ILLINOIS POLLUTION CONTROL BOARD

April 22! 1993

IN THE MATTER OF:          

)

AMENDMENTS TO LANDFILL      

)

P92-19

REGULATIONS: DELETION OF      

)

(Rulemaking)

35 ILL. ADM. CODE 811.310(d) (1) (F)

AND 813.106(b) PURSUANT TO     

)

WASTE MANAGEMENT of ILL. v. IPCB 

)

(1st Dist. 1992)

Proposed Rule. Second Notice.

OPINION AND ORDER OF THE BOARD (by J. Anderson):

On June 11, 1992, the appellate court affirmed in part and

reversed in part portions of the Board’s landfill regulations

(P88-7) appealed by Waste Management of Illinois, Inc. (Waste

Management) 

Waste Management of Illinois, Inc. v. IPCB (1st

Dist. 1992) 

231 Ill.App.3d 278, 595 N.E.2d 1171. The appellate

court’s mandate was issued on August 13, 1992.

In all respects but two, the appellate court rejected the

challenges to the Board’s landfill regulations. (See Ex. 1.)

The two provisions that the appellate court found invalid and

which the Board proposes to delete are as follows:

35111. Adm. Code 811.310(d) (1) (F)

d)  Parameters to be monitored

(1) All below ground monitoring devices shall be monitored

for the following parameters at each sampling interval:

delete the following

(F) Any compound on the list of air toxics,

adopted by the Board pursuant to Section 9.5

of the Act, which is expected to be produced

in the landfill unit.

35 Iii. Adm. Code 813.106(b)

delete the following

(b) Any Agency action to deny a permit or to grant a

permit with conditions will not be deemed final for

the purposes of appeal if the applicant has

requested Agency reconsideration of that action

prior to the filing of a petition pursuant to this

Section.

—

2

Regarding 35 Ill. Adm. Code 811.310(d) (1) (F), the appellate

court first noted that Section 9.5(c) of the Environmental

Protection Act (Act), 415 ILCS 5/9.5(c) (1992), specifically

provides that the public hearing and comment provisions of

Section 27(b) of the Act, the Economic Impact Study (EcIS)

requirements, shall not apply to the air toxics contaminants list

rulemaking.1 The court concluded that the Board, by

incorporating in its landfill regulations the not yet promulgated

air toxics list, failed to meet the procedural requirements of

Section 27(b) of the Act. Waste Management, 595 N.E.2d at 1177—

1178. We note that this holding will have little, 

any,

precedential effect, in that P.A. 87—860, signed by the Governor

on July 1, 1992, deletes the Section 27(b) EcIS requirements from

the Act.

Regarding 35 Ill. Adm. Code 813.106(b), the appellate court,

citing prior case law, stated that the Agency has no authority

under the Act to reconsider its decisions, and thus the Board did

not have statutory authority to purport to delay the finality of

an Agency decision by rule. Section 40 of the Act gives an

applicant for a permit 35 days to appeal an Agency decision.

Waste Management, 595 N.E.2d at 1183-515. We are particularly

concerned that an applicant would delay an appeal beyond the 35

days in false reliance on an invalid Board rule.

PROCEDURAL HISTORY

On October 1, 1992, the Board issued a First Notice opinion

and order for the purpose of deleting the two provisions that the

court found invalid and for accepting comment as to whether a

third provision, 35 Ill. Adm. Code 811.310(c) (5) should also be

deleted because it references 35 Ill. Adm. Code 811.310(d) (1) (F)

First Notice was published in the Illinois Register on

November 6, 1992. 16 Ill. Reg. 16920 and 16962. Subsequent to

the publication of first notice, the Board received five

comments. Hearings were held in this matter on February 26,

1993, and on March 16, 1993, in Chicago and Springfield,

Illinois, respectively. At the first hearing, Ms. Jennifer Muss,

Assistant Corporation Counsel for the City of Chicago, and Ms.

Ann Straw of Waste Management of Illinois, Inc. were present.

Mr. Mark Gurnik of the Illinois Environmental Protection Agency

(Agency) appeared at the second hearing. There were no members

of the public present at either hearing. No testimony or

exhibits were presented at either hearing. No comments were

filed with the Board during the 14-day comment period following

the March 16, 1993 hearing.

1The Act was previously codified at Ill. Rev. Stat. (1991), oh.

111½, pars. 1001 ~

-03t0

3

DISCUSSION

As previously stated, the Board received several comments in

response to First Notice publication. On November 12, 1992, the

Illinois Department of Commerce and Community Affairs commented

that it had determined that the proposed amendments would not

significantly impact small businesses. (P.C. #1.)

On November 16, 1992, Browning-Ferris Industries (BFI) filed

comments urging the Board to take the opportunity presented in

the rulemaking to ensure that the solid waste landfill

regulations pertaining to gas monitoring are consistent with any

New Source Performance Standard (NSPS) that may be issued by the

United States Environmental Protection Agency (USEPA). (P.C.

#2.) Accordingly, BFI proposed language, to be placed in a new

subsection (e) of 35 Ill. Adm. Code 811.310, that would ensure

that facilities subject to the NSPS would comply with the

applicable Clean Air Act requirements in case of inconsistency

with the solid waste landfill regulations.

On November 20, 1992, the Agency filed comments stating that

it does not object to the deletion 35 Ill. Adm. Code

811.310(d) (1) (F) and 813.106(b) because the court found the

subsections to be invalid. (P.C. #3.) With regard to 35 Ill.

Adm. code 811.310(d) (1) (F), the Agency noted that the court

opinion seems to suggest that once the Board has properly adopted

the list of air toxic contaminants pursuant to Section 27 of the

Act, 35 Ill. Adm. Code 811.310(d) (1) could be amended to

reference the list once again. Accordingly, the Agency suggested

that the Board readopt the provision if and when it adopts the

list of air toxic contaminants.

The Agency also noted that 35 Ill. Adm. Code 811.310(c) (5)

should be deleted because it is so closely tied to subsection

(d) (1) (F). The Agency also noted that if a list of air toxic

contaminants is promulgated in the future, subsection(c) (5)

should be readopted simultaneously with the readoption of

subsection (d) (1) (F)

Finally, on December 23, 1992, Waste Management of Illinois

filed comments supporting the deletion of 35 Ill. Adm. Code

811.310(d) (1) (F) and 813.106(b) 

(P.C. #5.)

Based on the appellate court opinion, and after considering

the comments filed with the Board, the Board proposes to delete

35 Ill. Adm. Code 811.310(c) (5) and (d) (1) (F), and 35 Ill. Adm.

Code 813.106(b) 

The Board also has made several nonsubstantive

changes in response to comments from the Administrative Code Unit

of the Secretary of State’s Office. (P.C. #4.) These changes

are reflected in Board’s second notice order. We decline, at

this juncture, to accept BFI’s proposal to add a new subsection

(e) to 35 Ill. Adm. Code 811.310. The Board initiated this

OtL~O3II

4

rulemaking solely for the purpose of deleting 35 Ill. Adm. Code

811.310(d) (1) (F) and 813.106(b) and for accepting comment

regarding the deletion of 35 Ill. Adm. Code 811.310(c) (5) 

BFI

is free to initiate a separate proposal if it wishes to pursue

its concerns. Accordingly, the Board will not consider BFI’s

proposed amendment in this docket.

ORDER

The Board directs the Clerk to cause the filing of the

following proposal for second notice with the Joint Committee on

Administrative Rules:

Section

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER 1: SOLID WASTE AND SPECIAL WASTE HAULING

PART 811

STANDARDS FOR NEW SOLID WASTE LANDFILLS

SUBPART A: GENERAL STANDARDS FOR ALL LANDFILLS

811.101

811.102

811.103

811. 104

811. 105

811. 106

811. 107

811.108

811. 109

811.110

811.111

Section

811.201

811.202

811.203

811.204

811.205

811.206

811.207

Scope and Applicability

Location Standards

Surface Water Drainage

Survey Controls

Compaction

Daily Cover

Operating Standards

Salvaging

Boundary Control

Closure and Written Closure Plan

Postclosure Maintenance

SUBPART B: INERT WASTE LANDFILLS

Scope and Applicability

Determination of Contaminated Leachate

Design Period

Final Cover

Final Slope and Stabilization

Leachate Sampling

Load Checking

SUBPART C: PUTRESCIBLE AND CHEMICAL WASTE LANDFILLS

Scope and Applicability

Facility Location

Section

811.301

811.302

0k 1-0312

811.303

811.304

811.305

811.306

811.307

811.308

811.309

811.310

811.311

811.312

831.313

811.314

811. 315

811.316

811.317

611.318

811.319

813 .320

811.321

811. 322

811.323

Design Period

Foundation and Mass Stability Analysis

Foundation Construction

Liner Systems

Leachate Drainage System

Leachate Collection System

Leachate Treatment and Disposal Systems

Landfill Gas Monitoring

Landfill Gas Management Systems

Landfill Gas Processing and Disposal Systems

Intermediate Cover

Final Cover System

Hydrogeological Site Investigations

Plugging and Sealing of Drill Holes

Groundwater Impact Assessment

Design, Construction, and Operation of Groundwater

Monitoring Systems

Groundwater Monitoring Programs

Groundwater Quality Standards

Waste Placement

Final Slope and Stabilization

Load Checking Program

Section

SUBPART D: MANAGEMENT OF SPECIAL WASTES AT LANDFILLS

811.401

811.402

811.403

811.404

811.405

811.406

Scope and Applicability

Notice to Generators and Transporters

Special Waste Manifests

Identification Record

Recordkeeping Requirements

Procedures for Excluding Regulated Hazardous Wastes

SUBPART E: CONSTRUCTION QUALITY ASSURANCE PROGRAMS

Section

811.501

811.502

811.503

811.504

811.505

811.506

811.507

811.508

811.509

Section

811.700

811.701

811.702

Scope and Applicability

Duties and Qualifications of Key Personnel

Inspection Activities

Sampling Requirements

Documentation

Foundations and Subbases

Compacted Earth Liners

Geomembranes

Leachate Collection Systems

SUBPART G: FINANCIAL ASSURANCE

Scope, Applicability and Definitions

Upgrading Financial Assurance

Release of Financial Institution

0 L~i

-0313

6

Application of Proceeds and Appeals

Closure and Postclosure Care Cost Estimates

Revision of Cost Estimate

Mechanisms for Financial Assurance

Use of Multiple Financial Mechanisms

Use of a Financial Mechanism for Multiple Sites

Trust Fund for Unrelated Sites

Trust Fund

Surety Bond Guaranteeing Payment

Surety Bond Guaranteeing Performance

Letter of Credit

Closure Insurance

Self—Insurance for Non—commercial Sites

Financial Assurance Forms

Trust Agreement

Certificate of Acknowledgment

Forfeiture Bond

Performance Bond

Irrevocable Standby Letter of Credit

Certificate of Insurance for Closure and/or

Postclosure Care

Operator’s Bond Without Surety

Operator’s Bond With Parent Surety

Letter from Chief Financial Officer

AUTHORITY: Implementing Sections 5, 21, 21.1, 22, 22.17 and 28.1

and authorized by Section 27 of the Environmental Protection Act

(Ill. Rev. Stat. 1989, ch. 111 1/2, pars. 1005, 1021, 1021.1,

1022, 1022.17, 1028.1 and 1027) 415 ILCS 5/5, 21, 21.1, 22,

22.17, 28.1, and 27.

SOURCE: Adopted in R88—7 at 14 Ill. Req. 15861, effective

September 18, 1990; amended in P92—19 at 17 Ill. Peg.

effective 

____________________

NOTE: capitalization indicates statutory language.

Section 811.310 Landfill Gas Monitoring

a)  This Section applies to all units that dispose

putrescible wastes.

b)  Location and Design of Monitoring Wells

1)  Gas monitoring devices shall be placed at

intervals and elevations within the waste to

provide a representative sampling of the

composition and buildup of gases within the unit.

2)  Gas monitoring devices shall be placed around the

ii.

1-031

811.703

811.704

811.705

811.706

811.707

811.708

811.709

811.710

811.711

811.712

811. 713

811.714

811.715

811.AppendiX A

Illustration A

Illustration B

Illustration C

Illustration D

Illustration E

Illustration F

Illustration G

Illustration H

Illustration I

7

unit at locations and elevations capable of

detecting migrating gas from the ground surface to

the lowest elevation of the liner system or the

top elevation of the groundwater, whichever is

higher.

3)  A predictive gas flow model may be utilized to

determine the optimum placement of monitoring

points required for making observations and

tracing the movement of gas.

4)  Gas monitoring devices shall be constructed from

materials that will not react with or be corroded

by the landfill gas.

5)  Gas monitoring devices shall be designed and

constructed to measure pressure and allow

collection of a representative sample of gas.

6)  Gas monitoring devices shall be constructed and

maintained to minimize gas leakage.

7)  The gas monitoring system shall not interfere with

the operation of the liner, leachate collection

system or delay the construction of the final

cover system.

8)  At least three ambient air monitoring locations

shall be chosen and samples shall be taken no

higher than 0.025 meter (1 inch) above the ground

and 30.49m (100 feet) downwind from the edge of

the unit or at the property boundary, whichever is

closer to the unit.

c)  Monitoring Frequency

1)  All gas monitoring devices, including the ambient

air monitors shall be operated to obtain samples

on a monthly basis for the entire operating period

and for a minimum of five years after closure.

2)  After a minimum of five years after closure,

monitoring frequency may be reduced to quarterly

sampling intervals.

3)  The sampling frequency may be reduced to yearly

sampling intervals upon the installation and

operation of a gas collection system equipped with

a mechanical device such as a compressor to

withdraw gas.

4)  After a minimum of five years or, in the case of

UI L~1-0315

8

landfills, other than those used exclusively for

disposing of wastes generated at the site, a

minimum of fifteen years after closure, monitoring

shall be discontinued if the following conditions

have been met for at least one year:

A)  The concentration of methane is less than

five percent of the lower explosive limit in

air for four consecutive quarters at all

monitoring points outside the unit; and

B)  Monitoring points within the unit indicate

that methane is no longer being produced in

quantities that would result in migration

from the unit and exceed the standards of

subsection (a) (1).

5)  The operator shall include in the permit, a list

of air toxics to be monitored in accordance with

subsection (d). The Agency shall determine the

monitoring frequency of the listed compounds based

~i~on their emission rates and ambient levels in

the atmosphere.

d)  Parameters to be Monitored

1)  All below ground monitoring devices shall be

monitored for the following parameters at each

sampling interval:

A) Methane;

B) Pressure;

C) Nitrogen;

D) Oxygen;

E) Carbon dioxide; and

F)  Any compound on the list of air toxics,

adopted by the Board pursuant to Section 0.5

of the Act, which is exnr’c~tedto be rn~oduccd

in the landf~’lun~.

2)  Ambient air monitors shall be sampled for methane

namely when the average wind velocity is less than

8 kilometers (five miles) per hour at a minimum of

three downwind locations 30.49 meters (100 feet)

from the edge of the unit or the property

boundary, whichever is closer to the unit.

0 I

1-0316

9

3)  All buildings within a facility shall be monitored

for methane by utilizing

continuous detection

devices located at points where methane might

enter the building.

(Source:

Amended at 17 Ill. Peg.

_________,

effective

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE C:

WASTE DISPOSAL

CHAPTER I:

POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 813

PROCEDURAL REQUIREMENTS FOR PERMITTED LANDFILLS

SUBPART A:

GENERAL PROCEDURES

Scope and Applicability

Delivery of Permit Application

Agency Decision Deadlines

Standards for Issuance of a Permit

Standards for Denial of a Permit

Permit Appeals

Permit No Defense

Term of Permit

Transfer of Permits

Adjusted Standards to Engage in Experimental Practices

Agency Review of Contaminant Transport Models

ADDITIONAL

PROCEDURES FOR MODIFICATION AND

SIGNIFICANT MODIFICATION OF PERMITS

Initiation of a Modification or Significant

an Approved Permit

Specific Information Required For a Significant

Modification To Obtain Operating Authorization

Procedures For A Significant Modification of an

Approved Permit

SUBPART C: ADDITIONAL PROCEDURES FOR THE RENEWAL OF PERMITS

Section

813.301

813.302

813.303

Time of Filing

Effect of Timely Filing

Information Required For a Permit Renewal

Section

813 .101

813.102

813.103

813.104

813.105

813.106

813.107

813.108

813.109

813 .110

813 .111

SUBPART B:

Section

813.201

813.203

813 .204

Modification

813.202 Information Required For a Significant Modification of

fl I ~ 1-0317

10

813.304 Updated Groundwater Impact Assessment

813.305 Procedures for Permit Renewal

SUBPART D: ADDITIONAL PROCEDURES FOR INITIATION AND TERMINATION

OF TEMPORARY AND PERMANENT CLOSURE AND POSTCLOSURE

CARE

Section

813.401 Agency Notification Requirements

813.402 Certification of Closure

813.403 Termination of the Permit

SUBPART E: REPORTS TO BE FILED WITH THE AGENCY

Section

813.501 Annual Reports

813.502 Quarterly Groundwater Reports

813.503 Information to be Retained at or near the Waste

Disposal Facility

AUTHORITY: Implementing Sections 5, 21, 21.1, 22, 22.17 and

28.1, and authorized by Section 27 of the Environmental

Protection Act 1027 and 1028.1 (Ill. Rev. Stat. 1989, ch. 111

1/2, pars. 1005, 1021, 1021.1, 1022, 1022.17, 1028.1 and

1027) 415 ILCS 5/5, 21, 21.1, 22, 22.17, 28.1, and 27.

SOURCE: Adopted in P88-7 at 14 Ill. Peg. 15814, effective

September 18, 1990; amended in P92-19 at 17 Ill. Peg.

_______________ 

effective 

_______________)

NOTE: Capitalization indicates statutory language.

Section 813.106 Permit Appeals

a~ If THE AGENCY REFUSES TO GRANT OR GRANTS WITH

CONDITIONS A PERMIT THE APPLICANT MAY, WITHIN 35 DAYS,

PETITION FOR A HEARING BEFORE THE BOARD TO CONTEST THE

DECISION OF THE AGENCY. (Section 40(a) (1) of the Act)

The petition shall be filed, and the proceeding

conducted, pursuant to the procedures of Section 40 of

the Act and 35 Ill. Adm. Code 105.

b)  Any Agency action to deny a permit or to grant a permit

with conditions will not be deemed final for the

purposes of appeal if the applicant has requested

Agency reconsideration of that action prior to the

filing of a petition pursuant to this Section.

(Source: Amended at 17 Ill. Peg. 

__________,

effective

131 L~

1-0318

11

IT IS SO ORDERED.

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

Board, hereby certify that the above o~pinionand order was

adopted on the ~    

day of 

________________

1993 by a

vote of 

_______________

/~-

/7

//

/~

~~C

~Dorothy N. G~n, Clerk

Illinois Po2~ution Control Board

‘s.

-0319