ILLINOIS POLLUTION CONTROL BOARD
February 7,
1991
IN THE MATTER OF:
)
)
AMENDMENTS TO
35 ILL. ADM. CODE 501
)
R90-7
AGRICULTURE-RELATED POLLUTION
)
(Rulemaking)
(MANAGEMENT OF LIVESTOCK WASTES)
)
Proposed Rule
First Notice
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.
In response to a request from the Illinois Farm Bureau,
hearings on the proposal were held at various times and locations
around the State in order to accommodate the working farmer.
Dates and places were: August 14
(DeKaib), August
15
(Stockton),
August 20
(Effinghain), August 21
(Carterville), August
23
(Jacksonville),
and August 24
(Galesburg).
The hearings were
well attended; representatives, from the Agency, various farm
organizations, and members of the public testified.
The post—
hearing comment period expired October
1,
1990; 41 public
comments were received.
Today the Board sends the proposed amendments with changes
to First Notice.
OVERVIEW
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 proposal would modify existing regulatory provisions
dealing with the siting of new livestock management facilities,
and livestock waste-handling facilities.
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.
Where new sitings are otherwise
allowed, they would be required to locate at the maximum feasible
distance from residences or populated areas.
118—329
—2—
The proposal would also allow for more liberal use of
vegetative filter strips for the treatment of livestock waste
generated at small- to medium-sized facilities.
The proposal would further establish requirements for the
field application of livestock wastes.
Operators would be
required to practice field application procedures in such manner
as to not cause air pollution.
HISTORY OF THE PROPOSAL
The development of this proposal relates back to November,
1986,
when,
after a midcourse review of livestock waste
management program policies and procedures, the Agency sent its
initial draft of the proposal to various agricultural and
environmental 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.)
In general, the Agency is proposing these amendments to
address perceived ambiguity with certain terms within the current
regulations.
As the Agency states:
The current regulations provide that new facilities
shall not be located in ‘close proximity’ to ‘populated
areas’ so as to cause air pollution
...
The ambiguity
of these regulations results in differing
interpretations between producers and respective
affected parties concerning the meaning of
‘close
proximity’
and ‘populated area’.
Which manure
application situations necessitate incorporation or
injection is equally obscure.
The practical effect of
this is to allow the creation and perpetuation of
alleged odor nuisances.
(~.
at 5).
The Agency further states that it conducts between 60 and 70 odor
complaint investigations per year involving land application of
livestock waste and the siting of animal confinement operations
near residences.
The Agency believes that the subjective nature
of these complaints makes the investigation of these complaints
time consuming and less productive than dealing with other types
of pollution incidents (~çi.).
The Agency also included amendments designed to encourage
the use of runoff field application systems
(vegetative filters)
by small operators
(less than 300 animal units).
118—330
—3—
The Board next turns to a discussion of the amendments by
section, with reasons and changes with respect to the Agency’s
proposal as noted.
DISCUSSION OF PROPOSED AMENDMENTS
Section 501.102
Policy
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.
The new subsection is today proposed essentially in the form
proposed by the Agency.
An exception is that the statutory
language found at the end of the first sentence has been placed
in capital letters and citation to the statutory language has
been added at the end to the first sentence.
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 allow for the addition
of any future incorporations by reference.
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
term “new facility” found at Section 501.330.
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 3.60 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 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).
Section 501.248
“Farm Residence” Definition
Section 501.342
“Non—Farm Residence” Definition
Section 501.356
“Populated Area” Definition
118—33 1
—4—
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.
For the purposes of today’s First Notice, the definitions
are proposed as recommended by the Agency, except for a deletion
in the definition of populated area,
as noted below.
Nevertheless, the Board has reservations about the wisdom of some
of the intended applications of the definitions.
If these
applications are unwise, then the definitions themselves may be
unnecessary or inappropriate.
For example, the Board questions whether it is appropriate
to distinguish between farm and non—farm residences for the
purposes of the restrictions on the siting of new livestock
facilities of Section 501.4021.
Under the system as proposed by
the Agency,
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 which the Agency offers 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 commenters also
expressed this view
(e.g.,
R. at 235-9,
367-8).
While the Board accepts this rationale for the purpose of
today’s First Notice,
it does note that this position is not
universally held.
Some farmers at least do consider that the
operation of neighboring farms generate 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 or not the farm could be seen from the neighboring
residence (Id.)
Therefore, the Board questions whether the
distinction between farm and non—farm residences
is an
appropriate one,
as
it would apply to the setback zones of
Section 501.402.
The Board specifically requests additional
comment on this issue.
1 It is to be noted that in the Agency’s proposal and today’s
action,
the distinction between farm
and non—farm residences
is
only applied in Section 501.402,
not in Section 501.405, covering
field application of livestock waste.
118—332
—5—
The Agency submitted documents which indicate that the
~1efinitionof 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 Board deletes
“are affected or potentially affected by livestock produced
odors” from the definition of “populated area” as this would be
unnecessary as the definition applies to “any area”.
Section 501.274
“Licniid Livestock Waste” Definition
Section 501.372
“Supernatant’t Definition
Sections 501.274 and 501.372 introduce new definitions
necessary to support the amendments proposed at Section 501.405
(see below).
The terms are as proposed by the Agency.
The Agency had proposed a definition for “solid waste” found
at the Agency’s proposed Section 501.368.
However, the term is
not used in today’s First Notice proposal, and hence the
definition has been deleted.
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).
As today proposed, the definition is
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 the term 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).
Section 501.330
“New Facility” Definition
The Agency’s proposed amendment to the definition of new
facility at Section 501.330 has been altered to eliminate the
possibility of prospective application of the amendment as
drafted by the Agency.
The mere addition of the term expansion
to the current definition could mean that any facility which
expanded after January
1,
1978
(the effective date of the
Chapter), would be considered a new facility.
The Board believes
that this would lead to an unworkable result which it believes
was not the intent of the Agency.
Therefore,
the Board separates
the addition of expansion to the definition of new facility with
an effective date of July
1,
1991.
Should final adoption of
these amendments occur after that date,
the date will be changed
to a date which would coincide with the effective date of the
amendments.
118—33 3
—6—
Section 501.402
Location of New Livestock Management
Facilities and New Livestock Waste-Handling
Facilities
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,
which directly tracks the Agency’s proposal, achieves this goal
by providing a quantified limitation on the siting of new
facilities “within 1/2 mile of a populated area or within
1/4
mile of a non—farm residence”.
However, today’s proposal
provides for an exception from this distance limitation for
facilities which are reopened even though they may have been idle
for as many as ten years
,
for facilities located within an
Agricultural Area as that term is defined in the Agricultural
Areas Conservation and Protection Act, and for facilities which
have priority of location with respect to non—farm residences or
populated areas.
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
neighboring houses and..at least 500 feet away from the
2
At
hearing,
the Agency
deleted
from their
proposal
the
requirement
that
a
facility be operated
for
“four
consecutive
months” during the 10-year period in order for the facility to not
be considered a new facility for purposes of subsection
(c)
(R. at
48).
Today’s proposal incorporates this modification.
118—334
—7—
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 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).
Based on the record in
this proceeding to date,
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 in light of the exceptions today specified.
While
some operators may have difficulty siting some facilities
in some
areas
(R.
at 560-565), the exceptions may be useful in this
regard.
The Board encourages further comment on this matter.
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 to
modify regulations 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) providing
exemption for priority of location for expanding facilities
is
meritorious as
it would protect those expanding operations from
nuisance actions where residential areas are encroaching upon the
operation.
The requirement that the facility be in operation for
118—335
—8—
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).
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
(Id. 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 (“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)
(Agency Comments,
PC #29 p.
3).
For the purposes of this First Notice the Board retains the
Agency’s proposed subsection
(d)(3), because it believes an
exemption for local zoning which allows livestock management
facilities
is meritorious, and that the “recreational or backyard
horse owner” as described in the record
(R. at 254 and HCI
Comments PC #41), would come under this exemption.
However, the
Board questions whether the language the Agency suggests
accomplishes this desired result and specifically requests
affected persons to comment on the addition, and to provide
alternate language if believed necessary.
Subsection
(e)
states that new livestock management or
waste-handling facilities which locate within 1/4 mile of
a farm
residence must locate that facility at the maximum feasible
118—336
—9—
location from that residence.
Maximum feasible location
is
defined in Section 501.317 and discussed above.
Likewise,
subsection
(f) provides that a new facility which 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 being established below which
only general prohibitions against pollution would 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
Comments PC #29; See also,
Exh. 28).
The Board declines to add
an exemption based on number
of animals at this time.
Section 501.404
Handling and Storage of Livestock Waste
The proposed amendments to Section 501.404 are designed to
accommodate specific and somewhat minor waste handling problems.
The proposed amendments add subsection
(d) which allows the use
of runoff field application systems
(also known as “vegetative
filters”)
for livestock management facilities with fewer than 300
animal units3.
The vegetative filters would be operated in
accordance with Agency’s “Design and Maintenance Criteria
Regarding Runoff Field Application Systems” found at 35 Ill.
Adm.
Code 570.
Section 501.404(e)
exempts 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.
The Agency’s reasons for including the subsection
(d)
amendments
is in recognition that 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 on whether an operator who handled more than
3”Animal unit”
is defined
in Section 501.230 of the existing
Board regulations.
118—337
—10—
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 would not be allowed to
do so
(R.
at 659).
Yet in the comments, the Agency affirms its
position that Section 501.404 was included to afford small
operators the option of using vegetative filters.
Therefore,
although the Board has included the amendments as proposed by the
Agency, the Board requests 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,
as for example in
the following possible language:
Any livestock management facility may construct and
~perate
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.
Adirt
Code.Subtitle E
).
Perhaps such language would make it clear that larger
operators may use the system for fewer than 300 animal units
only
.
However, comment is also requested on the consistency
such language would have with the design criteria of Section
501.570.
The only change made by the Board to Section 501.404
is the
substitution
in the last sentence of the citation to 35 Ill.
Adm.
Code:Subtitle E, rather than the terms “these regulations”.
This
is done to provide greater specificity and to comply with
codification requirements.
The Agency included the subsection
(e) amendments in their
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
4The question also arises as to whether an operator of a large
facility can divide the operation into segments and use more than
one vegetative filter system,
so long as each system is used for
less than 300 animal units.
118—338
—11—
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)
Virtually nothing more was discussed regarding these
subsection
(e)
amendments.
The Board only added a reference to
Section 12 of the Act,
in subsections
(e) (1),
(2), and
(3), and
added the word “and” after subsection
(e) (2).
The language
is
otherwise that as proposed by the Agency.
On the whole, the Board finds the amendments to Section
501.404 meritorious and would have a positive economic effect for
smaller facilities.
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
(e.g.,
R.
at 195—241,
303—421,
482—6,
493—523,
579—605,
641—683, 750—771).
In part the problems stems
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 aesthetically objectionable and may
constitute valid grounds for the bringing of a nuisance action.
Moreover, how objectionable odors deriving from field—
applied livestock waste may be varies greatly from person to
person.
Much has been said in this record about the different
perceptions of
livestock odors held by rural versus city
residents.
While we believe that this distinction is not as
rigid as some may suggest
(see discussion of Section 501.248,
above),
it is inescapable that in some communities of people the
practice of field application of livestock waste
is a socially
acceptable, vital activity, whereas in other communities it
constitutes an unacceptable intrusion into the enjoyment of life.
One need look no further that the long history of application of
livestock waste to land versus the number of complaints received
by the Agency and others
(See testimony of Agency field staff,
R.
at 95—158; Exhs.
42—52 and R. at 584—589.).
Our dilemma is to
retain the maximum benefit for the community in which the
practice is acceptable,
and to reduce to a minimum the nuisance
imposed on the community in which the practice is unacceptable.
Throughout the proceeding, persons presented suggested
revisions to the Agency proposal, and others advocated deletion
of this section from the proposal.
In its comments, the Agency,
in response to some of the issues raised at hearing, submitted
major revisions to the language originally proposed for this
118—339
—12—
section by the Agency
(See PC #29 p.2—3).
In today’s action,
the
Board declines to adopt this portion of the Agency’s proposal,
instead proposing other language,
as described below.
In the Agency’s proposal as revised, Section 501.405(b)
through
(e)”prohibits, except under certain ‘circumstances, the
surface application of liquid livestock waste within 1/4
mile of
a neighboring inhabited residence.
The section allows liquid
waste to be land applied within the 1/4 mile setback if the waste
is injected or incorporated within 24 hours of application.
The
circumstances under which the exceptions apply include
application on snow covered or frozen ground, and the only land
available to the producer if application is within the 1/4 mile
setback.
In addition, the Agency would allow supernatant from
livestock wastes stored in a lagoon system to be applied within
the 1/4 mile setback without incorporation if the lagoon system
was designed and operated according to certain ASAE
recommendations
(Exh.
59), and the wind direction is such that
the wind would not carry odors or drift to neighboring inhabited
residences.
Also,
subsection
(e) would prohibit the surface
application of solid livestock waste within the 1/4 mile setback
without incorporation when wind direction would convey odors to
neighboring inhabited residences
(PC #29 p.
2-3).
The Board believes that the proposed requirements of Section
501.405(b)
through
(e), even as revised by the Agency in PC #29,
would place an undue economic burden on the farming community’
with little gain for those possibly affected by the livestock
odors.
In many instances,
such amendments would be technically
infeasible as well.
As can be seen in the record,
it is doubtful
whether farmers could consistently comply with the requirements
of incorporation of livestock waste within 1/4 mile of inhabited
neighboring residences.
The resulting rule could easily become
an unenforceable paper—law.
Moreover,
it is questionable whether
such regulation is necessary to prevent odor pollution in many
instances,
i.e, that application within 1/4 mile may not be
objectionable for many residents.
Also,
where there are odor
problems, the amendments as proposed by the Agency may not help
curb the number of complaints or lawsuits,
as desired by the
Agency.
Such reduction in complaints is at best,
speculative.
One of the main objections to the Agency proposed amendments
to Section 501.405 was the difficulty and,
in some cases,
inability of farmers to incorporate waste into land after
application where the land contains growing crops which would be
destroyed or damaged
(R. at 199,
518; DOA PC #33),
and
furthermore, where the land is highly erodible and is enrolled in
the soil conservation ASCS program
(R.
at 382-5,
377,
391-2,
493,
657).
Such conservation programs many times require no—till
practices or certain amounts of crop residue to remain in the
fields
(IFB PC #28 Attachment A).
The only solution the Agency
offered was storage of the wastes or location of other suitable
fields
(Statement of Reasons at 14).
It was brought out that
118—340
—13—
storage would result in other problems,
including increased odor
and costs,
and in many instances,
particularly for smaller
operators,
additional land may not be available
(R.
at 331-4,
344—8,
353—7,
377).
The ‘Board believes that a regulation which offers’ assistance
to farmers in making determinations in their individual
situations would offer the best solution here.
Accordingly, the
Board’s proposed amendments begins with a general requirement to
use odor control methods during the course of field application
within 1/4 mile of neighboring residences,
so as not to cause air
pollution (Section 501.405(b)).
It is important to note that the
relationship between air pollution and 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 which can cause air pollution, but
that detection of odor does not per se constitute air pollution.
The Board requests comment as to whether this intent is
sufficiently clear
in today’s draft amendments.
The Board considers incorporation of livestock waste a good
method of odor control.
Nevertheless, the record discloses that
incorporation of wastes is not the only method of odor control,
but rather one method in a series of possible options,
some of
which can be used alone or in combination with other methods to
achieve odor control
(R.
at 518),
and as noted in the ASAE
document on odor control:
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.
118—341
—14—
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)
In addition, incorporation may not be needed in every
circumstance to control the odor.
This fact became evident in
testimony presented by the Illinois Pork Producers and Dr. Arthur
Muehling who advocated an exception allowing for the use of
irrigation of certain lagoon treated wastes which emit less odor
(R. at 484-6).
Also,
the distinction between odor from solid
livestock waste and liquid livestock waste and the effect of
certain climatic conditions on odor were brought out by the
Illinois Farm Bureau
(R.
at 195-206).
The Agency elected to
handle these situations by using exceptions to a general
incorporation requirement
(See PC# 29 at 2—3).
The Board chooses
to use these as examples of how to handle certain odor problems.
Therefore, rather than using the term “adequate”
to describe
types of odor control methods, examples of odor control methods,
as well as references to ASAE material presented at hearing
(Exh.
59 and 14), are included in subsection
(b)(1-4)5.
Also, the
Board does not think it is necessary to distinguish between solid
and liquid manure for the purposes of this proposed amendment,
since operators would have the choice, depending on their
particular operation,
of. which odor control method or methods to
use.
In conclusion, the amendments to Section 501.405 are drafted
in a manner which would require the use of odor control methods
within
1/4 mile of neighboring inhabited residences,
while
allowing operators the most flexibility in choosing which odor
Terms such as “adequate” are usually not favored among the
Joint Committee on Administrative Rules, unless examples are given.
118—34 2
—15—
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 better serve rural residents,
farm and non—farm alike.
This proposed Opinion supports the following Order and
proposed amendments.
118—343
—16—
ORDER
The Board hereby proposes for First Notice the following
additions to 35 Ill. Adm. Code 501..
The Clerk of the Board is
directed to file these proposed amendments and rules with the
Secretary of State.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE E:
AGRICULTURE RELATED POLLUTION
PART 501
GENERAL PROVISIONS
SUBPART A:
AUTHORITY AND POLICY
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
501.265
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
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
Section
501. 101
501. 102
Authority
Policy
SUBPART B:
DEFINITIONS AND INCORPORATIONS
118—344
—17—
501.325
Navigable Waters
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
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 Sections
9,
12,
18,
21, and 22 of the
Environmental Protection Act
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
pars.
1009,
1012,
1013,
1021 and 1022)
and authorized by Section
27 of the Environmental Protection Act
(Ill. Rev. Stat.
1989,
ch.
111 1/2, par.
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
501.401
501.402
SUBPART C:
OPERATIONAL RULES
General ‘Criteria
501.404
501.405
501.406
118—345
—18—
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
118—346
—19—
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)
“Design of
Anaerobic Lagoons for Animal Waste
Management,” ASAE EP403.1
(March 1990).
“Control of Manure Odors,” ASAE EP379.1
(December
1986)
~
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
118—347
—20—
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 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 ‘~‘~ichcan be spread with a conventional 1iq’~id
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 residence or
populated area;
or
~
The site is adjacent to an existing livestock
management facility or livestock waste—handling
facility,
or is farther away from a neighboring
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
raised; or
gj
The site is accessible to roads, water and electricity
and is at the farthest location from a neighboring
residence or populated area; there
Is no existing
118—348
—21—
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 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,
or any expansion which occurs on or after July 1,
1991.
(Source:
Amended at
Ill.
Reg.
____,
effective
_______).
Section 501.342
Non—farm Residence
Any residence which is not a farm residence.
(Source:
Added at
Ill. Req.
____,
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
Su~ernatant
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. Req.
_____,
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
118—349
—22—
Geological Survey or as officially estimated by the
Illinois State Water Survey shall be protected against
such flood.
C)
New livestock management facilities and new livestock
‘waste—handling ‘facilities shall not be located in close
proximity to populated areas so as 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 commencement of operations at an
idle facility 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 shall not be considered
location of
a new livestock management facility or new
livestock waste-handling facility.
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.
d)
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.
~j
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
~j
The facility is part of
a subdivision that
complies with local zoning requirements and is
platted for the express purpose of developing a
residential area in which the residential
developer has planned for the construction of a
livestock management facility or livestock waste—
handling facility for use by the residential
owners within the subdivision.
~j
A new livestock management facility or new livestock
waste-handling facility which locates within
1/4 mile
of a farm residence shall locate at the maximum
feasible location from such residence.
118—350
—23—
~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
Cd), shall
‘locate at the maximum feasible location from- such
residence or populated area.
~-)-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.
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
118—35 1
—24—
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.
Q~j
Runoff Field Application Systems
All livestock management facilities with fewer than 300
animal units may construct and operate
a runoff field
application system for the treatment of livestock
waste, 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. Mm
Code.Subtitle E.
~j
Subsections
(a) through
(d)
shall not apply to
livestock management facilities with
fifty
(50)
or
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)
fl
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
118—352
—25—
~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 within
1/4 mile of
~n inhabited residence so as not to cause air pollution
aescribed 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 discing 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
designed and operated in accordance with “Design
of Anaerobic Lagoons for Animal Waste Management”,
as incorporated by reference at Section 501.200.
4j
Q4-her methods as described in “Control of Manure
C~iors”, as incorporated by reference at Section
501.200.
(Source:
Amended at
Ill.
Reg.
_____,
effective
_________).
118—353
—26—
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Op~.nionand Order was
adopted on the
7~’-
day of
_____________________,
1991,
by
avoteof
_________
Control Board
118—354
