ILLINOIS POLLUTION CONTROL BOARD

June

20, 1991

IN THE MATTER OF:

)

)

ANENDNENTS TO 35 ILL. ADM.

CODE 501

)

R90-7

AGRICULTURE-RELATED POLLUTION

)

(Rulemaking)

(MANAGEMENT OF LIVESTOCK WASTES)

)

Adopted Rule

Final Order

OPINION AND ORDER OF THE BOARD

(by R.C.

Flemal):

This matter comes before the Board upon a regulatory

proposal filed on 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.

By Order of May 9,

1991 the Board submitted the

proposed amendments considered in this docket to the Joint

Committee on Administrative Rules

(1tJCAR”),

pursuant to Section

5.01(b)

of the Illinois Administrative Procedure Act

(“APA”)

(Ill.

Rev.

Stat.

1989,

ch.

127, par.

1001 et seq.).

On June

11,

1991 JCAR issued a certification of no objection to the proposed

amendments.

Accordingly,

the Board hereby adopts the amendments

without modification from the version proposed by the Board

in

its May 9,

1991 Opinion and Order in this matter.

PROCEDURAL HISTORY

Today’s 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

The Board wishes to acknowledge the special contribution

made by Michelle C.

Dresdow, who has served as Hearing Officer

throughout these proceedings, and who has participated in the

drafting of the Board’s Opinion and Orders.

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—2—

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 DeKaib,

Stockton,

Effingham,

Carterville,

Jacksonville, and Galesburg.

The hearings were well attended and

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 were 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” PC5 #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., PC5 #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

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—3—

no motions to file instanter and allowing for mail delays.

These

not included in the record and were not considered by the Board.

OVERVIEW OF TODAY’S AMENDMENTS

Today’s action amends existing Board regulations pertaining

to Agriculture Related Pollution found at 35 Ill. Adm.

Code:

Subtitle E, Part 501.

The amendments have four major provisions.

The first major provision adds a clarifying statement to the

Policy Statement in the Board’s regulations regarding

Agricultural Related Pollution, found at 35 Ill. Adm. Code

501.102

(see following Section-by Section discussion and attached

Order).

In particular,

this provision clarifies the relationship

between livestock odors and air pollution.

The second major provision amends 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 are

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

are required to locate at the “maximum feasible distance” from

residences or populated areas.

The principal amendments that

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 amendments provides 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 are

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 amendments require

operators to practice field application procedures in such manner

as to not cause air pollution.

This provision is 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 amendments

also include 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

---

—4—

which support the major provisions

(see following Section-by

Section discussion and attached Order).

DISCUSSION OF ADOPTED AMENDMENTS

The Board next turns to a Section—by—Section discussion of

today’s amendments.

Section 501.102

Policy Statement

The amendment to Section 501.102 consists of an additional

policy statement 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.

Section 501.200

Incorporations by Reference

Section 501.200

is a new Section added 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”) had expressed concern

that citation of the ASAE document “Control of Manure Odors”

could “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 emphasizes that any expanded authority

given to any of the documents incorporated herein could only be

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 incorporations are necessary to

support the proposed amendments to other Sections.

Section 501.246

“Expansion” Definition

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—5—

Section 501.246 defines the term “expansion” as used within

today’s overall amendments,

and specifically with respect to the

use of the term “expanded facility” found at Section 501.402.

As the Agency noted, the concept employed in this definition

of expansion is derived from the definition of a “new potential

secondary source” found at Section 3.60 of the Illinois

Environmental Protection Act

(Ill.

Rev.

Stat.

1989 Ch.

111 1/2,

par. 1003.6).

The Agency further noted:

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 definition

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 Section.

The comments were

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 amendments,

the types of residences defined in

these Sections are only used in conjunction with the setback

distances of Section 501.402.

Some comments received during First Notice indicate that the

distinction between farm and non-farm 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

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—6—

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)

indicates no distinction between farm and

non—farm residents in assessing neighbors’ perceptions of certain

farms as nuisances.

The study further indicates that the actual

determining factors are the distance from the neighboring

residence and whether the farm can be seen from the neighboring

residence

(u.).

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.

At Second Notice, the Board accepted 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.

In First Notice Comments, 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 clarifies the

definition and included changes in these amendments.

The

clarification was accomplished by inserting the words “owned or”

before the word “occupied”.

Therefore,

the definition applies to

any farm residence owned or occupied by the farm owners,

operators,

or seasonal workers.

The definition applies

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.

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).

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 at Section 501.405

(see

following).

Section 501.317

“Maximum Feasible Location” Definition

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—7—

Section 501.317 contains a definition for the term “maximum

feasible location” as this term is used in 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 was 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).

At Second Notice the only changes made to the First Notice

language were 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 contains the definition of new livestock

management facility and new livestock waste-handling facility

(“new facility”).

The definition was originally 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.

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 retroactive application of the limitations on location of

expanded facilities contained in 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 effective date of

this Chapter January

1,

1978.

or any expansion which

occurs on or after July 1.

1991.

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—8—

In response to this matter, the IFB pointed out that the

problem of retroactive 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 added that retroactive application of the

definition

in Section 501.402 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, at Second Notice the Board

noted that 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

other previously existing rules.

To resolve this problem,

at Second Notice the Board deleted

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”, provides

greater clarity for existing rules and complies with current

Administrative Code Division drafting requirements.

The Board

included 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 retroactive 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

The 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

amendments achieve 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 amendments also contain 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 effective date of

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—9—

July

15, 1991 has been added to this subsection1.

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 pointed 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

in

(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

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)

1 This date will also coincide with the effective date of the

entirety

of the amendments made

in this proceeding.

At

Second

Notice the Board

changed the date

from July

1,

1991

(the date

proposed at First Notice in the definition of new facility) to July

15,

1991.

This was done to give enough time for completion of the

rulemaking process before the amendments are effective.

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—10—

In evaluating these recommended distances, the Agency

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 distances would 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 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

(lEA PC #73).

At Second Notice the Board noted 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 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

considered new or expanded facilities to be exempted from that

status, and hence from the setback requirements of Section

50l.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 suggested language at hearing was

inadvertent

(Agency PC #89).

As the Agency pointed out, the

discussion in the record leading to its suggested changes did not

pertain to the “four consecutive months” clause, but rather to

the status of the structures.

The record states:

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—11—

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 advocated 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.

At

Second Notice 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 saw 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 added 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 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)(1)

and

(2)).

These provisions

are presented without modification from First Notice.

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

Agricultural 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 encroach 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 471).

However, the Board believes the one-year period is

reasonable to indicate actual establishment of the particular

type of farming operation.

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).

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—12—

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 by the Champaign County Farm Bureau

(R. at 487-94) and by

the Horsemen’s Council of Illinois

(R.

at 254).

At hearing, HCI also presented the alternative that horses

should not be considered livestock,

thereby exempting them from

regulation

(R. at 250-3).

However, this alternative

is not

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).

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 suggested by 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 stated 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)

---

—13—

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

a.

NcAloon 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 purposes.

The language offered by HCI also would exempt those facilities

that are specifically allowed pursuant to zoning regulations.

Regarding this 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 should make no difference whether the

livestock are kept for commercial or non—commercial purposes.

At

Second Notice the Board noted that it believes that the HCI’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 added language that exempts

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

are not exempt,

as these are generally commercial activities,

and

are considered the same as other commercial livestock operations.

Note also that the Board added language that describes commercial

activity,

rather than using the term “commercial”.

This

---

—14—

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 is 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

have greater assurance that neighbors will 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

apply

(R.

at 513).

In comments, the Agency pointed out that its

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).

At Second Notice,

the Board declined to add an exemption based on number of

animals.

Economic Impact.

A potential adverse economic impact exists

for the amendments to Section 501.402 because the number of

locations where a new facility could be sited is 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 have

a potential adverse economic impact in that expansion

is 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 should be positive since the amendments prohibit the

2 At Second Notice, the Board added the term “neighboring” to

make

this

subsection

consistent

with

Section

501.317,

Maximum

Feasible Location, which also uses “neighboring”.

---

—15—

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 seems economically

reasonable and technically feasible as a standard for control of

odor, especially considering the exceptions 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 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 addition of subsection

(d), which allows the use

of vegetative filters for livestock management facilities with

fewer than 300 animal units3.

The vegetative filters are to 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

~ “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:

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.

---

—16—

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

on the consistency of such language with the design criteria of

Section 501.570

sic4.

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 supported the Board’s alternative

language

(Agency PC #89) and the Illinois Department of

Conservation

(“IDOC”) commented 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.

Adm. 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, systems should only treat wastes from fewer than

300 animal units5.

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 502.104(b) which states:

Pollutants are discharged into navigable waters through

man—made ditch,

flushing system

or other similar man-

made device;

(emphasis added)

“

The Section citation should have read 570.101.

The State NPDES program requirements must not be in conflict

with the federal requirements for approval of the State program.

---

—17—

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 amendments 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,

at Second Notice the

Board deleted the language proposed at First Notice and replaced

it with the alternative language suggested in the Board’s First

Notice opinion.

No other changes were made.

Small Farm Proiects.

The Agency included the subsection

(e)

amendment in its proposal because:

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 amendment as affording

protection to waters of the State

(IDOC PC #110).

The amendment

also has a positive economic effect on these smaller facilities,

since qualifying facilities do not have to install costly waste

storage and runoff controls

(see Agency testimony,

R.

at 56).

Section 501.405

Field Application of Livestock Waste

The 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 that a regulation that offers

assistance to farmers in making determinations in their

individual situations offers the best prospect of addressing the

---

—18—

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 situation remains the same as the method proposed at

First Notice6.

The essence of today’s amendments 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

farmer or farm 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 amendments further recognize 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

include 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

6 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.

---

—19—

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

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).

However,

the

Board

believes

that

this

concern

is

not

fitting 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

---

—20—

pertaining to both these methods of waste distribution and odor

control.

The Agency suggested 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 methods to be practiced wherever a neighboring inhabited

residence7 or populated area

is affected by air pollution caused

by the odor.

However,

at Second Notice the Board changed the

word “inhabited”

in favor of using “farm or non—farm” as these

are defined in the amendments.

It is assumed that any

neighboring inhabited residence will 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 allowing

flexibility for farming operations when practicing odor control.

Therefore,

the Board included this change in the amendments in

Second Notice.

In conclusion,

the Board believes the amendments to Section

501.405 are technically feasible and economically reasonable.

The amendments are drafted in a manner that 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 can be practiced.

Where an odor problem

does exist, an operator can 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, best serves rural residents,

farm and

non-farm alike.

ORDER

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 by the

Agency

in its post-hearing comments

(Agency PC #29).

The Board

intended to insert this word and included it in the rule at Second

Notice,

and

deleted

the

term

“inhabited”

as

discussed

in the

Opinion above.

---

—21—

The Clerk of the Board is directed to submit the text of the

following amendments to the Secretary of State for final notice

pursuant to Section 6 of the APA.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE E:

AGRICULTURE RELATED POLLUTION

CHAPTER I:

POLLUTION CONTROL BOARD

PART 501

GENERAL PROVISIONS

SUBPART A:

AUTHORITY

AND

POLICY

Section

501.200

____________________________

501.201

Definitions

501.205

Act

501.210

Administrator

501.215

Air Pollution

501.220

Agency

501.230

Animal Unit

501.235

Board

501.240

Construction

501.241

CWA

501.245

501.246

_________

501.248

________________

501.250

501.260

501.265

501.270

501.274

_________________________

501.275

501.280

501.285

501.290

501.295

501.300

501.305

501.310

501.315

501. 317

____________________________

501.320

501.325

Section

501.101

501.102

Authority

Policy

SUBPART B:

DEFINITIONS AND INCORPORATIONS

Incorporations by Reference

Existing Livestock Management Facility and Livestock

Waste-Handling Facility

Expansion

Farm Residence

Feedlot Runoff

Impermeable

Lagoon

Leachate

Liguid 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

---

—22—

501.335

501.340

501.342

501.345

501.350

501.355

501.356

501.365

501.370

501.372

501.375

501.380

501.330

New Livestock Management Facility and New Livestock

Waste-Handling Facility

NPDES

NPDES Permit

________

Non-farm Residence

Owner or Operator

Person

Pollutant

_______

Populated Area

Settling Basin

Standard of Performance

Supernatant

Temporary Manure Stack

Water Pollution

SUBPART

C:

OPERATIONAL RULES

Section

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

501.404

501.405

501.406

---

—23—

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,

establishment and 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

---

—24—

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 per se constitute air pollution.

d-)-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.l

(December

1986)

“Design of Anaerobic Lagoons for Animal Waste

Management,” ASAE EP403.1

(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

---

—25—

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

machinery 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 liq,1~

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

Ill. Reg.

_____

effective

____________).

Section 501.317

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 kent or raised;

or

gj

The site is accessible to roads, water and electricity

and is at the farthest location from a neighboring farm

or non-farm residence or populated area;

there is no

---

—26—

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

New 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 liquid 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

---

—27—

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 close proximity to populated areas ~o

as to cause air pollution within 1/2 mile of a

populated area or within 1/4 mile of a non—farm

residence.

~j.

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

~J

Commencement of operations at a facility

reconstructed after partial or total

destruction due to natural causes, i.e.,

tornado,

fire, or earthquake.

fl

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.

~j.

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:

fl

The facility is located in an Agricultural Area,

designated as such pursuant to the Agricultural

Areas Conservation and Protection Act,

Ill.

Rev.

Stat.

1989,

ch.

5, para.

1001 et seq.

21

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

---

—28—

~j

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 populated area.

8-)-gj 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.

---

—29—

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.

~fl

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.

~

Subsections

(a) throu~h(d)

shall not apply to

livestock management facilities with fifty

(50)

or

---

—30—

fewer animal units, provided that the following

conditions exist:

~j

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)

21

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.

1939,

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 injection or other methods of incorporation

of waste into the soil including disking or

plowing

21

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

---

—31—

designed and operated in accordance with “Design

of Anaerobic Lagoons for Animal Waste Management”.

as incorporated by reference at Section 501.200.

4j

Other methods as described in “Control of Manure

Odors”,

as incorporated by reference at Section

501.200.

(Source:

Amended at

Ill.

Reg.

_____,

effective

_________).

IT IS SO ORDERED.

Board Member Joan G. Anderson concurred.

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

Board, hereby certify that the above 0 inion and Order was

adopted on the

‘e~ZZ day of

_____________________,

1991,

by

a vote of

____________

orothy N.

c~1nn,Clef~k

Illinois Poflution Control Board