R97015A.PDF

ILLINOIS POLLUTION CONTROL BOARD

March 20, 1997

IN THE MATTER OF:

)

LIVESTOCK WASTE REGULATIONS

)

R97-15 (A) & (B)

35 ILL. ADM. CODE 506

)

(Rulemaking - Land)

Proposed Rule. Second Notice.

OPINION AND ORDER OF THE BOARD (by C.A. Manning):

This matter comes before the Board upon a petition for rulemaking filed by the Illinois

Department of Agriculture (Department of Agriculture) on November 21, 1996. The

Department of Agriculture requests that the Board adopt regulations to implement the

Livestock Management Facilities Act (LMFAct) (510 ILCS 77/1

et seq.

; adopted as P.A. 89-

456, eff. May 21, 1996). The Board today adopts such regulations for second notice.

BACKGROUND

The LMFAct sets forth an outline for the proper design, construction, operation, and

management of livestock management facilities and associated waste handling structures. It

further provides for education and certification of livestock managers, research, proper

disposal of livestock waste, and financial responsibility for closure of lagoons. While many

provisions of the LMFAct require no further regulatory implementation, the legislature

recognized that some of the provisions would need regulatory implementation. To accomplish

this, the LMFAct sets forth a participative rulemaking process to provide the State, the

agricultural community, environmental associations, and interested citizens, a public forum for

the development of standards and rules implementing the LMFAct.

In this regard, the LMFAct established a Livestock Management Facilities Advisory

Committee (Advisory Committee), comprised of the Directors of the Department of

Agriculture, Illinois Department of Natural Resources (IDNR), Illinois Department of Public

Health (IDPH), and the Illinois Environmental Protection Agency (IEPA). The LMFAct also

directed the Department of Agriculture to seek input from the Advisory Committee and, based

upon the recommendations from the Advisory Committee, propose rules to the Board for the

implementation of the LMFAct.

On November 21, 1996 the Department of Agriculture submitted proposed rules to the

Board, as required, within six (6) months of the effective date of the LMFAct.

Pursuant to

“Second notice” is a term used in State administrative proceedings to designate the period of

time in which the Joint Committee on Administrative Rules (JCAR) reviews the proposed rule,

pursuant to Section 5-40(c) of the Illinois Administrative Procedure Act (APAct) (5 ILCS

100/1-1

et seq.

(1994)).

Before the Department of Agriculture filed the instant proposal, the Department of

the LMFAct, the Board is required to adopt rules for the implementation of the LMFAct

within six (6) months after the Department of Agriculture filed the proposed rules with the

Board. Due to the stringent time-limitations for completing this rulemaking, the Board on

December 5, 1996 sent the proposed rules to first notice without commenting on the merits of

the proposal.

Since that time, the Board has held five public hearings on the Department of

Agriculture’s proposal. Each public hearing was different in character, but was informative in

providing insight into the impact, effect, deficiencies, and advantages of the proposed rules.

The hearings were held in Jacksonville on January 14, 1997, in DeKalb on January 27, 1997,

in Galesburg on January 29, 1997, in Mt. Vernon on January 31, 1997, and in Urbana on

February 7, 1997

before Board hearing officer Audrey Lozuk-Lawless. In addition to the

testimony and exhibits received at these hearings, the Board has also received 80 written public

comments.

The Board is grateful to all the participants in this proceeding for the time and

effort expended in attending the hearings, testifying, and submitting written comments. The

Board also commends the various State agencies who participated in this proceeding for their

valuable input. The testimony, public comments, and exhibits received collectively constitute

the record upon which the Board today bases its decision in this matter.

Agriculture proposed to the Board emergency rules related to the LMFAct on October 15,

1996. On October 29, 1996 the Board adopted emergency rules that immediately implemented

certain provisions of the LMFAct. (In the Matter of: Emergency Rulemaking: Livestock

Waste Regulations 35 Ill. Adm. Code 505, R97-14, Opinion and Order, October 29, 1996,

published at 20 Ill. Reg. 14903, effective October 31, 1996.) Pursuant to Section 5-45 of the

APAct (5 ILCS 100/5-45), however, the emergency rules are only effective “for a period not

longer than 150 days.” To avoid a gap between the expiration of the emergency rules and

the promulgation of the final rules, the Board today by separate order readopts the emergency

rules. (See Pub. Act 89-0714, eff. February 21, 1997 (amending Section 5-45 of the APAct);

see also In the Matter of: Emergency Rulemaking: Repromulgation of Livestock Waste

Regulations 35 Ill. Adm. Code 506, R97-14, Opinion and Order, March 20, 1997.)

Due to inclement weather, the Urbana hearing, originally set for January 16, 1997, was

rescheduled to February 7, 1997.

The record of the five hearings are cited herein in the sequence that the hearings occurred,

respectively as Tr1. through Tr5. The exhibits (Exh.) are cited in numerical order, as entered

into the record. The public comments (PC) are cited in numerical order, as received by the

Board.

On February 18, 1997 the Department of Agriculture filed a motion to incorporate into the

instant record two documents, entitled Illinois Agronomy Handbook, UIUC Circular 1333 and

Livestock Waste Facilities Handbook, Midwest Plan Service MWPS-18, that were initially

filed with the Board in the emergency rule docket, R97-14. The motion to incorporate is

hereby granted. On February 24, 1997 IDPH filed a motion to file its final comment

instanter. (PC 77.) Also on February 24, 1997 IDNR filed a motion to file a response

comment instanter. (PC 78.) Both motions are hereby granted. As a final matter, a number

of public comments were filed within the two weeks following the February 14, 1997 deadline

for submission of public comments, the Board on its own motion hereby accepts all public

With certain specific and important modifications which are explained in detail in this

opinion and which are drawn from the information gathered in the record of this proceeding,

the Board today adopts for second notice the Department of Agriculture’s original proposal.

In today’s action, the Board is cognizant, as we were in adopting the emergency rules, of the

legislative declarations set forth in the LMFAct, specifically that the livestock industry is vital

to Illinois’ economy and that it is the policy of Illinois, pursuant to the LMFAct, to maintain

an economically viable livestock industry. (510 ILCS 77/5(b).) The Board also greatly

appreciates that Illinois farmers have played, and continue to play, a vital role in Illinois’

culture, tradition, and history and that the farm industry represents a major economic activity

in Illinois (510 ILCS 77/5(a)(3)).

Moreover, the Board is aware that the livestock industry is experiencing rapid changes

as a result of “increased sophistication of production technology, increased demand for capital

to maintain or expand operations and changing consumer demands for a quality product.”

(510 ILCS 77/5(a)(2).) Because of the trend in the livestock industry for larger concentrations

of animals at a livestock management facility, there is a potential for greater impacts on the

immediate area. (510 ILCS 77/5(a)(4), (6).) In passing the LMFAct, the legislature

recognized that enhancements to the current regulations dealing with livestock production

facilities were needed for today’s industry and that livestock waste lagoons must be constructed

according to standards to maintain structural integrity and to protect Illinois’ groundwater.

(510 ILCS 77/5(a)(7).) Moreover, as the legislature stated in the LMFAct, “[s]ince a majority

of odor complaints result from manure application, livestock producers must be provided with

an educational program that will enhance neighbor awareness and their environmental

management skills, with emphasis on management of livestock waste.” (510 ILCS

77/5(a)(8).)

The Board believes that the regulations it adopts for second notice today are an

important step forward in protecting the quality of Illinois’ air, land, and water. Within the

specific context of the LMFAct, the regulations are environmentally protective as well as

economically reasonable and technologically feasible. Moreover, the Board emphasizes that

the LMFAct does not supplant the Environmental Protection Act (EPAct) (415 ILCS 5/1

seq

. (1994)) or rules promulgated thereunder. The EPAct prohibits the discharge or emission

of any pollutant into Illinois air, water, or land by any person, business, or industry in a way

that adversely impacts the environment or unreasonably interferes with a citizen’s enjoyment

of life or property. (See 415 ILCS 5/9, 5/12, 5/21.) A salient principal under the EPAct is

that any Illinois industry that generates waste assumes the risk, responsibility, and

accountability for any pollution caused by that waste. Thus, livestock facilities that violate the

provisions of the EPAct have always been and will continue to be responsible for any

violations of the EPAct or rules promulgated thereunder.

comments filed on or before February 28, 1997.

All modifications made today relative to the first notice proposal are shown in the attached

order in standard editing format (i.e., strikethroughs show deleted text; underlining shows

added text).

The Board has current regulations which are specific to livestock waste management facilities

Nonetheless, the Board recognizes, as did the legislature in adopting the LMFAct, that

the public interest and good public policy require that pollution of our environment be averted

prior to its generation.

The LMFAct and these rules, accordingly, take a preventative

approach to pollution. Through setback distances, education, waste management plans, and

requirements for the registration, design, construction, operation, and maintenance of lagoons

and livestock waste handling facilities, the Board believes that any risk to Illinois’ environment

from livestock facilities is greatly diminished.

In this rulemaking, the Board has attempted to provide a framework for the

administration and implementation of the LMFAct and Board rules. It is the intent of this

Board that the rules be clear, flexible, easily complied with, and administered in a fair and

impartial manner. Accordingly, new sections have been created that provide for the

workability of the rules. Primarily, these new sections set forth administrative requirements

such as standards and procedures that the Department of Agriculture must follow in making

various administrative determinations under these rules. A new provision has also been added

that mandates that records be kept of all determinations and that such records be subject to

public inspection.

Regarding setbacks, the regulations require that new livestock management and

livestock waste handling facilities provide notification to the Department of Agriculture of

their intent to build prior to construction. Further, the Board rules provide a process that is

designed to ensure that all statutory setback distances are adhered to and that notice is given to

all owners of property located within the setback areas. Where ambiguities exist in the

statutory setback language, the Board, based upon the testimony and arguments made at the

hearings and the legislative intent of the LMFAct, has provided clarity. The Department of

Agriculture is also required to certify that the applicable setback distances have been complied

with before construction begins. Where the LMFAct allows for the Department of Agriculture

to provide for a decrease of the statutory setbacks if innovative designs are incorporated into

the facility, the Board rules require that the owner or operator attach to the request for

decrease a certification by a Licensed Professional Engineer that the innovative designs

incorporated into the facility will achieve a greater amount of odor protection than the waived

setbacks.

(see 35 Ill. Adm. Code 501 through 507:Subtitle E). However, the Board acknowledges that

these regulations were promulgated long before the current agricultural changes and trends

found by the legislature in adopting the LMFAct. Accordingly, the Board and a number of

participants in the instant rulemaking have observed that the adoption of the proposed rules

under Part 506 may be inconsistent with existing regulations under Subtitle E. The Board

agrees that any inconsistencies between the Part 506 rules and existing regulations should be

rectified. Accordingly, we will consider whether to open a new rulemaking to address these

inconsistencies at the appropriate time.

See 89th Ill. Gen. Assem., Senate Proceedings, May 2, 1996, at 21 (statements by Senator

Donahue); 89

Ill. Gen. Assem., House Proceedings, April 19, 1996, at 1 (statements by

Representative Myers).

The rules also substantially mirror the provisions of the LMFAct and provide that

setbacks may be decreased when waivers are obtained from owners of occupied residences,

non-farm businesses, and common places of assembly that are located within the setback area.

The request for a setback decrease must be in writing, and the owner or operator seeking the

decrease must attach to the request, copies of the written and notarized waivers from the

owner(s) of the property located within the setback area. The rules further provide that the

Department of Agriculture must notify the owner or operator in writing of the setback decrease

within 30 days after receipt of the request for decrease.

Regarding design of lagoons, these rules require specific design standards for livestock

waste lagoons which are in accord with established engineering practices. Specifically, the

rules require that the owner or operator of a new or modified lagoon register that lagoon with

the Department and hire a Licensed Professional Engineer or Licensed Professional Geologist

to perform a site investigation prior to construction. The site investigation requires soil

borings to determine the distance of the lagoon bottom to any aquifer material. Depending on

the proximity of such material, liners and/or groundwater monitoring will be required.

Construction can only begin after proper licensed professional certification is made to the

Department of Agriculture. The regulations also allow the Department of Agriculture to

require changes in design that might be necessary to protect the groundwater. Moreover, the

rules direct the Department of Agriculture, as a condition of the issuance of a livestock waste

lagoon registration, to conduct periodic site inspections to assess the degree of compliance with

the requirements of the LMFAct.

Regarding the management of livestock management facilities, the rules provide that

waste management plans be prepared by certain facilities that meet the statutory threshold

animal unit requirement and further set forth provisions concerning application of livestock

waste to the land. Moreover, the rules establish that a livestock waste handling facility that

serves a certain number of animal units be managed by a certified livestock manager. The

rules presume, as did the legislature in passing the LMFAct, that the good management

practices required by these rules and the plans which must be developed will considerably

reduce potential odor problems.

Regarding penalties, the rules provide that the Department of Agriculture may issue

cease and desist orders, and otherwise order necessary penalties, for the violation of any of

these rules. Regarding financial assurance and requirements for closure, the rules recite the

statutory language. Moreover, the Board herein opens a Docket B (discussed in a later section

of this opinion) for the purpose of receiving a proposal from interested parties, including the

Department of Agriculture, on this subject as required by the LMFAct. Finally, where the

LMFAct allows the Department of Agriculture to grant an alternative, modification, or waiver

of these rules, the Board rules set forth a specific process to ensure that any such alternatives,

modifications, or waivers are environmentally protective.

Ill. Gen. Assem., House Proceedings, April 19, 1996, at 4 (statements by Representative

Myers).

Regarding odor, the Board believes that the rules proposed today do everything that can

be done within the context of the LMFAct to effectively deal with the odor issue. For

example, besides prescribing setback distances, the rules also contain provisions regarding

design standards for lagoons, waste management plans, livestock waste application on land,

and certified livestock managers. The Board anticipates that these provisions will dissipate the

odor problems associated with livestock facilities.

LEGISLATIVE ISSUES

The Board only has the authority granted to it by the legislature, and in this

rulemaking, we are exercising the authority granted to us by the LMFAct. While the Board

has somewhat broader environmental rulemaking authority pursuant to its authorities under the

EPAct, its authority in this immediate rulemaking is to adopt rules that implement the

LMFAct. While the Board believes that the regulations are a major step forward in protecting

Illinois’ environment, the Board acknowledges that the proposed rules do not resolve all the

potential problems and issues with regard to livestock waste handling and livestock

management facilities. During the hearings the Board conducted around the State in January

and February, the Board received testimony and comments regarding various issues related to

the problems publicly associated with livestock management and livestock waste handling

operations. The following section identifies those issues which are above and beyond the

statutory mandate of the Board in this proceeding.

Applicability and Size Distinctions: Mega-hog Farms v. Family Farms

Throughout these proceedings, citizens who were most alarmed about the increase in

livestock management and livestock handling operations voiced concern regarding the influx of

large hog management facilities, especially by out-of-state corporations (Tr5. at 278-279, 282-

283). Specifically, the Board heard testimony and received public comments on the need for

banning out-of-state corporations from building livestock facilities in Illinois and also the

desire for a moratorium on building hog production facilities altogether in Illinois. The

LMFAct, however, does not contain such prohibitions, but rather attempts to promote the

growth of these facilities in an environmentally responsible manner. The Board is without

authority to provide for these requested restrictions by rule. The Board also notes that

specifically banning out-of-state corporations from building facilities in Illinois may have

constitutional implications far beyond anything discussed on the record in this rulemaking.

A related issue is whether the regulations should apply solely to “large scale livestock

operations” and not “family farms.” During the hearings, there was considerable discussion

as to what constitutes a “large scale livestock operation” and a “family farm.” There was

little agreement on a definition of these concepts. (Tr1. at 176, 181, 186-187; Tr3.at 213-

214, 242-245; 273-274; Tr5. at 276-277.) In the LMFAct, the legislature has taken a

comprehensive approach to the regulation and registration of lagoons and has provided that

anyone who builds a new or modified lagoon shall submit to the registration and construction

requirements that flow from the LMFAct. Moreover, any new livestock management or

livestock handling facility must comply with the statutory setback distances. Indeed, from an

environmental standpoint, the environmental considerations are often the same, regardless of

who owns the lagoon or livestock management facility. In any event, the Board lacks

authority to change the comprehensive focus of the LMFAct and require that it apply only to

out-of-state or mega-hog confinement operations.

Additionally, several participants commented that the Board’s regulations regarding

lagoons should be based on the number of animal units at a livestock management facility.

(e.g., PC 46.) The commentors expressed concern that the expense small farmers would incur

with the new regulations would be too great. They also believed that the intent of the LMFAct

was that the regulations apply to large facilities, where the threat to the environment was

greater. (PC 46.) The Board points out that certain portions of the LMFAct and these rules

do draw distinctions regarding size (510 ILCS 77/20(c), (d); 510 ILCS 77/30(a); Sections

506.302, 506.401). However, the LMFAct requires that the registration and design criteria of

lagoons apply to new or modified lagoons. (PC 29.) It does not make a distinction for size.

While the emergency rules limited registration of lagoons and the application of the design

criteria to lagoons with a design criteria for 300 or more animal units, the justification for this

threshold was based on the emergency nature of the rulemaking. In this permanent rule, the

Board recognizes that lagoons constructed with a design criteria for less than 300 animal units

that are constructed, operated, and/or maintained in an irresponsible manner may be as

dangerous to the environment as those with a design criteria for 300 or more animal units.

(PC 42.) Where the legislature has not provided for a distinction based upon size, the Board

will not in this proceeding.

Local Input Into the Siting and Regulation of Livestock Management Facilities

Throughout the Board’s proceeding, local interest in the siting of these facilities was

evident. (Tr3. at 195; Tr4. at 120-121, 122-124; Tr.5 at 280-283) Several citizens of

communities where hog facilities are being planned commented on the need for local siting

control. While these are important issues, the LMFAct does not contain provisions granting

local siting control or provide for any prohibitions regarding the siting of facilities, except for

those within identified statutory setback distances. Any grant of authority to the communities

here must be done legislatively. The Board is without authority to give to the communities

what the LMFAct does not.

Increased Setbacks

The Board has received numerous comments and heard testimony regarding the

appropriate distances for setbacks and the need for increased setbacks. (Tr3. at 72-73, 195,

223-227; Tr5. at 185, 186-188; PC 10, 24, 27, 36, 47, 49.) In this rule, the Board has

provided a process for the determination of the statutory setbacks which involves notice to

owners of property located within the setback area. Further, the Board has attempted to

resolve any ambiguities in the statutory definitions. Where there is no ambiguity, however,

like the statutory distance requirements of ¼ mile and ½ mile, the Board is without authority

to change or extend the statutory setback distances. Similarly, while the Board recognizes the

concerns of those who argued against a distinction between “farm” and “non-farm” residence

in determining the appropriate setback distance, the LMFAct is clear on what constitutes a

“farm” and a “non-farm” residence and that, for facilities serving between 50 and 1,000

animal units, only a non-farm residence enjoys a setback. The Board is without authority to

change this and other specific legislative declarations regarding setbacks. The Board can only

provide clarity where it is lacking in the LMFAct. We have attempted to do so in this rule.

Banning of Lagoons and Mandating of Alternative Technologies

During our process, the Board heard testimony regarding the availability and feasibility

of new technologies for the elimination, storage, and treatment of livestock waste from

confinement operations which may provide more environmental safeguards than lagoons.

Indeed, many citizens who objected to the idea of lagoons referred to them as “cess-pools.”

Others, who accepted the idea of lagoons, believed treatment similar to that provided for with

human waste was necessary. While the Board recognizes that a variety of effective odor

controlling technologies are available for the management and treatment of livestock waste, the

Board also recognizes that the LMFAct focuses, almost entirely, on anaerobic lagoons as the

acceptable method for handling livestock waste. Further, the LMFAct is based upon the basic

presumption that such lagoons are a technically recognized and well-accepted method of

dealing with animal waste. Thus, the Board is not free in this proceeding to exclude the use of

lagoons and mandate or regulate other technologies.

Permitting and Enforcement

Several participants in this matter also suggested that livestock facilities be subject to a

permitting process through IEPA as is the situation with other Illinois industries. While the

Board acknowledges that most other states’ regulations concerning confined livestock facilities

provide for permitting and enforcement by the state’s environmental agency, the Board

recognizes that the Illinois legislature has chosen to regulate the construction, operation, and

maintenance of these facilities through the expertise of the State’s agricultural agency, rather

than by subjecting these facilities to a permitting process within the purview of the State’s

environmental agency. Thus, the Board cannot in this proceeding mandate a permitting

process as it is generally known in the environmental field.

Several commentors in this rulemaking also expressed concerns regarding the

enforcement of these regulations. Specifically, concerns were raised regarding the Department

of Agriculture’s dual role as both the regulatory agency charged with the enforcement of the

LMFAct and the development agency charged with the promotion of Illinois agriculture and

the livestock industry in Illinois. (See,

e.g.

, Tr3. at 295-296.) Concerns were also raised

regarding the adequacy of funding, staffing, and training for the implementation and

enforcement of these rules. (See,

e.g

., Tr3. at 295-296.) These are not matters within the

purview of the Board. If these matters are to be addressed, they need to be addressed by the

Illinois legislature as the Board has no role in these State policy issues.

In the following portions of this opinion, the Board reviews each of the various

provisions contained in today’s proposal and discusses our reasoning for adopting particular

alternatives. The Board further notes that the majority of comments received support the

proposal in total or in major part. Therefore, the fact that our discussion focuses on testimony

and comment that disagreed with the proposal should not be viewed as lack of support for the

proposal, but rather as our attempt to resolve a few disputed issues.

GENERAL ISSUES

Today’s rulemaking presents the Board with a number of general policy issues. Prior

to looking at individual provisions of today’s proposal, we address these policy issues.

Level of Financial Surety Rulemaking

Section 17 of the LMFAct (510 ILCS 77/17) provides that owners of new or modified

lagoons establish and maintain evidence of financial responsibility to provide for the closure of

lagoons and for the proper disposal of their contents. Section 17 further states that the level of

surety required “shall be determined by rule” and be based upon the volumetric capacity of the

lagoon. Section 55 requires the Department of Agriculture to file with the Board rules

implementing the LMFAct. Read together, we find that these two sections of the LMFAct

require that financial surety rules be adopted as Board rules.

The Department of Agriculture has not proposed rules establishing the level of surety in

this proceeding. Rather, the Department of Agriculture requests at proposed Section

506.603(b) that it be allowed to adopt the necessary rules. However, the Board believes that

this action is contrary to the plain reading of the LMFAct which requires that the surety rules

be adopted by the Board. Therefore, the Board today severs the docket into Dockets (A) and

(B). Docket (A), which will be adopted as a final rule after JCAR review, will contain all the

general provisions and the provisions contained in the Board’s order today, concerning

standards for livestock waste lagoons, waste management plans, certified livestock managers,

penalties, setbacks, and the statutory language and general provisions regarding financial

responsibility. Docket (B) will contain the specific procedures and criteria necessary to

determine the level of financial surety required pursuant to the LMFAct. Accordingly, the

Board deletes the language in Section 506.603(b) and requests that all interested parties,

including the Department of Agriculture, submit a proposal to the Board on or before July 1,

1997 which proposes the procedures and criteria necessary to implement the level of surety

requirements of Section 17 of the LMFAct.

The Board today adopts the majority of rules needed to implement the LMFAct. The only

rules that we have not adopted concern the level of financial surety, and as explained, the

Board is unable to do so at this time because we did not receive any proposal on this issue.

The Board believes that by adopting all of the rules necessary to implement the LMFAct,

except the financial surety rules, the Board has met its statutory mandate to adopt rules

implementing the LMFAct within six (6) months after the Department of Agriculture

submitted proposed rules to the Board. (510 ILCS 77/55(c).) The Board has in the past

Department of Agriculture Rulemaking

In addition to requesting that it be allowed to develop rules on financial surety

requirements at a later date, the Department of Agriculture asks that there be included at

various places in the instant rules (Sections 506.306, 506.308, 506.309, 506.402, 506.502,

and 506.702(c)) the following, or similar, statement:

In addition to the procedures specifically required under this Subpart, the

Department may adopt and promulgate by rule all procedures reasonably

necessary to perform its duties and responsibilities under this Subpart.

In proposing these provisions, the Department of Agriculture argues that further

rulemaking may be necessary to fully implement the LMFAct. The Department of Agriculture

believes it can do so, within its own authorities at a later date, consistent with the LMFAct.

While we agree that further rulemaking may be necessary to effectuate the full intent of the

LMFAct and these rules, we believe that the LMFAct clearly and solely designates the Board

as the authority to adopt rules which implement the LMFAct. The Department of Agriculture,

as a State agency, has authority to implement its discretionary power by rule (5 ILCS 110/5-

20). While the Department of Agriculture can therefore adopt internal administrative rules on

such subjects as recordkeeping and hearing requirements, any rulemaking which purports to

implement the LMFAct must be done through this Board. As this is a rulemaking to

implement the LMFAct, the Board deletes all references to further Department of Agriculture

rulemaking. Since the Board, as explained above, will open a new docket (R97-15(B)) to

promulgate financial surety requirements, the Department of Agriculture may include, in its

proposal in that docket, any additional rules necessary to implement specific provisions of the

LMFAct.

Explicit Reliance on 35 Ill. Adm. Code 560

The Illinois Pork Producers, Illinois Beef Association, and the Illinois Farm Bureau

(collectively, the Farm Group) recommend that at various places in today’s rules there be an

explicit statement that 35 Ill. Adm. Code 560

applies to the waste management plans required

under Section 20 of the LMFAct (510 ILCS 77/20) and implemented within Subpart C of

today’s proposed regulations.

severed a docket to allow more time for the development of certain aspects of a rule, even

when under a statutory mandate to adopt final rules. See In the Matter of: Regulation of

Petroleum Leaking Underground Storage Tanks: 35 Ill. Adm. Code 732, (August 11, 1994)

R94-2(A); In the Matter of: Regulation of Petroleum Leaking Underground Storage Tanks: 35

Ill. Adm. Code 732, (August 11, 1994) R94-2(B).

Part 560, entitled “Design criteria for field application of livestock waste,” contains nine

sections, dealing with subjecs including nutrient loading, method of application, proximity to

water, flooding, waterways, frozen or snow-covered ground, rainfall, and odors. Part 560 is

contained within 35 Ill. Adm. Code: Subtitle E.

Despite IEPA’s characterization of 35 Ill. Adm. Code 560 as “guidelines,” the Board

recognizes that these are duly promulgated administrative rules which accordingly should be

followed. Therefore, the Board sees no need to specifically reference 35 Ill. Adm. Code 560

in these rules.

SUBPART A: GENERAL PROVISIONS

Subpart A contains provisions necessary for all of Part 506. Included within this

subpart is an overall applicability statement, a severability statement, definitions common to

the entire Part 506, and a list of materials that are incorporated by reference. Subpart A also

includes two new sections regarding recordkeeping and requests for alternatives,

modifications, and waivers.

Applicability (Section 506.101) and Severability (Section 506.102)

The applicability and severability sections found at Sections 506.101 and 506.102 are

standard features of regulations. The particular applicability statement found in Section

506.101 notes that the provisions of Subpart A apply to all of Part 506 and that each of the

remaining subparts has its own applicability statement.

Definitions (Section 506.103)

Section 506.103 contains definitions that apply to Part 506. Many of the definitions

contained in this section are definitions that are found in the LMFAct. The Department of

Agriculture recommends, and the Board agrees, that inclusion of the LMFAct definitions

within Part 506 is necessary for a complete reading of Part 506. Those definitions that come

from the LMFAct are identified by the use of capitalization in the rules.

Most of the definitions that are proposed within the instant rule have generated no

discussion either at hearing or in public comments. Based thereupon, and upon the Board’s

own review of the definitions, the Board today adopts most of the definitions in form identical

to the form proposed at first notice.

Among definitions which have generated discussion at hearing and in public comment

are the definitions of “aquifer material,” “animal unit,” “lagoon,” “livestock pasture

operation,” and “populated area.” There have also been proposals to add definitions for

“licensed professional geologist” and “occupied residence.”

Animal Unit. The definition of “animal unit” proposed at first notice is the statutory

definition that is found in the LMFAct (510 ILCS 77/10.10). Animal unit is defined for

specified types of animals as a measurement calculated by applying a multiplier to the number

As a general construct, any language used in today’s proposal that is statutory is shown in

capitalization.

of animals. The IEPA testified that the term originated in federal regulations, with Illinois

regulations adding some types of animals over the years. (Tr5. at 52-56.)

Several participants in this proceeding discussed perceived shortcomings in the

definition of “animal unit.” (Tr2. at 189-196; Tr4. at 165; Tr5. at 118-119; PC 1 at 1; PC 58

at 5.) Participants either suggested that the Board expand the definition of animal unit, add

particular types of animals, or change the multipliers. For example, David Thompson, interim

president of the Illinois Poultry Council, testified that the proposed definition excludes most

poultry operations in Illinois, since to his knowledge there are no Illinois facilities that use

either continuous overflow watering or liquid manure handling systems. (Tr5. at 195.) Mr.

Thompson therefore recommended deleting the exclusion for facilities using either continuous

overflow watering or liquid manure handling systems and adding multipliers for laying hens

and pullets. (Tr5. at 196-198.) The Department of Agriculture also suggested adding a laying

hens multiplier to the definition of animal unit, at a slightly different value than that suggested

by Mr. Thompson. (PC 58 at 5.) Moreover, veterinarian Dr. Kenneth Walker proposed that

the number of horses per animal unit should be equal to or higher than that of beef cattle

because of diet and space requirements. (PC 1 at 1.)

While the Board acknowledges the various shortcomings of the definition of “animal

unit,” the Board notes that the “animal unit” definition is statutory. Second, the Board

recognizes the limitations of the present animal unit definition in determining precisely the

amount of manure and therefore potential environmental problems for different types of

livestock (see Tr4. at 165; Tr5. at 52-56, 118-119). However, the numbers retain historical

value in a regulatory context for determining such thresholds as different setback distances.

Finally, the record in this proceeding does not contain enough information to add animal types

or change the multipliers already defined, nor do we find sufficient industry hardship or

potential environmental harm to make the requested changes.

Aquifer Material. IDNR notes that the intent of the definition of “aquifer material” “is

to provide consistent, appropriate identification of the kinds of geologic materials that allow

rapid transport of water and dissolved solids” (Tr1. at 131-132). The Board recognizes that

use of “aquifer material,” as opposed to “aquifer,” as the identifier of earth materials sensitive

to groundwater contamination is something of a departure from practice in other Board

regulations. The rationale is provided by IDNR:

“Aquifer materials” are defined and used in this proposed rule rather than

“aquifers” because when chemicals leak from a source like a livestock waste

lagoon, their rates of travel through unsaturated aquifer materials are very

similar to those through saturated aquifer materials. A lagoon leaking

livestock waste into a deposit of aquifer material could contaminate a very

large volume of the subsurface, regardless of whether the materials were

saturated or not.” (Tr1. at 132.)

The Board accepts the proposed definition of “aquifer material.”

Lagoon. The distinction between a “waste lagoon” and a holding pond was also

questioned. (Tr4. at 181-198.) Lagoon is defined in the LMFAct as a structure designed for

the biological stabilization and storage of livestock wastes. (510 ILCS 77/10.25; at Section

506.103.) According to testimony, a holding pond is distinguishable because it is designed for

storage of livestock wastes only. (Tr4. at 185-186.) The Farm Group maintains that since

holding ponds are (1) not covered by the LMFAct, (2) not designed to biologically treat waste,

and (3) not mentioned in the regulations, they are not subject to the design criteria of waste

lagoons under the proposed regulations. (PC 60 at 4.) The Board agrees that holding ponds

are not covered by today’s regulations, but notes that they continue to be regulated pursuant to

the EPAct and to other parts of Subtitle E.

Licensed Professional Geologist. The Board noted at hearing that the original proposal

used the term “professional geologist” without defining it. The Department of Agriculture

responded with a recommendation that the term be added to the definitions. (Tr5. at 32.; Exh.

52.) The Board accepts that recommendation and today adds the definition as suggested by the

Department of Agriculture, based on the definition found in the Illinois Professional Geologist

Licensing Act (224 ILCS 745/1

et seq

. (1994)). To provide consistency with this definition

the Board today, at three places in the proposal,

also replaces the proposed term “Registered

Professional Geologist” with the term “Licensed Professional Geologist.”

Livestock Pasture Operation. The Farm Group recommends that the definition

proposed for “livestock pasture operation” be deleted. (PC 60 at 3.) The Farm Group

contends that traditional livestock pasture operations cover more types of operations than the

ones defined in the proposed definition. (Tr5. at 253.) Since livestock pasture operations are

explicitly excluded from regulation under the LMFAct (see 510 ILCS 77/10.30), the Farm

Group contends that the proposed definition would cause more pasturing activities to be

included in the instant regulations than is intended pursuant to the LMFAct. The Board agrees

and today deletes the definition of “livestock pasture operation.”

Occupied Residence. The Farm Group also suggests that the Board include a definition

of “occupied residence” in the regulations. Because “occupied residence” is mentioned

several times in the rules, the Board agrees that it would be wise to include a definition of this

term in the regulations. The definition we propose today builds on the definition of

“residence” and adds to it qualifiers, as recommended by the Farm Group (PC 60 at 5-6), that

the residence be “suitable for human occupancy 50% or more of the year.” The Board also

adds to the definition of “occupied residence” that the phrase “suitable for human occupancy”

means that the residence provides water and sanitation.

The Board has deleted from the Farm Group’s proposed definition that the residence

must meet “applicable human dwelling ordinances or state laws” The Board believes that this

phrase is unnecessary and that the definition will be interpreted and applied more consistently

without reference to county ordinances or other State laws. The Board has also deleted the

reference in the proposed definition that the residence provide electricity and that the residence

Twice at Section 506.202(e) and once at Section 506.203(b)(7).

be suitable for human occupancy “on a weekly basis.”

Populated Area/Common Place of Assembly. As a final definitional matter, the

definition of “populated area” was extensively discussed at the hearings with particular

emphasis on IDNR’s suggested modifications to the definition. As noted earlier, the LMFAct

establishes setback distances for new livestock management and livestock waste handling

facilities which are tied to the distance from these facilities to the nearest occupied non-farm

residence, populated area, or occupied residence. Under the LMFAct, these setbacks distances

are determined by measuring from the “nearest corner of the residence or place of common

assembly to the nearest corner of the earthen waste lagoon or livestock management facility,

whichever is closer.” (510 ILCS 77/35.)

With regard to the term “populated area,” the LMFAct defines “populated area” as

“any area where at least 10 inhabited non-farm residences are located or where at least 50

persons frequent a common place of assembly or a non-farm business at least once per week.”

(510 ILCS 77/10.60.) In its proposal, the Department of Agriculture added the following

language to the LMFAct’s definition of “populated area” which clarifies the “at least once per

week” phraseology as it applies to seasonal operations:

The existence of a populated area shall be determined by identifying the area

around the livestock management or livestock waste handling facility delineated

by a distance equal to the applicable setback distance; identifying the number of

residences or the existence of a non-farm business or the existence of a common

place of assembly; and comparing the appropriate number of respective units

determined to be present within the setback distance. The provision that

qualifies a common place of assembly or a non-farm business based on 50

persons or more frequenting the said place once per week shall include places

that operate less than 52 weeks per year, such as schools with seasonal vacation

periods and businesses or other places which experience seasonal shutdowns.”

No one raised any objections to the language added by the Department of Agriculture.

The Board believes that the additional language to the LMFAct’s definition of “populated

area” is in accord with the legislative intent in enacting the LMFAct. The Board therefore

accepts the Department of Agriculture’s definition of “populated area.”

Through extensive testimony at the Board hearings, representatives of IDNR argued

that the Department of Agriculture’s above definition needed further refinement, in particular

as it relates to land utilized for conservation and recreational purposes. Specifically, IDNR

argues that the statutory language is ambiguous in this regard and has proposed modifying the

definition of “populated area” contained in the Department of Agriculture’s proposal as

follows:

The Board notes that it has slightly modified the Department of Agriculture’s proposed

definition in the rules to make the definition more clear and to correspond with changes

proposed by IDNR.

“Populated Area” means any area where at least 10 inhabited non-farm

residences are located or where at least 50 persons frequent a common place of

assembly or a non-farm business at least once per week. The existence of a

populated area shall be determined by identifying the area around the livestock

or livestock waste handling facility delineated by a distance equal to the

applicable setback distance; identifying the number of residences or the

existence of a non-farm business or the existence of a common place of

assembly; and, comparing the appropriate number of respective units

determined to be present within the setback distance.

For the purposes of

setback requirements, places of common assembly or non-farm business

include but are not limited to churches, hospitals, schools, day care centers,

manufacturing companies, land managed for recreational or conservation

purposes, museums, camps, parks, retail and wholesale facilities, and

shopping centers.

The provision that qualifies a common place of assembly or

a non-farm business based on 50 persons or more frequenting the said place

once per week shall include places that operate less then 52 weeks per year,

such as schools with seasonal vacation periods, businesses or other places which

experience seasonal shutdowns,

and parks, camps and recreational areas

experiencing seasonal shutdowns or reduced attendance during a portion of

the calendar year as long as at least 50 persons per week visit during the

prime season. When the primary use is an outdoor activity, the legal

property lines of common places of assembly and non-farm businesses shall

be the measuring point to delineate the setback distances for the livestock

management or waste handling facility

(Exh. 5)

The first modification addresses the concept of “common place of assembly.” (Tr1. at

125.) Although the definition of “populated area” refers to a “common place of assembly,”

this phrase is not defined in either the LMFAct or the Department of Agriculture’s proposed

rules. The IDNR contends that the definition of “populated area” should include examples of

“common places of assembly” and “non-farm businesses” to provide guidance to livestock

management and livestock waste handling facilities owners about the type of area which

constitutes a common place of assembly. The proposed language also makes clear that a

populated area includes more than a building or structure, provided that the requisite number

of people visit the place each week. (Tr1. at 126-27.)

As to IDNR’s first amendment, the Board accepts this modification without change.

The Board agrees that the phrase “common place of assembly” as it is used in the definition of

“populated area” is ambiguous. Because we find the phrase vague, we believe that providing

examples of places that fall within the definition helpful in determining what are “common

places of assembly.” Moreover, the Board finds that the phrase “common place of assembly”

should be construed to include land used for recreational and conservation purposes. The

legislative intent behind enactment of the LMFAct, and especially the setback provisions, was

to protect Illinois citizens from odors that emanate from livestock management and livestock

handling facilities. If the phrase “common place of assembly” was interpreted to only

encompass buildings or structures, we believe that the legislative intent behind passage of this

act would not be fully implemented. Thus, the Board concludes “common place of assembly”

includes recreational and conservation areas like baseball diamonds, soccer fields,

campgrounds, and hiking trails. Accordingly, the Board accepts IDNR’s proposed change.

The second change advocated by IDNR extends the concept of seasonal shutdowns to

parks, camps, and recreational areas. (Tr1. at 127-128, 146.) This change is intended to

ensure that parks, camps, and recreational areas with seasonably reduced attendance also

qualify as “common places of assembly.” As to this proposed second change to the

Department of Agriculture’s definition of populated area, the Board believes that by including

parks, camps, and recreational areas the Board is adhering to the legislative intent of the

LMFAct. The Board thereby accepts IDNR’s proposed second change to the Department of

Agriculture’s definition of “populated area.” The Board does, however, modify IDNR’s

proposed change to reflect that parks, camps, and recreational areas that experience seasonal

shutdowns or reduced attendance during a portion of the calendar year qualify as a “common

place of assembly,” provided “that such places are frequented by at least 50 persons at least

once per week during the portions of the year when seasonal shutdowns or reductions in

attendance do not occur.”

The final change urged by IDNR, which generated the most discussion at hearing,

concerns how setback distances are measured when the primary use of a common place of

assembly or non-farm business is an outdoor activity. The IDNR’s proposed change

recognizes that a “common place of assembly” can cover a large area rather than a specific

point like a building or structure. For example, IDNR suggests that within a park, attendance

is not limited solely to buildings or picnic areas. Rather, people use the entire designated area

for recreational activities. Because of the way these recreational areas are used, IDNR

proposes that the property lines of recreational and conservation areas serve as the measuring

point for determining setback distances when the primary use of the “common place of

assembly” and non-farm business is an outdoor activity. (PC 68; Tr1. at 128-29; 146-49;

150-56.) Similarly, IDNR proposes that the legal property lines of a place of common

assembly serve as the measuring points when determining setback distances at areas used

primarily for outdoor activities. (Tr5. at 303-14.)

The IDNR gave various reasons in support of this proposed amendment. One of the

reasons is IDNR’s belief that livestock waste odor is incompatible with outdoor activities that

Illinois citizens enjoy when visiting IDNR facilities and that declining attendance due to odor

problems would reduce the economic benefits to local economies that gain benefit from the

attendance at IDNR facilities. (Tr1. at 243, 271; Tr3. at 291.) IDNR is also concerned that

livestock facilities would locate near IDNR sites so as to use those sites as buffers to avoid

existing and future residential developments. (Tr1. at 270.) The IDNR is additionally

concerned that nearby livestock facilities would adversely impact natural resources on IDNR

properties. (Tr1. at 230, 232.) The Illinois Stewardship Alliance filed a comment supporting

IDNR’s proposal. (PC 46.)

The Farm Group opposes IDNR’s proposal. The Farm Group maintains that IDNR’s

proposal should be rejected because it is contrary to the provisions of the LMFAct. The Farm

Group explains that the setbacks for livestock waste lagoons are from “occupied non-farm

residences,” “occupied residences,” and “populated areas.” Thus, the Farm Group contends

that the intent of the setbacks is to keep waste lagoons away from people and to conclude that

all IDNR property qualifies as “populated areas” goes beyond the legislative intent of the

setbacks. (PC 60 at 7-8.) The Farm Group also argues that IDNR’s claimed difficulty in

delineation of a “populated area” within a State park is without merit. (PC 60 at 9.) Rather,

the Farm Group alleges that the setback distances should be measured “from the nearest point

of the facilities which attract the public to congregate and remain in the area for significant

periods of time.” (PC 60 at 9.) The Farm Group also maintains that the proposal is not

warranted since much of the property which this provision protects is already covered by the

statutory setback distances. For these reasons, the Farm Group contends that that IDNR’s

proposal should be rejected. The Department of Agriculture also opposes IDNR’s proposed

change for similar reasons.

As noted previously, the LMFAct establishes that setback distances are to be measured

“from the nearest corner of the residence or common place of assembly to the nearest corner

of the earthen waste lagoon or livestock management facility.” Although the LMFAct sets

forth how the setback distances are to be measured, the measurement is based on the distance

from the livestock management facility or lagoon to the nearest corner of the residence or a

common place of assembly. With regard to IDNR’s proposal that the legal property lines of a

common place of assembly serve as the measuring point when determining setback distances if

areas are used primarily for outdoor activities, the Board, after much deliberation, accepts this

proposed change for the following reasons.

As we already stated, the Board believes that the phrase “common place of assembly”

is vague as it relates to places of primary outdoor activity. Obviously, the phrase would

include more than mere buildings or structures; it would also include open lands where, during

the portions of the year when seasonal shutdowns or reduction in attendance do not occur, at

least 50 people a week congregate for the common purpose of enjoying outdoor activities or

Illinois’ natural resources and environment. Yet, in most of these places of primary outdoor

use (such as a State or local park) there may not be any identifiable structure for which there is

a specific “corner” from which to measure the distance to the lagoon or livestock facility

exists, or there may be more than one. Accordingly, IDNR proposed that in those specific

instances the measurement be from the open property’s boundaries.

Indeed, it would be extremely difficult, if not impossible, for the entity charged with

administering these rules, the Department of Agriculture, to ascertain any specific “point” of

common assembly for measurement in these circumstances. The Farm Group’s statement that

the setback distances should be measured “from the nearest point of the facilities which attract

the public to congregate and remain in the area for significant periods of time” illustrates the

problem. The Board believes that it would be difficult for anyone to ascertain with any clear

consensus which specific area in a park would be “facilities which attract the public to

congregate and remain in the area for significant periods of time.” The Farm Group’s

argument could include everything from a picnic table or shelter to a lake. Accordingly, we

agree with IDNR and find that using the property lines of a common place of assembly and

non-farm business when the primary use of these places is an outdoor activity, is appropriate

and provides clear guidance for determining setback distances. In so doing, the Board is

attempting to provide clear guidance so that the rules can be easily complied with. We believe

that measuring the setbacks from the “nearest corner” of the property line when the primary

use of the common place of assembly or non-farm business is an outdoor activity, is in keeping

with the legislative intent of the LMFAct.

While the Board accepts the concept presented by IDNR, the Board modifies the

suggested language. First, although IDNR presented the concept of measuring setback

distances for common places of assembly and non-farm businesses from the property lines

when the primary use of the area is an outdoor activity by modifying the definition of

“populated area,” the Board believes that the method for measuring setback distances should

be contained in the section regarding setbacks. Therefore, the Board modifies Section 506.702

to include this concept of measuring setback distances. Moreover, the Board adds language to

Section 506.702 to make clear that measuring setback distances from the property lines of

common places of assembly and non-farm businesses occurs only when the primary activity at

a common place of assembly or non-farm business is an outdoor activity. When the primary

use at a common place of assembly or non-farm business is an indoor activity, the Board rules

provide that the setback distances shall be measured from the nearest corner of the structure

where the indoor activity takes place.

Some have argued that the measuring point for determining the distance of farm or

non-farm residence to the lagoon or livestock management facility in the Board rules should

also be the property line of the residence’s property. However, we cannot so provide. Unlike

the situation concerning “common place of assembly,” there is no ambiguity inherent in the

definition of “residence,” as stated in the LMFAct. A residence is a structure. That structure

has a definite corner from which to measure distance. Therefore, there is a definitive mark

from which to measure setback distances, as opposed to “common place of assembly” where

the “nearest corner” to measure setback distances is quite ambiguous. Thus, we believe that

the legislation is clear on this point and to require measurements from the property line of the

residence would not be consistent with the clear language of the LMFAct.

The determination we reach herein was not made lightly. We cannot agree with views

that this decision is not in keeping with the legislative intent. Nor can we agree that it

prohibits traditional farms from expanding or constructing within the setbacks. The LMFAct

provides that setbacks may be decreased when waivers are obtained from owners of residences

that are occupied and located in the setback area. (510 ILCS 77/35(g).) The Board rules

make clear, as discussed more thoroughly later, that waivers may also be obtained from the

owners of non-farm businesses and common places of assembly that are located within the

setback area. (Section 506.702(g).) Thus, IDNR could provide a waiver for any of its

property located in the setback area. The Board believes that this opportunity to obtain

waivers from owners of residences, non-farm businesses, and common places of assembly that

are located within the setback area balances any effect of accepting IDNR’s argument

regarding determining setback distances from common places of assembly. We also expect

that IDNR will provide such waivers when it determines that the decrease in setbacks will have

little or no affect on Illinois citizens’ enjoyment of the outdoors.

Incorporations by Reference (Section 506.104)

Section 506.104 lists materials that are referenced within the body of Part 506. Four of

the listed items are the same items recommended in the Department of Agriculture’s proposal.

Two of the references support the water quality analysis requirements of the proposal, and two

of the references support the provisions for livestock waste lagoon design.

At various parts of the record there are recommendations that the Board add items to

the incorporations by reference list dealing with alternative design standards for livestock

lagoons. (

e.g

., Tr3. at 168-169.) The Board believes that most of the recommended

incorporations are unnecessary. As the Department of Agriculture observes (PC 58 at 4), the

two lagoon design documents cited in the LMFAct as the basis for lagoon design,

the

ASAE’s EP403.1 and the USDA-NRCS’ waste treatment lagoon document, include within

them internal references to most of the additional literature. For example, ASAE EP403.1

includes internal reference to ASAE EP379, Control of Manure Odors. The Department of

Agriculture contends (PC 58 at 4), and the Board agrees, that this circumstance already

provides for reliance on the internally referenced documents and that they do not need to be

further or separately listed in the instant regulations. Moreover, as the Department of

Agriculture also points out (PC 58 at 4), the LMFAct at Section 15(a), as well as today’s

proposed Section 506.204(h), allows for the use of any alternative lagoon design standards

upon approval of the Department of Agriculture.

The Board does today make one addition to the incorporations by reference. The Board

adds the document ASAE EP403.2, titled “Design of Anaerobic Lagoons for Animal Waste

Management.” This document in part updates ASAE EP403.1, and it is incorporated today

for that purpose.

Recordkeeping (Section 506.105)

The Board has created a new Section 506.105 to specify the recordkeeping duties of the

Department of Agriculture, necessitated by these new rules implementing the LMFAct. In

general, the Department of Agriculture will need to maintain a file on each facility registered,

The LMFAct at Section 15(a) (510 ILCS 77/15(a)) specifies that “any livestock lagoon

subject to registration shall be constructed or modified in accordance with ‘Design or

Anaerobic Lagoons for Animal Waste Management’ promulgated by the American Society of

Agricultural Engineers and designated (ASAE EP403.1) or the national guidelines as published

by the United States Department of Agriculture Natural Resources Conservation Service in

Illinois and titled Waste Treatment Lagoon.” This statutory language is repeated in the instant

proposal at Section 506.204(a).

or otherwise filing documents, with the Department of Agriculture, under the LMFAct and

Board rules. Such file shall contain all registration materials, record of the Department of

Agriculture’s certifications and determinations, along with supporting data and justifications,

groundwater monitoring results (if required), waste management plans (if required),

correspondence, and any other information submitted by a facility owner or operator as

required under these rules. Copies of such material shall be made available for public

inspection. The Board finds that mandating the creation and maintenance of such files and

making them available for public inspection is necessary for proper implementation of the

LMFAct. Moreover, the Board is being responsive to comments that it is necessary that files

be maintained on each facility for public inspection. (See PC 17.) The requirements contained

in this section are similar to a State agency’s recordkeeping requirements under the Freedom of

Information Act (5 ILCS 140/1

et seq.

(1994)).

Alternatives, Modifications, and Waivers (Section 506.106)

The Board has added a new Section 506.106 to the Department of Agriculture’s

proposed regulations, relating to alternatives, modifications and waivers from the regulations.

Sections 506.202(d), 506.204(h), 506.205(f), 506.206(j), and 506.209(a)(2) of the rules

provide that an owner or operator of a livestock waste lagoon may request an alternative,

modification, or waiver from the established standards as they relate to soil borings, lagoon

design, liner, and groundwater monitoring requirements to meet site specific objectives, and

closure requirements that permit the lagoon to be used for an alternative purpose, respectively.

The source for the alternatives, modifications and waivers in the regulations are Sections 15(a)

and (e) of the LMFAct which specifically provide for such alternatives, modifications, and

waivers. (See 510 ILCS 77/15(a), (e).)

New Section 506.106 mandates that all requests for alternatives, modifications, or

waivers of the rules be made in writing and filed with the Department of Agriculture.

Moreover, the regulations specify that construction cannot begin or continue until a

determination has been made by the Department of Agriculture concerning the request.

Additionally, each request must contain a certification from a Licensed Professional Engineer

or Licensed Professional Geologist, as relevant, that the modification is at least as protective of

the groundwater, surface water, and the structural integrity of the livestock waste management

facility as were the stated requirements, or, in the case of requests for alternatives or waivers,

that the grant of the alternative or waiver is at least as protective as the stated requirement.

Moreover, the new provisions require that the Department of Agriculture, within 30 days after

receipt of the request, notify the applicant in writing of its decision to grant or deny the

request. To grant the requested alternative, modification, or waiver, the Department of

Agriculture must determine that the alternative or waiver will be at least as protective as the

stated requirement and that the modification is at least as protective of the groundwater,

surface water and the structural integrity of the livestock waste management facility as the

stated requirements.

The Board believes that these specific regulations concerning waivers are necessary to

ensure that the quality of Illinois’ air, water, and land is protected. We further find that

specific regulations pertaining to alternatives, modifications, and waivers are necessary to

clearly set forth a process that must be followed and a standard that must be met to grant an

alternative modification or waiver. The Board emphasizes that the LMFAct already provides

for these alternatives, modifications, and waivers. Therefore, Section 506.106 merely

provides a standard and procedure for the Department of Agriculture to determine whether the

request for an alternative, modification, or waiver should be granted. Setting forth such a

standard and procedure also clearly informs affected persons what standard must be met and

the procedure that must be followed to receive the requested alternative, modification, or

waiver. The Board also believes that we are aiding the Department of Agriculture by setting

forth these standards and procedure and are also being responsive to articulated fears that the

rules will not be properly enforced due to the Department of Agriculture’s dual role as the

enforcer of these rules and also the agency responsible for promoting agriculture in Illinois.

(See,

e.g.

, Tr3. at 295-296.)

SUBPART B: STANDARDS FOR LIVESTOCK WASTE LAGOONS

Subpart B sets out various provisions that are related to the design, registration,

construction, and certification of earthen livestock waste lagoons. Livestock waste lagoons are

singled out in the findings of the General Assembly as a livestock waste management unit that

“must be constructed according to standards to maintain structural integrity and to protect

groundwater” (LMFAct at 510 ILCS 77/5(a)(7)). This Subpart accordingly focuses on the

structural integrity and groundwater protection aspects of livestock waste lagoons.

Applicability (Section 506.201)

Section 506.201 sets out the applicability of Subpart B to all new or modified livestock

lagoons not placed in service as of the effective date of Part 506. This proposal differs from

the emergency regulations which only apply to lagoons serving a livestock management facility

with a design capacity of 300 animal units or more. Therefore, a new or modified livestock

lagoon serving 300 or more animal units has already been subject to the emergency regulations

since October 31, 1996 if placed in service after that date, and those same facilities will also

become subject to today’s permanent regulations as of the effective date of these regulations.

However, as required by the LMFAct, a new or modified livestock lagoon designed for less

than 300 animal units will for the first time become subject to today’s permanent regulations.

Site Investigation (Section 506.202)

The siting of every new or modified lagoon requires investigation of the ground

beneath the lagoon to determine whether the site is underlain by materials that provide an

opportunity for pollution of groundwater beneath or around the site. The procedures for the

site investigation are laid out at Section 506.202.

The proposal requires that at least one soil boring be conducted to a depth of at least 50

feet below the proposed lagoon bottom. The soil boring is to be conducted in such manner as

to allow identification of any aquifer material that underlies the site. Further, a Licensed

Professional Engineer or a Licensed Professional Geologist shall certify the contents of the soil

boring and that the boring was conducted in conformance with Section 506.202.

The proposal also provides for possible alternatives to the soil boring with prior

approval from the Department of Agriculture. The Department of Agriculture proposes this

provision to accommodate circumstances where there may already be information sufficient to

determine the presence of aquifer material,

e.g.,

“where other site subsurface investigations

may have been conducted as part of the installation of a site water supply well or other facility

planning process” (Tr1. at 42-43). An alternative to the soil boring is acceptable only if it

provides information that will result in a site investigation that will be at least as protective of

human health and the environment as the data provided by a soil boring.

The IEPA contends that the Department of Agriculture needs flexibility to require

additional borings (Tr1. at 112); the Illinois Stewardship Alliance supports giving the

Department of Agriculture the discretion to require more, but not fewer, soil borings (Tr1. at

164). As an example of when the Department of Agriculture would need discretion to require

additional soil borings, IEPA cites the situation where disturbed or mined land may have

altered hydrology and soil conditions, or routes to groundwater via abandoned shafts, as

circumstances where flexibility is required. (Tr1. at 112.) The Board agrees that the

Department of Agriculture needs flexibility to require additional soil borings when it

determines “that additional soil borings are necessary to ensure the protection of the

groundwater, surface water and the structural integrity of the livestock waste management

facility.” Accordingly, the Board today adds language at proposed 506.202(c) that gives the

Department of Agriculture this flexibility.

Finally, the Board today adds the phrase “to ensure that no gaps occur in the sample

column” at Section 506.202(b)(3). It is the Board’s experience that the term “continuous

sampling” has sometimes been a source of confusion and that the language we add today can

alleviate that confusion.

Registration (Section 506.203)

The LMFAct requires that all newly constructed or modified earthen livestock lagoons

be registered with the Department of Agriculture; older lagoons may be registered at the owner

or operator’s request. (510 ILCS 77/15(b).) Section 506.203 sets out requirements for the

registration process.

Many of the details of the registration process are statutory. These include lists of

information that must be provided by the owner or operator on the registration form (Section

506.203(b)) and the timeframes within which the Department of Agriculture must respond to a

registration request (Section 506.203(c)). Specifically at 506.203(c) the Department of

Agriculture is required to notify the person filing the registration, within 15 working days of

receipt, that registration is complete or that additional information is necessary. Further, no

later than 10 days after the receipt of the clarifying information, the Department of Agriculture

must notify the owner or operator that registration is complete or that additional clarifying

information is needed. The Farm Group recommends adding language which would deem the

registration complete if the Department of Agriculture does not timely notify the owner within

10 working days after it has received the requested clarification. The Board rejects this

suggestion because it believes instead that if the Department of Agriculture does not timely

notify the person filing the registration as required in Section 506.203(c), the registration is

incomplete.

Non-statutory provisions include additional information that the owner or operator must

provide. This information includes the location and associated distances to potential routes of

groundwater contamination (

e.g

., abandoned or plugged wells, drainage wells, injection wells,

or subsurface drainage lines), a copy of the site investigation certification required pursuant to

proposed Section 506.202(d), and information regarding any synthetic liner that may be used

at the lagoon.

Section 506.203(d) provides the Department of Agriculture with authority to conduct

site investigations of a livestock lagoon to assess the compliance status of the lagoon. Section

15 of the LMFAct at Section 15 (510 ILCS 77/15(b)) requires that the Department of

Agriculture inspect lagoons during at least one of the following phases: preconstruction,

construction, and post-construction. Although the LMFAct mandates no further site visits, the

Department of Agriculture contends that under some circumstances follow-up visits may be

necessary, “especially in the case of facilities required to utilize liners where periodic

maintenance is required or where monitoring wells are periodically sampled” (Tr1. at 45).

The Board agrees and therefore retains this provision in today’s rules.

The Illinois Stewardship Alliance recommends that the rules require follow-up visits

and that operators and the public be alerted when the follow-up visits would occur. (Tr1. at

164.) The Board believes that it is appropriate to allow the Department of Agriculture to

exercise its professional judgment, on a site-by-site and circumstance-by-circumstance basis, as

to whether follow-up visits are needed or whether advance notification should be given to the

owner or operator of the follow-up visits.

Finally at Section 506.203(e), the Board has added the statutory language from Section

15(b) of the LMFAct in an effort to clarify to owners and operators that construction may not

begin until 30 days after the registration form has been submitted by certified mail to the

Department of Agriculture.

Lagoon Design Standards (Section 506.204)

Section 506.204 contains the standards for the design of earthen livestock waste

lagoons. The design requirements in today’s proposal are of two types: (a) those explicitly

required in the LMFAct and (b) those specific and necessary for the protection of Illinois’

groundwater as determined by the Board in this proceeding.

The LMFAct requires that any subject livestock waste lagoon be constructed or

modified in accordance with two standard engineering practice guidelines: “Design of

Anaerobic Lagoons for Animal Waste Management” an American Society of Agricultural

Engineers’ (ASAE) publication, and “Waste Treatment Lagoon” a publication of the United

States Department of Agriculture - Natural Resources Conservation Service

(USDA-NRCS).

The language of the LMFAct that establishes this requirement is set out in today’s proposal at

Section 506.204(a).

Two of the most important design features are requirements for use of a lagoon liner

and for conducting groundwater monitoring at locations where site-specific analysis indicates a

potential for groundwater contamination. (See Section 506.204(d).) The criterion used to

determine where a potential for groundwater contamination exists is the presence of aquifer

material at a depth of 50 or fewer feet beneath the lagoon floor. In particular, if aquifer

material occurs within the top 20 feet, both a liner and groundwater monitoring are required.

If the topmost aquifer material occurs within the range of 20 to 50 feet, only a liner is

required. If there is no aquifer material within the entire 50-foot column, neither a liner nor

groundwater monitoring is required. Sections 506.205 and 506.206, discussed later, detail the

nature of the liner and the groundwater monitoring requirements.

The IDNR notes that the 50-foot evaluation limit is based on a study of rural private

water quality conducted by the Illinois State Geological Survey and Illinois State Water

Survey, with the assistance of the IDPH and the Department of Agriculture. (Tr1. at 135.)

The study found that agricultural chemicals were occasionally present in well water when the

top of the uppermost aquifer was within 50 feet of the land surface, but that the greater the

thickness of non-aquifer material between a contaminant source and an aquifer, the less likely

the contaminants were to reach an underlying aquifer. (Tr1. at 135-136.) The IDNR thereby

concludes that the 50-foot evaluation depth is appropriate, particularly given “the relatively

innocuous and immobile nature of the primary contaminants in livestock waste.” (Tr1. At

135-136.)

The design requirements contained in Section 506.204(g) include requirements that are

both unique to the instant proposal and are needed to remove any potential ambiguity that

would arise if the ASAE and USDA documents noted above constituted the sole engineering

design criteria. As the Department of Agriculture notes, the two “documents, in many cases,

provide ranges of acceptable design values which may be in conflict with each other if some

components of a design are allowed to be based on one reference while other components of

the same design are based on the second document” (Tr1. at 46-47). Among requirements

intended to remove ambiguities are the berm-top requirement, the wall slope requirements, and

the lagoon volume requirements found at Section 506.204(g)(1) through (g)(3), respectively.

The IEPA recommends that the Board add a prohibition against the use of outlet piping

through the lagoon berm, unless the piping discharges to a second lagoon. (Tr1. at 113-114).

The IEPA cites to an example where erosion adjacent to piping was related to failure of the

berm. (Tr1. at 113-114.) The Board believes that IEPA’s recommendation is necessary for

These documents are included in the incorporations by reference section of the instant

proposal at Section 506.104.

protection against the catastrophic failure of a lagoon berm. Accordingly, the proposed

prohibition, as qualified, is contained in Section 506.204(g)(1)(B).

The IEPA also recommends that all lagoons have an engineered emergency spillway

(Tr1. at 114). The purpose of this spillway would be to channel water that may overtop the

berm through an erosion-resistant discharge point, thereby averting possible catastrophic

failure of the berm. The Department of Agriculture contends that an engineered spillway is

not necessary for all lagoons because the freeboard requirements at 506.204(g)(4) already

protect against overtopping by requiring that lagoons have the capacity to accommodate even

extraordinarily large rainfall events. (Tr5. at 38; Exh. 57.)

The Board agrees that engineered spillways should not be required of all lagoons,

although an engineered spillway might be prudent in the design of some lagoons. The Board

agrees that the freeboard requirements already provide the necessary safeguards against

catastrophic overtopping of most lagoons. Accordingly, the Board finds that the cost of an

emergency spillway ($10,000 to $35,000) (Tr4. at 288.) is not justified in other than the

unusual case.

Professor Ted L. Funk of the University of Illinois testified at an early hearing that the

interior berm slope be allowed to be steeper than provided in the original Department of

Agriculture proposal. (Tr1. at 170.) The Department of Agriculture subsequently

recommended that the Board accept Professor Funk’s recommendation for interior berm slopes

below the elevation where liquids would be present during most of the year. (Tr5. at 40-41;

Exh. 58.) The Department of Agriculture notes that this modification would greatly reduce

the necessary size of the lagoon surface area, while not adversely impacting the stability of the

lagoon berm. (Tr5. at 40-41; Exh. 58.) The Board today adopts these recommendations at

Section 506.204(g)(2) with a few modifications. The Board modifies the Department of

Agriculture’s suggested language to set forth the slope limitations that would be applicable to

the submerged portion of the interior berm if an owner or operator does not opt to use the

alternative steeper slope requirement.

The rules also incorporate at Section 506.204(g)(4) a freeboard requirement with two

options dependent on the size and configuration of the specific lagoon. A one-foot freeboard

beyond the elevation of the total design volume fluid surface level is required for lagoons that

serve less than 300 animal units and do not collect runoff from areas other than the lagoon

surface. A two-foot freeboard beyond the elevation of the total design volume fluid level is

required for all other lagoons. The Department of Agriculture notes that this provision is

somewhat more restrictive than the ASAE guidance for the 300 plus animal unit lagoons.

(Tr1. at 49.) The Department of Agriculture nevertheless proposes the more restrictive

provision based upon advice from the Advisory Committee that size should be a factor which

we accept in determining minimum freeboard. (Tr1. at 50.)

At Section 506.204(g)(5), the rules also provide for the removal of subsurface drainage

lines. This is a requirement that subsurface drainage lines (

e.g.,

field tile) be removed from

within 50 feet of the outermost extent of the lagoon. The Department of Agriculture notes that

much of Illinois is underlain with drainage lines (Tr1. at 50), which, if allowed to remain in

the vicinity of a lagoon, might provide an unwanted conduit from the lagoon to surface water

or groundwater. (Tr1. at 50.) The proposed 50-foot separation distance is based on one-half

of a typical value for drainage tubing lateral spacing which is used in drainage system design.

(Tr1. at 50-51.)

Similarly, to ensure groundwater protection, Section 506.204(g)(6) has been included

to require that there be at least a 100-foot separation between the outermost extent of the

lagoon and any potential route of groundwater contamination, as identified in the EPAct

(see

415 ILCS 5/3.58), as well as any non-potable well, abandoned or plugged well, drainage well,

or injection well.

Section 506.204(g)(7) requires that a lagoon liquid level board or staff gauge be

included in the design of lagoons. The Department of Agriculture recommends this provision

to “assist the livestock lagoon operator . . . in the maintenance of freeboard by indicating

when design capacities are becoming short and lagoon unloading should therefore commence”

(Tr1. at 51-52). The Department of Agriculture further observes that this provision “should

play a positive role in the reduction of odors by indicating when the removal of waste should

be discontinued to ensure adequate dilution volumes remain present within the lagoon” (Tr1. at

52).

The final two design requirements of Section 506.204(g) are (1) that during any new

startup of a lagoon, the lagoon be pre-charged to at least 60% of its capacity prior to receiving

any livestock wastes (Section 506.204(g)(8)) and (2) that the design recognize the setback

requirements of the LMFAct and the EPAct (Section 506.204(g)(9)). The purpose of the pre-

charge requirement is to decrease the potential odor during the initial operations of a lagoon by

ensuring that dilution volumes are present. (Tr1. at 52.)

In the Department of Agriculture’s proposal, Section 506.204(g)(8) requires that a

lagoon be precharged to at least 60% of its design depth prior to receiving any livestock waste.

The Board received testimony from agricultural engineers, Terry Feldmann and Dr. Michael

Veenhuizen, that prefilling the waste lagoon will substantially reduce potential odors. (Tr5. at

122, 222.) Dr. Veenhuizen also recommended that the prefilling be based on design

“volume” rather than “depth.” Since the regulations will state that the interior walls of the

berm below the liquid line can have variable slopes as long as they are not steeper than 2 to 1

“horizontal to vertical,” the Board agrees that volume is a more appropriate measuring point to

In the Department of Agriculture’s original proposal and in the proposal as adopted by the

Board at first notice it was indicated that “potential routes of groundwater contamination” are

defined in the Illinois Groundwater Protection Act, 415 ILCS 55/1 et seq. Instead, the

definition occurs in the EPAct, and today’s proposal is corrected accordingly. A potential

route includes abandoned and improperly plugged wells of all kinds, drainage wells, all

injection wells, including closed loop heat pump wells, and any excavation for the discovery,

development, or production of stone, sand, or gravel. (415 ILCS 5/3.58.)

assure an appropriate precharge level. We have, therefore, changed the language in Section

506.204(g)(8) to require precharging to at least 60% of design volume.

The final provision of Section 506.204 is a subsection that identifies that the

Department of Agriculture may, under statutory authority provided in the LMFAct, approve

modifications from the Section 506.204 lagoon design standards. The Department of

Agriculture proposes that today’s regulations specify that “deviations” would be allowed only

when the lagoon owner or operator demonstrates that the deviation would be at least as

protective of the groundwater, surface water, and the structural integrity of the livestock

lagoon as are the requirements of Part 506. The Board accepts this proposal, but changes the

words “deviation” to “modify or exceed” and “deviations” to “modifications” which is the

language used in the LMFAct. The Board makes the same change in the Department of

Agriculture’s proposal dealing with liner standards and groundwater monitoring.

Liner Standards (Section 506.205)

Section 506.205 sets out standards that must be complied with whenever a lagoon is

required to have a liner (see Section 506.204(d) for the conditions that cause a liner to be

required). The standards differ depending upon whether the liner is constructed from natural

earth materials (in-situ soils, borrowed clay, or clay/bentonite mixture) or of synthetic

material.

The Board has received a variety of suggestions concerning the nature of allowable

liners, including suggestions for allowing liners composed of different materials (

e.g.,

PC 44),

liners of greater or lesser thicknesses (

e.g.,

Tr3. at 166; Tr5. at 122-123), and liners of

differing physical properties, including hydrologic conductivity (

e.g

., Tr3. at 166). The Board

has reviewed these suggestions and concludes that the requirements as initially proposed by the

Department of Agriculture remain the most appropriate set of requirements.

The final provision of Section 506.205 has the same form and purpose as does the final

provision of 506.204. That is, it identifies that an owner or operator may, with the

Department of Agriculture’s approval, modify or exceed the prescribed standards in Section

506.205, with the qualification that modifications would only be allowed when the lagoon

owner or operator demonstrates that the modification would be at least as protective of the

groundwater, surface water, and the structural integrity of the livestock lagoon as are the

requirements of Part 506.

Groundwater Monitoring (Section 506.206)

Section 506.206 sets out standards that must be complied with whenever groundwater

monitoring is required (see Section 506.204(d) for the conditions that cause groundwater

monitoring to be required). The section is proposed today with some minor modifications to

improve clarity.

The rules provide that a minimum of three (3) groundwater monitoring wells must be

installed within 20 feet of the outermost extent of the lagoon, with at least two (2) of the wells

installed downgradient of the groundwater flow direction (Section 506.206(b)). The purpose

of these wells is to identify the local, shallow groundwater gradient at the site, and to allow the

collection of groundwater samples for identifying background chemical concentrations and

monitoring for evidence of leaks in the liner. (Tr1. at 140.) The 20-foot distance is intended

to ensure that the wells will provide an early detection of contaminants leaking from the

lagoon. (Tr1. at 54.)

The wells must be constructed according to standard procedures for monitoring wells,

as specified at Section 506.206(c). These provisions are designed to ensure that the wells are

safe and that they will produce consistent sampling results. (Tr1. at 140.)

Section 506.206(e), along with other matters, sets out the requirement that each

monitoring well must be sampled once prior to placing the lagoon in service and quarterly

thereafter. Today’s proposal contains slightly altered wording to clarify that each well must be

sampled and that it is the responsibility of the owner or operator of the lagoon to conduct the

sampling (Tr4. at 36).

Section 506.206(e) also contains a list of analytes that must be measured during each

sampling event. The Department of Agriculture proposed the list based on consultations with

the Advisory Committee. (Tr1. at 54-55.)

The record indicates that there is agreement on the need for and utility of measurement

of the four inorganic analytes (nitrate-nitrogen, phosphate-phosphorus, chloride, and sulfate),

but some disagreement over the need for inclusion of the two bacterial analytes (

Escherichia

coli

or fecal coliform and Fecal Streptococcus) as urged by IDPH

(Tr1. at 55.) The Illinois

Stewardship Alliance agrees that the inclusion of bacterial analytes is critical. We are

persuaded to retain the two bacterial analytes in the regulations, in principal part by the strong

urging of IDPH and IDPH’s observations that the bacterial analyses are both relatively

inexpensive and of utility in identifying threats of waterborne illness. (Tr1. at 120.)

Section 506.206(f)

provides that the Department of Agriculture may also sample the

monitoring wells at its discretion. The Department of Agriculture must provide notice to the

owner or operator of intent to sample, and must comply with reasonable animal health

protection procedures as requested by the owner or operator. The Department of Agriculture

shall pay for the collecting and analyzing of the samples and split samples.

This provision was included within Section 506.205(e) of the Department of Agriculture’s

original proposal. It is renumbered (and subsequent subsections are also accordingly

renumbered) into its own subsection for the purpose of clarity. The Board today similarly

renumbers Section 506.205(i), which was included within Section 506.205(h) of the

Department of Agriculture’s original proposal.

Sections 506.206(g) and (h) outline the methodology to be used in reporting analytical

results, the interpretation of those results, and the development of appropriate response actions

in the event a liner failure is suspected. If impacts to groundwater are suspected, the owner or

operator is also to propose possible response actions necessary to mitigate potential impacts to

groundwater. The Department of Agriculture is then required to review the submittal and

advise the owner or operator of the appropriateness of the proposed response actions. As a

result of the review, the Department of Agriculture has the authority to make changes in

sampling frequency or analyte list, and ultimately require changes to the design, construction,

or operation of the lagoon or management facility.

Section 506.206(i) clarifies that an owner or operator who fails to submit the

information required pursuant to subsection (g) of this Section, or fails to implement a

response action approved by the Department of Agriculture, is subject to the penalties.

The final provision of Section 506.206 has the same form and purpose as does the final

provisions of Sections 506.204 and 506.205. That is, it identifies that the Department of

Agriculture may, under statutory authority, approve modifications from the Section 506.206

groundwater monitoring requirements, with the qualification that the modifications would be

allowed only when the lagoon owner or operator demonstrates that the deviation would be at

least as protective of the groundwater, surface water, and the structural integrity of the

livestock lagoon as are the requirements of Part 506.

Certification of Construction (Section 506.207)

Section 506.207 contains the various certification-related requirements for earthen

livestock lagoons. Three of these are statutory. They are the requirements that the

Department of Agriculture inspect an earthen lagoon at least once, that the lagoon owner or

operator certify to the Department of Agriculture that the lagoon has been constructed

according to standards, and that the lagoon may not be placed in service until 10 working days

after the certification has been submitted to the Department of Agriculture. The fourth

certification-related requirement is that, if a liner is required, a Licensed Professional Engineer

must certify that the liner meets all requirements of Section 506.205.

Failure to Register or Construct in Accordance with Standards (Section 506.208)

Section 506.208 sets out statutory language regarding failure to register or construct a

lagoon in accordance with the standards contained in the LMFAct and the proposed rules.

If the owner or operator fails to register the lagoon as required, the Department of Agriculture

will give written notice to the owner or operator to register and certify the lagoon within 10

working days. If the owner or operator fails to comply with the notice, the Department may

issue a cease and desist order. If the violations occur during the lagoon construction, a cease

and desist to stop construction may be issued; if the violations occur after the completion of

the lagoon, an operational cease and desist may be issued.

The Board has renumbered what was originally proposed in substantial part by the

Department of Agriculture as part of Subpart E, Section 506.503(a) and (b), as Section

506.208(a) and (b). The changes made by the Board in these subsections address notification.

As initially proposed, Section 506.503(a) and (b) did not require the Department of

Agriculture to give written notice to the owner or operator, nor allow 10 working days for the

owner or operator to register and certify the lagoon before the cease and desist orders may be

issued. (510 ILCS 77/15(f).) The Board believes that proper notice was intended in the

LMFAct before such measures would be taken by the Department of Agriculture and

accordingly requires such notification in Section 506.208(a) and (b).

Lagoon Closure and Ownership Transfer (Section 506.209)

The final section of Subpart B deals with possible lagoon closure and ownership

transfers. The lagoon closure provisions (proposed 506.209(a)) fulfill the statutory

requirement at Section 15(e) of the LMFAct that “appropriate closure procedures . . . be . . .

determined by rule” (510 ILCS 771/5(e)). The ownership transfer provision (proposed

506.209(b)) is essentially a reiteration of the ownership transfer language found in the

LMFAct.

The Board adopts in whole the Department of Agriculture’s proposed lagoon closure

provisions, found at Section 506.209(a)(1)(A), (B), (C), (D), (E), and (F) and 506.209(a)(2)

and (3), which the Department at hearing described as follows:

The Department is proposing that a closure plan be developed by the

owner or operator of the livestock waste handling facility and submitted to

the Department for review and approval.

The plan shall include the sampling, analysis and reporting of

nutrient content of all waste, sludge, and a six inch thickness of soil from

the lagoon interior; plans for the removal and land application at agronomic

rates of these materials, plans for the removal of all waste conveyances

associated with the operation of the lagoon; plans for the proper

management of any impounded precipitation collected during the closure

process; plans for the proper abandonment of monitoring wells associated

with the lagoon; and a proposed time frame for the closure activity.

Upon approval of the closure plan by the Department, the owner or

operator is allowed to complete the closure activities. The Department is

then required to make a site inspection and notify the owner or operator in

writing whether the closure is deemed complete or whether additional

activities are needed to complete closure. In addition, the Department is

given the authority within the Livestock Management Facilities Act to

consider requests for the use of the lagoon for other purposes and to grant

waivers to any of the closure requirements to allow for that alternative use.

(Tr1. at 58-59.)

The Department of Agriculture may provide waivers of the closure requirements to

allow an alternative use of the lagoon, where the alternative use is protective of the

groundwater, surface water, and the structural integrity of the previous livestock waste

management facility.

SUBPART C: WASTE MANAGEMENT PLAN

Section 20 of the LMFAct sets out a variety of statutory requirements for the

“(h)andling, storing and disposing of livestock waste.” (510 ILCS 77/20.) A principal

feature of Section 20 is a requirement for the development of a waste management plan by all

livestock management facilities of 1,000 animal units or greater. (510 ILCS 77/20(c) and (d).)

Waste management plans are not a new concept; they have been produced for livestock

operations for many years and are required by regulation in other states. (Tr1. at 63.) In

general, they promote the successful recycling of livestock waste by providing for the field

application of wastes at agronomic rates, as well as the management of the wastes to reduce

risk of water, air, and land pollution. Subpart C of today’s proposal sets out the regulatory

framework for required livestock waste management plans.

Purpose (Section 506.301)

The Department of Agriculture’s original proposal contained, at Section 506.301, a

statement characterized as a “purpose” statement. The Board accepts Section 506.301 as

proposed.

Scope and Applicability (Section 560.302)

Pursuant to the scheme set out in the LMFAct, requirements for waste management

plans differ depending on the size of the waste management facility. In particular, no plan is

required for a facility of 1,000 animal units or less. (510 ILCS 77/20(b).) A facility ranging

in size between 1,000 and 7,000 animal units is required to prepare, maintain, and implement

a waste management plan. (510 ILCS 77/20(c).) A facility of size greater than 7,000 animal

units must prepare, maintain, and implement a waste management plan, and in addition file

that plan with the Department of Agriculture. (510 ILCS 77/20 (d).) These three size-based

statutory requirements are reiterated in the proposed regulations at Section 506.302(b), (c),

and (d), respectively.

The Department of Agriculture’s proposal at Section 506.302(e) employs the phrase

“optimum crop yield.” The Farm Group requests that the Board replace this phrase

throughout Subpart C because it believes that the phrase constitutes an unfortunate choice of

language. (Tr4. at 254-256; PC 60 at 16.) The Farm Group recommends that the phrase

“targeted crop yield” or “targeted crop yield goal” be used in the alternative. A situation in

which the Farm Group believes would be helped by this change is the situation where crop

yield on a particular field can be made to exceed historical yields through the application of

new practices. (Tr4. at 254-256; PC 60 at 16.) The Board accepts this change in Section

506.302(e), as well as at Sections 506.303(j), 506.303(m)(5), 506.307(a) and (b),

506.311(a)(1), and 506.312(a), (b), and (c).

Today’s proposal also provides that a facility owner or operator who prepared a waste

management plan pursuant to the emergency rules shall be deemed to have prepared a waste

management plan pursuant to these rules. This provision is included to assure that an owner or

operator who prepared a plan in compliance with the emergency rules need not undertake that

effort a second time when the instant rules become effective.

Waste Management Plan Contents (Section 506.303)

Section 506.303 lists the information that must be included in a livestock waste

management plan. The livestock waste management plan must include names and addresses of

the owner(s) of the livestock facility, types of waste storage for the facility, species and sizes

of the animals, number of animal units, maps and aerial photos of the fields available for waste

application, waste application agreements, cropping schedules for the application fields,

targeted crop yield goals for each crop in each application field, waste application methods,

amount of waste to be disposed of annually, and the nutrient content of the livestock waste.

With regard to the information enumerated above, the Farm Group recommends two

other word changes, in addition to the changes already noted regarding use of the term

“optimum crop yields.” The Farm Group recommends the insertion of the phrase “anticipated

crops for” twice within Subsection (i), and the addition of the word “estimated” at the

beginning of subsection (k). The Board accepts these recommendations. The reason for

inserting the “anticipated crop” language is to provide flexibility for the circumstance where

weather, disease, crop price, or other factors affect the actual crops grown. (Tr4. at 254.)

The reason for adding the word “estimated” is to acknowledge that, because analyses of

livestock waste content are to be done annually (see Section 506.305(b)), information on

nutrient content of masses of livestock wastes are necessarily estimates. (Tr4. at 256.)

Section 506.303(m) also sets out various calculations that must be undertaken as part of

the waste management planning process. As the Department of Agriculture observes:

The basic plan involves determining the amount of nitrogen available for

application, determining the nutrient content of the waste, adjusting the

nitrogen content for losses due to method of application and conversion of

organic forms to available forms, determining ... the crop nitrogen

requirements, and determining any nitrogen credits from previous manure

applications or legume crops. From these figures the total amount of

nitrogen available for application can be determined. A waste application

rate can then be calculated for each field based on the crop needs and the

nitrogen credits. (Tr1. at 71.)

The Illinois Stewardship Alliance recommends that the Board require that crop

phosphorus requirements, rather than nitrogen requirements, be used as the basis for

determining allowable amounts of waste application (Tr. 3 at 305-308); the Illinois

Environmental Council recommends that plans should be based on nitrogen and phosphorus

(PC 61). The Board is unable to accept either of these suggestions. The LMFAct clearly

addresses this issue, specifically mandating that “it will be considered acceptable . . . to

prepare and implement a waste management plan based on the nitrogen rate” (510 ILCS

77/20(f).

Section 506.303 also defines various restrictions associated with the livestock waste

management plan. These include restrictions on where and when livestock wastes may be field

applied (subsections (o) through (s) and subsection (u)) and an operational restriction in

subsection (t).

The restrictions relative to where and when livestock wastes may be field applied

involve limits on waste application with respect to adjacent residences; surface waters; potable

water supply wells; the 10-year floodplain; waterways; frozen, snow-covered or saturated

ground; rainfall event; high water tables; and thin overburden. With the exception of

subsection (u), the remainder of the provisions regarding where and when livestock waste may

be field applied are contained in the LMFAct. While not contained in the LMFAct or in the

Department of Agriculture’s proposal, the restriction in subsection (u) that limits field

application during rainfall events, on saturated ground, and in areas of high water table or thin

overburden, exist within current rules relating to agriculture related pollution at 35 Ill. Adm.

Code 560. The Advisory Committee, through the Department of Agriculture, contends that it

would be appropriate to also include them in the instant rules (Tr1. at 83-84); the Board agrees

and accordingly adds them at subsection (u).

An additional departure from the first notice language occurs within subsection (r).

The Department of Agriculture observes that an absolute prohibition against applying waste via

irrigation into grassed watercourses is unnecessarily restrictive. (Tr1. at 82.) In its initial

proposal the Department of Agriculture proposed language to define circumstances in which

irrigation would be permissible. The Department of Agriculture subsequently has

recommended two modifications of the initial language (Tr1. at 83; Tr5. at 35; Exh. 12 and

54), both of which the Board incorporates into today’s proposal. The first is principally a

grammatical clarification. The second change, which is also recommended by the Advisory

Committee (Tr1. at 83), provides that irrigation may not occur in grassed watercourses where

the distance to a non-potable well, an abandoned or plugged well, a drainage well, or an

injection well is greater than 100 feet. This is in keeping with similar language at Section

506.204(g).

Section 506.303(u) as contained in the Department of Agriculture’s original proposal

provided that the livestock waste handler “shall consider” the addition of zinc and copper to

the analyte list for soil sampling of fields where the livestock waste will be applied. The

Department of Agriculture added this provision after concerns were raised by members of the

Advisory Committee that copper and zinc toxicity in sheep has been reported where sheep

have grazed on land fertilized with livestock waste. (Tr1. at 85.) The Department of

Agriculture maintained that soil sampling for copper and zinc could be used in conjunction

with the copper and zinc levels determined by manure testing requirements at proposed Section

306.305(d) to determine if there were potential copper or zinc problems in the soil. (Tr1. at

85-86.)

Copper and zinc are sometimes added to poultry and swine feed at levels that increase

their concentration in manure. (Exh. 6 at 28.) These supplements stimulate growth and

prevent disease. (Exh. 6 at 28.) In PC 34, Dr. Robert Jacobs submitted a newspaper article

citing a concern raised by some soil scientists in North Carolina that copper and zinc are

building up in North Carolina soils where swine manure is spread (PC 34, “Metals present a

new concern for livestock producers,” The News and Observer, September 17, 1995).

The Farm Group opposes the requirement that livestock manure be tested for copper

and zinc. (PC 60 at 3, Attachment 4; Tr4. at 272-275.) The Farm Group cites several

scientific studies showing no long-term problems of copper and zinc buildup from manure

application, including studies showing no copper toxicity in sheep grazing on fields fertilized

with manure. (PC 60, Attachment 4 at 2.) Professor Funk also testified that it would be an

unnecessary economic burden on the industry to require copper and zinc testing of the manure.

(Tr1. at 171-172.) Professor Funk cited to Exh. 6 (see p. 28-29) as support for his position

that there is no evidence to suggest any concern about copper and zinc buildup in the soil due

to manure application.

After review of the record, the Board strikes the provisions at Section 506.303(u) that

the livestock handler shall consider soil testing for copper and zinc. The Board agrees that, at

this time, scientific evidence does not support a finding that buildup of copper and zinc in soils

is a threat to the Illinois environment, necessitating the expense of copper and zinc testing of

manure by livestock producers. Accordingly, the Board deletes this provision. Although the

Department of Agriculture has phrased this provision in terms of a request to consider, the

Board finds it to be unnecessary. The Board, however, notes that this decision still allows an

owner or operator of a livestock waste handling facility who wishes to obtain this information

to test the soil samples for zinc and copper. For similar reasons, we also strike a related

provision at 506.305(d) that copper and zinc be required analytes in laboratory analysis of

livestock manure (see discussion of at Section 506.305 below).

Livestock Waste Volumes (Section 506.304)

Section 506.304 provides that the volume of livestock waste available for application

must be determined by site-specific measurement of the waste storage structure. It further

provides that the calculation and description of the volume determination must be included in

the waste management plan.

The Department of Agriculture contends that book values for the volumes of waste

produced by various types of livestock and livestock operations are too variable to provide

accurate measures of waste volumes. (Tr1. at 73.) Accordingly, the Department of

Agriculture recommends, and today’s rule requires, that waste volume determinations must be

made by actual measurements of the storage structure.

Nutrient Content of Livestock Waste (Section 506.305)

Section 506.305 sets out procedures that are to be used to determine the nutrient

content of livestock waste. The nutrient content of the waste is one of the elements of the

livestock management plan required under Section 506.303.

The principle tenet of Section 506.305 is that the nutrient content must be determined

by laboratory analysis of actual samples of the waste from the waste storage facility. The only

exception is for new facilities or facilities preparing their first waste management plan. These

facilities may use published estimated values in their initial plan preparation, although actual

analysis values must be obtained prior to actual waste application. (Tr1. at 73-74.)

The record contains discussion regarding details of how the on-site sampling of waste is

to be best conducted. (e.g.Tr1. at 74-77; Tr4. at 255-256, 275-279.) We add in today’s

proposal at 506.305(b) language that has been recommended collectively by the Department of

Agriculture and by the Farm Group that provides flexibility for a variety of situations that may

be encountered.

The Board also today deletes copper and zinc from the list of required analytes listed at

subsection (d). As discussed above, there is insufficient scientific evidence at this time to

support a finding that buildup of copper and zinc in soils is a threat to the Illinois environment

necessitating the expense of copper and zinc testing of manure by livestock producers

Accordingly, the Board deletes this requirement. The Board notes, however, that this decision

still allows for copper and zinc analyses where the owner or operator may wish to obtain this

information.

Adjustments to Nitrogen Availability (Section 506.306)

Section 506.306 specifies that adjustments to nitrogen availability shall be made to

account for nitrogen losses due to method of applicability, and to account for conversion of

organic nitrogen into plant-available form. The Department of Agriculture notes, for example,

that nitrogen losses to the air for non-incorporated wastes may be as high as 40%. (Tr1. at

77.)

As initially proposed by the Department of Agriculture, this section also specified that

the Department of Agriculture had authority to adopt criteria setting forth adjustments to the

nitrogen availability. In keeping with the Board’s determination that the Department of

Agriculture’s authority to conduct rulemakings can not be established by Board order, the

Board today deletes that provision.

Targeted Crop Yield Goal (Section 506.307)

The purpose of Section 506.307 is to provide a definition for the term “targeted crop

yield goal,” as used in other portions of Subpart C. As we noted in our discussion of Section

506.302, we are today adopting the term “targeted crop yield goal” instead of the Department

of Agriculture’s original proposed term “optimum crop yields.” The changes to Section

506.307 are largely to conform the section to this change in terminology and concept.

Crop Nitrogen Requirements (Section 506.308)

As originally proposed by the Department of Agriculture, this section had the sole

purpose of asserting that the Department of Agriculture had authority to adopt criteria setting

forth values for crop nitrogen requirements. In keeping with the Board’s earlier determination

regarding the Department of Agriculture’s authority to conduct rulemakings, the Board today

deletes that provision, and accordingly the entire section.

Nitrogen Credits (Section 506.309)

Section 506.309 provides that credits to the amount of nitrogen for application shall be

calculated for any nitrogen-producing crops grown the previous year, for any other sources of

nitrogen applied for the growing season, and for mineralized organic nitrogen from livestock

waste applied during the previous three years.

The Department of Agriculture’s original Section 506.309 contained language asserting

that the Department of Agriculture had authority to adopt criteria setting forth values for

nitrogen credits from previous crops. As was the case with similar language in Sections

506.306 and 506.308, and in keeping with the Board’s earlier determination regarding the

Department of Agriculture’s authority to conduct rulemakings, the Board today deletes Section

506.309( c).

The Farm Group also suggested various other changes to this section. (See PC 60.)

The record contains little, if any, information on these changes. We therefore do not accept

these proposed changes.

Records of Waste Disposal (Section 506.310)

Section 506.310 establishes the contents of livestock waste disposal records. These

records must include the dates and fields where livestock waste application was made, how

application was made, the rate of application, the number of acres receiving waste, and the

amount of livestock waste applied. Pursuant to Sections 506.302(c)(3) and 506.302(d)(3),

these records shall be kept on file at the facility for a period of three (3) years and shall be

available for inspection by the Department of Agriculture during normal business hours.

Approval of Waste Management Plans (Section 506.311)

Pursuant to Section 20(d) of the LMFAct (510 ILCS 77/20(d)) and these rules at

Section 506.302(d), facilities with 7,000 or greater animal units are required to obtain the

Department of Agriculture’s approval of their livestock waste management plans. Section

506.311 sets out the factors that the Department of Agriculture must consider in granting

approval, as well as the timeframe within which the Department of Agriculture must make its

decision. Today, this section is adopted without substantive modification, except for change of

the term “optimum crop yield” to “targeted crop yield goal,” in keeping with the prior

discussion of Section 506.307.

Sludge Removal (Section 506.312)

Section 506.312 establishes testing requirements for the removal of sludge from

livestock storage structures. This section is today adopted without substantive modification,

except for change of the term “optimum crop yield” to “targeted crop yield goal,” in keeping

with the previous discussion of Section 506.307.

Plan Updates (Section 506.313)

Waste management plans must be reviewed annually by the owner or operator. The

plan must also be updated, if needed, based upon laboratory analyses of the waste. The plan

must be updated as well if there are changes in the amount of land area available or needed for

disposal, change in the method of disposal or application, and change in the cropping

sequence.

Penalties (Section 506.314)

Section 506.314 sets out the penalty provision for failure to comply with the waste

management plan requirements. Most of the language is statutory.

Subsections 506.314(b), (c), and (d) were part of the Department of Agriculture’s

original proposal, but were proposed instead as part of Subpart E, Section 506.505. Today the

Board moves these provisions to Section 506.314. They deal solely with failure to comply

with the waste management provisions of today’s rules, and the Board believes that it will be

easier for persons using these rules if the provisions are placed within Subpart C. (See also

discussion of Subpart E, below.)

The Farm Group has recommended certain additions to the language we today include

as Section 506.314(b). (See PC 60, attachment 1 at 26.) The Board believes that by including

the material of subsection (b) within Section 506.314 we have addressed the Farm Group’s

concerns.

SUBPART D: CERTIFIED LIVESTOCK MANAGER

The LMFAct requires at Section 30 that the Department of Agriculture “establish a

Certified Livestock Manager Program in conjunction with the livestock industry that will

enhance management skills in critical areas, such as environmental awareness, safety concerns,

odor control techniques and technology, neighbor awareness, current best management

practices, and the development and implementing of manure management plans.” (510 ILCS

77/30.) Subpart D sets up the regulatory framework for the certified livestock manager

program, as far as the Board’s regulations are concerned.

The Department of Agriculture notes that it has convened an

ad hoc

committee of

livestock industry representatives, University of Illinois Cooperative Extension Service

educators, and Department of Agriculture representatives to refine an educational curriculum

for the certified livestock operator program. (Tr1. at 91.) The Department of Agriculture

further notes that it anticipates that the first training and testing clinics under the certification

program will be held during the current month, March 1997. (Tr1. at 91.)

The Board today adds Section 506.401(e) which incorporates the statutory language

found in the LMFAct regarding certified livestock manager penalties (510 ILCS 77/30(g)) and

the language originally proposed by the Department of Agriculture as 506.504. The Board

believes that any owner or operator interested in researching the penalties in this Part

pertaining to the certified livestock manager requirements should be able to find those penalties

within Subpart D, Certified Livestock Manager. (See also discussion of Subpart E, below.)

Currently Subpart D has only a single section. At first notice, Subpart D contained a

proposed second section titled “procedure” that asserted that the Department of Agriculture

may adopt and promulgate all procedures necessary to perform its duties regarding the certified

livestock manager program. In keeping with the Board’s earlier determination regarding the

Department of Agriculture’s authority to conduct rulemakings, the Board today deletes that

provision.

SUBPART E: PENALTIES

The LMFAct provides for various penalties for failure to comply with the provisions of

the LMFAct and regulations promulgated pursuant to the LMFAct. In the Department of

Agriculture’s original proposal, language setting out the nature of the possible penalties was

included within this subpart, as well as within at least three additional proposed sections,

Section 506.208 (violation of lagoon registration and certification requirements), Section

506.314 (violation of livestock waste management plan provisions), and Section 506.703

(violation of setback requirements). In some cases the language proposed for this Subpart E

and for the three additional penalty sections was repetitious or even potentially in conflict.

This matter needs to be resolved. We believe it best to retain the structure of having penalty

information contained within the same subpart that contains the provisions that might be

violated. Accordingly, we move the pertinent elements from proposed Subpart E into their

respective subparts.

SUBPART F: FINANCIAL RESPONSIBILITY

Applicability (Section 506.601)

The LMFAct at Section 17 (510 ILCS 77/17) provides that owners of new or modified

lagoons establish and maintain evidence of financial responsibility to provide for the closure of

the lagoons and for the proper disposal of their contents. Section 506.601 repeats this

applicability statement. The LMFAct requires closure to be completed within two years from

the date of cessation of operation unless the lagoon is maintained or serviced. (510 ILCS

77/15(e).)

Evidence of Financial Responsibility (Section 506.602)

The LMFAct at Section 17 (510 ILCS 77/17) further identifies the several types of

surety instruments that may evidence financial responsibility. Section 506.602 lists these

statutorily identified instruments. Also noted in Section 506.602 is that, in the event of a

transfer of ownership, the new owner is required to establish and maintain evidence of

financial responsibility at the same level of surety as the previous owner.

Level of Surety (Section 506.603)

The LMFAct also provides in Section 17 (510 ILCS 77/17) that the level of surety that

is required be determined by rule and be based on the volumetric capacity of the lagoon.

These statutory provisions are presented in Section 506.603.

At first notice, proposed Section 506.603(b) provided that the Department of

Agriculture may adopt and promulgate all procedures and criteria necessary to perform its

duties and responsibilities regarding financial responsibility. The Board today deletes that

subsection as unnecessary. The Board further notes that, as previously discussed, the Board

has divided this rulemaking into two dockets to further flush out the level of surety required

for the closure of lagoons and the proper disposal of their contents.

SUBPART G: SETBACKS

In Subpart G, today’s proposal contains various provisions related to setbacks. As the

Board has previously noted in its discussion of the legislative issues regarding setbacks,

setbacks are an integral element in maintaining environmental quality in the vicinity of

livestock waste facilities. This is recognized in the LMFAct, one of the major features of

which is the establishment of statutory setbacks for livestock waste handling facilities. (See

510 ILCS 77/35.) Much of today’s Subpart G consists of these statutory provisions.

Additionally, new provisions have been added regarding application of the setback

requirements to facilities and residences that have been rebuilt following destruction by natural

causes. New provisions have also been added that establish a process for an initial

determination regarding compliance with setback requirements prior to construction and a

definitive time in which the setback distances become applicable and cannot be altered by

subsequent events.

Applicability (Section 506.701)

Section 506.701 establishes that all new livestock management or livestock waste

handling facilities must comply with the setback requirements. It also contains a new

provision regarding the reconstruction of a facility or residence destroyed by natural causes.

Specifically, in response to questions, the Department of Agriculture amended their original

proposal to include the following language (Tr4. at 88-89, 93; Tr5. at 33-34):

Commencement of operations at a facility reconstructed after partial or total

destruction due to natural causes such as tornado, fire, flood, or earthquake

shall not be considered the location of a new livestock management or waste

handling facility for setback purposes. Likewise, a residence partially or

totally destroyed due to natural causes, such as tornado, fire, flood, or

earthquake, shall retain its original setback for a period of no greater than two

years, to allow for reconstruction of said residence.

(Exh. 53.)

The Board accepts this proposed amendment with one modification. The Board agrees

that this provision is necessary and needs to be included in the rules. However, the Board

notes that a time limitation is placed on the reconstruction of a residence destroyed due to

natural causes, but a similar time limitation is not provided for the reconstruction of a livestock

facility destroyed by natural causes. Without such a time restriction placed on the

reconstruction of a livestock facility, a livestock facility could potentially be built 20 years

after one had been destroyed, even if a subdivision of single-family residences had thereafter

been built directly adjacent to the site. Therefore, the Board accepts the proposed amendment

by the Department of Agriculture, but modifies it slightly to include a time limitations for

purposes of measuring the setback distances for the reconstruction of a livestock facility

destroyed by natural causes.

Procedures (Section 506.702)

In the Department of Agriculture’s original proposal, Section 506.702 listed just two of

the LMFAct’s several setback provisions. The Board believes, and the Department of

Agriculture accedes (Tr4. at 90), that including all of the statutory setback provisions within

Section 506.702 would assist users of today’s rules in more readily comprehending the full

scope of the statutory setback provisions. Accordingly, the Board today has added the entirety

of the statutory language from the LMFAct regarding setbacks.

Section 506.702 as proposed by the Department of Agriculture also contained at

proposed subsection (c) a statement that the Department of Agriculture may adopt and

promulgate all procedures necessary to perform its duties under Subpart G. As the Board has

discussed above, we today delete all constructions of this type.

Besides the issues already discussed with regard to setbacks, several other issues have

also been raised that will be addressed in this section. First, as noted earlier, the Board

received several comments regarding the need for increased setbacks. However, as previously

explained, the LMFAct has specifically set forth the minimum setback distances, and these

cannot be changed by the Board.

As discussed earlier, the Board today includes in this section provisions on measuring

the setback distances from common places of assembly and non-farm businesses when the

primary use of these places is an outdoor activity and when the primary use is an indoor

activity.

Finally, with regard to this section, the Board includes provisions regarding standards

to be applied by the Department of Agriculture for approving decreases in setback distances.

The LMFAct and Board rules include provisions that establish that setbacks may be decreased

when innovative designs are approved by the Department of Agriculture and are incorporated

into the facility (510 ILCS 77/35(e)) and when waivers are obtained from owners of residences

that are occupied and located within the setback area (510 ILCS 77/35(g)). The new

provisions added today provide that waivers based on innovative designs must be submitted to

the Department of Agriculture in writing prior to construction and contain a certification by a

Licensed Professional Engineer that the innovative designs incorporated into the facility will

provide more odor protection than the original setbacks. Within 30 days after receipt of the

request, the Department of Agriculture shall inform the owner or operator of its determination.

To approve the request, the Department of Agriculture must find that the innovative designs

incorporated into the facility will achieve more odor protection than would the original

setbacks. The rules also provide that if a decrease in setbacks is granted, the Department of

Agriculture must maintain a file that includes all supporting data and justification which it

relied upon to make this determination. The rules also make clear that the files are subject to

public inspection.

Additionally, the rules contain provisions establishing that setbacks may also be

decreased when waivers are obtained from owners of residences that are occupied and located

in the setback area. The Board has additionally added to the rules that setbacks may also be

decreased when waivers are obtained from owners of non-farm businesses or common places

of assembly that are located in the setback area. The Board believes that by adding this

provision to the rules we are being consistent with the legislative intent of the LMFAct and

also providing for internal consistency of the rules. It only makes sense that if setback

distances are measured from common places of assembly, non-farm businesses, and occupied

residences, that any and all of those three places that fall within the setback distances be able

to provide an owner or operator of a livestock facility a waiver of the setback distances.

Moreover, we find support for our decision in the Department of Agriculture’s testimony. In

response to questions, the Department of Agriculture stated that, if the concept of common

places of assembly and non-farm businesses were extended to include properties owned and

operated by IDNR, waivers could be negotiated between IDNR and the owner or operator

wishing to construct a livestock facility. (Tr1. at 248-252.) Therefore, in the Department of

Agriculture’s view, common places of assembly and non-farm businesses should also be

allowed to provide waivers of the setback distances.

Other provisions regarding decreases in the setback distances where waivers have been

obtained from all owners of residences, non-farm businesses, or common places of assembly

that are located in the setback area require that the request for a decrease be in writing prior to

construction. Moreover, the owner or operator must attach to the request copies of the written

and notarized waivers from all owners of properties within the setback area. The rules also

establish that the Department of Agriculture must notify the owner or operator requesting the

decrease in writing of the setback decrease within 30 days after receipt of the request for

decrease.

The Board finds that these additional provisions regarding decreases in setbacks are

necessary to establish the procedure and standards required for obtaining such decreases in

setbacks. By setting forth the required procedure and standards, persons affected by these

provisions will be informed of the requirements that need to be met to receive such decrease in

setbacks. These provisions further ensure that requests for decreases in setbacks will be

consistently and appropriately addressed after final adoption of these rules.

Initial Determination of Setbacks (Section 506.703)

During the hearings on the proposed regulations, an issue arose as to when setbacks

become applicable and cannot be altered by subsequent events. For instance, the Board heard

testimony regarding a livestock management facility that purchased land and began

construction of a livestock facility and lagoon. Later, a trailer, that had been placed on land

directly adjacent to the facility site and within the projected setback distance, was claimed to

qualify as a residence in order to defeat the setback distance. (PC 17; Tr3. at 169.) To ensure

that these types of situations do not reoccur, participants urged that the Board adopt some

formal mechanism to preserve the rights of both the neighboring land owner and the livestock

producer.

The Department of Agriculture originally suggested that the applicability of the setback

distances could be tied to the Department of Agriculture’s receipt of a lagoon registration

request. (Tr1. at 36.) Upon further consideration, the Department of Agriculture suggests an

alternative approach. The Department of Agriculture recommends that the proposed rules be

amended to include a provision for the owner or operator of a proposed facility to submit to

the department a “Notice of Intent to Construct a Livestock Management Facility.” (PC 58.)

This notice would include “information regarding the proposed facility such as the proposed

ownership of the facility, the location of the facility, and the proposed capacity of the

facility.” (PC 58 at 3.) The Department of Agriculture explained that once it received the

notice, the setback distances applicable at that time would be “frozen” for a period of not more

than 60 days. If the facility did not initiate construction or submit a lagoon registration form

within this 60-day period, the notice would be deemed expired and changes to the setback

affecting the subject land could take place. (PC 58 at 3.)

The Farm Group suggests a similar amendment to the proposed rules. However, the

Farm Group believes that the pre-construction notice should be voluntary. (PC 60 at 6.)

Although the system would be voluntary, the Farm Group asserts that the protection of the

setbacks would only occur if the notice was filed. Thus, the Farm Group states that those

producers that decide not to file a notice prior to construction run the risk of having a

residence built within the setback distance. (PC 60 at 6.) On the other hand, if the producer

owns the land around the site, the producer may choose not to file a notice. (PC 60 at 6.)

Specifically, the Farm Group’s recommendation provides:

Setback distances shall be determined at the start of construction of the facility

unless the owner or operator has previously filed a notification of intent to

construct with the Department showing the proposed location of the facility and

compliance with the applicable setbacks. If the notification is filed with the

Department and a continuous program of development, including, but limited

to, engineering, design, soil testing and construction is followed, the setbacks

shall be determined as of the date of the notification is filed.

(PC 60 at 28-29.)

The Board agrees with the Department of Agriculture that the setback distances should

be tied to the filing of a “Notice of Intent to Construct a Livestock Management Facility.”

While tying applicability of the setbacks to registration is logical, this would only resolve the

problem as to those facilities which intended to construct or modify a livestock waste lagoon.

This solution, however, would not be helpful in those situations where a new livestock

management or livestock waste handling facility did not intend to construct a lagoon.

While the Farm Group’s proposal is similar to the Department of Agriculture’s, the

Farm Group’s proposal does not contain a specific time limitation upon which the notice would

expire, which the Board believes is necessary. Moreover, the Board finds that the filing of a

notice of intent should be mandatory for all new livestock management or livestock waste

handling facilities. The Board believes that it is important that there be a determination of

whether the setback distances are complied with so that the rights of both the livestock

producer and neighbor are protected. Moreover, this process ensures that citizens potentially

affected by the new livestock management or livestock waste handling facility receive

notification of the proposed facility.

While the Board agrees with the Department of Agriculture’s proposal, the Board

believes that it would be fruitless to simply have the facilities file a pre-construction notice

without having the Department of Agriculture verify that the appropriate setback distances

have been met. Therefore, the Board has added a new section to the regulations that establish

a process for the initial determination of setback distances and notification to those potentially

affected by the proposed construction of a livestock facility in their community. These

provisions do not apply to new livestock management or livestock waste handling facilities

serving less than 50 animal units, since the statutory setbacks do not so apply.

The new provisions provide that an owner or operator of a new livestock management

or livestock waste handling facility must file a notice of intent to construct with the

Department of Agriculture prior to construction to establish an initial determination of

setbacks. The notice must include a legal description of the land on which the livestock

facility will be constructed; the name(s) and address(es) of the owner(s) or operator(s) of the

facility; the type of facility intended to be built; the name(s) and address(es) of the owner(s),

which includes local, State and federal governments, of any property within the setback area;

the distance to the nearest populated area, residence, and place of common assembly; the size

of the facility and animal units anticipated to serve; a map or sketch designating the location of

the proposed facility and the setbacks; and a statement identifying whether a request for

decrease in the setbacks has been sought and whether the request was granted or denied. The

owner or operator of the facility must also mail the notice of intent to construct to the owner(s)

of the property within the setback distances.

Within 30 days after receipt of the notice of intent to construct, the Department of

Agriculture must notify the owner or operator in writing whether the setback distance has been

met. The provisions also make clear that the date the notice is filed with the Department of

Agriculture is the date upon which the setback distances are determined. Events that occur

subsequent to the filing of this notification will not defeat the setback distances unless

construction of the facility has not begun or a lagoon registration form has not been filed

within one (1) year after receipt of the Department of Agriculture’s determination regarding

compliance with the setbacks. The Department of Agriculture must notify the owner or

operator in writing whether the setback distance have been met. If the Department of

Agriculture determines that the owner or operator has complied with the setback requirements,

later-constructed or erected residences or places of common assembly cannot operate to alter

the setback as initially determined. The provisions further provide that a file be kept by the

Department of Agriculture which is subject to public inspection.

The Board believes that the above described provisions are necessary to ensure that the

setback distances are complied with and that citizens are protected from odors emanating from

livestock waste facilities. Because the Department of Agriculture must make an affirmative

determination regarding the setback distances, it is important that the setbacks are easily

measured. This is another reason that supports the concept that the property lines of common

places of assembly should be used to determine setback distances. Further, the Board believes

that these provisions are responsive to comments received during this proceeding and provide

protection to the public, neighbors, and owners and operators of livestock facilities alike.

Penalties (Section 506.704)

The Farm Group proposes to strike the Department of Agriculture’s proposal regarding

penalties for violating the statutory setback distances and replace it with the following

language:

The Department may investigate a complaint of a possible violation of the

setback distance requirements, and after such investigation shall issue a notice

of findings to the owner or operator of the livestock management or waste

handling facility and the complainant. All actions of the Department of

Agriculture are subject to the Illinois Administrative Procedure Act which

provides for administrative hearing procedures and further adjudicative

action. [510 ILCS 77/15]

While the LMFAct is silent with regard to the penalty for violating the setback

distances, the Board finds that it is consistent with the remaining provisions of the LMFAct for

the Department of Agriculture to have the authority to issue a cease and desist order for

violating the setback provisions. While the Farm Group’s proposed language is more general

in nature, we find that the specific language of the Department of Agriculture’s proposal is

more in line with the language and intent of the LMFAct.

Complaint and Appellate Procedures

Although the Board’s rules do not contain a procedure that citizens may use to raise

complaints regarding livestock facilities, the Board notes that the LMFAct sets forth a

complaint process. Section 15(c) of the LMFAct (510 ILCS 77/15(c)) provides that any

person “having a complaint concerning an earthen livestock waste lagoon may file a complaint

with the [IEPA].” If IEPA determines that the groundwater has been negatively impacted

because of structural problems with the lagoon, IEPA is directed to notify the Department of

Agriculture that modifications to the lagoon are needed. If an investigation reveals that

groundwater has been negatively impacted, the Department of Agriculture and IEPA are

instructed to cooperate with the owner or operator of the lagoon to provide a reasonable

solution to protect the groundwater. Moreover, this complaint procedure applies to not only

new or modified lagoons, but also lagoons placed in service prior to the effective date of the

Board’s rules. (510 ILCS 55/15(c).) The Board also notes that the LMFAct makes clear that

this complaint procedure does not limit IEPA’s authority under the EPAct to “investigate and

respond to violations of the [EPAct].” (510 ILCS 55/15(c).) Finally, the Board also notes

that these provisions do not limit a citizen’s ability to file an enforcement action under the

EPAct.

The Board observes that the complaint procedure outlined in the LMFAct is an

important aspect of the LMFAct. The LMFAct and Board rules provide various standards that

must be complied with when building or modifying a lagoon. The complaint procedure,

however, completes the process by providing citizens a mechanism to use to ensure that the

LMFAct and Board rules are being complied with and enforced. It also ensures that any

negative impact that the livestock lagoons have on Illinois’ groundwater is greatly diminished.

The Board also notes that the LMFAct provides a mechanism for owners and operators

of livestock management and livestock handling facilities to have decisions made by the

Department of Agriculture reviewed. Section 15(f) of the LMFAct (510 ILCS 77/15(f)) states

that “[a]ll actions of the Department of Agriculture are subject to the Illinois Administrative

Procedure Act.” The APAct sets forth requirements for the conduct of administrative

hearings, including agency rules on hearings, standard of proof, the record, and the decision of

the agency. The Department of Agriculture has promulgated rules concerning the conduct of

administrative hearings and may wish to update those rules for LFMAct-related appeals. (See

8 Ill. Adm. Code 1.10

et seq

The LMFAct and the Board rules contain a number of administrative determinations

that are required to be made by the Department of Agriculture. For instance, the Department

of Agriculture may determine that additional soil borings are necessary; it may approve

alternative information sources to evaluate a proposed site; it may require changes in the

design, construction or operation of the lagoon; it may require additional groundwater

monitoring; and it may grant decreases in setbacks based on innovative designs incorporated

into the facility. While this list is not intended to be exhaustive, it does illustrate that the

Department of Agriculture has various determinations that it can make. Such actions taken by

the Department of Agriculture would be covered by the APAct and the Department of

Agriculture’s rules on administrative hearings.

Economic Reasonableness and Technological Feasibility

Section 55 of the LMFAct requires that any rules the Board develops be

“technologically feasible and economically reasonable.” (510 ILCS 77/55(c).) Various

participants throughout these proceedings have commented on the economic impact of these

rules on livestock management and livestock waste handling facilities. Specifically, the Farm

Group presented witnesses who testified on the economic effect that these rules will generally

have on livestock management and livestock waste handling facilities (Tr1. at 130-136) and the

economic value of the swine industry to Illinois’ economy. (Tr3. at 94-161). The Board also

received testimony regarding the cost of alternative waste management technologies. (PC 64.)

After viewing all the evidence regarding the economic impact of these rules, the Board

determines that these rules are economically reasonable. Where additional requirements were

asked to be adopted, the Board has weighed the cost effectiveness of any such request. The

Board’s decisions regarding these matters are found throughout the opinion. The Board also

heard testimony regarding the technical aspects of these rules. Virtually all engineering and

technical experts that testified indicated their overall feasibility.

Based on all the evidence presented, the Board concludes that the rules adopted for

second notice today are technologically feasible as well as economically reasonable. In sum,

the Board believes that the cost to the environment and the cost of liability for polluting the

environment would be far greater to Illinois farmers without the rules that we adopt today for

second notice.

CONCLUSION

The Board today adopts regulations to implement the LMFAct for second notice. The

Board finds that the LMFAct and the regulations adopted here ensure that livestock facilities

will be constructed, operated, and maintained in a manner that is both fiscally and

environmentally responsible. Moreover, the Board believes that these rules are a positive step

in establishing consistent and responsible operations of livestock facilities in Illinois.

ORDER

The Board hereby directs that the following proposed regulations be submitted to the

Joint Committee on Administrative Rules for the purposes of second notice.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE E: AGRICULTURE RELATED POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 506

LIVESTOCK WASTE REGULATIONS

SUBPART A: GENERAL PROVISIONS

Section

506.101

Applicability

506.102

Severability

506.103

Definitions

506.104

Incorporations by Reference

506.105

Recordkeeping

506.106

Alternatives, Modifications, and Waivers

SUBPART B: STANDARDS FOR LIVESTOCK WASTE LAGOONS

Section

506.201

Applicability

506.202

Site Investigation

506.203

Registration

506.204

Lagoon Design Standards

506.205

Liner Standards

506.206

Groundwater Monitoring

506.207

Certification of Construction

506.208

Failure to Register or Construct in Accordance with Standards

506.209

Lagoon Closure and Ownership Transfer

SUBPART C: WASTE MANAGEMENT PLAN

Section

506.301

Purpose

506.302

Scope and Applicability

506.303

Waste Management Plan Contents

506.304

Livestock Waste Volumes

506.305

Nutrient Content of Livestock Waste

506.306

Adjustments to Nitrogen Availability

506.307

TargetedOptimum Crop Yields Goal

506.308

Crop Nitrogen Requirements

506.309

Nitrogen Credits

506.310

Records of Waste Disposal

506.311

Approval of Waste Management Plans

506.312

Sludge Removal

506.313

Plan Updates

506.314

Penalties

SUBPART D: CERTIFIED LIVESTOCK MANAGER

Section

506.401

Applicability

506.402

Procedures

SUBPART E: PENALTIES

Section

506.501

General

506.502

Cease and Desist Order Procedures

506.503

Lagoon Registration and Certification Violations

506.504

Certified Livestock Manager Violations

506.505

Waste Management Plan Violations

SUBPART F: FINANCIAL RESPONSIBILITY

Section

506.601

Applicability

506.602

Evidence of Financial Responsibility

506.603

Level of Surety

SUBPART G: SETBACKS

Section

506.701

Applicability

506.702

Procedures

506.703

PenaltiesInitial Determination of Setbacks

506.704

Penalties

AUTHORITY: Authorized by Section 27 of the Environmental Protection Act [415 ILCS

5/27] and Section 55 of the Livestock Management Facilities Act and implementing the

Livestock Management Facilities Act [P.A. 89-456, effective May 21, 1996, 510 ILCS 77/1].

SOURCE: Adopted in R97-15 at ___ Ill. Reg. _________, effective ____________________.

NOTE: Capitalization denotes statutory language.

SUBPART A: GENERAL PROVISIONS

Section 506.101

Applicability

This Subpart applies to 35 Ill. Adm. Code 506. The applicability of Subpart B, Standards for

Livestock Waste Lagoons, is set forth at Section 506.201 of this Part. The applicability of

Subpart C, Waste Management Plans

, is set forth at Section 506.302 of this Part. The

applicability of Subpart D, Certified Livestock Manager, is set forth at Section 506.401 of this

Part. The applicability of Subpart F, Financial Responsibility, is set forth at Section 506.601

of this Part. The applicability of Subpart G, Setbacks, is set forth at Section 506.701 of this

Part.

Section 506.102

Severability

If any provision of this Part or its application to any person or under any other circumstances

is adjudged invalid, such adjudication does not affect the validity of this Part as a whole or of

any portion not adjudged invalid.

Section 506.103

Definitions

Except as stated in this Section, or unless a different meaning of a word or term is clear from

the context, the definition of words or terms in this Part shall be the same as that applied to the

same words or terms in the Environmental Protection Act [415 ILCS 5] or the Livestock

Management Facilities Act [510 ILCS 77]. For the purposes of this Part, the terms included

herein shall have their associated meaning as follows:

“AGENCY” MEANS THE ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY. [510 ILCS 77/10.5]

“ANIMAL FEEDING OPERATION” MEANS A FEEDING OPERATION AS

DEFINED IN THE ILLINOIS ENVIRONMENTAL PROTECTION ACT AND THE

RULES PROMULGATED UNDER THAT ACT CONCERNING AGRICULTURE

RELATED POLLUTION. [510 ILCS 77/10.7]

“ANIMAL UNIT” MEANS A UNIT OF MEASUREMENT FOR ANY ANIMAL

FEEDING OPERATION CALCULATED AS FOLLOWS:

BROOD COWS AND SLAUGHTER AND FEEDER CATTLE

MULTIPLIED BY 1.0.

MILKING DAIRY COWS MULTIPLIED BY 1.4.

YOUNG DAIRY STOCK MULTIPLIED BY 0.6.

SWINE WEIGHING OVER 55 POUNDS MULTIPLIED BY 0.4.

SWINE WEIGHING UNDER 55 POUNDS MULTIPLIED BY 0.03.

SHEEP, LAMBS, OR GOATS MULTIPLIED BY 0.1.

HORSES MULTIPLIED BY 2.0.

TURKEYS MULTIPLIED BY 0.02.

LAYING HENS OR BROILERS MULTIPLIED BY 0.01 (IF THE

FACILITY HAS CONTINUOUS OVERFLOW WATERING).

LAYING HENS OR BROILERS MULTIPLIED BY 0.03 (IF THE

FACILITY HAS A LIQUID MANURE HANDLING SYSTEM).

DUCKS MULTIPLIED BY 0.02.

[510 ILCS 77/10.10]

“Aquifer material” means sandstone which is five feet or more in thickness, or

fractured carbonate which is ten feet or more in thickness; or, sand, gravel, or sand and

gravel, as defined herein, such that there is at least two feet or more present within any

five foot section of a soil boring performed in accordance with Section 506.202 of this

Part.

“CERTIFIED LIVESTOCK MANAGER” MEANS A PERSON THAT HAS BEEN

DULY CERTIFIED BY THE DEPARTMENT AS AN OPERATOR OF A

LIVESTOCK WASTE HANDLING FACILITY. [510 ILCS 77/10.15]

“DEPARTMENT” MEANS THE ILLINOIS DEPARTMENT OF AGRICULTURE.

[510 ILCS 77/10.20]

“FARM RESIDENCE” MEANS ANY RESIDENCE ON A FARM OWNED OR

OCCUPIED BY THE FARM OWNERS, OPERATORS, TENANTS, OR SEASONAL

OR YEAR-ROUND HIRED WORKERS. FOR PURPOSES OF THIS DEFINITION,

A “FARM” IS THE LAND, BUILDINGS, AND MACHINERY USED IN THE

COMMERCIAL PRODUCTION OF FARM PRODUCTS, AND "FARM

PRODUCTS" ARE THOSE PLANTS AND ANIMALS AND THEIR PRODUCTS

WHICH ARE PRODUCED OR RAISED FOR COMMERCIAL PURPOSES AND

INCLUDE BUT ARE NOT LIMITED TO FORAGES AND SOD CROPS, GRAINS

AND FEED CROPS, DAIRY AND DAIRY PRODUCTS, POULTRY AND

POULTRY PRODUCTS, LIVESTOCK, FRUITS, VEGETABLES, FLOWERS,

SEEDS, GRASSES, TREES, FISH, HONEY AND OTHER SIMILAR PRODUCTS,

OR ANY OTHER PLANT, ANIMAL, OR PLANT OR ANIMAL PRODUCT

WHICH SUPPLIES PEOPLE WITH FOOD, FEED, FIBER, OR FUR. [510 ILCS

77/10.23]

“Gravel” or “Sand and gravel” means unconsolidated materials that contain a matrix

(particles of two millimeters or less) that is consistent with the definition of “sand” and

particles larger than two millimeters in size.

“LAGOON” or “Earthen livestock waste lagoon” MEANS ANY EXCAVATED,

DIKED, OR WALLED STRUCTURE OR COMBINATION OF STRUCTURES

DESIGNED FOR BIOLOGICAL STABILIZATION AND STORAGE OF

LIVESTOCK WASTES. A LAGOON DOES NOT INCLUDE STRUCTURES SUCH

AS MANUFACTURED SLURRY STORAGE STRUCTURES OR PITS UNDER

BUILDINGS AS DEFINED IN RULES UNDER THE ENVIRONMENTAL

PROTECTION ACT CONCERNING AGRICULTURE RELATED POLLUTION.

[510 ILCS 77/10.25]

“LICENSED PROFESSIONAL ENGINEER” MEANS A PERSON, CORPORATION

OR PARTNERSHIP LICENSED UNDER THE LAWS OF THE STATE OF

ILLINOIS TO PRACTICE PROFESSIONAL ENGINEERING. [415 ILCS 5/57.2]

“LICENSED PROFESSIONAL GEOLOGIST” MEANS AN INDIVIDUAL WHO IS

LICENSED UNDER the laws of the State of Illinois TO ENGAGE IN THE

PRACTICE OF PROFESSIONAL GEOLOGY IN ILLINOIS. [225 ILCS 745/15]

“LIVESTOCK MANAGEMENT FACILITY” MEANS ANY ANIMAL FEEDING

OPERATION, LIVESTOCK SHELTER, OR ON-FARM MILKING AND

ACCOMPANYING MILK-HANDLING AREA. TWO OR MORE LIVESTOCK

MANAGEMENT FACILITIES UNDER COMMON OWNERSHIP, WHERE THE

FACILITIES ARE NOT SEPARATED BY A MINIMUM DISTANCE OF 1/4 MILE,

AND THAT SHARE A COMMON LIVESTOCK WASTE HANDLING FACILITY

SHALL BE CONSIDERED A SINGLE LIVESTOCK MANAGEMENT FACILITY.

A LIVESTOCK MANAGEMENT FACILITY AT EDUCATIONAL INSTITUTIONS,

LIVESTOCK PASTURE OPERATIONS, WHERE ANIMALS ARE HOUSED ON A

TEMPORARY BASIS SUCH AS COUNTY AND STATE FAIRS, LIVESTOCK

SHOWS, RACE TRACKS, AND HORSE BREEDING AND FOALING FARMS,

AND MARKET HOLDING FACILITIES ARE NOT SUBJECT TO THE Livestock

Management Facility Act or the requirements of this Part. [510 ILCS 77/10.30]

“Livestock pasture operation” means a lot or facility (other than an aquatic animal

production facility) where:

Crops, vegetation, forage growth, or post-harvest residues that are

grown in place are sustained in the normal growing season over a

substantial portion of the lot or facility; and,

Animals are not continuously confined or enclosed in a covered

structure.

“LIVESTOCK WASTE” MEANS LIVESTOCK EXCRETA AND ASSOCIATED

LOSSES, BEDDING, WASH WATERS, SPRINKLING WATERS FROM

LIVESTOCK COOLING, PRECIPITATION POLLUTED BY FALLING ON OR

FLOWING ONTO AN ANIMAL FEEDING OPERATION, AND OTHER

MATERIALS POLLUTED BY LIVESTOCK. [510 ILCS 77/10.35]

“LIVESTOCK WASTE HANDLING FACILITY” MEANS INDIVIDUALLY OR

COLLECTIVELY THOSE IMMOVABLE CONSTRUCTIONS OR DEVICES,

EXCEPT SEWERS, USED FOR COLLECTING, PUMPING, TREATING, OR

DISPOSING OF LIVESTOCK WASTE OR FOR THE RECOVERY OF

BY-PRODUCTS FROM THE LIVESTOCK WASTE. TWO OR MORE LIVESTOCK

WASTE HANDLING FACILITIES UNDER COMMON OWNERSHIP AND

WHERE THE FACILITIES ARE NOT SEPARATED BY A MINIMUM DISTANCE

OF 1/4 MILE SHALL BE CONSIDERED A SINGLE LIVESTOCK WASTE

HANDLING FACILITY. [510 ILCS 77/10.40]

“MODIFIED” MEANS STRUCTURAL CHANGES TO A LAGOON THAT

INCREASE ITS VOLUMETRIC CAPACITY. [510 ILCS 77/10.43]

“NEW FACILITY” MEANS A LIVESTOCK MANAGEMENT FACILITY OR A

LIVESTOCK WASTE HANDLING FACILITY THE CONSTRUCTION OR

EXPANSION OF WHICH IS COMMENCED ON OR AFTER THE EFFECTIVE

DATE OF THE Livestock Management Facilit

yies

ACT. EXPANDING A FACILITY

WHERE THE FIXED CAPITAL COST OF THE NEW COMPONENTS

CONSTRUCTED WITHIN A 2-YEAR PERIOD DOES NOT EXCEED 50% OF THE

FIXED CAPITAL COST OF A COMPARABLE ENTIRELY NEW FACILITY

SHALL NOT BE DEEMED A NEW FACILITY AS USED IN THE Livestock

Management Facilityies

ACT. [510 ILCS 77/10.45]

“NON-FARM RESIDENCE” MEANS ANY RESIDENCE WHICH IS NOT A FARM

RESIDENCE. [510 ILCS 77/10.47]

“Occupied residence” means a residence that is suitable for human occupancy 50% or

more of the year and is currently occupied or has been occupied in the last five years.

For the purposes of this definition, “suitable for human occupancy” means the

residence provides for water and sanitation.

“OWNER OR OPERATOR” MEANS ANY PERSON WHO OWNS, LEASES,

CONTROLS, OR SUPERVISES A LIVESTOCK MANAGEMENT FACILITY OR

LIVESTOCK WASTE-HANDLING FACILITY. [510 ILCS 77/10.50]

“PERSON” MEANS ANY INDIVIDUAL, PARTNERSHIP, CO-PARTNERSHIP,

FIRM, COMPANY, CORPORATION, ASSOCIATION, JOINT STOCK COMPANY,

TRUST, ESTATE, POLITICAL SUBDIVISION, STATE AGENCY, OR ANY

OTHER LEGAL ENTITY OR THEIR LEGAL REPRESENTATIVE, AGENT, OR

ASSIGNS. [510 ILCS 77/10.55]

“Placed in service” means the placement of livestock waste in a livestock waste lagoon

upon the completion of construction or modification in accordance with the

requirements of this Part.

“POPULATED AREA” MEANS ANY AREA WHERE AT LEAST 10 INHABITED

NON-FARM RESIDENCES ARE LOCATED OR WHERE AT LEAST 50 PERSONS

FREQUENT A COMMON PLACE OF ASSEMBLY OR A NON-FARM BUSINESS

AT LEAST ONCE PER WEEK. The existence of a populated area shall be determined

by identifying the area around the livestock management or livestock waste handling

facility delineated by a distance equal to the applicable setback distance and; identifying

the number of residences or the existence of a non-farm business or the existence of a

common place of assembly within that area.; and comparing the appropriate number of

respective units determined to be present within the setback distance. For the purpose

of setback requirements, common pla

ces of a

ssembly or non-farm business

include

but are not limited to churches, hospitals, schools, day care centers

, manufacturing

companies, land managed for recreational or conservation purposes, museums, camps,

parks, retail and wholesale facilities, and shopping centers

The provisions that

qualifies aA common place of assembly or a non-farm business based on 50 persons or

more frequently the said place once per week shall includes

places that operate less than

52 weeks per year, such as schools with seasonal vacation periods and businesses or

other places which experience seasonal shutdowns

, and parks, camps, and recreational

areas which experience seasonal shutdowns or reduce

d attendance during a portion of

the calendar year

, provided that such places are frequented by at least 50 persons at

least once per week during the portions of the year when seasonal shutdowns or

reductions in attendance do not occur. [510 ILCS 77/10.60]

“Residence” means a house or other structure, including all attachments to the house or

structure, which is used as a place of human habitation.

“Sand” means unconsolidated materials, where 70% or more of the particles are of size

0.06 millimeters to 2.00 millimeters, and which according to the USDA soil texture

classification scheme includes soil textures of sand, and loamy sand, and portions of

sandy loam and sandy clay loam.

Section 506.104

Incorporations by Reference

The Board incorporates the following materials by reference:

APHA. American Public Health Association, 1015 Fifteenth Street,

NW, Washington, DC 20005, (202) 789-5600, “Standard Methods for

the Examination of Water and Wastewater”, 19th Edition, 1995.

ASAE. American Society of Agricultural Engineers, 2950 Niles Road,

St. Joseph, MI 49085-9659, (616) 429-5585, “Design of Anaerobic

Lagoons for Animal Waste Management”, ASAE Standards 1992,

ASAE EP403.1, 1992, pp. 498-500.

ASAE. American Society of Agricultural Engineers, 2950 Niles Road,

St. Joseph, MI 49085-9659, (616) 429-5585, “Design of Anaerobic

Lagoons for Animal Waste Management”, ASAE Standards 1993,

ASAE EP403.2, 1993, pp. 543-546.

34)

NTIS. National Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161, (703) 487-4600, “Methods for the

Determination of Inorganic Substances in Environmental Samples”, EPA

Publication No. EPA-600/R-93/100 (August 1993), Doc. No. PB 94-

120821.

45)

USDA-NRCS. United States Department of Agriculture - Natural

Resources Conservation Service, 1902 Fox Drive, Champaign, IL

61820, “Waste Treatment Lagoon”, Illinois Field Office Technical

Guide, Section IV, IL359, p. 5p, June 1992.

This Section incorporates no later amendments or editions.

Section 506.105

Recordkeeping

The Department shall maintain a file for all facilities

ing or otherwise

filing documents with the Department under these regulations.

The file s

hall contain all registration materials, along with all supporting data

and justifications, records of Department certification and determinations,

groundwater monitoring results (if required), waste management plans (if

required), and any other information submitted to the Department by the owner

or operator of a facility.

Copies of materials in the file for a registered facility shall be available for

public inspection.

Section 506.106

Alternatives, Modifications, and Waivers

All requests for alternatives, modifications, and waivers to these regulations,

where allowed by the Act (510 ILCS 77/15(a),(e)) or this Part (Section

506.202(d), 506.204(h), 506.205(f), 506.206(j), 506.209(a)(2)) shall be made

in writing to the Department. Construction may not begin or continue until the

request for alternative, modification, or waiver is granted.

Each request for an alternative, modification, or waiver shall contain a

certification from a Licensed Professional Engineer or Licensed Professional

Geologist, as relevant, that the grant of the modification is at least as protective

of the groundwater, surface water and the structural integrity of the livestock

waste management facility as the stated requirements or that the alternative or

waiver is at least as protective as the stated requirement

The Department shall notify the applicant in writing of its determination within

thirty (30) days after receipt of the request for an alternative, modification, or

waiver

. To grant the requested alternative, modification, or waiver, the

Department must determine that the modification is at least as protective of the

groundwater, surface water and the structural integrity of the livestock waste

management facility as the stated requirements or that the alternative or waiver

is at least as protective as the stated requirement

SUBPART B: STANDARDS FOR LIVESTOCK WASTE LAGOONS

Section 506.201

Applicability

This Subpart applies to any lagoon that is new or modified and has not been

placed in service as of the effective date of this Part.

For the purposes of this Subpart the number of animal units at a livestock

management facility is the maximum design capacity of the livestock

management facility.

In addition, a lagoon registered and certified pursuant to the emergency rules

adopted in R97-14 at 20 Ill. Reg. 14903, effective October 31, 1996 and the

emergency rule

adopted in R97-14 at 21 Ill. Reg. xxxxx, effective April x,

1997, shall be considered as registered and certified pursuant to this Subpart.

Section 506.202

Site Investigation

The owner or operator of a new or modified livestock waste lagoon shall

conduct a site investigation in accordance with the requirements of this Section

to determine if aquifer material is present (or not present) within 50 feet of the

planned bottom of the lagoon.

The owner or operator shall perform one or more soil borings which shall be

located within the final lagoon area or within 20 feet of the final exterior berm

toe. The boring shall be performed to determine the presence of aquifer

material as follows:

The soil boring shall extend to a depth that includes 50 feet from the

bottom of lagoon native soil or to bedrock;

If bedrock is encountered, additional soil borings may be necessary to

verify the presence of aquifer material;

Continuous samples shall be recovered from each soil boring to ensure

that no gaps occur in the sample column; and

Upon completion, the boring(s) shall be properly abandoned and sealed

pursuant to the Illinois Water Well Construction Code at 77 Ill. Adm.

Code 920.120.

If the Department determines that additional soil borings are necessary to ensure

the protection of the groundwater, surface water and the structural integrity of

the livestock waste management facility, the Department shall require additional

soil borings.

cd)

As an alternative to performing the soil boring(s) required under subsection (b)

or (c) of this Section, the owner or operator of a livestock waste lagoon may

propose to the Department to utilize alternative information sources. The

Department shall evaluate the proposal; shall determine whether the alternative

information source will result in a site investigation that will be at least as

protective of the groundwater, surface water and the structural integrity of the

livestock waste management facility as would have resulted from data resulting

from soil borings; and shall notify the owner or operator of the Department’s

finding.

)

The site investigation in accordance with subsections

(b), or (c) or (d) of this

Section shall be conducted under the direction of a Licensed Professional

Engineer or LicensedRegistered

Professional Geologist. Upon completion of

the site investigation as required under subsection

(b), or (c) or (d) of this

Section, the supervising Licensed Professional Engineer or Licensed Registered

Professional Geologist shall certify that the site investigation meets all the

applicable requirements of this Section, and whether aquifer material shall be

considered present (or not present) within 50 feet of the planned bottom of the

lagoon in accordance with Section 506.203 of this Part. Such certification shall

include all supporting data and justification.

Section 506.203

Registration

Prior to new construction or modification of ANY EARTHEN LIVESTOCK

WASTE LAGOON AFTER THE EFFECTIVE DATE OF this Part, such

earthen livestock waste lagoon SHALL BE REGISTERED BY THE OWNER

OR OPERATOR WITH THE DEPARTMENT ON A FORM PROVIDED BY

THE DEPARTMENT in accordance with the requirements of this Section.

LAGOONS CONSTRUCTED PRIOR TO THE EFFECTIVE DATE OF this

Part MAY REGISTER WITH THE DEPARTMENT AT NO CHARGE. [510

ILCS 77/15 (b)]

The registration form, accompanied by a $50 fee, shall include the following:

NAME(S) AND ADDRESS(ES) OF THE OWNER AND OPERATOR

WHO ARE RESPONSIBLE FOR THE LIVESTOCK WASTE

LAGOON;

GENERAL LOCATION OF LAGOON;

DESIGN CONSTRUCTION PLANS AND SPECIFICATIONS

(including a lagoon plot plan with dimensions and elevations);

SPECIFIC LOCATION INFORMATION (noted on a facility site map

or the lagoon plot plan):

The location and DISTANCE TO the nearest THE NEAREST

PRIVATE OR PUBLIC POTABLE WELL;

The location and DISTANCE TO THE CLOSEST NEAREST

OCCUPIED PRIVATE RESIDENCE (OTHER THAN ANY

OCCUPIED BY the THE OWNER OR OPERATOR);

The location and DISTANCE TO THE NEAREST

STREAM;

The location and DISTANCE TO THE NEAREST

POPULATED AREA;

The location and associated distance to the nearest abandoned or

plugged well, drainage well or injection well; and

The location of any subsurface drainage lines within 100 feet of

the lagoon;

ANTICIPATED BEGINNING AND ENDING DATES OF LAGOON

CONSTRUCTION;

TYPE OF LIVESTOCK AND NUMBER OF ANIMAL UNITS;

A certification by the supervising Licensed Professional Engineer or

LicensedRegistered

Professional Geologist, accompanied by supporting

justification and data, certifying that the site investigation meets all the

applicable requirements of Section 506.202 of this Part, whether aquifer

material is considered present (or not present) within 50 feet of the

planned bottom of the lagoon; and

Where applicable, a copy of the synthetic liner manufacturer’s

compatibility statement and liner maintenance guidelines. [510 ILCS

77/15 (b)]

THE DEPARTMENT UPON RECEIPT OF A LIVESTOCK WASTE

LAGOON REGISTRATION FORM SHALL REVIEW THE FORM TO

DETERMINE THAT ALL REQUIRED INFORMATION HAS BEEN

PROVIDED. THE PERSON FILING THE REGISTRATION SHALL BE

NOTIFIED WITHIN 15 WORKING DAYS of receipt by the Department

THAT REGISTRATION IS COMPLETE OR THAT CLARIFICATION

INFORMATION IS NEEDED. NO LATER THAN 10 WORKING DAYS

AFTER THE RECEIPT OF THE CLARIFICATION INFORMATION, THE

DEPARTMENT SHALL NOTIFY THE OWNER OR OPERATOR THAT

REGISTRATION IS COMPLETE or that additional clarification information is

needed. [510 ILCS 77/15 (b)]

The Department may, as a condition of the issuance of a livestock waste lagoon

registration, conduct periodic site inspections of a livestock waste lagoon to

assess its degree of compliance with the requirements of the Livestock

Management Facilities Act [510 ILCS 77] and the requirements of this Part.

THE PERSON MAKING ANY INSPECTION SHALL COMPLY WITH

REASONABLE ANIMAL HEALTH PROTECTION PROCEDURES AS

REQUESTED BY THE OWNER OR OPERATOR. [510 ILCS 77/15

(b)]

CONSTRUCTION SHALL NOT BEGIN UNTIL 30 DAYS AFTER

SUBMITTAL OF A REGISTRATION FORM BY CERTIFIED MAIL TO

THE DEPARTMENT. [51

0 ILCS 77/15(b)]

Section 506.204

Lagoon Design Standards

The owner or operator of ANY LIVESTOCK WASTE LAGOON SUBJECT

TO this Part SHALL CONSTRUCT OR MODIFY the lagoon IN

ACCORDANCE WITH:

“DESIGN OF ANAEROBIC LAGOONS FOR ANIMAL WASTE

MANAGEMENT”, ASAE ENGINEERING PRACTICE 403.1, as

updated by ASAE Engineering Practice 403.2; OR THE GUIDELINES

PUBLISHED BY THE UNITED STATES DEPARTMENT OF

AGRICULTURE’S NATURAL RESOURCE CONSERVATION

SERVICE TITLED “WASTE TREATMENT LAGOON”, which are

incorporated by reference in 35 Ill. Adm. Code 506.104; and

The additional design standards specified in subsections (c) through (h)

of this Section. [510 ILCS 77/15 (a)]

THE DEPARTMENT MAY REQUIRE CHANGES IN DESIGN OR

ADDITIONAL REQUIREMENTS TO PROTECT GROUNDWATER, SUCH

AS EXTRA LINER DEPTH OR SYNTHETIC LINERS, WHEN IT APPEARS

GROUNDWATER COULD BE IMPACTED. [510 ILCS 77/15 (a)]

The owner or operator shall conduct site investigation in accordance with

Section 506.202 of this Part to determine if aquifer material is present (or not

present) within 50 feet of the planned bottom of the lagoon.

The owner or operator shall, as a part of the lagoon design, include the use of a

liner and implement groundwater monitoring in accordance with following

conditions:

If the upper most aquifer material is located above or within 20 feet of

the lowest point of the planned lagoon bottom (as measured from the top

of any proposed liner), then the lagoon design shall include both a liner

and groundwater monitoring.

If the uppermost aquifer material is located between 20 to 50 feet from

the lowest point of the planned lagoon (as measured from the top of any

proposed liner), then the lagoon design shall include a liner, but no

groundwater monitoring is required.

If no aquifer material is located within 50 feet from the lowest point of

the planned lagoon (as measured from the top of any proposed liner),

then the lagoon design shall require neither a liner nor groundwater

monitoring.

If the owner or operator determines that a liner is required for the lagoon

pursuant to this Section, the design of the lagoon shall include an in-situ soil

liner, a

borrowed clay

, or

clay/bentonite mixture, or a synthetic liner meeting

the requirements of Section 506.205 of this Part.

If the owner or operator determines that groundwater monitoring is required for

the lagoon pursuant to this Section, the design of lagoon shall include the

implementation of a groundwater monitoring program in accordance with

Section 506.206 of this Part.

Any livestock waste lagoon subject to the provisions of this Part shall meet or

exceed the following:

Berm:

The minimum berm top width shall be 8 feet;

The berm may contain no outlet piping that extends through the

berm unless the piping discharges to another lagoon;

Berm slope:

Interior and eE

xterior and normally exposed interior (above the

liquid level elevation corresponding to the summation of the

sludge volumes and minimum design volume) earthen walls shall

have side slopes not steeper than a 3 to 1 ratio of horizontal to

vertical and a vegetative cover shall be established on any

exposed berm areas and kept mowed or otherwise maintained to

eliminate erosion or other berm deterioration

;

Interior berm earthen walls below the liquid level elevation

corresponding to the summation of the sludge volumes and

minimum design volume shall have side slopes not steeper than a

3 to 1 ratio of horizontal to vertical; or a 2 to 1 ratio of

horizontal to vertical if designed by a Licensed Professional

Engineer and maintained to eliminate berm deterioration;

The lagoon’s total design volume shall be not less than the volume

calculated as the summation of the following:

A minimum design volume, as calculated pursuant to subsection

45.4.1.1, ASAE EP 403.12, ASAE Standards 19923, p. 498,

499543-545;

A livestock waste volume, which shall be sufficient to store the

waste generated by the facility for a period not less than 270 days

as determined from Table 1, in accordance with ASAE EP

403.12, ASAE Standards 19923, p. 498543;

Runoff and wash down volumes, based on a 6-inch rainfall

covering the lagoon surface and any other areas such as open

lots, roofs or other surfaces where collected precipitation is

directed into the lagoon plus the volume of any wash down

liquids utilized within the facility which are also directed into the

lagoon; and

A sludge accumulation volume, as calculated pursuant to

subsection 45.4.1.4, ASAE EP 403.12, ASAE Standards 19923,

p. 499545;

In addition to the lagoon’s total design volume, a freeboard shall be

provided as follows:

For lagoons serving a livestock management facility with a

maximum design capacity of less than 300 animal units and the

lagoon does not collect runoff from areas other than the exposed

surface of the lagoon (including associated interior berm slopes

and flat berm top areas), the top of the settled embankment shall

be not less than 1 foot above the fluid surface level of the lagoon

total design volume; or

For all other lagoons, the top of the settled embankment shall be

not less than 2 feet above the fluid surface level of the lagoon

total design volume;

Subsurface drainage lines in the immediate area of the livestock waste

lagoon shall be removed or relocated to provide for a minimum

separation distance of not less than 50 feet between the outermost extent

of the lagoon (exterior toe of the berm) and the subsurface drainage line;

The minimum separation distance between the outermost extent of a

lagoon (exterior toe of the berm) and any potential route of groundwater

contamination, as defined in the Illinois Groundwater Protection Act

[415 ILCS 55]Environmental Protection Act [415 ILCS 55] shall be not

less than 100 feet. In addition, the minimum separation distance

between the outermost extent of a lagoon (exterior toe of the berm) and a

non-potable well, an abandoned or plugged well, drainage well or

injection well shall be not less than 100 feet;

The design and construction of the lagoon shall include the installation of

a lagoon liquid level board or staff gauge within the interior of the liquid

storage volume. The liquid level board or staff gauge shall include a

mark at the liquid level elevation corresponding to the summation of the

sludge volume and minimum design volume and shall be designated as

the “STOP PUMPING” elevation. The liquid level board or staff gauge

shall also be marked at the liquid level elevation corresponding to the

summation of the sludge volume, minimum design volume, and

livestock waste volume and shall be designated as the “START

PUMPING” elevation;

Water shall be added to a newly constructed or modified lagoon to a

depth of at least 60% of the design depthvolume prior to the initial

addition of waste; and

The location of the lagoon and the associated livestock management

facility shall be in compliance with all setback provisions of the Illinois

Environmental Protection Act [415 ILCS 5], the Livestock Management

Facilities Act [510 ILCS 77], and the rules promulgated thereunder.

THE OWNER OR OPERATOR OF THE EARTHEN LIVESTOCK LAGOON

MAY, upon written request and WITH written APPROVAL FROM THE

DEPARTMENT, deviate fromMODIFY OR EXCEED

THESE STANDARDS

IN ORDER TO MEET SITE SPECIFIC OBJECTIVES. The owner or operator

shall demonstrate that such deviationmodification shall be at least as protective

of the groundwater, surface water and the structural integrity of the livestock

waste management facility as the requirements of this Part. [510 ILCS 77/15

(a)]

Section 506.205

Liner Standards

The design of a liner constructed from in-situ soils, borrowed clay or a

clay/bentonite mixture, or a synthetic liner pursuant to Section 506.204 (d) of

this Part shall comply with the requirements of this Section.

A liner constructed using in-situ soil or borrowed clay or clay/bentonite

mixtures shall meet the following standards:

The minimum liner thickness shall be 2 feet;

The liner shall be constructed in lifts not to exceed 6 inches in thickness;

The liner shall be compacted to achieve a hydraulic conductivity equal to

or less than 1 x 10(-7) centimeters/second; and

The construction and compaction of the liner shall be carried out to

reduce void spaces and allow the liner to support the loadings imposed

by the waste disposal operation without settling.

Any synthetic liner used in the construction of a livestock waste lagoon shall

meet the following standards:

The liner shall be designed to perform equivalent to or better than a liner

that conforms to subsection (b) of this Section;

The liner manufacturer shall provide to the owner or operator the liner

maintenance guidelines and shall certify that the liner is chemically

compatible with:

The livestock waste being stored; and

The supporting soil materials;

The liner shall be supported by a compacted base free from sharp

objects;

The liner shall have sufficient strength and durability to function at the

site for the design period under the maximum expected loadings imposed

by the waste and equipment and stresses imposed by settlement,

temperature, construction and operation;

The liner seams shall be made in the field according to the

manufacturer's specifications. All sections shall be arranged so that the

use of field seams is minimized and seams are oriented in the direction

subject to the least amount of stress; and

The owner or operator shall maintain a copy of the manufacturer’s

compatibility statement and liner installation and maintenance guidelines

at the facility.

The design, construction and installation of the liner in accordance with this

Section shall be conducted under the direction of a Licensed Professional

Engineer. Upon completion of construction or installation of the liner, the

supervising Licensed Professional Engineer shall certify that the liner meets all

the applicable requirements of this Section. Such certification shall include all

supporting justification and data.

The owner or operator of a livestock waste lagoon shall submit to the

Department a copy of the Licensed Professional Engineer’s Certification prior

to placing the lagoon in service in accordance with Section 506.207 of this Part.

THE OWNER OR OPERATOR OF THE EARTHEN LIVESTOCK LAGOON

MAY, upon written request and WITH written APPROVAL FROM THE

DEPARTMENT, deviate fromMODIFY OR EXCEED

THESE STANDARDS

IN ORDER TO MEET SITE SPECIFIC OBJECTIVES. The owner or operator

shall demonstrate that such deviationmodification shall be at least as protective

of the groundwater, surface water and the structural integrity of the livestock

waste management facility as the requirements of this Part. [510 ILCS 77/15

(a)]

Section 506.206

Groundwater Monitoring

The owner or operator of any livestock waste lagoon required to implement

groundwater monitoring pursuant to Section 506.204 (d) of this Part shall

implement a monitoring program which meets the requirements of this Section.

The groundwater monitoring network shall consist of a minimum of three

monitoring wells on the basis of local groundwater conditions within 20 feet of

the exterior toe of the berm with at least two wells down gradient of the lagoon.

For the purposes of groundwater monitoring network design, multiple cell

lagoons shall be considered as a single lagoon.

The monitoring wells shall be installed in accordance with the following:

The requirements of Illinois Water Well Construction Code at 77 Ill.

Adm. Code 920.170;

The top of the well screen shall be set at the estimated seasonal low

water table elevation;

Monitoring wells shall utilize a five foot screened interval; and

The screen shall be set in a sand pack of no less than five feet and no

greater than seven feet.

Prior to placing the lagoon in service, water level measurements shall be made

at each monitoring well to establish the local groundwater gradient at the lagoon

site.

Monitoring wells shall be sampledThe owner or operator shall sample each

monitoring well at least

once prior to placing the lagoon in service and at least

quarterly thereafter. The samples shall be collected and analyzed consistent

with the methods specified in Section 506.104(a)(1) and (4) of this Part for each

of the following:

Nitrate-nitrogen;

Phosphate-phosphorous;

Chloride;

Sulfate;

Ammonia-nitrogen;

Escherichia coli or fecal coliform; and

Fecal Streptococcus.

The Department may collect and analyze samples or split samples from

monitoring wells installed pursuant to this Section at the Department’s

discretion. The Department shall provide notice to the owner or operator of the

livestock waste lagoon of such activity and SHALL COMPLY WITH

REASONABLE ANIMAL HEALTH PROTECTION PROCEDURES AS

REQUESTED BY THE OWNER OR OPERATOR. [510 ILCS 77/15

(b)]

fg)

Analytical results as determined in subsection (e) of this Section shall be

submitted to the Department within 45 days after sample collection and shall

include a discussion relative to the significance of the results. Such discussion

of significance shall include:

A comparison of the results to the initial sampling made prior to the

lagoon being placed in service; and

A description of any proposed response action necessary to mitigate

potential impacts to groundwater.

gh)

The Department shall review the submittal provided pursuant to subsection (gf)

of this Section, evaluate the proposed response action, and provide a time frame

for the correction of any identified deficiencies. As a result of the evaluation,

the Department may approve or modify the monitoring program or response

action including, but not limited to, the following:

Increase or decrease the monitoring well sampling frequency;

Add or delete items from the list of sample analytes; or

Require changes to the design, construction or operation of the lagoon or

changes in the operation of the livestock management facility which shall

be implemented by the owner or operator within the time frame

established by the Department.

Failure of the owner or operator to submit the information required pursuant to

subsection (gf) of this Section or to implement the response action approved or

modified by the Department shall be considered as a failure to construct a

lagoon in accordance with the requirements of this Part and shall subject the

owner or operator to penalties set forth in this Part

and the Livestock

Management Facilities Act [510 ILCS 77].

hj)

THE OWNER OR OPERATOR OF THE EARTHEN LIVESTOCK LAGOON

MAY, upon written request and WITH written APPROVAL FROM THE

DEPARTMENT, deviate fromMODIFY OR EXCEED

THESE STANDARDS

IN ORDER TO MEET SITE SPECIFIC OBJECTIVES. The owner or operator

shall demonstrate that such deviationmodification shall be at least as protective

of the groundwater, surface water and the structural integrity of the livestock

waste management facility as the requirements of this Part. [510 ILCS 77/15

(a)]

Section 506.207

Certification of Construction

THE DEPARTMENT SHALL INSPECT AN EARTHEN LIVESTOCK

WASTE LAGOON AT LEAST ONCE DURING THE

PRE-CONSTRUCTION, CONSTRUCTION ORor

POST-CONSTRUCTION

PHASE and SHALL REQUIRE MODIFICATIONS WHEN NECESSARY to

ensure the project will be in compliance with the requirements of this Part.

[510 ILCS 77/15 (b)]

Upon completion of construction or installation of a liner, the supervising

Licensed Professional Engineer shall certify that the liner meets all the

applicable requirements of Section 506.205 of this Part. Such certification shall

be submitted to the Department prior to placing the lagoon in service and shall

include supporting data and justification.

UPON COMPLETION OF THE CONSTRUCTION OR MODIFICATION,

BUT PRIOR TO PLACING THE LAGOON IN SERVICE, THE OWNER OR

OPERATOR OF THE LIVESTOCK WASTE LAGOON SHALL CERTIFY

ON A FORM PROVIDED BY THE DEPARTMENT THAT THE LAGOON

HAS BEEN CONSTRUCTED OR MODIFIED IN ACCORDANCE WITH

THE STANDARDS SET FORTH IN SUBSECTION (

aA) OF SECTION 15 of

the Livestock Management Facilities Act [510 ILCS 77] and the requirements of

this Part AND THAT THE INFORMATION PROVIDED ON THE

REGISTRATION FORM and other supporting documents as required by this

Part IS CORRECT. THE CERTIFICATION NOTICE TO THE

DEPARTMENT SHALL INCLUDE A CERTIFICATION STATEMENT AND

SIGNATURE. [510 ILCS 77/15 (b)]

THE OWNER OR OPERATOR OF THE LAGOON MAY PROCEED TO

PLACE THE LAGOON IN SERVICE NO EARLIER THAN 10 WORKING

DAYS AFTER SUBMITTING TO THE DEPARTMENT A CERTIFICATION

OF COMPLIANCE STATEMENT. [510 ILCS 77/15 (b)]

Section 506.208

Failure to Register or Construct in Accordance with Standards

THE OWNER OR OPERATOR OF ANY EARTHEN LIVESTOCK WASTE

LAGOON SUBJECT TO REGISTRATION THAT HAS NOT BEEN

REGISTERED OR CONSTRUCTED IN ACCORDANCE WITH

STANDARDS SET FORTH IN SUBSECTION (

aA) OF SECTION 15 of the

Livestock Management Facilities Act [510 ILCS 77] and in this Part SHALL,

UPON BEING IDENTIFIED AS SUCH BY THE DEPARTMENT, BE

GIVEN WRITTEN NOTICE BY THE DEPARTMENT TO REGISTER AND

CERTIFY THE LAGOON WITHIN 10 WORKING DAYS OF RECEIPT OF

THE NOTICE. THE DEPARTMENT MAY INSPECT SUCH LAGOON

AND REQUIRE COMPLIANCE IN ACCORDANCE WITH SUBSECTIONS

(aA) AND (bB

) of the Livestock Management Facilities Act [510 ILCS 77] and

this Part. IF THE OWNER OR OPERATOR OF THE LIVESTOCK WASTE

LAGOON THAT IS SUBJECT TO REGISTRATION FAILS TO COMPLY

WITH THE NOTICE, THE DEPARTMENT MAY ISSUE A CEASE AND

DESIST ORDER UNTIL SUCH TIME AS COMPLIANCE IS OBTAINED

WITH THE REQUIREMENTS OF the Livestock Management Facilities Act

[510 ILCS 77] and this Part. FAILURE TO CONSTRUCT THE LAGOON IN

ACCORDANCE WITH THE CONSTRUCTION PLAN AND DEPARTMENT

RECOMMENDATIONS IS A BUSINESS OFFENSE PUNISHABLE BY A

FINE OF NOT MORE THAN $5,000. [510 ILCS 77/15 (f)]

If the owner or operator of the livestock waste lagoon that is subject to

registration fails to comply with the notice which addresses violations occur

ing

during lagoon construction, a cease and desist order to stop construction may be

issued by the Department. Changes shall be made to the lagoon by the owner

or operator to ensure construction according to the provisions of the Livestock

Management Facilities Act [510 ILCS 77] and this Part. The cease and desist

order shall be canceled by the Department upon submission of the registration

materials by the lagoon owner or operator to the Department, and after the

Department’s review of the construction plans and specifications and lagoon

registration materials, and after determination of compliance with the Livestock

Management Facilities Act [510 ILCS 77] and this Part by the Department.

)

If the owner or operator of the livestock waste lagoon that is subject to

registration fails to comply with the notice which addresses violations which

occur after completion of lagoon construction, an operational cease and desist

order may be issued by the Department. Any necessary changes shall be made

to the lagoon by the lagoon owner or operator to comply with the Livestock

Management Facilities Act [510 ILCS 77] and this Part. The operational cease

and desist order shall be canceled by the Department after the Department

determines compliance with the Livestock Management Facilities Act [510 ILCS

77] and this Part.

Section 506.209

Lagoon Closure and Ownership Transfer

Closure: WHEN ANY EARTHEN LIVESTOCK WASTE LAGOON IS

REMOVED FROM SERVICE, IT SHALL BE COMPLETELY EMPTIED.

APPROPRIATE CLOSURE PROCEDURES SHALL BE FOLLOWED AS

DETERMINED BY the requirements of this Part. [510 ILCS 77/15 (e)]

In the event that any earthen livestock waste lagoon is to be removed

from service, the requirements contained in Section 15 (e) of the

Livestock Management Facilities Act [510 ILCS 77] shall be met and the

owner or operator shall submit a lagoon closure plan to the Department

for review and approval. The plan shall provide for the following:

The sampling, analysis and reporting of results

in the closure plan

to the Department of all remaining livestock waste, sludge and

minimum six-inch thickness of soil from throughout the lagoon

interior consistent with the requirements of Section 506.312 of

this Part;

The removal of all remaining livestock waste including sludge,

the removal of a minimum 6 inch thickness of soil from

throughout the lagoon interior, and the application of these

materials to crop land at agronomic rates consistent with the

provisions of the site livestock waste management plan or their

otherwise proper disposal;

The removal of all associated appurtenances, including but not

limited to transfer lines, ramps, pumping ports and other waste

conveyance structures;

The proper management of any impounded precipitation in the

remaining excavation if it is not immediately filled and the area

immediately returned to its pre-construction condition;

The proper abandonment of any monitoring wells installed

pursuant to Section 506.206 of this Part which shall be conducted

pursuant to the Illinois Water Well Construction Code at 77 Ill.

Adm. Code 920.120; and

A proposed time frame for the completion of the closure

activities which will be no greater than two years from the

cessation of operation date unless the lagoon is maintained or

serviced.

[510 ILCS 77/15(e)]

The Department shall review and approve or request additional

information relative to the lagoon closure plan. THE DEPARTMENT

MAY also GRANT A WAIVER TO any of THE BEFORE-STATED

CLOSURE REQUIREMENTS THAT WILL PERMIT THE LAGOON

TO BE USED FOR AN ALTERNATIVE PURPOSE. [510 ILCS 77/15

(e)]

Upon completion of the lagoon closure activities as prescribed by the

Department-approved closure plan, the owner or operator shall notify the

Department to allow for post closure inspection. The Department shall

conduct a site inspection and issue a written notification of closure

completion or inform the owner or operator of any unresolved closure

issues.

Ownership Transfer: UPON A CHANGE IN THE OWNERSHIP OF A

REGISTERED EARTHEN LIVESTOCK WASTE LAGOON, THE new

OWNER SHALL NOTIFY, in writing, THE DEPARTMENT OF THE

CHANGE WITHIN 30 WORKING DAYS OF THE CLOSING OF THE

TRANSACTION. [510 ILCS 77/15 (e)]

SUBPART C: WASTE MANAGEMENT PLAN

Section 506.301

Purpose

Livestock waste management plans shall be prepared by livestock management facility owners

or operators to provide for adequate land area for the proper application of livestock waste at

rates not to exceed the agronomic nitrogen requirement of the crop to be grown during that

growing season.

Section 506.302

Scope and Applicability

A waste management plan shall be prepared according to the requirements

contained in Section 20 of the Livestock Management Facilities Act [510 ILCS

77] and in this Subpart. THE APPLICATION OF LIVESTOCK WASTE TO

THE LAND IS AN ACCEPTABLE, RECOMMENDED, AND

ESTABLISHED PRACTICE IN ILLINOIS. HOWEVER, WHEN

LIVESTOCK WASTE IS NOT APPLIED IN A RESPONSIBLE MANNER, IT

MAY CREATE POLLUTIONAL PROBLEMS. IT SHOULD BE

RECOGNIZED THAT, IN MOST CASES, IF THE AGRONOMIC

NITROGEN RATE IS MET, THE PHOSPHORUS APPLIED WILL EXCEED

THE CROP REQUIREMENTS, BUT NOT ALL OF THE PHOSPHORUS

MAY BE AVAILABLE FOR USE BY THE CROP. IT WILL BE

CONSIDERED ACCEPTABLE, THEREFORE, TO PREPARE AND

IMPLEMENT A WASTE MANAGEMENT PLAN BASED ON THE

NITROGEN RATE. [510 ILCS 77/20(f)]

THE LIVESTOCK MANAGEMENT FACILITY OWNER OR OPERATOR

AT A FACILITY OF LESS THAN 1,000 ANIMAL UNITS SHALL NOT BE

REQUIRED TO PREPARE AND MAINTAIN A WASTE MANAGEMENT

PLAN. [510 ILCS 77/20(b)]

THE LIVESTOCK MANAGEMENT FACILITY OWNER OR OPERATOR

AT A FACILITY OF 1,000 OR GREATER ANIMAL UNITS BUT LESS

THAN 7,000 ANIMAL UNITS SHALL PREPARE, maintain and implement a

waste management plan and comply with the following: [510 ILCS 77/20(c)]

For facilities which commence operations or reach or exceed 1,000

animal units after the effective date of this Part, the owner or operator

shall prepare, maintain, and implement a waste management plan within

60 working days ofafter commencing operations or exceeding 1,000

animal units;

Prior to the expiration of the waste management plan preparation period,

the owner or operator shall submit to the Department a form certifying

that a waste management plan has been prepared. The form shall also

list the location of the plan;

The waste management plan and records of livestock waste disposal shall

be kept on file at the facility for a period of three years and shall be

available for inspection by Department personnel during normal business

hours; and

NOT

WITHSTANDING THE the above provisions, A LIVESTOCK

MANAGEMENT FACILITY SUBJECT TO THIS SUBSECTION (c)

MAY BE OPERATED ON AN INTERIM BASIS BUT NOT TO

EXCEED SIX 6 MONTHS AFTER THE EFFECTIVE DATE OF THE

RULES PROMULGATED PURSUANT TO the Livestock Management

Facilities Act [510 ILCS 77]this Part TO ALLOW FOR THE OWNER

OR OPERATOR OF THE FACILITY TO DEVELOP A WASTE

MANAGEMENT PLAN. [510 ILCS 77/20(c)]

The owner or operator of a livestock management facility with 7,000 or greater

animal units shall prepare, maintain, implement, and submit to the Department

the waste management plan for approvalTHE LIVESTOCK MANAGEMENT

FACILITY OWNER OR OPERATOR AT A FACILITY OF 7,000 OR

GREATER ANIMAL UNITS SHALL PREPARE, MAINTAIN, implement,

AND SUBMIT TO THE DEPARTMENT THE WASTE MANAGEMENT

PLAN FOR APPROVAL [510 ILCS 77/20(d)] and comply with the following:

For facilities which commence operations after the effective date of this

Part, the owner or operator shall submit a waste management plan to the

Department. The facility shall not commence operation before the

Department approves the plan;

For existing facilities that reach or exceed 7,000 animal units through

expansion, the owner or operator shall submit to the Department a waste

management plan within 60 working days after reaching or exceeding

7,000 animal units for approval by the Department; and

The waste management plan and records of livestock waste disposal shall

be kept on file at the facility for a period of three years and shall be

available for inspection by Department personnel during normal business

hours.

A separate waste management plan shall be developed for each livestock waste

handling facility. Livestock waste from each different type of livestock waste

storage structure or system shall be accounted for in separate waste management

plans or as separate sections of one plan. Waste from different types of storage

structures may be applied to the same land provided that the nitrogen rate to

obtain targetedoptimum crop yields goals

is not exceeded.

Notwithstanding the above provisions, a facility owner or operator who

prepared a waste management plan pursuant to the emergency amendment

adopted in R97-14 at 20 Ill. Reg. 14903, effective October 31, 1996, shall be

deemed to have prepared a waste management plan pursuant to this Subpart.

For the purposes of this Subpart, the number of animal units served by a

livestock waste handling facility shall be determined as the maximum design

capacity of the livestock management facility which is being served by the

livestock waste handling facility.

Section 506.303

Waste Management Plan Contents

The Livestock Waste Management Plan shall contain the following items:

Name, address, and phone number of the owner(s) of the livestock facility;

Name, address, and phone number of the manager or operator if different than

the owner(s);

Address, phone number, and plat location of the facility, and directions from

nearest post office;

Type of waste storage for the facility;

Species, general size, number of animals, and number of animal units at the

facility;

Aerial photos and maps outlining fields available and intended for livestock

waste applications with available acreage listed and with residences, non-farm

businesses, common places of assembly, streams, wells, waterways, lakes,

ponds, rivers, drainage ditches, and other water sources indicated;

For application fields not owned or rented, copies of waste application

agreements between the owner or operator of the livestock facility and the

owner of the land where livestock waste will be applied;

AN ESTIMATE OF THE VOLUME OF WASTE TO BE DISPOSED OF

ANNUALLY; [510 ILCS 77/20(f)(1)]

Cropping schedule for each field for the past year, antic

pated crops for the

current year, and anticipated crops for the next two years after the current year;

TargetedOptimum crop yields goal for each crop in each field, verified by yield

history, if available;

Estimated nNutrient content of the livestock waste;

Livestock waste application methods;

Calculations showing the following:

Amount of available livestock waste for application;

Amount of nitrogen available for application;

Nitrogen loss due to method of application;

Amount of plant-available nitrogen including mineralization of organic

nitrogen;

Amount of nitrogen required by each crop in each field based on

targetedoptimum crop yields goal;

Nitrogen credits from previous crops, from other sources of fertilizer

applied for the growing season, and from any manure applications

during the previous three years for each application field;

Livestock waste application rate based on nitrogen for each application

field; and

Land area required for application;

A listing of fields and the planned livestock waste application amounts for each

field;

A PROVISION THAT LIVESTOCK WASTE APPLIED WITHIN 1/4 MILE

OF ANY RESIDENCE NOT PART OF THE FACILITY SHALL BE

INJECTED OR INCORPORATED ON THE DAY OF APPLICATION.

HOWEVER, LIVESTOCK MANAGEMENT FACILITIES AND LIVESTOCK

WASTE HANDLING FACILITIES THAT HAVE IRRIGATION SYSTEMS

IN OPERATION PRIOR TO May 21, 1996, OR EXISTING FACILITIES

APPLYING WASTE ON FROZEN GROUND ARE NOT SUBJECT TO THE

PROVISIONS OF THIS subsection (o) of this Section; [510 ILCS 77/20(f)(5)];

A PROVISION THAT LIVESTOCK WASTE MAY NOT BE APPLIED

WITHIN 200 FEET OF SURFACE WATER UNLESS THE WATER IS

UPGRADE OR THERE IS ADEQUATE DIKING AND WASTE WILL NOT

BE APPLIED WITHIN 150 FEET OF POTABLE WATER SUPPLY WELLS

;

[510 ILCS 77/20(f)(6)];

A PROVISION THAT LIVESTOCK WASTE MAY NOT BE APPLIED IN A

10-YEAR FLOOD PLAIN UNLESS THE INJECTION OR

INCORPORATION METHOD OF APPLICATION IS USED; [510 ILCS

77/20(f)(7)];

A PROVISION THAT LIVESTOCK WASTE MAY NOT BE APPLIED IN

WATERWAYS

., For the purposes of this Part, a grassed area serving as a

waterway may receive livestock waste through an irrigation system however

livestock waste may be applied through irrigation systems onto grassed

waterways if there is no runoff, the distance from applied livestock waste to

surface water is greater than 200 feet, the distance from applied livestock waste

to potable water supply wells is greater than 150 feet,; the distance from applied

livestock waste to a non-potable well, an abandoned or plugged well, a drainage

well, or an injection well is greater than 100 feet; and precipitation is not

expected within 24 hours; and [510 ILCS 77/20(f)(8)];

A PROVISION THAT IF WASTE IS SPREAD ON FROZEN OR SNOW-

COVERED LAND, THE APPLICATION WILL BE LIMITED TO LAND

AREAS ON WHICH:

LAND SLOPES ARE 5% OR LESS; OR

ADEQUATE EROSION CONTROL PRACTICES EXIST

. [510 ILCS

77/20(f)(9)];

For livestock facilities utilizing an earthen lagoon or other earthen waste storage

structure, a provision that the owner, operator, or certified livestock manager

shall inspect all berm tops, exterior berm sides, and non-submerged interior

berm sides for evidence of erosion, burrowing animal activity, and other

indications of berm degradation on a frequency of not less than once every two

weeks; and

A provisions that the livestock waste handling facility owner, operator, or

certified manager shall consider the addition of zinc and copper to the analyte

list utilized for soil samples collected as part of the normal soil sampling and

testing program for crop production from the land where livestock waste is

applied. Such results shall become a part of the waste management plan and

shall be available for inspection by Department personnel during normal

business hours.

A provision that livestock waste may not be applied during a rainfall or to

saturated soil and that conservative waste loading rates will be used in the case

of a high water table or shallow earth cover to fractured bedrock. Caution

should be exercised in applying livestock wastes, particularly on porous soils, so

as not to cause nitrate or bacteria contamination of groundwaters.

Section 506.304

Livestock Waste Volumes

The volume of available livestock waste for application, as required in Section 506.303(m)(1)

of this Part, shall be determined from site specific measurements of the waste storage

structure. Calculations and a description of the volume determination shall be included in the

waste management plan.

Section 506.305

Nutrient Content of Livestock Waste

For new facilities without a waste management plan or facilities where a waste

management plan is being initially prepared pursuant to this Part, the owner or

operator shall obtain the nitrogen content of the livestock waste, as required in

Section 506.303(m)(2) of this Part, from the results of a laboratory analysis of

livestock waste samples from the waste storage facility, or from estimated

values provided by the University of Illinois Cooperative Extension Service or

the Natural Resources Conservation Service of the United States Department of

Agriculture.

The livestock waste handling facility owner or operator shall annually obtain a

laboratory analysis of the nutrient content of the livestock waste to be applied to

land as provided within the waste management plan. Livestock waste shall be

sampled and analyzed within 60 working days prior to application of the waste

during the application process. Multiple subsamples shall be obtained and may

be combined into one sample for analysis so that a representative sample is used

for preparation of the waste management plan. A sample taken during waste

application the previous year can be used as a representative sample of the waste

to be applied the following year unless there has been a change in the waste

management practices

Livestock waste sampling shall be performed under the direction of a certified

livestock manager to ensure a representative sample from the livestock waste

storage facility and to preserve the integrity of the sample.

The laboratory analysis of the livestock waste sample shall include, but not be

limited to, total nitrogen, ammonium nitrogen, total phosphorus, and total

potassium, copper, and zinc. Results of the analysis shall be included in the

waste management plan.

Section 506.306

Adjustments to Nitrogen Availability

Adjustments shall be made to nitrogen availability to account for nitrogen loss from livestock

waste due to method of application, as required in Section 506.303(m)(3), and to account for

the conversion of organic nitrogen into a plant available form, as required in Section

506.303(m)(4) of this Part. The Department may adopt criteria which set forth the

adjustments to nitrogen availability.

Section 506.307

TargetedOptimum Crop Yields Goal

The targetedoptimum crop yield goal, as required in Section 506.303(m)(5) of

this Part, shall be determined for each field where the livestock waste is to be

applied. The targetedoptimum crop yield goal shall be determined by obtaining

an average yield over a five-year period from the field where livestock waste is

to be applied. The following prioritized listing of sources of data shall be

utilized to determine the targeted crop yield goalaverage yield. The sources

shall be utilized according to the prioritized order:

Proven yields. The proven yield shall be determined by obtaining an

average yield over a five-year period from the field where livestock

waste is to be applied. The owner or operator shall indicate the method

used to determine the proven yield. Data from years with crop disasters

may be discarded

. Proven yields shall be used unless there is a sound

agronomic basis for predicting a different targeted crop yield goal;

Crop insurance yields. A copy of the crop insurance yields shall be

included in the plan; or

Farm Service Agency - United States Department of Agriculture yields.

A copy of the assigned crop yields shall be included in the plan.

Soils based yield data from the Natural Resources Conservation Service of the

United States Department of Agriculture shall be used if the owner or operator

cannot obtain an optimum targeted

crop yield goal pursuant to subsection (a) of

this Section. A soil map of the application areas shall be included in the plan.

The targetedoptimum crop yield goal shall be determined by a weighted average

of the soil interpretation yield estimates for the areas that will receive livestock

waste.

Section 506.308

Crop Nitrogen Requirements

Unless otherwise provided for by Board regulations, the Department may adopt criteria setting

forth values for crop nitrogen requirements. These values shall be used by the livestock

facility owner or operator in the calculations required in Section 506.303(m)(5) of this Part.

Section 506.309

Nitrogen Credits

Nitrogen credits shall be calculated by the livestock facility owner or operator,

pursuant to Section 506.303(m)(6) of this Part, for nitrogen-producing crops

grown the previous year, for other sources of nitrogen applied for the growing

season, and for mineralized organic nitrogen in livestock waste applied during

the previous three years.

Nitrogen credits shall be calculated by the livestock facility owner or operator

for the mineralized organic nitrogen in livestock waste applied during the

previous three years at the rate of 50%, 25%, and 12.5%, respectively, of that

mineralized during the first year.

Unless otherwise provided for by Board regulations, the Department may adopt

criteria setting forth values for nitrogen credits from previous crops.

Section 506.310

Records of Waste Disposal

Records of the livestock waste disposal shall include the following items:

Date of livestock waste application;

The field where livestock waste application was made;

Method of livestock waste application;

Livestock waste application rate;

Number of acres receiving waste; and

Amount of livestock waste applied.

Section 506.311

Approval of Waste Management Plans

Department approval of livestock waste management plans shall be based on the

following criteria:

Livestock waste application rate of nitrogen not to exceed the crop

nitrogen requirements for targetedoptimum crop yields goals

;

Demonstration of adequate land area for livestock waste application

based on Section 506.303 of this Part; and

Completeness and accuracy of plan contents as specified in Section

506.303 of this Part.

The owner or operator of the livestock management facility shall be notified by

the Department within 30 working days afterof receipt of the livestock waste

management plan that the plan has been approved or that further information or

changes are needed. The owner or operator shall provide the information or

changes within 30 working days.

Section 506.312

Sludge Removal

Within 60 days prior to periodic removal of sludge from a livestock waste

storage structure, the livestock facility owner or operator shall test the sludge

for nutrient content pursuant to Section 506.305(c) and (d) of this Subpart.

Application of the sludge to the land shall not exceed the nitrogen requirement

to obtain targetedoptimum yields

of the crop to be grown.

Prior to the removal of the remaining livestock waste, soil, and sludge during a

lagoon closure, the waste, soil, and sludge shall be tested for nutrient content

pursuant to Section 506.305(c) and (d) of this Subpart. Application of the

waste, soil, and sludge to the land shall not exceed the nitrogen requirement to

obtain targetedoptimum yields

of the crop to be grown.

Nitrogen requirements based on targetedoptimum yields

for the crop to be

grown may be met but shall not be exceeded by any combination of the

following:

Livestock waste applications;

Periodic sludge applications; or

Remaining livestock waste, soil, or sludge applications during a waste

storage structure closure.

Section 506.313

Plan Updates

The waste management plan shall be reviewed annually by the livestock facility

owner or operator and updated, if necessary, after receipt by the owner or

operator of the nutrient content results from the laboratory analysis of the

livestock waste as required in Section 506.305 (b), (c), and (d) of this Subpart,

but prior to the next application period of the livestock waste to the land. The

nitrogen content results from the most recent analysis shall be used when

updating the plan.

The waste management plan shall also be updated when at least one of the

following occurs:

A change in the amount of land area needed to dispose of the livestock

waste based upon a change in the waste volume to be disposed of,

nitrogen content of the livestock waste, or other factors;

A change in land that is available for livestock waste application if the

land is not currently included in the waste management plan;

Method of livestock waste disposal or application changes; or

Cropping sequence changes which alter the amount of livestock waste to

be applied.

Section 506.314

Penalties

ANY PERSON WHO IS REQUIRED TO PREPARE, MAINTAIN, and

implement A WASTE MANAGEMENT PLAN AND WHO FAILS TO DO SO

SHALL BE ISSUED A WARNING LETTER BY THE DEPARTMENT FOR

THE FIRST VIOLATION AND SHALL BE GIVEN 30 WORKING DAYS TO

PREPARE A WASTE MANAGEMENT PLAN. FOR FAILURE TO

PREPARE, MAINTAIN, and implement A WASTE MANAGEMENT PLAN,

THE PERSON SHALL BE FINED AN ADMINISTRATIVE PENALTY OF

UP TO $500 BY THE DEPARTMENT AND SHALL BE REQUIRED TO

ENTER INTO AN AGREEMENT OF COMPLIANCE TO PREPARE,

MAINTAIN, and implement A WASTE MANAGEMENT PLAN WITHIN 30

WORKING DAYS. FOR FAILURE TO PREPARE, MAINTAIN, and

implement A WASTE MANAGEMENT PLAN AFTER THE SECOND 30

DAY PERIOD OR FOR FAILURE TO ENTER INTO A COMPLIANCE

AGREEMENT, THE DEPARTMENT MAY ISSUE AN OPERATIONAL

CEASE AND DESIST ORDER UNTIL COMPLIANCE IS ATTAINED. [510

ILCS 77/20(g)]

The operational cease and desist order procedures may be suspended by the

Department upon submittal of a waste management plan by the owner or

operator to the Department. The cease and desist order shall be canceled by the

Department upon approval of the waste management plan by the Department.

)

A waste management plan prepared as a result of a warning letter or compliance

agreement shall be subject to approval by the Department.

Penalties shall not be imposed for excessive nitrogen application for unplanned

cropping changes due to weather or other unforeseeable circumstances.

SUBPART D: CERTIFIED LIVESTOCK MANAGER

Section 506.401

Applicability

A LIVESTOCK WASTE HANDLING FACILITY SERVING 300 OR

GREATER ANIMAL UNITS SHALL BE OPERATED ONLY UNDER THE

SUPERVISION OF A CERTIFIED LIVESTOCK MANAGER. NOT

WITHSTANDING THE BEFORE-STATED PROVISION, A LIVESTOCK

WASTE HANDLING FACILITY MAY BE OPERATED ON AN INTERIM

BASIS, BUT NOT TO EXCEED 6 MONTHS, TO ALLOW FOR THE

OWNER OR OPERATOR OF THE FACILITY TO BECOME CERTIFIED.

For the purposes of this sSubpart, being operated under the supervision of a

certified livestock manager shall mean that the certified livestock manager shall

be immediately available to the workers at a livestock waste handling facility

either in person or via telecommunications and shall have the ability to be

physically present at the livestock waste handling facility within one hour ofafter

notification. [510 ILCS 77/30(a)]

Persons may become certified livestock managers by demonstrating an

understanding of and competence for the operation of livestock waste handling

facilities as established in Section 30 of the Livestock Management Facilities

Act [510 ILCS 77] and further described in this Subpart. Livestock Managers

shall establish or re-establish certification when required to do so in accordance

with Section 30 of the Livestock Management Facilities Act [510 ILCS 77].

A livestock manager certified pursuant to the emergency amendment adopted in

R97-14 at 20 Ill. Reg. 14903, effective October 31, 1996 and the emergency

rules adopted in R97-14 at 21 Ill. Reg. xxxxx, effective April x, 1997, shall be

considered as certified pursuant to this Subpart.

For the purposes of this Subpart, the number of animal units served by a

livestock waste handling facility is the maximum design capacity of the

livestock management facility which is being served by the livestock waste

handling facility.

For violations pertaining to the certified livestock manager requirements, the

owner or operator SHALL BE ISSUED A WARNING LETTER FOR THE

FIRST VIOLATION AND SHALL BE REQUIRED TO HAVE A CERTIFIED

MANAGER FOR THE LIVESTOCK WASTE HANDLING FACILITY

WITHIN 30 WORKING DAYS. FOR FAILURE TO COMPLY WITH THE

WARNING LETTER WITHIN THE 30 DAY PERIOD, THE PERSON

SHALL BE FINED AN ADMINISTRATIVE PENALTY OF UP TO $500 BY

THE DEPARTMENT AND SHALL BE REQUIRED TO ENTER INTO AN

AGREEMENT TO HAVE A CERTIFIED MANAGER FOR THE

LIVESTOCK WASTE HANDLING FACILITY WITHIN 30 WORKING

DAYS. FOR FAILURE TO COMPLY WITH THE AGREEMENT TO

HAVE A CERTIFIED MANAGER FOR THE LIVESTOCK WASTE

HANDLING FACILITY WITHIN THE 30 DAY PERIOD OR FOR FAILURE

TO ENTER INTO A COMPLIANCE AGREEMENT, THE PERSON SHALL

BE FINED UP TO $1,000 BY THE DEPARTMENT AND SHALL BE

REQUIRED TO ENTER INTO AN AGREEMENT TO HAVE A CERTIFIED

MANAGER FOR THE LIVESTOCK WASTE HANDLING FACILITY WITH

30 WORKING DAYS. FOR CONTINUED FAILURE TO COMPLY, THE

DEPARTMENT MAY ISSUE AN OPERATIONAL CEASE AND DESIST

ORDER UNTIL COMPLIANCE IS ATTAINED. [510 ILCS 77/30(g)] The

cease and desist order shall be canceled by the Department upon presentation to

the Department of a valid certified livestock manager certificate issued in the

name of the owner, operator, or current employee of the livestock facility.

Section 506.402

Procedures

In addition to the procedures specifically required under this Subpart, the Department may

adopt and promulgate all procedures reasonably necessary to perform its duties and

responsibilities under this Subpart.

SUBPART E: PENALTIES

Section 506.501

General

The penalties for violations of the Livestock Management Facilities Act [510 ILCS 77] and

this Part shall be those as identified in the Livestock Management Facilities Act [510 ILCS 77]

and further described in this Part and Subpart. Warning letters and written notices from the

Department shall be sent via certified mail to the livestock facility owner or operator.

Section 506.502

Cease and Desist Order Procedures

In addition to the procedures specifically required under this Subpart, the Department may

adopt and promulgate by rule all cease and desist order procedures reasonably necessary to

perform its duties and responsibilities under this Subpart.

Section 506.503

Lagoon Registration and Certification Violations

For violations of lagoon registration and certification requirements which occur