ILLINOIS POLLUTION CONTROL BOARD

June

17,

 1q93

IN THE MATTER OF:

)

ANENDMENTS TO LANDFILL

)

 R92-19

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)

)

Adopted Rule.

 Final Order.

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

(R88—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:

35

 111.

 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 Ill.

 Adrn.

 Code 8l3.106(bj

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.

0114.3-0363

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.

 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,

 if 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.

On April

22,

 1993,

 the Board issued a Second Notice opinion

and order.

 The Joint Committee on Administrative Rules

considered and issued a certificate of no objection to the

proposed rulemaking at its May 11,

 1993 meeting.

t4.3-O36t~

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 Iii.

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,

 in its Second

Notice opinion and order, proposed to delete 35 Iii.

 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 were

reflected in Board’s second notice order.

 We declined, however,

to accept BFI’s proposal to add

 a new subsection

(e)

 to 35 Ill.

L~3~O365

4

Athn.

 Code 811.310.

 The Board initiated this 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).

 The Board, however,

 informed

BFI that it is free to initiate a separate proposal if it wishes

to pursue its concerns.

ORDER

The Board hereby adopts for final Notice the following

amendments to 35

 Ill. Adm.

 Code 811 and 813.

 The Board hereby

directs the Clerk of the Board to cause the publication of these

amendments

 in the Illinois Register and to cause the filing of

the following amendments with the Administrative Code Unit of the

Secretary of State’s Office:

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE G:

 WASTE DISPOSAL

CHAPTER

I:

 POLLUTION CONTROL BOARD

SUBCHAPTER

i:

 SOLID WASTE AND SPECIAL WASTE HAULING

PART 811

STANDARDS FOR NEW SOLID WASTE LANDFILLS

SUBPART A:

 GENERAL STANDARDS FOR ALL LANDFILLS

Section

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

I

~i

—

Scope and Applicability

Facility Location

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

SUBPART

D:

 MANAGEMENT OF SPECIAL WASTES AT LANDFILLS

Section

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

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

FINANCIAL

ASSURANCE

5

Section

811.301

811.302

811.303

811.304

811.305

811.306

811.307

811.308

811.309

811.310

811.311

811. 312

811.313

811. 314

811.315

811.316

811.317

811.318

811.319

811.320

811.321

811.322

811.323

~3-B367

6

Scope, Applicability and Definitions

Upgrading Financial Assurance

Release of Financial Institution

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

 Bdnd 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 1991,

 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,

 28.17 and 27).

SOURCE:

 Adopted

 in R88-7 at

14

 Ill.

 Reg.

 15861, effective

September 18,

 1990;

 amended in R92—19 at

17

 Ill.

 Reg.

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

Gas

monitoring

devices

shall

placed

intervals and elevations within the waste to

provide a representative sampling of the

01 L~3-O368

811.700

 811.701

811.702

8 11. 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

Illustration G

Illustration H

Illustration

I

7

composition and buildup of gases within the unit.

2)

 Gas monitoring devices shall be placed around the

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.

 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

L~.3-O369

8

withdraw gas.

4)

 After a minimum of five years or,

 in the case of

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).

(()

U)fT~

fflC) I

1f1 r~ci

I fl

rl TU~J

ri~i

1(11fT

1.!.!

L11

~u~eecion

 (d).

 The Agcncy ohall dctcrminc thc

monitoring frcqucncy of thc liotcd compounds based

upon their cmi3sion rates and ambicnt levels in

;1r1u1r~Tr’r1

UVJ

rnr~

t-~i~flrd

~U~LUUflL

~‘~ULiOfl

9.5

 expcctcd to be

prr~r1rir!r~r1

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)

L~.3-O37O

5)

 Thc opcrator shall include

 in the permit,

a

 li-st

e-f

s..

—

A...

—

S.t.

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;

B)

 Carbon dioxide; and

F)

 Any compound on the hot of air taxies,

~‘

4- 1.

w~4

~‘

in the landfill unit.

9

from the edge of the unit or the property

boundary, whichever

is closer to the unit.

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.

 Reg.

________,

 effective

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE G:

 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

SUBPART B: ADDITIONAL PROCEDURES FOR MODIFICATION AND

SIGNIFICANT MODIFICATION OF PERMITS

Initiation of a Modification or Significant

Modification

Information Required For a Significant Modification of

an Approved Permit

813.203

 Specific Information Required For a Signifleant

Modification To Obtain Operating Authorization

813.204

 Procedures For A Significant Modification of an

Approved Permit

SUBPART

C:

 ADDITIONAL PROCEDURES FOR THE RENEWAL OF PERMITS

Section

~3-D37

Section

 813.101

813.102

813.103

813.104

813.105

813.106

813.107

813.108

813.109

813.110

813.111

Section

813.201

813.202

10

813.301

813.302

813.303

813.304

813.305

SUBPART

Section

813.401

813.402

813.403

Section

813.501

813.502

813.503

Time of Filing

Effect of Timely Filing

Information Required For a Permit Renewal

Updated Groundwater Impact Assessment

Procedures for Permit Renewal

D: ADDITIONAL PROCEDURES FOR INITIATION AND TERMINATION

OF TEMPORARY AND PERMANENT CLOSURE AND POSTCLOSURE

CARE

Agency Notification Requirements

Certification of Closure

Termination of the Permit

SUBPART E:

 REPORTS TO BE FILED WITH THE AGENCY

Annual Reports

Quarterly Groundwater Reports

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 1991,

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,

 28.17 and 27.

SOURCE:

 Adopted

 in R88-7 at

14

 Ill.

 Reg.

 15814, effective

September

18,

 1990; amended in R92-l9 at 17 Ill.

 Reg.

_______________

 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

Agency reconsideration of

applicant has requested

that action prior to the

filing of a petition pursuant to this Section.

0114.3-0372

11

(Source:

 Amended at 17

 Ill.

 Reg.

_________,

 effective

IT IS SO ORDERED.

I,

 Dorothy

 M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certif__that the abov

 pinion and order was

adopted on the

 day of

________________,

 1993 by a

vote of

 7—c

/~/~7~

Dorothy M. Gu~(n, Clerk’S

Illinois PoU&ltion Control Board

flH

 O_~’~