 Ill. Reg. 15566, effective September 14,
1988; amended in R88—7 at 14 Ill. Reg. 15832, effective September
18, 1990; emergency amendment in R93—25 at 17 Ill. Req.
days.
effective
for a maximum .of 150
Section
807.700
APPENDIX A
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
ILLUSTRATION
APPENDIX B
SUBPART A: GENERAL PROVISIONS
9
Section 807.106
Emergex~cy Exemption For On—Site
EMERGENCY
Burial of Dead Animals in Flood—Disaster
Counties
~J..
This emergency exemption applies to counties that have
been declared federal or state disaster areas due to
flooding during the summer of 1993.
BOARD NOTE: As of the effective date of this Section.
the following counties have been declared federal or
Calhoun,State
disasterCarroll,areas:Cass, Adams,Cook, Alexander,DuPage.
Fulton,Boone,GreeneBrown,
1
Hancock, Henderson, Henry, Jackson, Jersey, Jo Daviess,
Kane, Knox. Lake, Lee, Madison, Mason, Massac, McHenry,
Mercer, Monroe, Morgan, Ogle, Peoria, Pike, Pop
Pulaski, Randolph, Rock Island, Schuyler, Scott,
Stephenson, St. Clair, Union, Warren, Whiteside and
Winnebago.
~j The burial of bodies or parts of bodies of dead
animals, poultry, or fish on the property upon which
they are found is exempt from the provisions of this
Part and from 35 Ill. Adm. Code 808 through 815.
~J
NotwithstarldjncT subsection (b). no person shall bury
bodies or. parts of bodies of dead animals, poultry or
fish:
~j so as to cause or threaten to cause water
pollution in violation of Section 12 of the Act
21
within 200 feet from the nearest potable water
supply well; or
~j within 1 foot of the water table.
~j Any person who disposes of bodies or parts of bodies of
dead animals, poultry or fish shall comply with the
Illinois Dead Animal Disposal Act, (Ill. Rev. Stat.
1991, ch. 8, pars. 149—167(a) 225 ILCS 610/1.2—19(a)
(.1992)1 and 8 Ill. Adni. Code 90.
~J
This exemption does not apply to bodies or parts of
dead animals, poultry or fish removed from the. property
upon which they are found.
(Source: Emergency rule added at 17 Ill. Reg.
_________
effective ______________________ for a maximum of 150 days)
IT IS SO ORDERED.
Sections 29 and 41 of the Environmental Protection Act, 415
10
ILCS 5/41 (1992), provides for appeal of final orders of the
Board within 35 days. The Rules of the Supreme Court of Illinois
e~~bl2i~‘f’i:lingrequirenients. (See also..~35 Ill. ‘Adm. COde
101 246, Motions for Reconsideration
)
I
“2
I, D.orothy M Gunn, Ckerk of tt~g,I,,l~.i~osPollution Control
&oard., hereby certify that the abç~ve~~T±h1orl
a~1d~-4.,rderwas
adopted on the
~
day of’
~
,
1993, by
a vote of~7~_.
Dorothy M ,~unn, Clerk
.. .‘.,
Illinois. P.6llution Control board