r9901foo.PDF

ILLINOIS POLLUTION CONTROL BOARD

February 4, 1999

IN THE MATTER OF:

)

RCRA SUBTITLE D UPDATE, USEPA

)

R99-1

REGULATIONS (January 1, 1998, through

)

(Identical-in-Substance

June 30, 1998)

)

Rulemaking - Land)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

Under Section 22.40(a) of the Environmental Protection Act (Act) (415 ILCS

5/22.40(a) (1996)), the Board adopts amendments to the Illinois regulations that are “identical-

in-substance” to municipal solid waste landfill (MSWLF) regulations that the United States

Environmental Protection Agency (USEPA) adopted to implement Subtitle D of the Resource

Conservation and Recovery Act of 1976, 42 U.S.C §§ 6941-6949, (RCRA Subtitle D). The

timeframe of this docket includes federal RCRA Subtitle D amendments that USEPA adopted

in the period January 1, 1998, through June 30, 1998. In the single action during that period,

USEPA adopted additional mechanisms for financial assurance for use by private owners and

operators of MSWLF facilities.

Section 22.40(a) of the Act provides for quick adoption of regulations that are

“identical-in-substance” to federal regulations that USEPA adopts to implement Sections 4004

and 4010 of RCRA, 42 U.S.C. §§ 6944 and 6949a (1996). Section 22.40(a) of the Act also

provides that Title VII of the Act and Section 5 of the Administrative Procedure Act (APA) (5

ILCS 100/5-35 & 5-40 (1996)) do not apply to the Board’s adoption of identical-in-substance

regulations. The federal RCRA Subtitle D regulations are found at 40 C.F.R. 258.

PROCEDURAL BACKGROUND

In July 1998, the Board reserved docket R99-1 for amendments to the federal RCRA

Subtitle D municipal solid waste landfill regulations that USEPA adopted in the period of

January 1, 1998, through June 30, 1998. Under Section 7.2 of the Act, the deadline for Board

adoption of amendments under docket R99-1 is April 10, 1999, which is one year after the

only federal amendments that occurred in the timeframe of the docket.

The Board adopted a proposal for public comment in this matter on November 5, 1998.

A Notice of Proposed Amendments appeared in the December 11, 1998 issue of the

Illinois

Register

, at 22 Ill. Reg. 21276, beginning the 45-day public comment period. The public

comment period expired on January 25, 1999, leaving the Board free to adopt amendments

based on the November 5, 1998 proposal for public comment. This we do with the present

opinion and order.

The Board will file these adopted amendments with the Office of the Secretary of State

as soon as possible and cause a Notice of Adopted Amendments to appear in the

Illinois

Register

FEDERAL ACTION CONSIDERED IN THIS RULEMAKING

USEPA amended the federal RCRA Subtitle D MSWLF regulations once during the

period of January 1, 1998, through June 30, 1998. That single action is summarized as

follows:

63 Fed. Reg. 17706 (April 10, 1998)

USEPA adopted amendments that allow private owners and operators of MSWLF

facilities to use two additional mechanisms for establishing financial assurance for

facility closure, post-closure care, and corrective action. The added mechanisms are a

corporate financial test for self-assurance and a corporate guarantee by a guarantor that

has a “substantial business relationship” with the owner or operator.

The Board is proposing to amend the Illinois regulations to incorporate the two added

financial mechanisms now allowed by USEPA for privately-owned and operated MSWLF

facilities.

PUBLIC COMMENTS

The Board received two public comments on the November 5, 1998 proposal by

January 25, 1999, which was 45 days following the publication of the Notice of Proposed

Amendments in the

Illinois Register

. During the public comment period, the Board received

the following public comments:

PC 1

John H. Turner, Divisional Vice-President, State Government Affairs, BFI

(signed December 16, 1998; received December 21, 1998)

PC 2

Susan J. Schroeder, Associate Counsel, Division of Legal Counsel, Illinois

Environmental Protection Agency (Agency) (signed January 22, 1999; received

January 25, 1999)

In addition to PC 1 and PC 2, the Board received a document from the legislative Joint

Committee on Administrative Rules (JCAR) on December 17, 1998, which outlines a number

of corrections to the text of the amendments that are recommended by JCAR staff. PC 1, PC

2, and the JCAR-recommended revisions are considered in the discussion segments of this

opinion. The discussion of PC 1 and PC 2 appears beginning at page 4 below. The Agency-

and JCAR-recommended revisions appear in the tables that both begin on page 8 below.

DISCUSSION

The federal action that underlies this proceeding requires amendment of the Illinois

RCRA Subtitle D MSWLF regulations. USEPA amended its MSWLF rules on April 10,

1998, to add two new mechanisms for use by private facility owners and operators to use to

establish financial assurance. The financial assurance requirements are intended to guarantee

that sufficient resources are available to ensure that MSWLF facilities receive any appropriate

required closure, post-closure care, and corrective action. USEPA amended 40 C.F.R. 258.74

to add the corporate financial test and corporate guarantee to the options available. Persons

interested in the details of the federal action and the rationale behind it should read the notice

of final rule in the

Federal Register

, at 63 Fed. Reg. 17706 (April 10, 1998).

To revise the Illinois regulations to incorporate the federal amendments, the Board has

added new Sections 811.719 and 811.720 to incorporate new federal 40 C.F.R. 258.74(e) and

(g), respectively. We opened Section 811.707 to accommodate the minor amendment to

federal 40 C.F.R. 258.74(k). We opened Sections 811.706 and 811.Appendix B to complete

the addition of the two new financial assurance mechanisms by adding the new mechanisms

and their corresponding Section numbers to the listing of available mechanisms at Section

811.706 and the new Section numbers to the entry for 40 C.F.R. 258.74 in the state and

federal correlation table in Section 811.Appendix B.

The Board has incorporated the new federal provisions with minimal deviation from the

federal text. The tables beginning on page 4 indicate the revisions made in the verbatim

wording of the federal amendments and to the base text of the regulations. The minor nature of

most of these revisions does not warrant discussion. On the other hand, a small number of the

revisions merit explanation.

In adapting federal rules into the Illinois regulations, the Board generally changes citations

to requirements under distinct programs to parallel provisions in Illinois rules. In Section

811.719(b)(1)(A)(i), the Board has retained references to certain federal rules. We have retained

the reference to the financial assurance provisions of the underground storage tank (UST) program

of 40 C.F.R. 280. Although standards for financial responsibility do exist in the Illinois UST

provisions under Title XVI of the Act (415 ILCS 5/57 through 57.17 (1996)) Section

22.4(d)(3) (415 ILCS 5/22.4(d)(3) (1996)) limits the Board against establishing financial

responsibility requirements comparable to those of 40 C.F.R. 280. It provides: “For

purposes of adopting regulations or amendments thereto . . . corrective action shall not include

requirements providing for . . . out-of-service systems and their closure or financial

responsibility.” 415 ILCS 5/22.4(d)(3) (1996). To avoid making elements of the Illinois

RCRA Subtitle D MSWLF program less stringent than the federal requirements, the Board has

cited the federal UST corrective action requirements. Similarly, the Board has retained the

reference to the financial responsibility requirements under the federal polychlorinated

biphenyl (PCB) program of 40 C.F.R. 761 because there are no parallel requirements in the

Illinois rules.

The Board has made a number of significant grammatical changes in the text. In the several

segments of the text where USEPA used “alternate,” as in “alternate financial assurance,” the

Board has substituted the word “alternative.” We believe this usage is more grammatically correct.

The Board has also changed some passages written in the passive voice so that they appear in the

active voice. In another series of changes, we have moved some prepositional phrases to the

appropriate locations in certain segments, so that they would not appear offset by commas as

parenthetical phrases that encumbered reading the affected provisions. The locations of these

grammatical alterations are set forth in the table of revisions beginning on page 4.

One final revision that the Board will discuss is our substitution of a date certain for “on the

effective date” language. Two of the new federal provisions, 40 C.F.R. 258.74(e)(2)(ii) and

(g)(2), require actions of the facility owner or operator as follows:

before the initial receipt of waste or before the effective date of the requirements

of this section (April 9, 1997 or October 9, 1997 for MSWLF units meeting the

conditions of Sec. 258.1(f)(1)), whichever is later . . . .

The Board has instead used the prospective filing date at corresponding Sections 811.719(b)(2) and

811.720(b) for these amendments, as follows:

before the initial receipt of waste or before February 10, 1999, whichever is later

. . . .

The reason for this change is that the use of dates earlier than the effective date of the

amendments under consideration would give these provisions a retroactive effect.

Retroactive effect is not allowed under Illinois law, under Section 5-10(c) of the

Administrative Procedure Act, 5 ILCS 100/5-5-10(c) (1996). The Board has added a Board

Note at each provision explaining the deviation in effective date from that used in the

federal rules.

In making this revision, the Board observes that the new financial assurance provisions are

different from most regulatory requirements. Rather than impose a new duty of compliance on the

affected regulated entities, the new financial assurance mechanisms actually reduce the burden of

compliance to the extent they provide the community with added flexibility to use two new

alternatives for compliance. Thus, the effect of the federal amendments is to deem any entities that

had employed these mechanisms in the past to have been in compliance when they did so. It is

possible that using the prospective date in place of the past dates set forth in the federal rules may

render the Illinois rules more stringent than the corresponding federal provisions from which they

are derived.

In our November 5, 1998 proposal for public comment, the Board requested public

comment on the financial assurance amendments. We particularly directed attention to the specific

issues discussed above. In PC 1, BFI stated that it supports the adoption of the new financial

assurance mechanisms. BFI states that the adoption of the new mechanisms “will provide

additional cost-effective, environmentally protective methods of ensuring that the costs of facility

closure, post-closure care, and corrective action are not borne by the citizens of Illinois.” PC 1. In

PC 2, the Agency recommended a single correction to an internal referencein four segments of the

regulations. The Agency-recommended revisions are indicated in the table of revisions to the text

of the proposed rules that begins on page 8 of this opinion.

DEVIATIONS FROM THE FEDERAL AMENDMENTS AND REVISIONS TO

THE TEXT OF THE PROPOSAL FOR PUBLIC COMMENT

In the following tables, the Board indicates the location and nature of the deviations

from the text of the federal amendments involved in this proceeding and revisions to the text of

the proposal for public comment. The first table includes deviations made in the Proposal for

Public Comment from the verbatim text of the federal amendments that are driving this

docket. The second table indicates corrections and clarifications that the Board has discovered

and

made i

n the base text of the proposal. The amendments listed in this second table are not

directly derived from the current federal amendments. The second table begins on page 7 of

this opinion. The third table, which begins on page 8 of this opinion, indicates the revisions

made to the text of these amendments as proposed in our November 5, 1998, opinion and

order. The associated fourth table beginning on page 8 indicates the recommended changes to

the proposed text that the Board has not accepted. The source of each recommendation for

changes to the proposed text are indicated in the center column of the third and fourth tables.

Some of the entries in these tables are discussed further in appropriate segments of the general

discussions beginning on 2 of this opinion and order.

Deviations from the Text of the Federal Amendments

Illinois Section

40 C.F.R. Section

Revision(s)

811.719 preamble

258.74(e)

Changed “a” to “an;” and added “

of an

MSWLF” for clarity; added “as follows”

811.719(b)(1)(A)

258.74(e)(2)(i)(A)

Added “includes the following”

811.719(b)(1)(A)(i)

258.74(e)(2)(i)(A)(

)

Changed “lists all the current . . .” to “all the

current;” changed commas to semicolons to

separate elements of a series with elements

containing commas; retained references to federal

“40 CFR 280” and 40 CFR 761;” used “or” in

place of “and” in reference to “35 Ill. Adm.

Code 724 or 725”

811.719(b)(1)(A)(ii)

258.74(e)(2)(i)(A)(

)

Deleted “provides;” dropped “either” in

reference to three alternatives; used commas and

dropped first “or” to separate elements of a series

811.719(b)(1)(B)

258.74(e)(2)(i)(B)

Used “shall” in place of “must” (twice); used

“alternative” in place of “alternate”

811.719(b)(1)(C)

258.74(e)(2)(i)(C)

Used “federal Securities and Exchange

Commission” in place of “SEC;” used “must” in

place of “shall”

811.719(b)(1)(D)

258.74(e)(2)(i)(D)

Added comma to offset parenthetical “as

provided . . .”

811.719(b)(2)

258.74(e)(2)(ii)

Used “shall” in place of “must;” added “in

writing;” used “February 10, 1999” in place of

“the effective date of the requirements . . .;”

used reference to Section 811.324 for selection of

corrective action remedy provisions; added

explanatory Board Note relating to effective date

language

811.719(b)(3)

258.74(e)(2)(iii)

Used “shall” in place of “may”

811.719(b)(4)

258.74(e)(2)(iv)

Added “either of the following occurs”

811.719(b)(4)(A)

258.74(e)(2)(iv)(A)

Used gender-neutral “it” in place of “he;” used

“alternative” in place of “alternate”

811.719(b)(4)(B)

258.74(e)(2)(iv)(B)

Used gender-neutral “it” in place of “he” used

“Sections 811.700 and 811.706” for reference to

requirements to maintain financial assurance

811.719(b)(5)

258.74(e)(2)(v)

Used “shall” in place of “must;” moved the

prepositional phrase “within 120 days . . . fiscal

year” to avoid parenthetical addition; used

“facility’s” in place of “owner or operator’s;”

divided run-on sentence, adding “the owner or

operator shall also;” changed “this assurance” to

“the alternative financial assurance;” added

“facility;” deleted unnecessary comma; used “it”

in place of “owner or operator;” changed passive

to active voice; changed “alternate assurance” to

“alternative financial assurance”

811.719(b)(6)

258.74(e)(2)(vi)

Changed “based” to “at any time it has” and

moved clause re reasonable belief to avoid

parenthetical; changed “must” to “shall;”

changed “alternate” to “alternative”

811.719(c)

258.74(e)(3)

Changed “must” to “shall;” changed commas to

semicolons to separate elements of a series with

elements containing commas

811.720(a)

258.74(g)(1)

Used “Sections 811.700 and 811.706” for

reference to requirements to maintain financial

assurance; Changed passive to active voice, using

“shall” in place of “must;” Changed “copies of

. . . and . . .” to “a copy of . . . and copies of

the . . .”

811.720(b)

258.74(g)(2)

Used “February 10, 1999” in place of “the

effective date of the requirements . . .;” removed

unnecessary comma in the middle of a

parenthetical; used reference to Section 811.324

for selection of corrective action remedy

provisions; added explanatory Board Note

relating to effective date language

811.720(c)

258.74(g)(3)

Added “as follows”

811.720(c)(1)

258.74(g)(3)(i)

Used “or” in place of “and/or”

811.720(c)(1)(A)

258.74(g)(3)(i)(A)

Used “and” in place of “and/or;” added comma

to offset parenthetical

811.720(c)(1)(B)

258.74(g)(3)(i)(B)

Added comma to offset parenthetical; used

“Section 811.709 or 811.710” to reference trust

fund requirements

811.720(c)(2)

258.74(g)(3)(ii)

Used “the date on which . . . have both

received” in place of “date of receipt . . . by

both . . .”

811.720(c)(3)

258.74(g)(3)(iii)

Changed passive to active voice, adding “the

guarantor;” changed “must” to “shall;” used

“alternative” to “alternate” (five times); moved

“within 90 days . . .” to avoid parenthetical;

changed “provide” to “obtain;” added

“financial”

811.720(d)

258.74(g)(4)

Changed “must” to “shall” (twice); changed

“alternate” to “alternative” (three times); moved

“within 90 days” to avoid parenthetical

811.729(e)(1)

258.74(g)(5)(i)

Changed “alternate” to “alternative;” added

comma to offset parenthetical

811.729(e)(1)

258.74(g)(5)(i)

Used “Sections 811.700 and 811.706” for

reference to requirements to maintain financial

assurance

Board Amendments Not Federally-Derived

Section

Revision(s)

811. Table of Contents

Changed Section 811.Appendix B heading to make it more concise

811.706(a)(1)

Changed text to lower case

811.706(a)(2)

Changed text to lower case

811.706(a)(3)

Changed text to lower case

811.706(a)(4)

Changed text to lower case

811.706(a)(5)

Changed text to lower case

811.706(a)(7)

Changed text to lower case

811.706(a)(8)

Changed text to lower case

811.707

Used “811.713 through 811.720” in place of sequential listing

811.Appendix B

Changed Section heading to make it more concise

Revisions to the Text of the Proposed Amendments in Final Adoption

Section Revised

Source(s) of

Revision(s)

811.719(a)(2)(B)

JCAR

Added comma before “provided”

811.719(a)(3)

JCAR, Board

Added comma before last element of the series

“and any other environmental obligation . . . ;”

added comma before parenthetical “as described

. . .”

811.719(b)(1)(A)(i)

JCAR

Changed comma to a semicolon to separate major

elements of a series

811.719(b)(1)(B)

JCAR

Added definite article “the” before “owner or

operator”

811.719(b)(2)

JCAR

Added a closing comma to complete offsetting

the parenthetical “whichever is later”

811.719(b)(3)

JCAR

Corrected to possessive “owner’s”

811.719(b)(4)(A)

Agency,

Board

Added commas to offset parenthetical, “as

specified in this Subpart G;” corrected “this

Section” to “this Subpart G”

811.719(b)(4)(B)

Agency

Corrected “this Section” to “this Subpart G”

811.719(b)(5)

Agency

Corrected “this Section” to “this Subpart G”

811.719(b)(6)

Agency

Corrected “this Section” to “this Subpart G”

811.719(c)

JCAR, Board

Deleted conjunction “or” from before “the sum

of . . .,” since this is not the last element of the

series; removed “part” from Code of Federal

811.720(b)

JCAR

Added a closing comma to complete offsetting

the parenthetical “whichever is later;” added

comma after “Section 811.324” to offset

parenthetical “in the case of . . .”

811.720(c)(1)(A)

JCAR, Board

Removed two commas offsetting second element

of a series “or pay a third party to perform” as a

parenthetical

811.720(c)

JCAR

Changed “within 120 days of” to “within 120

days after”

Requested Revisions to the Text of the Proposed Amendments Not Made in

Final Adoption

Section Affected

Source(s) of

Request

Requested Revision(s): Explanation

811.719(a)(3)

JCAR

Add conjunction “and” after post-closure care to

complete series: comma added before “and any

other environmental obligations,” which actually

states the last element

811.719(b)(1)(B)

JCAR

Change “which” to “that”: “which” appropriate

usage for a subsequent sequential restrictive

relative clause

811.719(b)(2)

JCAR

Add comma between “selected” and “in

accordance with . . .”: adding the comma (not

present in the federal original) could create

confusion that “shall place” is the antecedent for

the prepositional clause, rather than “has been

selected”

811.719(c)(3)

JCAR

Add conjunction “or” after “post-closure care” to

complete series: “corrective action” is not the

last element of the series

ORDER

The complete text of the adopted amendments follows:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 811

STANDARDS FOR NEW SOLID WASTE LANDFILLS

SUBPART A: GENERAL STANDARDS FOR ALL LANDFILLS

Section

811.101

Scope and Applicability

811.102

Location Standards

811.103

Surface Water Drainage

811.104

Survey Controls

811.105

Compaction

811.106

Daily Cover

811.107

Operating Standards

811.108

Salvaging

811.109

Boundary Control

811.110

Closure and Written Closure Plan

811.111

Postclosure Maintenance

SUBPART B: INERT WASTE LANDFILLS

Section

811.201

Scope and Applicability

811.202

Determination of Contaminated Leachate

811.203

Design Period

811.204

Final Cover

811.205

Final Slope and Stabilization

811.206

Leachate Sampling

811.207

Load Checking

SUBPART C: PUTRESCIBLE AND CHEMICAL WASTE LANDFILLS

Section

811.301

Scope and Applicability

811.302

Facility Location

811.303

Design Period

811.304

Foundation and Mass Stability Analysis

811.305

Foundation Construction

811.306

Liner Systems

811.307

Leachate Drainage System

811.308

Leachate Collection System

811.309

Leachate Treatment and Disposal System

811.310

Landfill Gas Monitoring

811.311

Landfill Gas Management System

811.312

Landfill Gas Processing and Disposal System

811.313

Intermediate Cover

811.314

Final Cover System

811.315

Hydrogeological Site Investigations

811.316

Plugging and Sealing of Drill Holes

811.317

Groundwater Impact Assessment

811.318

Design, Construction, and Operation of Groundwater Monitoring Systems

811.319

Groundwater Monitoring Programs

811.320

Groundwater Quality Standards

811.321

Waste Placement

811.322

Final Slope and Stabilization

811.323

Load Checking Program

811.324

Corrective Action Measures for MSWLF Units

811.325

Selection of remedy for MSWLF Units

811.326

Implementation of the corrective action program at MSWLF Units

SUBPART D: MANAGEMENT OF SPECIAL WASTES AT LANDFILLS

Section

811.401

Scope and Applicability

811.402

Notice to Generators and Transporters

811.403

Special Waste Manifests

811.404

Identification Record

811.405

Recordkeeping Requirements

811.406

Procedures for Excluding Regulated Hazardous Wastes

SUBPART E: CONSTRUCTION QUALITY ASSURANCE PROGRAMS

Section

811.501

Scope and Applicability

811.502

Duties and Qualifications of Key Personnel

811.503

Inspection Activities

811.504

Sampling Requirements

811.505

Documentation

811.506

Foundations and Subbases

811.507

Compacted Earth Liners

811.508

Geomembranes

811.509

Leachate Collection Systems

SUBPART G: FINANCIAL ASSURANCE

Section

811.700

Scope, Applicability and Definitions

811.701

Upgrading Financial Assurance

811.702

Release of Financial Institution

811.703

Application of Proceeds and Appeals

811.704

Closure and Postclosure Care Cost Estimates

811.705

Revision of Cost Estimate

811.706

Mechanisms for Financial Assurance

811.707

Use of Multiple Financial Mechanisms

811.708

Use of a Financial Mechanism for Multiple Sites

811.709

Trust Fund for Unrelated Sites

811.710

Trust Fund

811.711

Surety Bond Guaranteeing Payment

811.712

Surety Bond Guaranteeing Performance

811.713

Letter of Credit

811.714

Closure Insurance

811.715

Self-Insurance for Non-commercial Sites

811.716

Local Government Financial Test

811.717

Local Government Guarantee

811.718

Discounting

811.719 Corporate Financial Test

811.720 Corporate Guarantee

811.Appendix A

Financial Assurance Forms

Illustration A

Trust Agreement

Illustration B

Certificate of Acknowledgment

Illustration C

Forfeiture Bond

Illustration D

Performance Bond

Illustration E

Irrevocable Standby Letter of Credit

Illustration F

Certificate of Insurance for Closure and/or Postclosure

Care

Illustration G

Operator’s Bond Without Surety

Illustration H

Operator’s Bond With Parent Surety

Illustration I

Letter from Chief Financial Officer

811.Appendix B

Section-by-Section correlation between the Standards of the RCRA

Subtitle D MSWLF regulations and the Board’s nonhazardous waste

landfill regulations.State-Federal MSWLF Regulations Correlation Table

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

Section 27 of the Environmental Protection Act [415 ILCS 5/5, 21, 21.1, 22, 22.17, 28.1, and

27].

SOURCE: Adopted in R88-7 at 14 Ill. Reg. 15861, effective September 18, 1990; amended

in R92-19 at 17 Ill. Reg. 12413, effective July 19, 1993; amended in R93-10 at 18 Ill. Reg.

1308, effective January 13, 1994; expedited correction at 18 Ill. Reg. 7504, effective July 19,

1993; amended in R90-26 at 18 Ill. Reg. 12481, effective August 1, 1994; amended in R95-13

at 19 Ill. Reg. 12257, effective August 15, 1995; amended in R96-1 at 20 Ill. Reg. 12000,

effective August 15, 1996; amended in R97-20 at 21 Ill. Reg.15831, effective November 25,

1997; amended in R98-9 at 22 Ill. Reg.11491, effective June 23, 1998; amended in R99-1 at

23 Ill. Reg. ________, effective ______________________.

NOTE: Capitalization indicates statutory language.

SUBPART G: FINANCIAL ASSURANCE

Section 811.706

Mechanisms for Financial Assurance

The owner or operator of a waste disposal site may utilize any of the

mechanisms listed in subsections (a)(1) through (a)(6) (a)(10) to provide

financial assurance for closure and postclosure care, and for corrective action at

an MSWLF unit. An owner or operator of an MSWLF unit shall also meet the

requirements of subsections (b), (c), and (d). The mechanisms are as follows:

A trust Fund fund (see Section 811.710);

A surety Bond Guaranteeing Payment bond guaranteeing payment (see

Section 811.711);

A surety Bond Guaranteeing Performance bond guaranteeing

performance (see Section 811.712);

A letter of Credit credit (see Section 811.713);

Closure Insurance insurance (see Section 811.714);

Self-insurance (see Section 811.715);

Local Government Financial Test government financial test (see Section

811.716); or

Local Government Guarantee government guarantee (see Section

811.717).;

9) Corporate financial test (see Section 811.719); or

10) Corporate guarantee (see Section 811.720).

The owner or operator of an MSWLF unit shall ensure that the language of the

mechanisms listed in subsection (a), when used for providing financial assurance

for closure, postclosure, and corrective action, satisfies the following:

The amount of funds assured is sufficient to cover the costs of closure,

post-closure care, and corrective action; and

The funds will be available in a timely fashion when needed.

The owner or operator of an MSWLF unit shall provide financial assurance

utilizing one or more of the mechanisms listed in subsection (a) within the

following dates:

By April 9, 1997, or such later date granted pursuant to Section

811.700(g), or prior to the initial receipt of solid waste, whichever is

later, in the case of closure and post-closure care; or

No later than 120 days after the remedy has been selected in accordance

with the requirements of Section 811.325, in the case of corrective

action.

The owner or operator shall provide continuous coverage until the owner or

operator is released from the financial assurance requirements pursuant to 35 Ill.

Adm. Code 813.403(b) or Section 811.326.

BOARD NOTE: Subsections (b) and (c) are derived from 40 CFR 258.74(l)

(1996). Amendments prompted by amendments to 40 CFR 258.74(a)(5)

(1996). P.A. 89-200, signed by the Governor on July 21, 1995 and effective

January 1, 1996, amended the deadline for financial assurance for MSWLFs

from April 9, 1995 to the date that the federal financial assurance requirements

actually become effective, which was April 9, 1997. On November 27, 1996

(61 Fed. Reg. 60327), USEPA added 40 CFR 258.70(c) (1996), codified here

as Section 811.700(g), to allow states to waive the compliance deadline until

April 9, 1998.

(Source: Amended at 23 Ill. Reg. ________, effective ______________________)

Section 811.707

Use of Multiple Financial Mechanisms

An owner or operator may satisfy the requirements of this Subpart by establishing more than

one financial mechanism per site. These mechanisms are limited to trust funds, surety bonds

guaranteeing payment, letters of credit and insurance. The mechanisms must be as specified in

35 Ill. Adm. Code 811.710, 811.711, and 811.713, 811.714, 811.715, 811.716, and 811.717

through 811.720, as applicable, except that it is the combination of mechanisms, rather than

the single mechanism, that must provide financial assurance for an aggregate amount at least

equal to the current cost estimate for closure, post-closure care or corrective action, except that

mechanisms guaranteeing performance, rather than payment, may not be combined with other

instruments. The owner or operator may use any or all of the mechanisms to provide for

closure and postclosure care of the site or corrective action.

(Source: Amended at 23 Ill. Reg. ________, effective ______________________)

Section 811.719 Corporate Financial Test

An owner or operator of an MSWLF that satisfies the requirements of this Section may

demonstrate financial assurance up to the amount specified in this Section as follows:

a) Financial component.

1) The owner or operator must satisfy one of the following three conditions:

A) A current rating for its senior unsubordinated debt of AAA, AA, A,

or BBB as issued by Standard and Poor’s or Aaa, Aa, A or Baa as

issued by Moody’s; or

B) A ratio of less than 1.5 comparing total liabilities to net worth; or

C) A ratio of greater than 0.10 comparing the sum of net income plus

depreciation, depletion and amortization, minus $10 million, to total

liabilities.

2) The tangible net worth of the owner or operator must be greater than:

A) The sum of the current closure, post-closure care, corrective action

cost estimates and any other environmental obligations, including

guarantees, covered by a financial test plus $10 million except as

provided in subsection (a)(2)(B) of this Section.

B) $10 million in net worth plus the amount of any guarantees that

have not been recognized as liabilities on the financial statements,

provided all of the current closure, post-closure care, and corrective

action costs and any other environmental obligations covered by a

financial test are recognized as liabilities on the owner’s or

operator’s audited financial statements, and subject to the approval

of the Agency.

3) The owner or operator must have assets located in the United States

amounting to at least the sum of current closure, post-closure care,

corrective action cost estimates, and any other environmental obligations

covered by a financial test, as described in subsection (c) of this Section.

b) Recordkeeping and reporting requirements.

1) The owner or operator must place the following items into the facility’s

operating record:

A) A letter signed by the owner’s or operator’s chief financial officer

that includes the following:

i) All the current cost estimates covered by a financial test,

including, but not limited to, cost estimates required for

municipal solid waste management facilities under this Part;

cost estimates required for UIC facilities under 35 Ill. Adm.

Code 730, if applicable; cost estimates required for

petroleum underground storage tank facilities under 40 CFR

280, if applicable; cost estimates required for PCB storage

facilities under 40 CFR 761, if applicable; and cost estimates

required for hazardous waste treatment, storage, and

disposal facilities under 35 Ill. Adm. Code 724 or 725, if

applicable; and

ii) Evidence demonstrating that the firm meets the conditions

of subsection (a)(1)(A), (a)(1)(B), or (a)(1)(C) of this

Section and subsection (a)(2) and (a)(3) of this Section.

B) A copy of the independent certified public accountant’s unqualified

opinion of the owner’s or operator’s financial statements for the

latest completed fiscal year. To be eligible to use the financial test,

the owner’s or operator’s financial statements must receive an

unqualified opinion from the independent certified public

accountant. An adverse opinion, disclaimer of opinion, or other

qualified opinion will be cause for disallowance, with the potential

exception for qualified opinions provided in the next sentence. The

Agency shall evaluate qualified opinions on a case-by-case basis and

allow use of the financial test in cases where the Agency deems that

the matters which form the basis for the qualification are insufficient

to warrant disallowance of the test. If the Agency does not allow

use of the test, the owner or operator shall provide alternative

financial assurance that meets the requirements of this Section.

C) If the chief financial officer’s letter providing evidence of financial

assurance includes financial data showing that the owner or

operator satisfies subsection (a)(1)(B) or (a)(1)(C) of this Section

that are different from data in the audited financial statements

referred to in subsection (b)(1)(B) of this Section or any other

audited financial statement or data filed with the federal Security

Exchange Commission, then a special report from the owner’s or

operator’s independent certified public accountant to the owner or

operator is required. The special report must be based upon an

agreed upon procedures engagement in accordance with

professional auditing standards and shall describe the procedures

performed in comparing the data in the chief financial officer’s

letter derived from the independently audited, year-end financial

statements for the latest fiscal year with the amounts in such

financial statements, the findings of that comparison, and the

reasons for any differences.

D) If the chief financial officer’s letter provides a demonstration that

the firm has assured for environmental obligations, as provided in

subsection (a)(2)(B) of this Section, then the letter shall include a

report from the independent certified public accountant that verifies

that all of the environmental obligations covered by a financial test

have been recognized as liabilities on the audited financial

statements, how these obligations have been measured and

reported, and that the tangible net worth of the firm is at least $10

million plus the amount of any guarantees provided.

2) An owner or operator shall place the items specified in subsection (b)(1) of

this Section in the operating record and notify the Agency in writing that

these items have been placed in the operating record before the initial

receipt of waste or before February 10, 1999, whichever is later, in the case

of closure and post-closure care, or no later than 120 days after the

corrective action remedy has been selected in accordance with the

requirements of Section 811.324.

BOARD NOTE: Corresponding 40 CFR 258.74(e)(2)(ii) provides that

this requirement is effective “before the initial receipt of waste or before

the effective date of the requirements of this Section (April 9, 1997 or

October 9, 1997 for MSWLF units meeting the conditions of Sec.

258.1(f)(1)), whichever is later.” The Board has instead inserted the date

on which these amendments are to be filed and become effective in Illinois.

3) After the initial placement of items specified in subsection (b)(1) of this

Section in the operating record, the owner or operator must annually

update the information and place updated information in the operating

record within 90 days following the close of the owner’s or operator’s

fiscal year. The Agency shall provide up to an additional 45 days for an

owner or operator who can demonstrate that 90 days is insufficient time to

acquire audited financial statements. The updated information must consist

of all items specified in subsection (b)(1) of this Section.

4) The owner or operator is no longer required to submit the items specified

in this subsection (b) or comply with the requirements of this Section when

either of the following occurs:

A) It substitutes alternative financial assurance, as specified in this

Subpart G, that is not subject to these recordkeeping and reporting

requirements; or

B) It is released from the requirements of this Subpart G in accordance

with Sections 811.700 and 811.706.

5) If the owner or operator no longer meets the requirements of subsection

(a) of this Section, the owner or operator shall obtain alternative financial

assurance that meets the requirements of this Subpart G within 120 days

following the close of the facility’s fiscal year. The owner or operator shall

also place the required submissions for the alternative financial assurance in

the facility operating record and notify the Agency that it no longer meets

the criteria of the financial test and that it has obtained alternative financial

assurance.

6) The Agency may require the owner or operator to provide reports of its

financial condition in addition to or including current financial test

documentation specified in subsection (b) of this Section at any time it has

a reasonable belief that the owner or operator may no longer meet the

requirements of subsection (a) of this Section. If the Agency finds that the

owner or operator no longer meets the requirements of subsection (a) of

this Section, the owner or operator shall provide alternative financial

assurance that meets the requirements of this Subpart G.

c) Calculation of costs to be assured. When calculating the current cost estimates for

closure, post-closure care, corrective action, the sum of the combination of such

costs to be covered, and any other environmental obligations assured by a financial

test referred to in this Section, the owner or operator shall include cost estimates

required for municipal solid waste management facilities under this Part, as well as

cost estimates required for the following environmental obligations, if it assures

them through a financial test: obligations associated with UIC facilities under 35

Ill. Adm. Code 730; petroleum underground storage tank facilities under 40 CFR

280; PCB storage facilities under 40 CFR 761; and hazardous waste treatment,

storage, and disposal facilities under 35 Ill. Adm. Code 724 or 725.

(Source: Added at 23 Ill. Reg. ________, effective ______________________)

Section 811.720 Corporate Guarantee

a) An owner or operator of an MSWLF may meet the requirements of 35 Ill. Adm.

Code 811.700 and 811.706 by obtaining a written guarantee. The guarantor must

be the direct or higher-tier parent corporation of the owner or operator, a firm

whose parent corporation is also the parent corporation of the owner or operator,

or a firm with a “substantial business relationship”’ with the owner or operator.

The guarantor must meet the requirements for owners or operators in Section

811.719 and must comply with the terms of the guarantee. The owner or operator

shall place a certified copy of the guarantee in the facility’s operating record along

with a copy of the letter from the guarantor’s chief financial officer and copies of

the accountants’ opinions. If the guarantor’s parent corporation is also the parent

corporation of the owner or operator, the letter from the guarantor’s chief financial

officer must describe the value received in consideration of the guarantee. If the

guarantor is a firm with a “substantial business relationship” with the owner or

operator, this letter must describe this “substantial business relationship” and the

value received in consideration of the guarantee.

b) The guarantee must be effective and all required submissions placed in the

operating record before the initial receipt of waste or before February 10, 1999,

whichever is later, in the case of closure and post-closure care, or no later than 120

days after the corrective action remedy has been selected in accordance with the

requirements of Section 811.324, in the case of corrective action.

BOARD NOTE: Corresponding 40 CFR 258.74(g)(2) provides that this

requirement is effective “before the initial receipt of waste or before the effective

date of the requirements of this Section (April 9, 1997 or October 9, 1997 for

MSWLF units meeting the conditions of Sec. 258.1(f)(1)), whichever is later.”

The Board has instead inserted the date on which these amendments are to be filed

and become effective in Illinois.

c) The terms of the guarantee must provide as follows:

1) If the owner or operator fails to perform closure, post-closure care, or

corrective action of a facility covered by the guarantee, the guarantor will:

A) Perform or pay a third party to perform closure, post-closure care,

and corrective action, as required (performance guarantee); or

B) Establish a fully funded trust fund, as specified in Section 811.709

or 811.710, in the name of the owner or operator (payment

guarantee).

2) The guarantee will remain in force for as long as the owner or operator

must comply with the applicable financial assurance requirements of this

Subpart unless the guarantor sends prior notice of cancellation by certified

mail to the owner or operator and to the Agency. Cancellation may not

occur, however, during the 120 days beginning on the date on which the

owner or operator and the Agency have both received the notice of

cancellation, as evidenced by the return receipts.

3) If the guarantor gives notice of cancellation, the owner or operator shall

obtain alternative financial assurance, place evidence of that alternative

financial assurance in the facility operating record, and notify the Agency

within 90 days following receipt of the cancellation notice by the owner or

operator and the Agency. If the owner or operator fails to obtain

alternative financial assurance within the 90-day period, the guarantor must

provide that alternative assurance within 120 days after the cancellation

notice, obtain alternative financial assurance, place evidence of the

alternative assurance in the facility operating record, and notify the Agency.

d) If a corporate guarantor no longer meets the requirements of Section 811.719(a),

the owner or operator shall obtain alternative assurance, place evidence of the

alternative assurance in the facility operating record, and notify the Agency within

90 days. If the owner or operator fails to provide alternative financial assurance

within the 90-day period, the guarantor shall provide that alternative assurance

within the next 30 days.

e) The owner or operator is no longer required to meet the requirements of this

Section when:

1) The owner or operator substitutes alternative financial assurance, as

specified in this Subpart G; or

2) The owner or operator is released from the requirements of this Subpart G

in accordance with Sections 811.700 and 811.706.

(Source: Added at 23 Ill. Reg. ________, effective ______________________)

Section 811.Appendix B

Section-by-Section correlation between the Standards of the

RCRA Subtitle D MSWLF regulations and the Board’s

nonhazardous waste landfill regulations.State-Federal MSWLF

Regulations Correlation Table

RCRA SUBTITLE D REGULATIONS

ILLINOIS LANDFILL REGULATIONS

SUBPART A: General

Purpose, Scope, and Applicability (40

CFR 258.1)

: Sections 811.101, 811.301,

811.401, 811.501, and 811.700.

: Section 814.101.

Definitions (40 CFR 258.2)

Section 810.103.

II.

SUBPART B: Location Restrictions

Airport safety (40 CFR 258.10)

: Section 811.302(e). EL

Section 814.302(c) and 814.402(c).

Floodplains. (40 CFR 258.11)

: Section 811.102(b). EL

Section 814.302 and 814.402.

Wetlands. (40 CFR 258.12)

: Sections 811.102(d),

811.102(e), and 811.103. EL

Section 814.302 and 814.402.

Fault areas. (40 CFR 258.13)

: Sections 811.304 and 811.305.

: Section 814.302 and 814.402.

Seismic impact zones. (40 CFR

258.14)

Same as above.

Unstable areas. (40 CFR 258.15)

: Sections 811.304 and 811.305.

: Sections 811.302(c) and

811.402(c).

Closure of existing MSWL units. (40

: Sections 814.301 and 814.401.

CFR 258.16)

III.

SUBPART C: Operating Criteria

Procedures for excluding the receipt

of hazardous waste. (40 CFR 258.20)

: Section 811.323. EL

: Sections

814.302 and 814.402.

Cover material requirements. (40 CFR

258.21)

: Section 811.106. EL

: Sections

814.302 and 814.402.

Disease vector control. (40 CFR

258.22)

: Section 811.107(i). EL

Sections 814.302 and 814.402.

Explosive gas control. (40 CFR

258.23)

: Sections 811.310, 811.311, and

811.312. EL

: Sections 814.302 and

814.402.

Air criteria. (40 CFR 258.24)

: Sections 811.107(b), 811.310,

and 811.311. EL

: Sections 814.302

and 814.402.

Access requirements. (40 CFR

258.25)

: Section 811.109. EL

: Sections

814.302 and 814.402.

Run-on/run-off control system. (40

CFR 258.26)

: Section 811.103. EL

: Sections

814.302 and 814.402.

Surface water requirements. (40 CFR

258.27)

Same as above.

Liquids restrictions. (40 CFR 258.28)

: Section 811.107(m). EL

Sections 814.302 and 814.402.

10)

Recordkeeping requirements. (40 CFR

258.29)

10)

: Sections 811.112, and Parts 812

and 813. EL

: Sections 814.302 and

814.402.

IV.

SUBPART D: Design criteria (40

CFR 258.40)

IV)

: 811.303, 811.304, 811.305,

811.306, 811.307, 811.308, 811.309,

811.315, 811.316, 811.317, and

811.Subpart E. EL

: Sections

814.302 and 814.402.

SUBPART E: Groundwater Monitoring and Corrective Action

Applicability.

: 35 Section 811.319(a)(1). EL

Sections 814.302 and 814.402.

Groundwater monitoring systems. (40

CFR 258.51)

: Sections 811.318 and

811.320(d). EL

: Sections 814.302

and 814.402.

Groundwater sampling and analysis.

(40 CFR 258.53)

: Section 811.318(e), 811.320(d),

811.320(e). EL

: Sections 814.302

and 814.402.

Detection monitoring program. (40

CFR 258.54)

: Section 811.319(a). EL

Sections 814.302 and 814.402.

Assessment monitoring program. (40

CFR 258.55)

: Section 811.319(b). EL

Sections 814.302 and 814.402.

Assessment of corrective measures.

(40 CFR 258.56)

: Sections 811.319(d) and

811.324. EL

: Sections 814.302 and

814.402.

Selection of remedy. (40 CFR 258.57)

: Sections 811.319(d) and

811.325. EL

: Sections 814.302 and

814.402.

Implementation of the corrective

action program. (40 CFR 258.58)

: Sections 811.319(d) and

811.325. EL

: Sections 814.302 and

814.402.

VI.

SUBPART F: Closure and Post-Closure Care

Closure criteria. (40 CFR 258.60)

: Sections 811.110, 811.315 and

811.322. EL

: Sections 814.302 and

814.402.

Post-closure care requirements. (40

CFR 258.61)

: Section 811.111. EL

: Sections

814.302 and 814.402.

VII.

SUBPART G: Financial Assurance Criteria

Applicability and effective date. (40

CFR 258.70)

: Section 811.700. EL

: Sections

814.302 and 814.402.

Financial assurance for closure. (40

CFR 258.71)

: Sections 811.701 through

811.705. EL

: Sections 814.302 and

814.402.

Financial assurance for post-closure.

(40 CFR 258.72)

Same as (2).

Financial assurance for corrective

action. (40 CFR 258.73)

Same as (2).

Allowable mechanisms. (40 CFR

258.74 and 258.75)

: Section 811.706 through

811.717 811.720. EL

: Sections

814.302 and 814.402.

1 - NL: New Landfill; 2 - EL: Existing Landfill and Lateral Expansions.

(Source: Amended at 23 Ill. Reg. ________, effective ______________________)

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, do hereby certify

that the above proposed opinion and order was adopted on the 4th day of February 1999 by a

vote of 7-0

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board