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ILLINOIS POLLUTION CONTROL BOARD

May 15, 1997

IN THE MATTER OF:

)

LIVESTOCK WASTE REGULATIONS

)

R97-15 (A)

35 ILL. ADM. CODE 506

)

(Rulemaking - Land)

Adopted Rule. Final Order.

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 pursuant to the

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

et seq.

; adopted as P.A. 89-

456, eff. May 21, 1996). In accordance with the LMFAct and the Illinois Administrative

Procedure Act (APAct) (5 ILCS 100/1-1

et seq.

(1994)), the Board today adopts such

regulations for implementation by the Department of Agriculture.

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 participatory rulemaking process to provide the State, the

agricultural community, environmental associations, and interested citizens with 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, the Illinois Department of Natural Resources (IDNR), the 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

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

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

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.

Due to the intense public and legislative interest in the issues presented by this

rulemaking, the Board held five (5) public hearings on the Department of Agriculture’s

proposed rule. 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.

In addition to the testimony and exhibits received at these hearings, the

Board also received 79 written public comments during this first-notice period.

On March 20,

1997 the Board adopted rules for second notice in this proceeding. (See In the Matter of:

Livestock Waste Regulations 35 Ill. Adm. Code 506, (March 20, 1997) R97-15(A) & (B).)

The testimony, public comments, and exhibits received during the first-notice period

collectively constituted the record upon which the Board based its decision in adopting rules

for second notice.

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

Waste Regulations 35 Ill. Adm. Code 505, (October 29, 1996) R97-14, published at 20 Ill.

Reg. 14903, effective October 31, 1996.) Pursuant to Section 5-45 of the APAct (5 ILCS

100/5-45 (1994)), 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 readopted the emergency rules on March 20, 1997.

(See P.A. 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 505, (March 20, 1997) R97-14, published at 21 Ill. Reg. 4313, effective

March 31, 1997.) The emergency rules will no longer apply upon the effective date of the

rules we adopt here today.

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

rescheduled to February 7, 1997.

The record of the five (5) 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.

“Second notice” is a term used in administrative proceeding to identify the period of time

commencing on the day proposed rules are filed with the Joint Committee on Administrative

Rules and ending 45 days thereafter. (See 5 ILCS 100/5-40(c) (1994).) For a detailed

explanation of the rules adopted for second notice, the Board directs the reader to the Board’s

opinion and order adopting rules for second notice. (See In the Matter of: Livestock Waste

Regulations 35 Ill. Adm. Code 506, (March 20, 1997) R97-15(A) & (B).)

Pursuant to the APAct, the rules were filed on March 21, 1997 with the Joint

Committee on Administrative Rules (JCAR).

Since that time, the Board has received 17

additional public comments which were docketed as Public Comments 80 through 96. While

the Board appreciates the continued comments on this rulemaking, the Board recognizes that it

can only make substantive changes to the proposed rules during the second-notice period in

response to “an objection or suggestion” by JCAR. (5 ILCS 100/5-40(c) (1994).) Because

the Board cannot make changes to the rules based on the public comments received during the

second-notice period, the Board strikes these comments. Additionally, the Board notes that the

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

(collectively the Farm Group) filed a motion to file comments in light of JCAR’s suggestions

on May 5, 1997 (PC 92) and an amended motion on May 6, 1997 (PC 94). On May 13, 1997

the Illinois Stewardship Alliance filed a motion to file comments in light of the Farm Group’s

comments (PC 96). Because the Board is constrained by the APAct to only make changes

during the second-notice period based on the objections or suggestions by JCAR, the Board

denies the pending motions and further strikes the motions as public comments.

JCAR considered the rules at their regularly scheduled meeting on April 15, 1997.

(See 1 Ill. Adm. Code 220.800.) At that public meeting, Board Chairman Claire A. Manning

appeared before the legislative members of JCAR to answer questions regarding the proposed

rules. On issues where the legislators voiced specific suggestions for rule changes, Chairman

Manning agreed to relay those suggestions to the Board for its consideration in adopting final

rules. The minutes of the April 15, 1997 JCAR meeting are hereby made a part of this record

and docketed as Exhibit No. 95.

At the conclusion of the legislators’ questions to Chairman Manning, JCAR declined to

take action on the proposed rules, letting the rules pass through without a vote of objection,

prohibition, or non-objection. By JCAR’s failure to take any action on the rules, the Board

may adopt final rules after expiration of the second-notice period which ended on May 4,

1997. (See 5 ILCS 100/5-40(d) (1994); 1 Ill. Adm. Code 220.1100(a)(1).) Accordingly, the

Board today proceeds to final adoption of these regulations.

As previously noted, pursuant to the APAct, the only changes in the rules that may be

made between second notice and final adoption of the rules are those changes “made in

response to an objection or suggestion of [JCAR].” (5 ILCS 100/5-40(c) (1994).) The Board

today makes several non-substantive and substantive changes to the rules in direct response to

JCAR is a legislative oversight committee that may “examine any proposed rule, amendment

to a rule, and repeal of a rule to determine whether the proposed rule, amendment to a rule, or

repeal of a rule is within the statutory authority upon which it is based; whether the rule,

amendment to a rule, or repeal of a rule is in proper form; and whether the notice was given

before its adoption, amendment, or repeal and was sufficient to give adequate notice of the

purpose and effect of the rule, amendment, or repeal. In addition, [JCAR] may consider

whether the agency has considered alternatives to the rule that are consistent with the stated

objectives of both the applicable statutes and regulations and whether the rule is designed to

minimize economic impact on small businesses.” (5 ILCS 100/5-110(a) (1994).)

specific suggestions by JCAR.

The suggestions for substantive change that the Board

discusses in this opinion came either from JCAR staff in the normal course of the second-

notice process or from the legislators themselves at the JCAR meeting. A discussion of the

specific issues raised by JCAR, as well as the Board’s treatment of those issues, follows. A

summary of the Board’s final rules follows that discussion.

SUMMARY OF SECOND NOTICE CHANGES

Section 506.101 Applicability

The first substantive change results from a suggestion of JCAR staff that the Board

more clearly explain the relationship of these rules to the Board’s emergency rules, which were

promulgated on October 31, 1996 to implement certain provisions of the LMFAct and

repromulgated on March 20, 1997. (See In the Matter of: Emergency Rulemaking:

Livestock Waste Regulations 35 Ill. Adm. Code 505, (October 29, 1996) R97-14, published at

20 Ill. Reg. 14903, effective October 31, 1996; see also In the Matter of: Emergency

Rulemaking: Repromulgation of Livestock Waste Regulations 35 Ill. Adm. Code 505, (March

20, 1997) R97-14, published at 21 Ill. Reg. 4313, effective March 31, 1997.) Accordingly,

the Board includes a note in Section 506.101 which makes clear that upon the effective date of

these rules, the emergency rules are no longer applicable. The Board agrees that the inclusion

of such a note is important to reduce any confusion that may result regarding the applicability

of the emergency rules after today’s final adoption of permanent rules.

Section 506.101 Definitions

“New facility.” While the Board’s final rules will continue to include the statutory

definition of “new facility” without clarification, the Board provides the following discussion

for purposes of future interpretation of this definition at the request of JCAR. During the

JCAR meeting, the committee co-chairman suggested that the Board clarify the definition of

“new facility” as it relates to the expansion of facilities. Specifically, questions were raised as

to when the expansion of an existing facility constitutes a new facility for purposes of bringing

into play the setback provisions of the LMFAct.

The definition of “new facility” contained in the Board’s rules is taken virtually

verbatim from the LMFAct and the Department of Agriculture’s rule proposal. It provides:

“New facility” means a livestock management facility or a livestock waste

handling facility the construction or expansion of which is commenced on or

after May 21, 1996 (the effective date of the Livestock Management Facilities

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

The Board notes that while several members of JCAR expressed concern with certain aspects

of the rules, the Board can only deal with those concerns which resulted in specific objections

or suggestions. (See 5 ILCS 100/5-40(c) (1994).)

of a comparable entirely new facility shall not be deemed a new facility as used

in the Livestock Management Facilities Act. [510 ILCS 77/10.45]

(510 ILCS 77/10.45.) During the Board’s five (5) public hearings and extensive public

comment period, the Board received no specific comments to amend or clarify the definition,

nor did we hear any objections to including the definition in the rules. Nonetheless, the Board

agrees that the language is ambiguous, and because a clear understanding of its meaning is

important to a livestock producer who wishes to expand, we provide the following background

and interpretation.

The portion of the “new facility” definition dealing with expansion appears to have

derived, in relevant part, from the Board’s existing agriculture-related regulations, commonly

known as the Board’s Subtitle E regulations (see 35 Ill. Adm. Code 501.246), where a very

similar definition of livestock facility expansion exists for the same purpose it exists in the

LMFAct.

Upon adoption of that definition in 1991, the Board observed that the definition

attempted to “strike a balance between the rights of the producer to pursue the growth of his

business and the rights of an established population to be free from unreasonable additional air

pollution.” (See In the Matter of: Amendments to 35 Ill. Adm. Code 501 Agriculture-

Related Pollution (Management of Livestock Wastes), (May 9, 1991) R90-7, slip op. 5.)

The Board believes that the legislature in adopting the definition of “new facility” in

the LMFAct also attempted to strike that balance. The Board appreciates the concerns

expressed by JCAR and agrees that this definition, as contained in the Board’s rules, should

not be read in a manner which would inhibit the legitimate expansion of existing family farms.

Further, the Board agrees with JCAR that, as the definition reads, the two-year period is not a

one-time limitation on expansion, but would be rolling, or reoccurring. Therefore, for the

setback provisions to apply to an existing facility, that facility would have to, in any two-year

period, expand beyond “50% of the fixed capital cost of a comparable entirely new facility.”

JCAR also raised questions concerning various potential interpretations of “fixed

capital cost” and “comparable entirely new facility.” Since the second-notice opinion of the

Board did not deal with these concepts, Chairman Manning was hesitant to offer a public

interpretation at the JCAR meeting. Because the record in this rulemaking is devoid of any

discussion of these concepts, the Board is hesitant to offer an interpretation in this opinion.

This is especially true given that, under the LMFAct, the implementation of these rules is

within the province of the Department of Agriculture, and the Board will have no ongoing

In Section 501.246 of the Board’s rules, the term “expansion” is defined as

“[c]ommencement of construction at a livestock management facility or livestock waste-

handling facility where the fixed capital cost of the new components constructed within a 2-

year period exceeds 50% of the fixed capital cost of a comparable entirely new facility.” (See

35 Ill. Adm. Code 501.246.) That definition was derived from the definition of a “potential

secondary source” contained in the Environmental Protection Act (EPAct) (415 ILCS 5/3.60

(1994)).

interpretative role.

The Board suggests that, to the extent further rulemaking is necessary,

such rulemaking could be pursued by the Department of Agriculture as a proposal to the Board

in Docket B.

“Occupied Residence.” Today, the Board changes the definition of “occupied

residence” to reflect concerns raised to JCAR and raised to the Board by JCAR staff. As

proposed for second notice, the Board’s definition of occupied residence provided:

“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.”

(Section 506.103.) In an attempt to clarify the phrase “suitable for human occupancy” and to

alleviate concerns regarding occupancy rate and time, the Board, after discussions with JCAR

staff, adopts the following definition of “occupied residence”:

“Occupied residence” means a house or other type of shelter that is intended or

used for human occupancy and has been occupied by humans for more than a

total of six months in the last two years at that location. For the purposes of

this definition, “intended or used for human occupancy” means running water

and sanitation are provided within the residence.

(Section 506.103.)

During the JCAR meeting, a JCAR member requested that the Board consider further

amending the definition to include as “occupied residences” those residences that are under

construction. While the Board appreciates the member’s concern regarding houses under

The Board’s authority in this rulemaking arises primarily pursuant to Section 55(c) of the

LMFAct. Unlike the Board’s authority to review contested decisions of the IEPA under the

EPAct (415 ILCS 5/5(d) (1994)), the Board has no role to review final administrative

determinations by the Department of Agriculture’s under the LMFAct.

The Department of Agriculture’s proposed rules did not include rules establishing the level of

surety required for the closure of lagoons. Rather, the Department of Agriculture requested

that it be allowed to adopt the necessary rules. The Board, however, found that the LMFAct

required that financial surety rules be adopted by the Board. (See In the Matter of: Livestock

Waste Regulations 35 Ill. Adm. Code 506, (March 20, 1997) R97-15(A) & (B), slip op. 9.)

Because no proposal had been submitted to the Board, the Board severed the docket in R97-15

into Dockets A and B. While Docket B will contain the specific procedures and criteria

necessary to determine the level of surety required, pursuant to the LMFAct, the Board also

indicated that the Department of Agriculture could submit in this rulemaking any additional

rule necessary to implement specific provisions of the LMFAct. (See In the Matter of:

Livestock Waste Regulations 35 Ill. Adm. Code 506, (March 20, 1997) R97-15(A) & (B), slip

op. 10.)

construction, but not yet occupied, the Board declines to make the suggested modification.

The term “occupied residence” is statutory; only the Board’s definition is regulatory. The

Board cannot change by regulation that which is set forth in statute. Given the plain language

of the term “occupied residence,” we cannot make the requested change to include in the

definition residences that are under construction, but not yet occupied.

Section 506.301 Purpose

JCAR staff noted that certain language adopted for second notice regarding waste

management plans was potentially inconsistent with the LMFAct. (See 510 ILCS 77/20(f)(4).)

That language, contained in the Department of Agriculture’s original rule proposal and

adopted by the Board at second notice without modification, provided:

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 the growing season.

(Section 506.301.) While the above rule provides that the waste shall not exceed the

agronomic nitrogen requirements of the crop to be grown during the growing season, the

LMFAct more specifically provides that application of livestock waste shall not exceed the

agronomic nitrogen demand of the crops to be grown when averaged over a five-year period.

To remove any inconsistency, the Board amends the definition to provide:

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

demand of the crops to be grown when averaged over a 5-year period [510

ILCS 77/20(f)(4)].

(Section 506.301.)

Section 506.703 Initial Determination of Setbacks

JCAR raised two issues for the Board to consider that relate to the determination of

whether an owner of a livestock facility had complied with the setbacks distances. The first

issue relates to how one determines who the owner of neighboring properties might be for

purposes of neighbor notification in the setback determination process. The second issue

relates to the question of how setback distances are measured from common places of

assembly.

The setback process developed in the Board’s rules at second notice was the product of

the information gained from the record of the Board’s five (5) public hearings. During those

hearings, an issue arose concerning 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 this type of situation did not reoccur,

participants urged that the Board adopt a formal mechanism to preserve the rights of both the

neighboring landowner and the livestock producer.

Based on the record at second notice, the Board added a new section to the regulations

that established 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.

Specifically, these new provisions provided 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 owner or operator of the facility is also required to 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. 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. 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.

During the JCAR meeting, the committee co-chairman asked the Board to clarify that

the owner of property located in the setback area who was to be mailed the notice of intent to

construct was to be identified according to the tax rolls. The Board believes that in order to

reduce any confusion that may result as to how to identify the owner of land in the setback

area, a modification to the provision is warranted. The Board therefore modifies the language

to make clear that the owner(s) of the property located in the setback distances are presumed,

unless established to the contrary, “to be the person shown by the current collector’s warrant

book to be the party in whose name the taxes were last assessed.” (See Section 506.703(c).)

Also, at the JCAR meeting, Chairman Manning was asked whether the process for

measuring from common places of assembly when the activity is primarily outdoors could be

changed to reflect that the owner(s) of land in the setback area are required to identify the

“first or closest” common place of assembly, rather than having the Department of Agriculture

make that determination.

Specifically, it was suggested that the owner or operator of a

The question posed to Chairman Manning concerning the process for measuring from a

facility or the Department of Agriculture contact the owner of the land in the setback area and

ask them to identify the closest point of assembly where 50 or more people would be

congregating. Chairman Manning stated at the JCAR meeting that the Board had extensively

debated the issues surrounding how setbacks should be measured from a “common place of

assembly” when the activity is primarily outdoors during deliberations concerning the second-

notice opinion. Nonetheless, the Chairman agreed to bring this specific aspect of the issue

back to the Board for its consideration.

Based on the change suggested by JCAR, the Board has again deliberated over the issue

of measurement of “common place of assembly” when the place is an outdoor area frequented

by 50 or more people a week. As proposed at second notice, the rules provided that the legal

property lines of a common place of assembly were to serve as the measuring point when

determining setback distances if areas were used primarily for people’s outdoor activities. The

Board reached this conclusion after much thought and extensive deliberation. Ultimately, the

Board attempted to strike a balance between the right of the livestock producer to raise

livestock and the right of the public to be free from potential environmental concerns

associated with livestock facilities. We did this by indicating that waivers could be obtained

from owners of residences, non-farm businesses, and common places of assembly. While the

process of obtaining waivers may seem burdensome, the Department of Agriculture may

always provide assistance when dealing with waivers from State, federal, and local units of

government.

The Board also attempted to provide a rule that was workable. Although it was stated

at the JCAR meeting that the suggested change is only one step beyond the Board’s rule, the

Board has concerns that the recommended process may not work as easily as suggested. First,

the effect of the suggestion is that it shifts the burden to the neighboring landowners to identify

common places of assembly on the land in the setback area. Second, the Board notes that

under the Board’s proposal, the setback is measured from a point that already exists and may

be easily identified -- the property line. JCAR’s suggestion, by contrast, would require that

measurement to be made from boundaries established by the neighboring landowner upon

request. The latter approach seems much more likely to give rise to disputes and

common place of assembly was based on the Board’s determination in the second-notice

opinion and order that the legal property lines of a common place of assembly, when the

primary activity at the common place of assembly was an outdoor activity, were to serve as the

measuring point when determining setback distances. (See In the Matter of: Livestock Waste

Regulations 35 Ill. Adm. Code 506, (March 20, 1997) R97-15(A) & (B), slip op. 14-19.) For

an outdoor place to qualify as a common place of assembly, the place must be frequented by at

least 50 persons at least once per week, if the place operates 52 weeks out of the year. If the

place operates less than 52 weeks per year, it must be 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 Board emphasizes that the definition of common place of

assembly was not intended to include places that are only operational for one day out of the

year, but instead encompasses those places that are open on a seasonal or weekly basis.

administrative difficulties for all concerned, which is what the Board sought to avoid in

deciding to measure the setback from the property line.

The Board understands the concerns expressed by those regarding measuring setbacks

from the property lines of common places of assembly where the activity is primarily

outdoors. However, based on the record before us, we cannot change the process established

at second notice at this late stage in the rulemaking proceeding without additional public

comment. The process ultimately adopted was based on the public comments, exhibits, and

testimony received. Therefore, additional hearing and public comment on the proposal is

necessary to ensure that any amendment is premised on a fully developed record.

Finally, the Board’s immediate decision to not change the rule does not foreclose

changing it in the future. After final adoption of these rules, a petition may be filed with the

Board to amend the rules. (See 415 ILCS 5/28 (1994); 35 Ill. Adm. Code 102.120, 102.160.)

Moreover, if it is believed that the current process is unduly burdensome on the owners or

operators of a livestock facility, the Department of Agriculture can submit proposed language

to amend this process in the R97-15(B) rulemaking docket or the legislature can provide

clarification of how to measure from the corner of a common place of assembly.

SUMMARY OF THE RULES

The Board today adopts rules to implement the provisions of the LMFAct for final

notice. The rules adopted today are substantially the same as those adopted for second notice,

with the exceptions noted above. In adopting these rules, the Board is cognizant, as we were

in adopting the emergency rules and the rules for second notice, 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 recognizes 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 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 EPAct 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 (1994).) A salient principle

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.

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, the rules set forth administrative requirements such as

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

administrative determinations under these rules. The rules also contain a section 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, attempted to provide 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

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).

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.

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 of Agriculture 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, as previously noted, opened a Docket B for the

purpose of receiving a proposal from interested parties, including the Department of

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

Representative Myers).

Agriculture, on this subject as required by the LMFAct. (See In the Matter of: Livestock

Waste Regulations 35 Ill. Adm. Code 506, (March 20, 1997) R97-15(A) & (B), slip op. at 9.)

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.

Regarding odor, the Board believes that the rules 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.

CONCLUSION

The Board today adopts regulations to implement the LMFAct. The Board finds that

the LMFAct and the regulations adopted herein aid in ensuring 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 Clerk of the Board cause the filing of the following

adopted rules for final notice and publication in the

Illinois Register

with the Secretary of

State, pursuant to Section 5-40 of the APAct.

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

Targeted Crop Yield Goal

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

SUBPART E: PENALTIES

Section

506.501

General

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

Initial 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 (see P.A. 89-456, effective May 21, 1996 [510 ILCS

77/1]).

SOURCE: Adopted in R97-15 at 21 Ill. Reg. _________, effective ____________________.

NOTE: In this Part, superscript numbers or letters are denoted by parentheses; subscript are

denoted by brackets; and SUM means the summation series or sigma function as used in

mathematics.

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 Plan, 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.

BOARD NOTE: Upon the effective date of this Part, the emergency rules at 35 Ill. Adm.

Code 505, Livestock Waste Regulations, will no longer apply. This Part will take the place of

those emergency rules.

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.

LIVESTOCK MANAGEMENT Facilities AT EDUCATIONAL INSTITUTIONS,

LIVESTOCK PASTURE OPERATIONS, facilities 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 Facilities Act or the requirements of this Part. [510 ILCS

77/10.30]

“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 May 21, 1996 (THE

EFFECTIVE DATE OF THE Livestock Management Facilities 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 Facilities 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 house or other type of shelter that is intended or used

for human occupancy and has been occupied by humans for more than a total of six

months in the last two years at that location. For the purposes of this definition,

“intended or used for human occupancy” means running water and sanitation are

provided within the residence.

“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. [510 ILCS 77/10.60] 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. For the

purpose of setback requirements, common places of assembly or non-farm businesses

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

common place of assembly or a non-farm business 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 reduced 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.

“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.

“Design of Anaerobic Lagoons for Animal Waste Management”, ASAE

Standards 1993, ASAE EP403.2, 1993, pp. 543-546.

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.

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. 5, June 1992.

This Section incorporates no later amendments or editions.

Section 506.105

Recordkeeping

The Department shall maintain a file for all facilities registering or otherwise filing

documents with the Department under these regulations.

The file shall 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 Sections 15(a) and (e) of the Act [510 ILCS 77/15(a), (e)] or this Part

(Sections 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 requirements.

The Department shall notify the applicant in writing of its determination within 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 requirements.

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 rules adopted in R97-14 at 21 Ill. Reg. 4313, effective March 31,

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.

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 subsection (b), (c) or (d) of this

Section shall be conducted under the direction of a Licensed Professional

Engineer or Licensed Professional Geologist. Upon completion of the site

investigation as required under subsection (b), (c) or (d) of this Section, the

supervising Licensed Professional Engineer or Licensed 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 PRIVATE OR

PUBLIC POTABLE WELL;

The location and DISTANCE TO THE CLOSEST OCCUPIED

PRIVATE RESIDENCE (OTHER THAN ANY OCCUPIED BY

the OWNER OR OPERATOR);

The location and DISTANCE TO THE NEAREST

STREAM;

The location and DISTANCE TO THE NEAREST

POPULATED AREA;

The location and 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

Licensed 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. [510 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 a 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 uppermost 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, 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:

Exterior 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

5.4.1.1, ASAE EP403.2, ASAE Standards 1993, pp. 543-545;

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 in accordance with ASAE EP403.2, ASAE

Standards 1993, p. 543;

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 5.4.1.4, ASAE EP403.2, ASAE Standards 1993, p.

545;

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 not

collecting 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 Environmental Protection Act

[415 ILCS 5] 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 at

least 60% of the design volume 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, MODIFY OR EXCEED THESE STANDARDS IN ORDER

TO MEET SITE SPECIFIC OBJECTIVES. The owner or operator shall

demonstrate that such modification 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, MODIFY OR EXCEED THESE STANDARDS IN ORDER

TO MEET SITE SPECIFIC OBJECTIVES. The owner or operator shall

demonstrate that such modification 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.

The 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 (3) 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)]

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.

The Department shall review the submittal provided pursuant to subsection (g)

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 (g) of this Section or to implement the response action approved or

modified by the Department shall be considered 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].

THE OWNER OR OPERATOR OF THE EARTHEN LIVESTOCK LAGOON

MAY, upon written request and WITH written APPROVAL FROM THE

DEPARTMENT, MODIFY OR EXCEED THESE STANDARDS IN ORDER

TO MEET SITE SPECIFIC OBJECTIVES. The owner or operator shall

demonstrate that such modification 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 or 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

(a)

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

(a)

OF SECTION 15 of the

Livestock Management Facilities Act [510 ILCS 77/15] 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 after

RECEIPT OF THE NOTICE. THE DEPARTMENT MAY INSPECT SUCH

LAGOON AND REQUIRE COMPLIANCE IN ACCORDANCE WITH

SUBSECTIONS

(a)

AND

(b)

of Section 15 of the Livestock Management

Facilities Act [510 ILCS 77/15] 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 Section 15 of the Livestock Management Facilities Act

[510 ILCS 77/15] 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 addressing violations occurring

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 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 addressing 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 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 and this Part.

Section 506.209

Lagoon Closure and Ownership Transfer

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 77/15(e)] 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 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.

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.

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 DEMAND OF THE CROPS TO BE GROWN

WHEN AVERAGED OVER A 5-YEAR PERIOD [510 ILCS 77/20(f)(4)].

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

77/20] 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 after 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

NOTWITHSTANDING the above provisions, A LIVESTOCK

MANAGEMENT FACILITY SUBJECT TO THIS SUBSECTION

)

MAY BE OPERATED ON AN INTERIM BASIS BUT NOT TO

EXCEED 6 MONTHS AFTER THE EFFECTIVE DATE OF this Part

TO ALLOW FOR THE OWNER OR OPERATOR OF THE FACILITY

TO DEVELOP A WASTE MANAGEMENT PLAN. [510 ILCS

77/20(c)]

THE 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 targeted crop yield 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 and the

emergency rules adopted in R97-14 at 21 Ill. Reg. 4313, effective March 31,

1997, 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, anticipated crops for the

current year, and anticipated crops for the next two years after the current year;

Targeted crop yield goal for each crop in each field;

Estimated nutrient 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

targeted crop yield 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) [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 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

[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 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 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. 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.

Section 506.307

Targeted Crop Yield Goal

The targeted 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 targeted 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 listing of sources of data shall be utilized to determine the

targeted crop yield goal.

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 a 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

targeted 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 506.309

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.

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 targeted crop yield 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 after 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 targeted 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 targeted yields of the crop to be grown.

Nitrogen requirements based on targeted 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 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 Subpart, 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 after

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.

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. 4313, effective March 31, 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 WITHIN 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.

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 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.

SUBPART F: FINANCIAL RESPONSIBILITY

Section 506.601

Applicability

OWNERS OF NEW OR MODIFIED LAGOONS REGISTERED UNDER THE

PROVISIONS OF the Livestock Management Facilities Act [510 ILCS 77] SHALL

ESTABLISH AND MAINTAIN EVIDENCE OF FINANCIAL RESPONSIBILITY TO

PROVIDE FOR THE CLOSURE OF THE LAGOONS AND THE PROPER DISPOSAL OF

THEIR CONTENTS WITHIN THE TIME PROVISIONS OUTLINED IN Section 17 of the

Livestock Management Facilities Act. [510 ILCS 77/17]

Section 506.602

Evidence of Financial Responsibility

FINANCIAL RESPONSIBILITY MAY BE EVIDENCED BY ANY

COMBINATION OF THE FOLLOWING:

COMMERCIAL OR PRIVATE INSURANCE;

GUARANTEE;

SURETY BOND;

LETTER OF CREDIT; or

CERTIFICATE OF DEPOSIT OR DESIGNATED SAVINGS

ACCOUNT. [510 ILCS 77/17]

Upon a change in the ownership of a livestock management facility or livestock

waste handling facility involving a lagoon, the new owner shall establish and

maintain evidence of financial responsibility at the same level of surety as the

previous owner.

Section 506.603

Level of Surety

THE LEVEL OF SURETY REQUIRED SHALL BE DETERMINED BY

RULE AND BE BASED UPON THE VOLUMETRIC CAPACITY OF THE

LAGOON. [510 ILCS 77/17]

SUBPART G: SETBACKS

Section 506.701

Applicability

All new livestock management or livestock waste handling facilities shall

comply with the setback distances as established in Section 35 of the Livestock

Management Facilities Act [510 ILCS 77/35] and with the provisions of this

Subpart.

Commencement of operations at a facility reconstructed within two years 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 the residence.

Section 506.702

Procedures

GRANDFATHER PROVISION: FACILITIES IN EXISTENCE PRIOR TO

JULY 15, 1991. LIVESTOCK MANAGEMENT FACILITIES AND

LIVESTOCK WASTE HANDLING FACILITIES IN EXISTENCE PRIOR TO

JULY 15, 1991 SHALL COMPLY WITH SETBACKS IN EXISTENCE

PRIOR TO JULY 15, 1991, AS SET FORTH IN THE ILLINOIS

ENVIRONMENTAL PROTECTION ACT AND 35 Ill. Adm. Code 501.402.

[510 ILCS 77/35(a)]

GRANDFATHER PROVISION: FACILITIES IN EXISTENCE ON

EFFECTIVE DATE AND AFTER JULY 15, 1991. LIVESTOCK

MANAGEMENT FACILITIES AND LIVESTOCK WASTE HANDLING

FACILITIES IN EXISTENCE ON May 21, 1996 (THE EFFECTIVE DATE

OF the Livestock Management Facilities ACT) BUT AFTER JULY 15, 1991

SHALL COMPLY WITH SETBACKS IN EXISTENCE PRIOR TO May 21,

1996, AS SET FORTH IN THE ILLINOIS ENVIRONMENTAL

PROTECTION ACT AND 35 Ill. Adm. Code 501.402. [510 ILCS 77/35(b)]

NEW LIVESTOCK MANAGEMENT OR LIVESTOCK WASTE HANDLING

FACILITIES. ANY NEW FACILITY SHALL COMPLY WITH THE

FOLLOWING SETBACKS: [510 ILCS 77/35(c)]

Residence and Non-Farm Residence: FOR PURPOSES OF

DETERMINING SETBACK DISTANCES, MINIMUM DISTANCES

SHALL BE MEASURED FROM THE NEAREST CORNER OF THE

RESIDENCE TO THE NEAREST CORNER OF THE EARTHEN

WASTE LAGOON OR LIVESTOCK MANAGEMENT FACILITY,

WHICHEVER IS CLOSER.

Common Place of Assembly or Non-Farm Business: For the purposes

of determining setback distances between a common place of assembly

or non-farm business:

When the primary activity at a common place of assembly or

non-farm business is an outdoor activity, minimum distances

shall be measured from the nearest corner of the earthen waste

lagoon or livestock management facility to the nearest point on

the legal property line of the common place of assembly or non-

farm business.

When the primary activity at a common place of assembly or

non-farm business is not an outdoor activity and is an indoor

activity, minimum distances shall be measured from the nearest

corner of the earthen waste lagoon or livestock management

facility to the nearest corner of the structure where the indoor

activity takes place.

A LIVESTOCK MANAGEMENT FACILITY OR LIVESTOCK

WASTE HANDLING FACILITY SERVING LESS THAN 50

ANIMAL UNITS SHALL BE EXEMPT FROM SETBACK

DISTANCES AS SET FORTH IN the Livestock Management Facilities

ACT BUT SHALL BE SUBJECT TO RULES PROMULGATED

UNDER THE ILLINOIS ENVIRONMENTAL PROTECTION ACT.

FOR A LIVESTOCK MANAGEMENT FACILITY OR WASTE

HANDLING FACILITY SERVING 50 OR GREATER BUT LESS

THAN 1,000 ANIMAL UNITS, THE MINIMUM SETBACK SHALL

BE 1/4 MILE FROM THE NEAREST OCCUPIED NON-FARM

RESIDENCE AND 1/2 MILE FROM THE NEAREST POPULATED

AREA.

FOR A LIVESTOCK MANAGEMENT FACILITY OR LIVESTOCK

WASTE HANDLING FACILITY SERVING 1,000 OR GREATER

BUT LESS THAN 7,000 ANIMAL UNITS, THE SETBACK IS AS

FOLLOWS:

FOR A POPULATED AREA, THE MINIMUM SETBACK

SHALL BE INCREASED 440 FEET OVER THE MINIMUM

SETBACK OF 1/2 MILE FOR EACH ADDITIONAL 1,000

ANIMAL UNITS OVER 1,000 ANIMAL UNITS.

FOR ANY OCCUPIED RESIDENCE, THE MINIMUM

SETBACK SHALL BE INCREASED 220 FEET OVER THE

MINIMUM SETBACK OF 1/4 MILE FOR EACH

ADDITIONAL 1,000 ANIMAL UNITS OVER 1,000 ANIMAL

UNITS.

FOR A LIVESTOCK MANAGEMENT FACILITY OR LIVESTOCK

WASTE HANDLING FACILITY SERVING 7,000 OR GREATER

ANIMAL UNITS, THE SETBACK IS AS FOLLOWS:

FOR A POPULATED AREA, THE MINIMUM SETBACK

SHALL BE 1 MILE.

FOR ANY OCCUPIED RESIDENCE, THE MINIMUM

SETBACK SHALL BE 1/2 MILE.

REQUIREMENTS GOVERNING THE LOCATION OF A NEW LIVESTOCK

MANAGEMENT FACILITY AND NEW LIVESTOCK WASTE-HANDLING

FACILITY AND CONDITIONS FOR EXEMPTIONS OR COMPLIANCE

WITH THE MAXIMUM FEASIBLE LOCATION AS PROVIDED IN 35 Ill.

Adm. Code 501.402 CONCERNING AGRICULTURE Related POLLUTION

SHALL APPLY TO THOSE FACILITIES IDENTIFIED IN SUBSECTIONS

(b) AND (c) OF THIS SECTION. WITH REGARD TO THE MAXIMUM

FEASIBLE LOCATION REQUIREMENTS, ANY REFERENCE TO A

SETBACK DISTANCE IN 35 Ill. Adm. Code 501.402 SHALL MEAN THE

APPROPRIATE DISTANCE AS SET FORTH IN THIS SECTION. [510

ILCS 77/35(d)]

SETBACK CATEGORY SHALL BE DETERMINED BY THE DESIGN

CAPACITY IN ANIMAL UNITS OF THE LIVESTOCK MANAGEMENT

FACILITY. [510 ILCS 77/35(e)]

SETBACKS MAY BE DECREASED WHEN INNOVATIVE DESIGNS AS

APPROVED BY THE DEPARTMENT ARE INCORPORATED INTO THE

FACILITY. [510 ILCS 77/35(f)]

An owner or operator shall request a setback decrease in writing prior to

construction.

An owner or operator shall attach to the request for decrease a

certification by a Licensed Professional Engineer that in the professional

judgment of the Licensed Professional Engineer the innovative designs

incorporated into the facility will provide more odor protection than the

original setbacks.

The Department shall notify the owner or operator of its determination

within 30 days after the receipt of the request for decrease. In approving

a reduction in setbacks due to innovative designs, the Department shall

specifically find that such use of an innovative design will provide more

odor protection than the original setbacks.

Where the Department grants such a decrease from the setbacks, the

Department must maintain a file which includes all supporting data and

justification which it relied upon in making its determination. This file

is subject to public inspection.

A SETBACK 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)] A setback also

may be decreased when waivers are obtained from owners of non-farm

businesses or common places of assembly that are located in the setback area.

An owner or operator request for a setback decrease shall be in writing

and submitted to the Department prior to construction.

An owner or operator shall attach to the request copies of the written and

notarized waivers from all the owner(s) of the residence(s), non-farm

business(es), and common place(s) of assembly that are located within

the setback area.

Within 30 days after receipt of the request and waivers, the Department

shall notify the owner or operator in writing of the setback decrease.

When such a decrease from the setbacks is requested, the Department

must maintain a file which includes all supporting data and justification

concerning the setback decrease. This file is subject to public

inspection.

Section 506.703

Initial Determination of Setbacks

The requirements of this Section do not apply to new livestock management facilities or new

livestock waste handling facilities serving less than 50 animal units.

An owner or operator shall file a notice of intent to construct which meets the

informational requirements of subsection (b) of this Section for a new livestock

management facility or new livestock waste handling facility with the

Department prior to construction to establish an initial determination of

setbacks.

The notice of intent to construct shall contain a legal description of the land on

which the livestock facility will be constructed; the name(s) and addresses of the

owner(s) or operator(s) of the facility; the type and size of the facility and

number of animal units; the names and addresses of the owner(s), including

local, State and federal governments, of the property located within the setback

area; the distance to the nearest populated area, residence, non-farm business,

and common place of assembly; a map or sketch showing the proposed facility

and setbacks; and a statement identifying whether a request for decrease in

setbacks, pursuant to Section 506.702(f) or (g), has been sought and whether

the request has been granted or denied yet.

The owner or operator shall mail by certified mail the notice of intent to

construct to the owner(s) of the property located within the setback distances.

The owner(s) of the property located within the setback distances are presumed,

unless established to the contrary, to be the person shown by the current

collector’s warrant book to be the party in whose name the taxes were last

assessed.

Within 30 days after receipt of the notice to construct, the Department shall

notify the owner or operator in writing whether the setback distances have been

met.

The date the notice of intent to construct is filed with the Department establishes

the base date for the determination of whether residences, non-farm businesses,

or common places of assembly exist for setback purposes and shall remain the

base date if construction begins within one year following receipt of the

Department’s determination or if a lagoon registration form is filed with the

Department within one year after receipt of the Department’s determination of

compliance with the setback distances.

If the Department determines that the owner or operator has complied with the

setback requirements, later constructed or erected residences, non-farm

businesses, or common places of assembly cannot operate to alter the setback as

initially determined, subject to the limitation in subsection (e) of this Section.

Where an intent to construct has been filed, the Department must maintain a file

which includes all filings and supporting data and justification which it relied

upon in making its determination regarding compliance with the setback

distances. This file is subject to public inspection.

Section 506.704

Penalties

For violations of the setback distance requirements, the Department may issue

one of the following to the owner or operator of the livestock management

facility or livestock waste handling facility:

If during construction, a cease and desist order which prohibits further

construction of the livestock management facility or livestock waste

handling facility, prohibits entry of livestock into the livestock

management facility, and prohibits use of the livestock waste handling

facility; or

An operational cease and desist order.

A cease and desist order issued by the Department pursuant to subsection (a) of

this Section shall be canceled by the Department pursuant to the following:

Submission to the Department of a valid waiver as provided for in

Section 506.702(g) of this Subpart by the livestock management facility

owner or operator or the livestock waste handling facility owner or

operator; or

Verification by the Department of compliance with the appropriate

setback distances as described in Section 35 of the Livestock

Management Facilities Act [510 ILCS 77/35].

IT IS SO ORDERED.

Board Members R.C. Flemal and G.T. Girard dissented.

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

the above opinion and order was adopted on the 15th day of May, 1997, by a vote of 4-2.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board