ILLINOIS POLLUTION CONTROL BOARD
May 9,
1.991
IN THE MATTER OF:
)
AMENDMENTS TO 35 ILL. ADM. CODE 501
)
R90-7
AGRICULTURE-RELATED POLLUTION
)
(Rulemaking)
(MANAGEMENT OF LIVESTOCK WASTES:,
)
Proposed Rule
Second ~otice
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board upon a regulatory
proposal filed oh January 29,
1990 by the Illinois Environmental
Protection Agency (“Agency”).
The Agency’s proposal contains
certain recommended amendments to the Board’s regulations for
livestock waste management and handling facilities found at 35
Ill. Adm. Code 501.
The Board has previously set the agency proposal
(with some
modifications based on the record developed before the Board)
for
First Notice.
Today the Board sends, the proposal to Second
Notice, with some modifications based on the additional record
developed during the First Notice Period.
PROCEDURAL HISTORY
Today’s proposed amendments to the Board’s livestock waste
management regulations date back to at least November,
1986,
when,
after a midcourse review of livestock waste management
program policies and procedures, the Agency sent an initial draft
proposal to various interested groups and organizations.
Continuing through 1988 and 1989,
the Agency met with
agricultural, environmental, and producer groups and further
developed the proposal.
In March and April,
1989,
the Agency
conducted public information meetings on a third draft of the
proposal.
Subsequent to these meetings, the Agency made
additional modifications to the proposed amendments, then
submitted the proposal to the Board (Agency Statement of Reasons
at 2—4.)
Shortly after the Agency proposal was filed with the Board,
the Illinois Farm Bureau
(“IFB”) and the Agricultural Committee
of the Jo Daviess County Board requested that the Board hold
hearings on the proposal at various times and locations around
the State designed to best accommodate the working farmer.
In
compliance with this request, the Board during August 1990 held
hearings in DéKalb,
Stockton, Effingham,
Carterville,
Jacksonville, and Galesburg.
The hearings were well attended and
122—173
—2—
testimony was received from representatives of the Agency,
various farm organizations, and many members of the public.
In
addition,
41 post—hearing public comments (“PC”) were received
during the post-hearing comment period.
Based upon this record, the Board on February 7,
1991
adopted a modified version of the Agency’s proposal for First
Notice.
First Notice publication occurred in the Illinois
Register at 15 Ill. Reg. 3141 on March
1,
1991.
The 45—day First
Notice comment period expired April 15,
1991.
Seventy-five
(75) additional public comments have been filed
during the First Notice comment period.
Among First Notice
comments filed by organizations and agencies are comments of:
Horsemen’s Council of Illinois (“HCI” PCs #43,
118),
Illinois
Pork Producers Association (“IPPA” PC #50), Illinois Farm Bureau
(“IFB” PC #56), Equine Trail Riders (“ETR” PC #72), Illinois Beef
Association
(“IBA” PC #73), Rock Island County Farm Bureau (“Rock
Island CFB” PC #86),
Illinois Environmental Protection Agency
(“Agency” PC #89), Monroe-Randolph Bi-County Health Department
(“MRBHD” PC #102),
Illinois Department of Conservation, Division
of Fisheries (“IDOC” PC #110), and the Henry County Beef
Association
(“HCBA” PC #117).
Also,
the Board received comments
from many individuals, too many to mention individually, who
wrote in favor of a general exemption for facilities allowed by
local zoning
(e.g.,
PCs #42, 48,
49, 74,
85,
87), and who wrote
in favor of the Horsemen’s Council of Illinois’ suggested
language changes
(30 individual PCs).
Other persons wrote
general comments expressing current problems with odor from
neighboring livestock facilities
(PCs #53,
88).
Still others
wrote in general disagreement with the proposed amendments
(PCs
#44, 45).
Among procedural comments are PC #46, which consists
of the comments of the Code Division of the Secretary of State on
filing requirements, and PC #114, which is the impact analysis
filed by the Department of Commerce and Community Affairs.
PC
#118 is a late-filed comment by HCI allowed in the record by
leave of the Hearing Officer.
A few comments were filed after
the 45-day First Notice comment deadline expired, accompanied by
no motions to file instanter and allowing for mail delays.
These
are not included in the record and are not considered by the
Board.
OVERVIEW. OF TODAY’S PROPOSED AMENDMENTS
If adopted, today’s proposal would amend existing Board
regulations pertaining to Agriculture Related Pollution found at
35 Ill.
Adm.
Code:
Subtitle E, Part 501.
The proposed amendments
have four major provisions.
The first major provision would add a clarifying statement
to the Policy Statement in the Board’s regulations regarding
Agricultural Related Pollution,
found at 35 Ill. Adm.
Code
122—17 4
—3—
501.102
(see following Section—by Section discussion and attached
Order).
In particular,
this provision would clarify the
relationship between livestock odors and air pollution.
The second major provision would amend existing regulations
dealing with the siting of new livestock management facilities
and livestock waste-handling facilities.
Specifically, new
livestock management facilities and waste-handling facilities
would be prohibited from locating within 1/2 mile of a populated
area or within 1/4 mile of a non—farm residence, unless located
within a designated Agricultural Area, unless the operation has
been at the location for at least one year and the operator seeks
to expand, or unless the use of the facility is allowed by local
zoning ordinances.
Where new sitings are not prohibited, they
would be required to locate at the “maximum feasible distance”
from residences or populated areas.
The principal proposed
amendments that would effectuate this provision occur at current
35
Ill. Adm. Code Section 501.402
(see following Section-by
Section discussion and attached Order).
The third major provision of today’s proposal would provide
for expanded use of vegetative filter strips for the treatment of
livestock waste generated by 300 animal units or less.
Also
included are amendments pertaining to small farm projects, such
as 4—H, that handle 50 or fewer animal units.
These changes
would be principally effectuated by additions to existing Section
501.404
(see following Section-by Section discussion and attached
Order).
The fourth major provision of today’s proposal would require
operators to practice field application procedures in such manner
as to not cause air pollution.
This provision would be
principally effectuated by amendments of the regulations
currently found at Section 501.405
(see following Section-by
Section discussion and attached Order).
In addition to these major provisions,
today’s proposal also
includes amendments or additions to several other Sections of the
Board’s livestock regulations.
These consist of the addition of
an Incorporations by Reference Section and various definitions
which support the major provisions
(see following Section-by
Section discussion and attached Order).
DISCUSSION OF PROPOSED AMENDMENTS
The Board next turns to a Section—by—Section discussion of
today’s proposal.
Much of the text of this portion of today’s
Second Notice Opinion remains the same as in the First Notice
Opinion of February 7,
1991.
Exceptions occur where the comments
received in response to the First Notice proposal prompt the
Board to modify today its proposal.
All such modifications are
duly noted in the following.
122—17 5
—4—
Section 501.102
Policy Statement
The proposed amendment to Section 501.102 consists of an
additional policy statement to be added as subsection
(d).
This
new subsection specifies that livestock waste odor is a potential
source of air pollution,
but that the mere detection of odor does
not constitute air pollution per Se.
No commenters discussed this proposed Section and no changes
are today made relative to the language proposed at First Notice.
Section 501.200
Incorporations by Reference
Section 501.200 is a new Section proposed due to the need to
incorporate references to American Society of Agricultural
Engineers (“ASAE”) documents made in Section 501.405.
The
Section is structured in such manner as to accommodate any future
new incorporations by reference.
The Illinois Beef Association
(“IBA”) has expressed concern
that citation of the ASAE document “Control of Manure Odors”
would “open the door” for use of this material in contexts not
today intended (IBA PC #73).
However, the Board believes that
this incorporation remains necessary since the document is
required to support the proposed amendments to Section 501.405
(see following discussion).
To the extent that it may allay the
IBA’s concern, the Board does emphasize that any expanded
authority given to any of the documents incorporated herein would
have to be specifically accomplished through a rulemaking
proceeding such as this one.
Moreover, any future amendments to
Subtitle E, Agriculture Related Pollution,
including the
Incorporations by Reference Section, or citations thereto, would
require hearing and opportunity for comment pursuant to the
rulemaking requirements of both the Illinois Environmental
Protection Act and Illinois Administrative Procedure Act.
Thus
no expanded use may occur without opportunity for detailed
scrutiny by all interested persons.
Additional comments pertaining to the use of specific
documents incorporated at Section 501.200 are included in the
discussion of Section 501.405
(see following).
As with the
incorporation of the ASAE “Control of Manure Odors” document, the
Board believes all of~today’s proposed incorporations are
necessary to support the proposed amendments to other Sections.
Accordingly, Section 501.200 is today proposed without
modification from First Notice.
Section 501.246
“Expansion” Definition
Section 501.246 defines the term “expansion” as used within
today’s overall proposal, and specifically with respect to the
122—176
—5—
use of the term “expanded facility” found at Section 501.402.
No changes to this proposed Section are made today.
As the Agency notes, the concept employed in this definition
of expansion is derived from the definition of a “new potential
secondary source” found at Section 360 of the Illinois
Environmental Protection Act
(Ill. Rev. Stat.
1989 Ch.
111 1/2,
par. 1003
.
6).
The Agency further notes:
Defining expansion as such covers those situations
where a facility undergoes such enormous growth that it
has an effect on the surrounding population comparable
to that of an entirely new facility.
This Edefinition)
attempts to strike a balance between the rights of the
producer to pursue the growth of his business and the
rights of an established population to be free from
unreasonable additional air pollution.
(R. at 36—7).
The IBA also commented on this proposed Section.
The
comments are directed to limitations on expansion regarding the
siting of facilities in Section 501.402, rather than the
definition of the term “expansion”,
and accordingly is best
discussed below in the part of this Opinion pertaining to Section
501.402.
Section 501.248
“Farm Residence” Definition
Section 501.342
“Non-Farm Residence” Definition
Section 501.356
“Populated Area” Definition
Sections 501.248, 501.342, and 501.356 each present new
definitions relating to type of occupancy.
Their general purpose
is to identify types of residences and areas to which different
types of livestock waste regulations are intended to apply.
In
the present set of proposed amendments,
the types of residences
defined in these Sections are only used in conjunction with the
setback distances of Section 501.402.
The definitions are today
proposed in the same form as at First Notice, except for one
addition suggested by the Illinois Pork Producers Association
(“IPPA”)
Under the system proposed at First Notice,
a new facility
may not be located within 1/4 mile of a non—farm residence or 1/2
mile of a populated area.
The rationale that the Agency offered
for the distinction between farm and non—farm residence for the
purpose of facility location,
is that such setback would protect
the rights of persons not engaged in farming activities while at
the same time “allow farmers to farm in farming territory”.
The
Agency also contends that inhabitants of farm residences are
generally more tolerant of farm generated odors,
since their
livelihoods may create similar odors. (R. at 37).
Many witnesses
and post—hearing coinmenters also expressed this view (e.g.,
R. at
235-9,
367-8).
Some comments received during First Notice
indicate that the distinction between farm and non—farm
122—177
—6—
residences is necessary and should be maintained
(e.g.,
IBA PC
#73; Rock Island CFB PC #86; MRBHD PC #102),
especially in~light
of situations where farm land is abutted by non—farm residents
(IPPA PC #50).
This territorial aspect was emphasized in the
IFB.
comment which states “We feel this is an issue of the degree to
which we will allow an appropriate economic activity to take
place in an area where it should be expected to take place”
(IFB
PC #56).
The Board continues to believe that there may be some
instances where it is not appropriate to distinguish between farm
and non—farm residences for the purposes of the restrictions on
the siting of new livestock facilities of Section 501.402.
The
reasons for this continue to be those pointed out at First
Notice, as indicated in the record.
That is, that some farmers
at least do consider that the operation of neighboring farms
generates unacceptable odors
(e.g.,
R. at 645, 719-20,
764; PC
#25).
It is to be further noted that “An Assessment of
Separation Distances as a Tool for Reducing Farm/Neighbor
Conflict”
(Exh.
26),
a study conducted in British Columbia,
indicated no distinction between farm and non—farm residents in
assessing neighbors’ perceptions of certain farms as nuisances.
The study indicated that the actual determining factors were the
distance from the neighboring residence and whether the farm
could be seen from the neighboring residence
(fl.)
Again,
on
this issue, the IFB and Rock Island CFB
(PCs #56 and #86)
emphasized their belief that these distinctions are necessary,
not so much due to differences
in perception of odor,
but because
of the placing of restrictions on farming operations where such
operations should legitimately take place.
The Board accepts that the types of residences and
distinctions indicated in the definitions are necessary as a
general rule.
The Board therefore continues to include these
definitions and their use in Section 501.402 in today’s action.
The IPPA expressed the need to clarify the definition of
farm residence to include those situations where a farmer or
producer owns a farm residence that is rented to a non—farm
resident (IPPA PC #50).
The Board believes that incorporating
this suggested change would further clarify the definition and
includes changes in these proposed amendments.
The clarification
can be easily accomplished by inserting the words “owned or”
before the word “occupied”.
Therefore, the definition would
apply to any farm residence owned or occupied by the farm owners,
operators,
or seasonal workers.
The definition would apply
regardless of whether the farmer owner rents the residence to a
person not associated with farming.
The Board believes that a
person who rents
a farm residence would and should be aware of
the consequences of living on a farm the same as a farmer,
whether or not that person also engages in farming.
122—17
8
—7—
The Agency submitted documents that indicate that the
definition of populated area was discussed with farm
organizations, and believes that the numbers are a reasonable
compromise,. especially considering how subdivIsions in rural
areas are usually ‘established
(See R. at 39).
The definitions of
populated area and non—farm residence are not changed from that
submitted at First Notice.
Section 501.274
“Liquid Livestock Waste” Definition
Section 501.372
“Supernatant” Definition’
Sections 501.274 and 501.372 ‘introduce new definitions
necessary to support the amendments proposed at Section 501.405
(see following).
The terms are the same as proposed at First
Notice.
Section 501.317
“Maximum Feasible Location” Definition
Section 501.317 proposes a definition for the term “maximum
feasible location” as this term is used in proposed Section
501.402(e) and
(f).
At First Notice, the definition was modified
from that originally proposed by the Agency,
in accord with the
Agency’s revised recommendation (PC #29, p.
4—5).
The Agency’s
revised recommendation is based on discussion at hearing
indicating that there was some confusion regarding this Section
as originally proposed by the Agency, especially regarding the
siting of a facility in relation to an operator’s own residence.
The Board agrees that the concept contained in this
definition and Section 501.402(e)
is useful.
This is discussed
more fully below in the discussion of subsections 501.402(e)
and
(f).
.
The only changes made to the First Notice language are the
insertion of the terms “farm or non—farm” before residence, when
discussing a neighboring residence,
and the insertion of “kept
or” before the word “raised”.
Since farm and non—farm residences
are defined, the Board believes it is best to use these terms
rather than the generic “residence”, to avoid confusion and for
consistency.
The Board adds “kept or” to be consistent with
Section 501.402(d) (3).
Section 501.330
Amendment to “New Facility” Definition
Section 501.330 is an existing Section which contains the
definition of new livestock management facility and new livestock
waste-handling facility (“new facility”).
The definition was
adopted along with other rules effective January
1,
1978, and
reads as follows:
Any livestock management facility or livestock waste—
handling facility the construction or modification of
which is commenced on or after the effective date of
this Chapter.
122— 179
—8—
In the Agency’s original proposal to the Board, the Agency
recommended the addition of the term “expansion” to this
definition.
At First Notice the Board noted that this could lead
to retrospective application of the limitations on location of
expanded facilities contained in proposed Section 501.402, a
result not in accord with the Agency’s intent.
As an additional
matter noted at First Notice, the Board inserted the actual
effective date (January 1,
1978)
for the language “the effective
date of this Chapter”.
Then the Board added the term expansion
to the definition with an effective date of July 1,
1991, to
amend the Section as follows:
Any
livestock management facility or livestock waste—
handling facility the construction or modification of
which is commenced on or after the effectivc date of
thia Chapter January
1,
1978, or any expansion which
occurs on or after July
1,
1991.
In response to this matter, the IFB points out that the
problem of retrospective application of the amendments not only
exists for incorporation of the concept of “expansion”
into
Section 501.330, but also could happen for all new facilities
(IFB PC #56).
Others express the need for further clarification
of the Section
(e.g.,
IPPA PC #50; IBA PC #73; Rock Island CFB PC
#86).
The Agency adds that retrospective application of the
definition in Section 50l.402 could lead to constitutional
problems
(Agency PC #89).
The IPPA advocated striking the
January
1,
1978 effective date in the current definition of new
facility (IPPA PC #50).
However, this is not possible because
the present definition is used in other Sections that have been
effective since January 1978.
Deleting or changing the January
1,
1978 date to a current date would cause the definition of new
facility to be inapplicable from 1978 to the present, and disturb
its use for existing rules.
To resolve this problem, the Board deletes its First Notice
changes from the definition of new facility, except for the
insertion of the actual effective date of the Chapter.
Using the
actual effective date of the Chapter rather than the phrase “the
effective date of this Chapter”, will provide greater clarity for
existing rules and complies with current Administrative Code
Division drafting requirements.
The Board includes an effective
date within Section 501.402
(to coincide with the actual
effective date of these amendments) to assure that Section
501.402 will not have retrospective application.
The changes to
Section 501.402 are discussed more fully in the following part of
the Opinion pertaining to that Section.
Section 501.402
Location of New Livestock Management
Facilities and New Livestock Waste-Handling
Facilities
12 2—180
—9—
The proposed amendment to Section 501.402 addresses one of
the principal goals of today’s action.
That goal is to provide
greater specificity to the existing prohibition against siting of
new livestock management facilities “in close proximity to
populated areas so as to cause air pollution”.
Today’s proposal
achieves this goal by providing a quantified limitation to the
siting of new and expanded facilities “within 1/2 mile of a
populated area or within 1/4 mile of a non—farm residence”.
The
proposal also contains a series of exceptions to the 1/4—mile and
1/2-mile setback distances.
The separate aspects of this
provision, the setback limitations and the exceptions thereto,
plus their economic impact, are discussed as follows.
Setback Limitations.
Subsection
(c) (1) contains the 1/4-
mile and 1/2-mile setback requirements.
An eff~ctivedate of
July 15,
1991 has been added to this subsection
.
The term
“expanded facility” has already been added at appropriate places.
These changes make it clear that these setbacks are not intended
to apply before the effective date for either new or expanded
facilities.
One of the issues most commonly addressed during the Board
hearings involved the reasonableness of the 1/2 mile and 1/4 mile
setback distances of this Section.
In support of its.choice of
the setback distances the Agency points to ASAE Engineering
Practice which states:
Locate a livestock operation at a reasonable distance
from residential areas, places of employment,
institutions, and other areas frequented by persons
other than the operators of the animal enterprise.
Although distances have not been established beyond
which complaints are invalid,
it is desirable to locate
the livestock or poultry feeding facility 1600 m
(1
mile)
from housing developments and 400-800 m
(1/4 to
1/2 mile)
from neighboring residences.
Wind direction
and velocity, humidity, topography, temperature, and
unique meteorological conditions
(such as inversions)
affect odor transport and detection.
(Exh.
14)
The Agency also presented Midwest Plan Service’s “Livestock Waste
Facilities Handbook MWPS-18”, which states:
First, select a site where odors will create fewest
problems.
Locate at least 1/2 mile away from
1
This date will also coincide with the effective date of the
entirety of the amendments made
in this proceeding.
The Board
changes the date from July
1,
1991
(the date proposed at First
Notice in the definition of new facility) to July 15,
1991.
This
is
done to give
enough
time
for
completion
of
the
rulemaking
process before the amendments are effective.
122—
18 1
—10—
neighboring houses and at least 500 feet away from the
farm residence;
locate larger operations even farther
away.
(Exh.
17)
Also cited is the Pork Industry Handbook fact sheet PIH-33
“Controlling Odors from Swine Buildings”:
There is a general relationship between the perception
of odor nuisance, separation distance, and size of
swine production facility.
For facilities of 1,000 or
fewer animals the incidence of odor complaints is
noticeably reduced beyond one—quarter mile.
For larger
units, separation distances of approximately a half
mile are necessary for adequate protection.
(Exh.
18)
In evaluating these recommended distances, the Agency has
consistently advocated the 1/2 mile and 1/4 mile distances
recommended by ASAE (see Exh.
14).
Although some may have
recommended greater setback distances,
the Agency believes that
due to the density of inhabited residences in Illinois,
compliance with greater ~‘distanceswould not be feasible for
facility siting
(R. at 47; See also Exh.
29).
The record discloses that a few participants recommended
lesser setback distances,
or no setbacks at all.
At hearing
management practices for facilities which would obviate the need
for setback distances were also discussed
(R. at 468, 478—80).
The Agency concluded that management practices which were
discussed previously with the Agency were not practical or
feasible in most situations
(R.
at 481).
At First Notice the Board included the 1/4-mile and 1/2-
mile setbacks for facility siting, and encouraged further comment
on the issue.
A few commenters addressed this issue,
stating
that they preferred 1/8-mile and 1/4-mile distances, but would
accept the 1/4-mile and 1/2-mile distances with the exemptions
contained in the proposed rule
(e.g.,
IFB PC #56; IBA PC #73;
Rock Island CFB PC #86;).
The IBA also expressed concern over
limits on expansion, especially in a situation where an existing
facility is encroached upon by urban growth (IBA PC #73).
The Board notes that the Monroe-Randolph Bi-County Health
Department suggested that a section on the siting of livestock
management and waste—handling facilities
in “sinkhole”
or karst
areas be included in these amendments (MRBHD PC #102).
The Board
points to existing subsection 501.402(d)
that covers the siting
of facilities in areas where livestock waste is likely to cause
groundwater pollution (this subsection is proposed to be
renumbered to 501.402(g)
to accommodate changes made in this
proceeding).
Exceptions.
Section 501.402(c) (2)
allows for facilities
operating under certain circumstances that would otherwise be
122— 182
—11—
considered new or expanded facilities to be exempted from that
status, and hence from the setback requirements of Section
501.402(c)(1).
This exemption applies to those facilities that
are reopened though they may have been idle for as many as ten
years (subsection
(c)(2)(A)).
At First Notice,. the Board noted
that the Agency had deleted ‘from its proposal the requirement
that a facility be operated for “four consecutive months” during
the 10-year period to qualify for this exemption.
The Agency in
its comments stated that the deletion of the “four consecutive
month clause” from its sugg~stedlanguage at hearing was
inadvertent
(Agency PC #89)
.
As the Agency points out, the
discussion in the record leading to their suggested changes did
not pertain to the “four consecutive months” clause, but rather
to the status of the structures.
The record states:
A question was presented to the Agency after filing of
the instant proposal as to whether
a parcel where
portable housing units once stood, but were removed,
would be considered an existing facility if livestock
were brought back to the site prior to the lapse of a
ten year period.
This is not a situation which the
Agency wants to promote or endorse.
(R. at 48)
To address this problem, the Agency advocates the addition
of the clause “which has a livestock shelter(s)
left intact”
after the term “idle facility”.
The Board believes the change
would clarify the situation the Agency is concerned about, in
contrast to deletion of the “four—consecutive months” clause.
The Board agrees to add the Agency’s suggestion with minor
wording changes to accommodate Administrative Code requirements.
However, with the addition of this qualification, the Board sees
a situation could arise, where,
due to natural causes (e.g.,
tornado,
fire, earthquake), portable housing units would not
remain intact.
Therefore,
the Board also today adds new
subsection
(c) (2) (B)
in which it is provided that rebuilding
after such natural disaster would not cause the facility to be
considered a new or expanded facility.
The proposed amendments also provide for exemptions to the
1/4-mile and 1/2—mile setback distances for facilities located
within an Agricultural Area as that term is defined in the
Agricultural Areas Conservation and Protection Act,
and for
facilities that have priority of location with respect to non-
farm residences or populated areas (subsections
(d)(l)
and
(2)).
These provisions are presented today without modification from
First Notice.
2
The
Board,
in
its
First
Notice
Opinion,
stated
that
it
incorporated this deletion of the “four consecutive month” clause.
The Board inadvertently failed to incorporate the change into the
Order.
Apparently this caused some confusion (HCB PC #117).
122— 183
—12—
The Board believes that the exception for facilities located
within Agricultural Areas found at Section 501.402(d) (1)
is
consistent with the policy statements contained in the
Agricuittiral Areas Conservation and Protection Act to the degree
that Act ‘makes it a policy for “all state agencies to encourage
the maintenance of viable farming in agricultural areas and their
administrative regulations and procedures shall be modified to
this end~’, so long as the modifications would be consistent with
public health and safety and with federal statutes and
regulations
(Ill. Rev. Stat.
1989,
ch.
5, par. 1019.; Exh.
32).
The
‘Board also believes subsection
(d)(2), which provides
exemption for priority of location for expanding facilities,
is
meritorious because it protects expanding operations from
nuisance actions where residential areas are encroaching upon the
operation.
The requirement that the facility be in operation for
at least
one year prior to expansion was questioned at hearing
(R. at 4771).
However, the Board believes the one-year period is
reasonable to indicate actual establishment of the particular
type of f~.~armingoperation.
Furthermore, the one—year period is
also’~consistent with language included in what the Agency
referred
to as
the
“Illinois Right to Farm Law”
(R. at 473).
That act, also entitled “Protection of Farming Operations From
Nuisance
Suits”, states in part:
Changed conditions
-
Negligent operation
No farm or any of its appurtenances shall be or become
a private or public nuisance because of any changed
conditions in the surrounding area occurring
after the
farm
has been in operation for more than one year,
when
such farm was not a nuisance at the time it began
operation, provided, that the provisions of this
Section shall not apply whenever a nuisance results
from the negligent or improper operation of any farm or
its appurtenances.
(Exh.
33, emphasis added)
In its post—hearing comments
(PC #29), the Agency also
advocated addition of subsection
(d) (3),
a third exemption for
areas where local zoning has been established and agricultural
facilities have been approved
(~.
p.
3).
This type of
exemption, which allows for local zoning approval of livestock
management and waste handling facilities, was also advocated at
hearing
b~y
the Champaign County Farm Bureau
(R.
at 487-94)
and by
the Horsemen’s Council of Illinois
(“HCI”)
(R. at 254).
At ~.hearing,HCI also presented the alternative that horses
should not be considered livestock and thereby be exempt from
regulation
(R. at 250-3).
However, this alternative would not be
feasible because, as the Agency points out, the definition of
livestock, management facility includes animal feeding operations,
which term was amended to be consistent with the federal National
Pollutant Discharge Elimination System
(“NPDES”)
(PC #29 p.
3).
122—184
—13—
At First Notice the Board retained the Agency’s proposed
subsection
(d) (3), because it believed an exemption for local
zoning which allows livestock management facilities is
meritorious.
,
However, the Board questioned whether the language
as suggestedby the Agency would exempt the “recreational or
backyard~horse owner”
(See R.
.
at 254 and PC #41)
as intended.
The Board requested comment on the issue.
‘During First Notice, the Board received many comments that
pertain to this matter.
The Agency states that its intent was to
allow individuals to construct a livestock management facility
(e.g., horse stable) at their residence or collectively within
their subdivision and operate such facility for non-commercial
purposes.
The.Agency then offered suggested language,
in
addition to that which it offered prior to First Notice, as an
alternative:
The facility complies with local zoning requirements
and animals are kept or raised solely for non-
commercial purposes by the owner(s)
of the facility.
(Agency PC #89)
Many individuals wrote in favor of the language suggested
by HCI.
That language reads:
The facility is located in a village,
city, township or
county specifically zoned for this use and conforms to
ordinances provided for the health and safety of the
residents of said village, city, township or county.”
(PC #41 and HCI PC #118)
Mr. Timothy J. McAloon of the Equine Trail Riders
(“ETR”)
also offered alternative changes that are essentially the same as
those proposed by the Board for First Notice, with the addition
of an exemption for horse management facilities used for boarding
and recreational use of horses that comply with local zoning
(ETR
PC #72).
It appears that riding and boarding stables would be
covered under such exemption.
The Board believes that the language as proposed at First
Notice does not accomplish the result that the Agency intended,
and appears to cover only certain circumstances such as planned
developments with equine facilities.
Not all recreational horse
owners live in developments planned for livestock use.
Some
areas are specifically zoned for such use,
or the use is allowed
by municipal ordinance,
irrespective of the planned development
of the area.
The Agency’s language as proposed in its First Notice
comments
(Agency PC #89), allows for recognition of local zoning,
but adds an additional stricture: that the exception not apply if
the animals are kept or raised there for commercial DurDoSes.
122—185
—14—
The language offered by HCI also would exempt those facilities
that are specifically allowed pursuant to zoning regulations.
Regarding this proposed amendment which only pertains to the
siting of facilities,
the Board believes that if a community
designates an area through zoning or municipal ordinance for the
use of livestock, then it makes no difference whether the
livestock are kept for commercial or non—commercial purposes.
The Board believes that the MCI’s concept is meritorious, and
therefore adopts it, although with changes in format due to
drafting requirements for codification of regulations.
In
addition, to handle those situations where livestock are kept for
non—commercial purposes
(such as the recreational horse owner
situation), and where no zoning or municipal ordinances exist,
the Board adds language that would exempt these operators in
addition to those subject to local zoning,
as these persons would
be similarly situated.
It is important to note that riding and
boarding stables that are not locally zoned would not be exempt,
as these are generally commercial activities,
and would be
considered the same as other commercial livestock operations.
Note also that the Board adds language that describes commercial
activity, rather than using the term “commercial”.
This
description is consistent with the definition for “commercial”
contained in the Board’s regulations at 35
Ill. Adm. Code
228. 103.
Subsection
(e)
states that new livestock management or
waste-handl~.ngfacilities that locate within 1/4 mile of a
neighboring
farm residence must locate that facility at the
maximum feasible location from that residence.
Maximum feasible
location is defined in Section 501.317 and discussed above.
Likewise,
subsection
(f) provides that a new facility that
locates within the setback zones pursuant to one of the
exemptions of subsection
(d)
shall locate at the maximum feasible
location from the residence or populated area.
The purpose of
subsections
(e)
and
(f)
is to assure that producers consider the
interests of neighbors, especially when allowed to locate within
the 1/4 to 1/2 mile setbacks.
A further advantage would be to
allow for minimization of odor transport to neighboring
residences, and therefore decrease the likelihood of odor
complaints even where facilities are located outside the
setbacks.
Therefore,
farmers would have greater assurance that
neighbors would be minimally affected and therefore less likely
to have cause for a nuisance action.
Another prospective exemption discussed at hearing was the
possibility of a cut-off number of animals being established
below which only general prohibitions against pollution would
The
Board
adds
the
term
“neighboring”
to
make
this
subsection
consistent
with
Section
501.317,
Maximum
Feasible
Location, which also uses neighboring.
122—186
—15—
apply
(R.
at 513).
In comments, the Agency points out that their
1985—1989 records indicate 41
of odor pollution problems
encountered by Agency personnel which were related to feedlot
location were attributable to small feedlot operations,
and 64
of manure stack odor problems were associated with small
facilities
(Agency PC #29; See also, Exh.
28).
The Board
declines to add an exemption based on number of animals at this
time.
In summary,
in today’s action the exceptions have been
restructured to accommodate changes in response to comments, to
add the term “expanded facility”, and to clarify the language of
the amendments.
Economic Impact.
A potential adverse economic impact exists
for the proposed amendments to Section 501.402 because the number
of locations where a new facility could be sited would be
limited.
However, the exceptions to the siting requirements
lessen the potential economic impact,
as also does the option of
locating the facility in a different place.
For existing
facilities, only those that are located within 1/4—mile of a non-
farm residence or 1/2—mile from a populated area ~
did not
operate for at least one year prior to the existence of the
residence or populated area would have a potential adverse
economic impact in that expansion would be limited.
However,
expansion only would be limited with respect to the rate of
expansion and with no absolute cap on the size of the facility.
The potential economic impact on non—farm residences would be
positive since the amendments would prohibit the location of the
livestock management or waste-handling facility within 1/4 mile
of the residence, hence value of the property may be protected.
(See Agency testimony,
R. at 54—6.)
Based on this record, the Board concludes that the 1/4 mile
and 1/2 mile setbacks for facility siting seem reasonable and
technically feasible as a standard for control of odor,
especially considering the exceptions today specified.
Additionally, the Board perceives the potential economic impact
to be minimal for new and existing facilities.
Section 501.404
Handling and Storage of Livestock Waste
The proposed amendments to Section 501.404 address two
concerns regarding handling of livestock: use of vegetative
filter strips and consideration of small projects.
The first
concern is addressed by the proposed addition of subsection
(d),
which allows the use of vegetative filters for livesto~k
management facilities with fewer than 300 animal units
.
The
~ “Animal unit”
is defined in Section 501.230 of the existing
Board regulations as: A unit of measurement for any animal feeding
operation calculated by adding the following animal numbers:
122—187
—16—
vegetative filters would be operated according to Agency’s
“Design and Maintenance Criteria Regarding Runoff Field
Application Systems” found at 35 Ill. Adm. Code 570.
The second.
concern is addressed at subsection
(e) by exempting facilities
with 50 or fewer animal units ‘from the handling and storage
requirements imposed on larger facilities in Section 501.404(a)
through
(c), provided that the smaller facilities can prevent
actual and threatened discharges of livestock waste to waters of
the State.
These two provisions are discussed separately as
follows.
Runoff Field Application Systems/Vegetative Filters.
The
Agency’s reason for including the subsection
(d) amendments is in
recognition that runoff field application systems, specifically
vegetative filters,
if properly designed and operated, can
effectively treat waste produced by smaller facilities and can be
less expensive to build and maintain than other treatment methods
(R. at 50).
At hearing,
a question was raised whether an operator who
handled more than 300 animal units could use a vegetative filter
on part of the operation,
if the operator used the vegetative
filter for less than 300 animal units.
As was discussed,
the
design criteria for vegetative filters recommend less than 300
animal units
(R.
at 656-9;
35
Ill. Adm. Code 570).
The Board
notes that at hearing Mr.
A.
G. Taylor, Agricultural Advisor for
the Agency,
stated that he did not see any reason why an operator
who used a vegetative filter system for less than 300 animal
units, but used other systems for additional animal units,
should
not be allowed to do so
(R.
at 659).
At First Notice, the Board
included the amendments as proposed by the Agency, but requested
comment on the possibility of applying the 300 animal unit
limitation to the treatment of wastes from the animals, rather
than to a single facility, and offered language on how such an
amendment could be drafted.
The Board further requested comment
a)
Brood cows and slaughter and feeder cattle multiplied by
1.0
b)
Milking dairy cows multiplied by 1.4
c)
Young dairy. stock multiplied by 0.6
d)
Swine weighing over 55 pounds multiplied by 0.4
e)
Swine weighing under 55 pounds multiplied by 0.03
f)
Sheep,
lambs or goats multiplied by 0.1
g)
Horses multiplied by 2.0
h)
Turkeys multiplied by 0.02
i)
Laying
hens
or
broilers
multiplied
by
0.02
(if
the
facility has continuous overflow watering)
j)
Laying
hens
or
broilers
multiplied
by
0.03
(if
the
facility has a liquid manure handling system)
k)
Ducks multiplied by 0.02.
122—
188
—17—
on the consistency of such language with the design criteria of
Section 501.570 sic)5.
The IFB,
IBA, and Rock Island CFB commented in favor of the
Board’s alternative language
(IFB Pc #56; IBA Pc #73; Rock Island
CFB PC #86).
The Agency also supports the Board’s alternative
language (Agency Pc #89) and the Illinois Department of
Conservation
(“IDoc”) comments that it does not object to the
alternative language
(IDOC PC #110).
On the other hand, the
Henry County Beef Association
(“HCBA”) expresses concern over the
300 animal unit limitation,
arguing that flexibility is needed
for varying types of operation (HCBA PC #117).
The Board finds that many of the concerns expressed by the
HCBA pertain to the design criteria of 35 Ill.
Adin.
Code 570.
Furthermore, the Agency points out that the design criteria of 35
Ill. Adm. Code 570 allows for use of runoff field application
systems where greater than 300 animals are confined on a feedlot,
but that in order to preclude
a conflict with federal NPDES
requirements, sy~temsshould only treat wastes from fewer than
300 animal units
.
It is worth noting that an NPDES permit would
be required for a facility that treated wastes from 300 or more
animal units when utilizing a vegetative filter system, pursuant
to existing Section 50.2.104(b) which states:
Pollutants are discharged into navigable waters through
man—made ditch, flushing system or
other similar man-
made device;
(emphasis added)
Since zero discharges are required under the NPDES system,
facilities required to obtain an NPDES permit would not be able
to use vegetative filter systems.
These proposed amendments would have a potential positive
economic effect on those who can use vegetative filters since
these systems are effective for treatment while much less
expensive to construct and operate than some other methods
(see
Agency testimony, R. at 56.).
Based upon the above considerations, the Board deletes the
language proposed at First Notice and replaces it with the
alternative language suggested in the Board’s First Notice
opinion.
No other changes are today made.
Small Farm Prolects.
The Agency included the subsection
(e)
amendment in their proposal because:
The Section citation should have read 570.101.
6
The State
NPDES program requirements must be the same as
federal requirements for approval of the State program.
122—189
—18—
in the course of developing the proposed
amendments, the agricultural interest groups requested
that this provision be included in order to allow
Future Farmers of America
(FFA) and 4-H type projects
to be conducted without having to implement expensive
pollution control measures.
The agricultural interest
groups’ estimate of the number of livestock involved in
such projects was 50 animal units or less.
(R. at 51)
The IDOC commented in favor of this proposed amendment as
affording protection to waters of the State (IDOC PC #110).
The
amendment also would have a positive economic effect on these
smaller facilities,
since qualifying facilities would not have to
install costly waste storage and runoff controls
(see Agency
testimony,
R. at 56).
Based upon these considerations, no
modification of the First Notice proposal is today proposed.
Section 501.405
Field Application of Livestock Waste
The proposed amendments to Section 501.405 are intended to
regulate the field application of livestock waste in such manner
as to reduce the potential for odor problems.
Finding quite the
correct way to achieve this end has, however, been most vexing,
as is well witnessed by the extensive discussion and debate
generated by this topic at hearing
(e.g.,
R. at 195-241, 303-
421,
482—6,
493—523, 579—605,
641—683, 750—771) and subsequent
comments.
In part the problems stem from the fact that the
practice of field application of livestock wastes is in most
instances economically and environmentally sound, and often even
essential,
at one and the same time that the odors it causes may
be objectionable and even constitute valid grounds for basing a
nuisance action.
The Board continues to believe, as it did at First Notice,
that a regulation which offers assistance to farmers in making
determinations in their individual situations offers the best
prospect of addressing the dilemma.
The Board is pleased that
almost all persons who have addressed this issue have found favor
with the direction taken by the Board.
Accordingly, the method
by which we today attempt to address this s3.tuation remains the
same as the method proposed at First Notice
The essence of today’s proposal consists of a general
requirement to use odor control methods during the course of
field application so as not to cause air pollution (Section
501.405(b)).
This general statement is then followed by a list
of odor control methods intended to provide guidance to the farm
The
First Notice Opinion of February
1,
1991 contains at
pages 11-13
a fairly extensive discussion of the alternatives which
the Board rejected prior to First Notice.
The interested person
is directed to the First Notice Opinion for that discussion.
122—190
—19—
operator.
The general requirement to use odor control methods is
tied to the policy statement on the operation of livestock
management facilities is discussed in Section, 501.102.
The
reference to Section 501.102
is included to ensure that the
policy statement will be considered in application of this
Section 501.405(b),
since the policy statement recognizes that
waste—handling can cause odors that can cause air pollution, but
that detection of odor does not per se constitute air pollution.
Today’s proposal further recognizes that there are a number
of options available to the farm operator, used alone or in
combination, by which odor control can be achieved.
These
inclu’de simple methods, such as recognizing when adverse weather
conditions may exacerbate odors or odor distribution, to more
involved methods, such as incorporation of the waste into the
soil where possible.
A longer list of methods is presented by
the ASAE, and cited at Section 501.405(b) (4):
4.1.10 Land application is the primary method of animal
waste management and is an integral part of nearly
every manure handling system.
Odors can be reduced by
using the following land application procedures for
liquid or solid manure:
4.1.10.1
Spread or apply manure within
4 days of
excretion if possible to reduce time in anaerobic
storage.
4.1.10.2
Avoid spreading when the wind would blow
odors toward populated areas or nearby residences
or businesses.
4.1.10.3
Avoid spreading or applying manure
immediately before weekends and holidays when
people are likely to be engaged in nearby outdoor
and recreational activities.
4.1.10.4
Avoid spreading near heavily traveled
highways.
4.1.10.5
Spread or apply manure in morning when
air is warming and rising rather than in the late
afternoon.
4.1.10.6
Use available weather information to
best advantage.
Turbulent breezes will dissipate
and dilute odors.
Rain will remove the odors from
the atmosphere.
4.1.10.7
If possible,
incorporate manure into the
soil during or immediately after application.
This can be done by
1)
soil injection or 2)
plowing or disking the soil during or after
122—19 1
—20—
application.
These practices not only minimize
the spreading of odor but also preserve nutrients
and reduce water pollution potential.
4.1.10.8
Apply manure uniformly and in a layer
thin enough to insure drying in less than 5 days
or less and to prevent fly propagation in warm
weather.
(Exh.
14)
During the First Notice comment period, the IPPA,
IFB, and
IBA expressed concern over the incorporation by reference of the
ASAE material, particularly to paragraph 4.1.10.1.
The concern
stems from a belief that the language might be applied as or
changed to an absolute requirement; i.e.,
“you shall spread
manure within
4 days of excretion”
(IPPA Pc #50; IFB PC #56; IBA
PC. #73).
The Board believes that this concern can be assuaged
because the document can be given this force only through
regulatory change, and no changes can be made without a
rulemaking proceeding similar to the one pertaining to these
amendments, with full opportunity for hearing and comment.
Moreover, the incorporation by reference contains a proviso that
the material incorporated is exactly as stated in these documents
presented in the record, with no later editions or amendments to
the material included (subsection 501.200(b)).
The language of
the incorporation cannot be changed or deleted as that is what
the document says.
Though it may be possible to limit the
incorporation in some way in the rule,
such as,
incorporating all
material except paragraph 4.1.10.1, the Board declines to do so.
The issue is similar to the discussion of incorporation of wastes
into the soil.
Just as not all farmers will be able to control
odor by incorporation of wastes, not all farmers will be able to
control odor by spreading waste within four days of excretion.
The writers of the ASAE material apparently recognized this
circumstance when they included “if possible” in points
pertaining to both these methods of waste distribution and odor
control.
The Agency suggests an additional change to the Board’s
proposed Section 501.405(b).
This change would delete the “1/4
mile from an inhabited residence” phrase that the Board added at
First Notice and replace it with language that would require odor
control m~thodsto be practiced wherever a neighboring inhabited
residence
or populated area is affected by air pollution caused
by the odor.
However., the Board changes the word “inhabited” in
8 At First Notice the Board inadvertently left out of the rule
the word “neighboring”,
modifying an inhabited residence.
This
change was suggested by the IFB at hearing
(R.
at 203-5), and the
Agency
in
its post-hearing comments
(Agency PC #29).
The Board
intended to insert this word and includes it in the rule at Second
Notice,
and
deletes
the
term
“inhabited”
as
discussed
in
the
Opinion above.
122— 192
—21—
favor of using “farm or non—farm” as these are defined in the
proposed amendments.
It is assumed that any neighboring
inhabited residence would also be a neighboring farm or non—farm
residence.
The 1/4 mile limit was not designed to be an exception from
the Act’ s requirement ‘not to cause air pollution, where the air
pollution originates at distances greater than 1/4—mile.
Therefore, the Board believes that the Agency’s suggested change
has merit as it would further clarify the rule, affording
protection from air pollution while at the same time allow
flexibility for farming operations when practicing odor control.
Therefore, the Board includes this change in the amendments in
today’s Second Notice.
In conclusion,
the Board believes the proposed amendments to
Section 501.405 are technically feasible and economically
reasonable.
The proposed amendments are drafted in a manner that
would require the use of odor control methods, while allowing
operators the most flexibility in choosing which odor control
method suits the individual situation.
Where no odor problem is
likely to exist, minimal odor control could be practiced.
Where
a definite odor problem may exist,
an operator could determine
which odor control method is best,
and may end up using
incorporation as offering the most control.
As was noted in the
record, many operators wish to be “good neighbors”, and are
already practicing odor control methods
(see R.
at 330-331,
578-
9).
The Board believes that this type of rule, rather than a
series of exceptions to a requirement of incorporation of wastes,
would best serve rural residents,
farm and non—farm alike.
This proposed Opinion supports the following Order and
proposed amendments.
The Board now proceeds to Second Notice,
which consists of a 45-day time period to allow for review of
these proposed amendments by the Joint Committe on Administrative
Rules of the Illinois Legislature pursuant to the Administrative
Procedure Act (Ill. Rev.
Stat.
1989,
ch.
127, par. 1005.01(b)).
122— 193
—22—
ORDER
The Board hereby directs that Second Notice of the following
proposed amendments be submitted to the Joint Committee on
Administrative Rules.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE E:
AGRICULTURE RELATED POLLUTION
PART 501
GENERAL PROVISIONS
SUBPART
A:
AUTHORITY
AND
POLICY
Section
501.
101
501.
102
Authority
Policy
SUBPART B:
DEFINITIONS AND INCORPORATIONS
Section
501.
200
501.
201
501. 205
501.
210
501.
215
501.220
501. 230
501.
235
501.
240
501. 241
501. 245
501.
246
501.
248
501.
250
501.
260
501.
2 65
501.
270
501.
274
501. 275
501.
280
501.285
501. 290
501.
295
501.
300
501. 305
501.
3 10
501. 315
501. 317
501.320
501.325
Incorporations by Reference
Definitions
Act
Administrator
Air
Pollution
Agency
Animal Unit
Board
Construction
CWA
Existing Livestock Management Facility and Livestock
Waste-Handling Facility
Expansion
Farm Residence
Feedlot Runoff
Impermeable
Lagoon
Leachate
Liquid Livestock Waste
Liquid Manure-Holding Tank
Livestock
Livestock Management Facility
Livestock Shelter
Livestock Waste
Livestock Waste-Handling Facility
Man—made
Man-made Ditch
Manure Storage Structure
Maximum Feasible Location
Modification
Navigable Waters
12 2—194
—23—
501.330
New Livestock Management Facility and New’ Livestock
Waste-Handling Facility
NPDES
NPDES Permit
________
Non—farm
Residence
Owner or Operator
Person
Pollutant
_______
Po~u1atedArea
Settling Basin
Standard of Performance
Supernatant
Temporary Manure Stack
Water Pollution
501.401
General Criteria
501.402
Location of New Livestock Management Facilities and New
Livestock Waste-Handling Facilities
501.403
Protection of Livestock Management Facilities and
Livestock Waste-Handling Facilities
Handling and Storage of Livestock Waste
Field Application of Livestock Waste
Inspections and Disease Prevention
Appendix A:
References to Previous Rules
AUTHORITY:
Implementing
and authorized by Sections 9,
12,
18,
21,
22, and 27 of the Environmental Protection Act
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
pars.
1009,
1012, 1013,
1021,
1022 and
1027)
SOURCE:
Filed and effective January
1, 1978; amended 2
Ill. Reg.
44,
p.
137, effective October 30,
1978; codified at
7
Ill.
Reg.
10592; amended at
__________
Ill. Reg.
__________,
effective
501.335
501.340
501.342
501.345
501.350
501.
355
501.
356
501.365
501.
370
501.
372
501.375
501.
380
Section
SUBPART
C:
OPERATIONAL
RULES
501. 404
501. 405
501.406
122—195
—24—
SUBPART A:
AUTHORITY
AND
POLICY
Section 501.102
Policy
a)
It is the purpose of the General Assembly in adopting
the Environmental Protection Act to restore, maintain
and enhance the purity of the air and waters of
Illinois in order to protect health, welfare, property
and the quality of life.
An adequate supply of healthy
livestock is essential to the well—being of Illinois
citizens and the nation.
They provide the daily source
of meat,
milk, and eggs.
Their efficient, economic
production must be the concern of both producers and
consumers if we are to have a continued abundance of
high quality, wholesome food and of other livestock
products at reasonable prices.
,
The policy shall be to
establish regulations that will provide a balance
between a wholesome environment and the efficient
production of adequate livestock products.
b)
Livestock produce wastes which, when properly used,
supply nutrients and organic matter to soils.
The mere
presence of livestock waste in a given location does
not denote pollution,
but may, when improperly stored,
transported or disposed of, undesirably affect the
environment.
C)
It is hereby determined that the construction,
establishment and operation of certain livestock
management facilities and livestock waste—handling
facilities without environmental planning and
safeguards or the use of certain livestock wastes for
agricultural purposes causes, threatens or allows the
discharge of contaminants into the air or waters of
Illinois so as to cause or threaten to cause pollution
or to render such waters harmful to public health,
safety or welfare or to domestic, commercial,
industrial, agricultural and recreational uses or to
man, livestock, wild animals, birds or fish or other
aquatic life.
~j
It is hereby determined that the construction~,
estab1ishit~entand operation of livestock management
facilities and livestock waste—handling facilities
without environmental planning and safeguards or the
use of livestock wastes
for. agricultural purposes
causes, threatens or allows air pollution, THE
DISCHARGE OF CONTAMINANTS INTO THE AIR OF ILLINOIS IN
SUFFICIENT QUANTITIES
AND
OF SUCH CHARACTERISTICS
AND
DURATION AS
TO
BE
INJURIOUS
TO
HUMAN.
PLANT
OR
ANIMAL
LIFE, TO HEALTH. OR TO PROPERTY, OR TO UNREASONABLY
INTERFERE WITH THE ENJOYMENT OF LIFE OR PROPERTY.
(Ill.
Rev.
Stat.
ch.
111 1/2 par.
1003.2)
It is recognized
122—196
—25—
that the presence of odor
is an inherent characteristic
of livestock management facilities and livestock waste-
handling facilities, and that the detection of such
odor does not ~er se constitute air pollution.
8~)-e) It is the purpose of this Chapter to prevent pollution
of the air and waters of Illinois caused by failure to
plan with regard to proper environmental safeguards the
construction, location
.
and operation of certain
livestock management facilities and livestock waste—
handling facilities.
A permit system
is established to
ensure that such activities take account of
environmental considerations and to meet the
requirements for federal approval, as established by
the CWA.
It is also the purpose of these regulations
to prevent pollution from the numerous point and non—
point discharges, both continuous and fluctuating,
which are present in certain livestock management
facilities or livestock waste-handling facilities.
To
this end, procedural safeguards are required,
in
addition to compliance with the CWA, NPDES filing
requirements and the feedlot category of point source
effluent guidelines.
(Source:
Amended at
Ill. Reg.
____,
effective
_______).
SUBPART B:
DEFINITIONS
AND
INCORPORATIONS
Section 501.200
~j
The Board incorporates the following material by
reference:
ASAE.
Available from American Society of Agricultural
Engineers, 2950 Niles Road,
St.
Joseph. MI 49085—9659
(616—429—0300).
“Control of Manure Odors,” ASAE EP379.1
(December
1986).
“Design of Anaerobic Lagoons for Animal Waste
Management,” ASAE EP4031
(March 1990).
b)
This Section incorporates no later editions or
amendments.
(Source:
Added at
Ill. Reg.
_____,
effective
__________
Section 501.246
Expansion
Commencement of construction at a livestock management facility
or livestock waste-handling facility where the fixed capital cost
of the new components constructed ‘within a 2—year period exceeds
122—197
—26—
50
of the fixed capital cost of a comparable entirely new
faciLity.
(Source:
Added at
Section
501.248
Ill. Reg.
_____,
effective
__________
Farm Residence
Any residence on a farm owned or occupied by the farm owners,
operators. tenants or seasonal or year—round hired workers.
For
purposes of this definition,
a “farm” is the land, buildings, and
machLnery used in the commercial production of farm products, and
“farm products” are those plants and animals and their products
which are produced or raised for commercial purposes and include
but
are
not limited to forages and sod crops, grains and feed
crops., dairy and dairy products, poultry and poultry products,
livestock,
fruits, vegetables,
flowers,
seeds, grasses, trees,
fish,
honey and other similar products, or any other plant.
animal, or plant or animal product which supplies people with
food,
feed, fiber, or fur.
(Source:
Added at
Ill.
Reg.
effective
Section 501.274
Liquid Livestock Waste
Livestock waste which can be spread with a conventional liguid
manure spreader.
This includes
pit
manures
lagoon manures,
holding pond or tank manures, and any other livestock waste
consisting of less than 20
solids concentration.
(Source:
Added at
Section 501.317
_____
Ill.
Reg.
,
effective
Maximum Feasible Location
).
Any location for the establishment of a new livestock management
facility or new.~livestock waste-handling facility where one of
the following conditions exist:
~j
The site is
located closer to the livestock owner’s or
operator’s residence than to a neighboring farm or non—
farm residence or populated area; or
,~j
The site is adjacent to an existing livestock
management facility or livestock waste—handling
facility,
or is farther away from a neighboring farm or
non—farm residence or populated area than the existing
livestock management facility or livestock waste—
handling facility, when the livestock owner or operator
does not reside on the farm where the livestock are to
be kept or raised;
or
gj
The site is accessible to roads, water and electricity
and is at the farthest location from a neighboring
faflTi
or non—farm residence or populated area; there is no
122—198
—27—
existing livestock management facility or livestock
waste-handling facility on the site, and the livestock
owner or operator does not reside on the farm where the
livestock are to be kept or raised.
(Source:
Added at
Ill..
Reg.
____,
effective
_________).
Section 501.330
~ew Livestock Management Facility and New
Livestock Waste-Handling Facility
Any livestock management facility or livestock waste-handling
facility the construction or modification of which is commenced
on or after the effective date of this Chapter January
1,
1978.
(Source:
Amended at
Ill. Reg.
_____,
effective
_________).
Section 501.342
Non—farm Residence
Any residence which is not a farm residence.
(Source:
Added at
Ill.
Reg.
____,
effective
_________).
Section
501.356
Populated Area
Any area where at least ten
(10)
inhabited
non—farm
residences
or
at least fifty
(50) persons frequenting a common place of
assembly or a non—farm business at least once per week.
(Source:
Added at
Ill. Reg.
_____,
effective
___________
Section
501.372
Supernatant
The liguid portion of the livestock waste that overlies deposited
or settled solids that are stored in a tank or lagoon.
(Source:
Added at
Ill. Reg.
_____,
effective
__________
SUBPART C:
OPERATIONAL RULES
Section 501.402
Location of New Livestock Management
Facilities and New Livestock Waste-Handling
Facilities
a)
No new livestock management facility or new livestock
waste-handling facility shall contain within its
boundaries any stream or other surface waters except
small temporary accumulations of water occurring as a
direct result of precipitation.
b)
New livestock management facilities and new livestock
waste-handling facilities located within a 10-year
flood height as recorded by the United States
Geological Survey or as officially estimated by the
122— 199
—28—
Illinois State Water Survey shall be protected against
such flood.
c)
~j
Upon July 15.
1991. nNew or expanded livestock
management facilities and new or expanded
livestock waste-handling facilities shall not be
located in clo3e proximity to populated areas ~o
a~to cause air pollution within 1/2 mile of a
populated area or within 1/4 mile of a non—farm
residence.
~
For purposes of this subsection
(c). the following
shall not be considered location of a new or
expanded livestock management or waste handling
facility:
~j
Commencement of operations at an idle
facility
which
has
livestock
shelters
left
intact, and which has been operated as a
livestock
management
facility
or livestock
waste—handling
facility
for
four
consecutive
months at any time within the ten
(10)
previous years
~
Commencement of operations at a facility
reconstructed after partial or total
destruction due to natural causes,
i.e.,
tornado, fire,
or earthquake.
~J
Adequate odor control methods and technology shall
be practiced by operators of new and existing
livestock management facilities and livestock
waste—handling facilities so as not to cause air
pollution.
~
The setback requirements of subsection
(C)
shall not
apply to any livestock management facility or livestock
waste-handling facility which meets any of the
following ‘conditions:
jj
The facility is located in an Agricultural Area,
desiqriated as such pursuant to the Agricultural
Areas Conservation and Protection Act, Ill.
Rev.
Stat. 1989,
ch.
5, para.
1001 et seq.
~
The facility undergoes expansion,
and the owner of
the_facility certifies and notifies the Agency in
writing as such that the facility was operating as
a livestock management facility or livestock
waste—handling facility for at least one year
prior to the existence of any non—farm residence
within 1/4 mile of the facility or of
a populated
area within 1/2 mile of the facility;
or
122—200
—29—
~I
The use of the facility as a livestock management
or livestock waste handling facility is allowed by
local zoning or municipal ordinance.
If no local
zoning or municipal ordinance exists that covers
such use, the facility shall be exempt if the
livestock are not raised or kept at the facility
primarily for hire or the raising or keeping of
livestock at the facility does not have financial
profit as a Primary aim.
~j
A new livestock management facility or new livestock
waste-handling facility which locates within 1/4 mile
of a neighboring farm residence shall locate at the
maximum feasible location from such residence.
~j
A new livestock management facility or new livestock
waste-handling facility which locates within 1/4 mile
of a non—farm residence or within
1/2 mile of a
populated area, pursuant to subsection
(d), shall
locate at the maximum feasible location from such
residence or ~o~ulated area.
~-)-qj
New livestock management facilities or new livestock
waste-handling facilities located on soil types or
geological formations where the deposition of livestock
waste
is likely to cause groundwater pollution shall be
constructed in such a way that pollution will be
prevented, or supplementary measures shall be adopted
which will prevent pollution.
(Source:
Amended at
Ill. Reg.
____,
effective
_______).
Section 501.404
Handling and Storage of Livestock Waste
a)
Any livestock waste stored in excess of six months
shall be contained in a manure storage structure.
b)
Temporary Manure Stacks
1)
Temporary manure stacks shall be constructed or
established and maintained in a manner to prevent
runoff and leachate from entering surface or
groundwaters.
2)
No temporary manure stack shall be constructed
within 100 feet of a water well.
c)
Livestock Waste-Holding Facilities
1)
Liquid manure-holding tanks shall be impermeable
and capable of withstanding pressures and loadings
to which such a tank may be subjected.
122—
20 1
—30—
2)
Holding ponds and lagoons shall be impermeable or
so sealed as to prevent groundwater or surface
water pollution.
3)
The contents of livestock waste-handling
facilities shall be kept at levels such that there
is adequate storage capacity so that an overflow
does not occur except in the case of precipitation
in excess of a 25—year 24—hour storm.
4)
Liquid
Livestock
Waste
A)
Existing
livestock
management
facilities
which handle the waste in
a liquid form shall
have adequate storage capacity in a liquid
manure—holding tank,
lagoon, holding pond,
or
any combination thereof so as not to cause
air or water pollution as defined in the Act
or applicable regulations.
If inadequate
storage time causes or threatens to cause a
violation of the Act or applicable
regulations, the Agency may require that
additional storage time be provided.
In such
cases,
interim pollution prevention measures
may be required by the Agency.
B)
New livestock waste-handling facilities which
handle the waste in a liquid form shall
provide a minimum of 120-day storage with a
liquid manure-holding tank,
lagoon, holding
pond, or any combination thereof unless the
operator has justifiable reasons
substantiating that a lesser storage volume
is adequate.
If inadequate storage volumes
cause or threaten to cause a violation of the
Act or applicable regulations, the Agency may
require corrective measures.
~j
Runoff Field Application Systems
Any livestock management facility may construct and
operate a runoff field application system for the
treatment of livestock waste from fewer than 300 animal
units,
meeting the requirements of 35
Ill.
Adm. Code
570,
in lieu of utilizing liquid manure-holding tanks,
holding ponds, or lagoons
in compliance with subsection
(C),
or other livestock waste—handling systems which
would assure compliance with the Act and 35 Ill. Adm.
Code.Subtitle E.
~j
Subsections
(a)
through
(d)
shall not apply to
livestock management facilities with fifty
(50)
or
122—202
—31—
fewer animal units,
provided that the following
conditions exist:
fl
The. location of the facility relative to waters of
the_State is such that there is no discharge of
livestock waste into waters of the State,
in
violation of Section 12 of the Act
(Ill. Rev.
Stat.
1989.
ch.
111 1/2, par. 1012)
~j.
There is no discharge of livestock waste into
waters of the State by means of
a man—made ditch,
flushing system or ‘other similar man—made device,
in violation of Section 12 of the Act
(Ill.
Rev.
Stat.
1989.
ch.
111 1/2. par. 1012); and
~j
The facility is managed so that livestock waste is
not allowed to accumulate to an extent which
threatens to cause
a discharge to waters of the
State,
in violation of Section
12 of the Act
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1012).
(Source:
Amended at
Ill. Reg.
_____,
effective
Section 501.405
Field Application of Livestock Waste
~j
The quantity of livestock waste applied on soils shall
not exceed a practical limit as determined by soil
type, especially its permeability, the condition
(frozen or unfrozen)
of the soil, the percent slope of
the land,
cover mulch, proximity to surface waters and
likelihood of reaching groundwater, and other relevant
considerations.
These livestock waste application
guidelines will be adopted pursuant to Section 502.305,
unless otherwise provided for by Board regulations.
~j
Operators of livestock waste handling facilities shall
practice odor control methods during the course of
manure removal and field application so as not to
affect a neighboring farm or non—farm residence or
populated area by causing air pollution as described in
Section 501.102(d).
Odor control methods include,
but
are not limited to,
fl
Soil iniection or other methods of incorporation
of waste into the soil including disking ‘or
plowing
~j
Consideration of climatic conditions including
wind direction and inversions
~j
For
liquid
livestock
waste:
whether
supernatant
which
is used for irrigation purposes has been
stored in a livestOck waste lagoon system which is
122—203
—32—
designed
and
operated
in
accordance
with
“Design
of Anaerobic Lagoons for Animal Waste Management”,
as incorporated by reference at Section 501.200.
j).
Other methods as described in “Control of Manure
Odors”, as incorporated by reference at Section
501. 200.
(Source:
Amended at
Ill. Reg.
____,
effective
_______
122—204
—33—
IT IS SO ORDERED.
Board Member Joan G. Anderson concurred.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify ‘that the above Opinion and Order was
adopted on the
~
day of
~i7)-~
o—.~1
,
1991, by
avoteof
7—c
.
/
L
~borothy N. G4in,
Clerk
Illinois Pol’rution Control Board
122—205
