R97020D.PDF

ILLINOIS POLLUTION CONTROL BOARD

November 20, 1997

IN THE MATTER OF:

)

R97-20

RCRA SUBTITLE D UPDATE, USEPA

)

(Identical-in-Substance Rulemaking)

REGULATIONS (July 1, 1996 through

)

(Solid Waste - Landfill)

December 31, 1996)

)

Adopted Rule. Final Order.

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

Pursuant to Sections 7.2 and 22.40(a) of the Environmental Protection Act (Act), 415

ILCS 5/7.2 and 22.40(a) (1996), the Board amends the Resource Conservation and Recovery

Act of 1976 Subtitle D, 42 U.S.C §§ 6941-6949, (RCRA Subtitle D) municipal solid waste

landfill regulations. As discussed more fully below, the amendments incorporate revisions to

the federal financial assurance requirements applicable to units of local government that own

or operate municipal solid waste landfills (MSWLFs). They also incorporate a very recent

federal amendment that essentially allows the states to relax certain requirements for small

landfills. The amendments also follow up on the amendments adopted August 3, 1995, in

RCRA Subtitle D Update, Delayed Effective Date of USEPA Financial Assurance Regulations

(4-7-95) (Aug. 3, 1995), R95-13, by making further revisions in partial response to P.A. 89-

200, which was effective January 1, 1996.

Section 22.40(a) provides for quick adoption of regulations that are identical in

substance to federal RCRA Subtitle D regulations adopted by the United States Environmental

Protection Agency (USEPA) to implement Sections 4004 and 4010 of the RCRA, 42 U.S.C.

§§ 6944 and 6949a, and it provides that Title VII of the Act and Section 5 of the

Administrative Procedure Act (APA), 5 ILCS 100/5-35 and 5-40 (1996), shall not apply.

Because this rulemaking is not subject to Section 5 of the APA, it is not subject to first notice

or to second notice review by the Joint Committee on Administrative Rules (JCAR). The

federal RCRA Subtitle D regulations are found at 40 CFR 258.

Section 7.2(b) of the Act requires the Board to complete its identical-in-substance

rulemaking actions within one year of the date of the earliest federal amendments involved in a

docket. In this docket, the earliest federal action requiring Board action was that of November

27, 1996. That means that the Board must complete its rulemaking activity in this docket prior

to November 27, 1997.

FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING

This proposal includes certain federal amendments that occurred in the period of July 1,

1996, through December 31, 1996. USEPA amended its RCRA Subtitle D regulations three

times during that period. The federal amendments during the period are as follows:

Federal Action

Summary

July 1, 1996

(61 Fed. Reg. 34251)

Amendments to Classification Criteria for Solid Waste

Disposal Facilities. USEPA amended its RCRA Subtitle

C hazardous waste rules and its RCRA Subtitle D rules at

40 CFR 257 to require that conditionally exempt small

quantity generator waste be disposed in facilities that meet

certain minimum criteria.

September 25, 1996

(61 Fed. Reg. 50409)

Re-Establishment of the Groundwater Monitoring

Exemption for Certain Small MSWLFs. USEPA

amended its RCRA Subtitle D MSWLF rules to re-

establish the groundwater monitoring exemption for

certain small landfills in dry or remote areas that accept

less than 20 tons of waste for disposal per day.

November 27, 1996

(61 Fed. Reg. 60327)

Additional Financial Assurance Mechanisms for Local

Government MSWLF Owners and Operators. USEPA

amended its RCRA Subtitle D MSWLF rules to allow

alternative mechanisms for demonstrating financial

assurance.

In addition to the above actions that occurred in the nominal time-frame of this docket,

the Board has included a very recent action that would normally come under the docket for the

period of July 1, 1997, through December 31, 1997, which has not even been reserved as yet.

The Board has made this inclusion because the federal action at issue allows the relaxation of

certain MSWLF requirements for certain small landfills. Where possible, the Board tries to

include such regulatory relief, even if it appears out of the normal sequence. The later federal

action included is as follows:

Federal Action

Summary

July 29, 1997

(62 Fed. Reg. 40707)

Amendments that Allow the States to Relax Certain

Operating Requirements for Small MSWLFs. USEPA

amended its RCRA Subtitle D MSWLF rules by a direct

final rule to allow the states to grant relief to certain

MSWLF facilities that accept less than 20 tons of waste

for disposal per day. The amendments allow the state to

establish alternative requirements for daily cover, methane

monitoring frequencies, infiltration layers for closure, and

demonstrating financial assurance.

October 2, 1997

(62 Fed. Reg. 51606)

Notice that the July 29, 1997, amendments would go into

effect on October 27, 1997. USEPA published a notice

that it had received no adverse comments during the

comment period, so that the July 29, 1997, amendments

pertaining to certain small landfills would become

effective as scheduled on October 27, 1997.

DISCUSSION

Conditionally Exempt Small Quantity Generator Waste Disposal Facility

Standards: No Action Needed

USEPA amended its RCRA Subtitle D regulations on July 1, 1996. Those amendments

essentially require a facility accepting conditionally exempt small quantity generator waste for

disposal to meet certain minimum requirements. The standards do not apply if the facility is a

RCRA Subtitle C hazardous waste disposal facility or a RCRA Subtitle D MSWLF. The

standards include location restrictions, groundwater monitoring requirements, and corrective

action requirements. Since RCRA Subtitle C hazardous waste and MSWLF facilities (under

RCRA Subtitle D) are not included in the requirements, the principal facilities that the federal

amendments affect are certain on-site landfills.

The Board did not include amendments based on this federal action in the present

docket. We intend to include those aspects of the federal amendments that affected the RCRA

Subtitle C hazardous waste regulations in the consolidated RCRA Subtitle C hazardous waste

update docket, R97-21/R98-3/ R98-5, which we intend to propose for public comment in

December, 1997. The rest of the federal amendments affected 40 CFR 257, which is the

federal criteria for classification of solid waste facilities. We have not included those

requirements in the landfill rules of 35 Ill. Adm. Code 807, 810 through 815, and 817. Our

identical-in-substance mandate under Section 22.40 of the Act, 415 ILCS 5/22.40, clearly

focuses on the federal rules of 40 CFR 258, not 40 CFR 257 or RCRA Subtitle D. We view

the 40 CFR 257 requirements as outside the scope of our mandate.

Groundwater Monitoring Exemption for Certain Small Landfills in Dry and

Remote Areas: No Action Needed

USEPA acted on September 25, 1996 to re-establish the groundwater monitoring

exemption for certain small landfills located in dry and remote areas. The Board does not

need to take action on these federal amendments. As noted in our dismissal of reserved docket

R96-9, on March 7, 1996, the Board never incorporated the exemption in adopting the original

RCRA Subtitle D MSWLF amendments on September 15, 1993, in docket R93-10. The

record in R93-10 indicated that there are no facilities in Illinois to which the exemptions would

apply.

Financial Assurance Mechanisms for Units of Local Government: Amendments

Explained

USEPA amended its regulations governing the acceptable forms of financial assurance

applicable to MSWLF owners and operators on November 27, 1996. Specifically, those

amendments expanded the acceptable means for local governmental entities to demonstrate

financial assurance. USEPA now provides that these entities may apply a financial test for

self-assurance, and that they may guarantee the costs of corrective action, closure, and/or post-

closure care on behalf of an owner or operator of an MSWLF. The Board incorporates these

amendments into the Illinois landfill regulations in this docket.

Specifically, the November 27, 1996 amendments affected three federal financial

assurance provisions. They amended 40 CFR 258.70(c), which sets forth the effective date for

the financial assurance requirements. They amended 40 CFR 258.74, which constitutes the

substantive financial assurance mechanism requirements. USEPA essentially added

subsections (f) and (h), which it had previously marked as “reserved”, and amended

subsection (k). The November 27, 1996 amendments also added 40 CFR 258.75, which

permits the states to allow discounting the corrective action and post-closure care cost

estimates by the rate of return on risk-free investments, less inflation.

The Board has included the November 27, 1996 federal amendments in the financial

assurance provisions of 35 Ill. Adm. Code 811.Subpart G. We have amended Section 811.700

to correspond with the amendments to 40 CFR 258.70(c). We added Section 811.716 to

correspond with new 40 CFR 258.74(f), Section 811.717 to correspond with new 40 CFR

258.74(h), and 811.718 to correspond with new 40 CFR 258.75. The Board has also amended

Section 811.707 to correspond with the amendments to 40 CFR 258.74(k).

“Good Cause” Extensions: Section 811.700

The addition of 40 CFR 258.70(c) allows the state to extend the deadline for financial

assurance for a facility up to April 9, 1998. The owner or operator must demonstrate that it

could not timely comply because it could not obtain financial assurance for the site by the

April 9, 1997 compliance deadline. The owner or operator must also demonstrate that the lack

of financial assurance would not adversely affect human health or the environment.

The Board added this extension as 35 Ill. Adm. Code 811.700(g). We chose a Sections

35 through 38 variance mechanism of the Act whereby an owner or operator may obtain an

extension. The Board chose this mechanism because of the temporary nature of the allowable

relief and the fact that compliance is required at the end of the allowable one-year extension

period. We note that although this extension was part of the rulemaking relating to financial

assurance mechanisms for local government-owned landfills, nothing in the federal language

limits the relief to those entities. For this reason, the Board did not add any limiting language

to the federal text.

The Use of Multiple Mechanisms--Section 811.707

As part of the local government financial assurance mechanism amendments, USEPA

amended 40 CFR 258.74(k), which relates to the use of multiple mechanisms. The principal

amendments are the addition of references to the new mechanisms of 40 CFR 258.74(f) and

(h) and a limitation on the ability to combine mechanisms. The addition of the local

government mechanisms is inherently limited to the subject matter. The addition of the

limitation on combining mechanisms does not appear limited. Owners or operators may not

combine mechanisms that guarantee performance with mechanisms that guarantee payment of

costs.

The Board has incorporated the federal amendments on combining mechanisms into the

Illinois rules. We did not add anything to the limitation on combining mechanisms that would

restrict the limitation to local government financial assurance.

Allowable Mechanisms of Local Government-Owned Facilities:

Sections 810.104, 811.706(a), 811.716, and 811.717

USEPA added 40 CFR 258.74(f) and (h) to allow local government owners and

operators to self-assure the costs of closure, post-closure care, and corrective action and to

allow local government owners to guarantee the costs for a private operator using self-

assurance. These two new provisions include several financial tests gauging the ability of the

local government to guarantee the costs.

The Board incorporated these federal provisions as new Sections 811.716 and 811.717.

We further amended Section 811.706(a) to reflect the additions. The Board incorporated the

document “Government Accounting Standards Board Statement 18” in our central

incorporations provision, Section 810.104. In adding the new provisions, the Board has

substituted “unit of local government” for references to “local government,” since this is the

proper designation for these entities in Illinois. We have further substituted references to the

Comptroller of the State of Illinois and added references to the Governmental Account Audit

Act, 50 ILCS 310 (1996), where USEPA referred to the “appropriate State agency”. Under

that statute, units of local government must submit their audits to the Comptroller. The

Comptroller' office can itself cause an audit of a unit of local government if the unit fails to

properly submit the required audit. Our chosen usage accounts for these facts. We further

split the text of 40 CFR 258.74(f)(2) into several subsections at Section 811.716(b) for greater

clarity and emphasis, due to the length of that provision. In rendering 40 CFR 258.74(h) as

Section 811.717, the Board has substituted the more grammatically accurate “alternative”

wherever “alternate” appears in the federal text.

One area of concern to the Board in incorporating 40 CFR 258.74(f) relates to the

requirements of units of local government when self-assurance is used under several programs.

40 CFR 258.74(f)(4)(ii), corresponding with Section 811.716(d), contains the requirement.

USEPA lists several federal programs for which this type of financial assurance is required.

Some of the programs have counterparts in Illinois, including the underground injection

control (UIC) program and the RCRA Subtitle C hazardous waste program. For these

programs, the Board has substituted citations to the appropriate corresponding state

regulations. Others of the programs have no counterpart in Illinois, including the petroleum

underground storage tank (UST) program, and the polychlorinated biphenyls (PCBs) storage

rules. For these we have retained the references to the appropriate federal regulations. The

Board has retained the references to the federal UST program because the Illinois UST

program does not presently require or allow self-assurance by owners or operators and because

USEPA has not yet approved the Illinois UST program.

Discounting: Section 811.718

USEPA added 40 CFR 258.75, a provision that allows the discounting of the closure,

post-closure care, and corrective action cost estimates to account for the return on “risk-free”

investments. The Board notes that although USEPA adopted this new provision as part of its

financial assurance rules for units of local government, there is no limitation in this provision

as to its use by others than those entities. The Board did not add such a limitation to the

federal text.

In adapting the federal text into new Section 811.718, the Board has altered the federal

text slightly. The Board used “cost estimates” in place of “costs” in the preamble, since it is

the estimates and not the costs that are being discounted. We have used “professional

engineer” and added a reference to Section 810.103, where that term is defined. The Board

has modified the structure slightly by rendering subsections (a) through (c) as a series and

subsection (d) as independent. USEPA had rendered them all as a series, and subsection (d)

appears to apply independently of the other three subsections.

Alternative Requirements for Certain Small Landfills:

Sections 811.106, 811.310, and 811.314

In our ongoing effort to become aware of federal regulatory changes that could benefit

regulatory entities in Illinois, the Board has included a single federal action from outside the

nominal time-frame of this docket. On July 29, 1997, USEPA amended the federal MSWLF

rules to allow greater flexibility to certain small landfills. USEPA made these amendments by

a direct final rule that becomes effective October 27, 1997, unless USEPA affirmatively

withdraws them before that time. The amendments permit the states to allow landfills

accepting less than 20 tons of municipal solid waste per day to demonstrate compliance using

alternative means in certain regards. Specifically, USEPA added 40 CFR 258.21(d), so that

the state could allow a small landfill to permit alternative frequencies for application of cover

to daily receipts of waste; 258.23(e), to allow alternative frequencies for monitoring landfill

gases; and 258.60(b)(3), to allow alternative requirements for the infiltration barrier upon final

closure. The federal amendments would have the state consider the same three factors in all

three instances: the “unique character of small communities,” the “climatic and hydrogeologic

conditions”, and that the alternative protect human health and the environment.

The Board has added the new alternative requirements provisions of 40 CFR 258.21(d),

258.23(e), and 258.60(b)(3) as Sections 811.106(c), 811.310(e), and 811.314(c), respectively.

In rendering these provisions, the Board considered the option of allowing the Agency to

grant the requested relief by permit, as it presently does under Sections 811.106(b) and

811.310(c)(6), but the Board chose the use of an adjusted standard as the avenue to relief. The

primary reason for this is the inclusion of a “public review and comment” requirement in all

three federal provisions. The permitting procedural rules of 35 Ill. Adm. Code 813 and

Section 39 of the Act do not include any requirements for public review and comment in

permit proceedings. The adjusted standard procedure of Section 28.1 requires the publication

of a public notice, which would allow third-party participation in the proceeding before the

Board. The Board specifically requests public comments on our incorporation of these small

landfill alternative requirements provisions into the Illinois rules.

Additional Amendments in Response to P.A. 89-200-Sections 811.700, 811.706, 811.711

through 811.714, and 811.Appendix A, Illustrations C and D

One aspect added to the Board's August 3, 1995, adoption of the last RCRA Subtitle D

municipal solid waste landfill update related to P.A. 89-200, 1995 Ill. Leg. Serv. (West)

2502. Governor Jim Edgar signed P.A. 89-200 in to law on July 21, 1995, and it became

effective on January 1, 1996. Among other things, P.A. 89-200 included amendments relating

to the federal deadline for landfill financial assurance and a revision relating to the

qualifications for an insurer providing financial assurance.

The Board has included in this docket a small number of amendments intended to

clarify and fully implement P.A. 89-200. One aspect of P.A. 89-200 was the allowance of

insurers regulated by sister states. The former landfill rules, adopted in 1990 in Development,

Operating, Reporting Requirements For Non-Hazardous Waste Landfills (Aug. 17, 1990),

R88-7, required regulation by the Illinois Department of Insurance. The present amendments

make corresponding revisions at Sections 811.711(b), 811.712(b), and 811.714(b), by adding

the statutory language. In the financial insurance forms of Sections 811.Appendix A,

Illustrations C and D, the Board added appropriate language referring to regulation by sister

states. The Board notes that P.A. 89-200 did not affect entities providing financial assurance

that are regulated by the Illinois Commissioner of Banks and Trust Companies. This means

that we did not remove a similar requirement for regulation as to letters of credit and trust

agreements in Sections 811.710, 811.713, and 811.Appendix A, Illustrations A and E.

Another series of amendments relating to P.A. 89-200 clarify the deadline for financial

assurance. The actual deadline in Illinois was the federal deadline, which happened to be

April 9, 1997; it was not April 9, 1997 itself. In fact, the “good faith” extension included in

this docket can push that date as late as April 9, 1998. For this reason, the Board has

amended Sections 811.706(c)(1), 811.711(a), 811.712(a), and 811.713(a) to more accurately

reflect the actual deadline as April 9, 1997, or the date of any extension under Section

811.700(g). To the “Board Notes” at the ends of these Sections 811.700, 811.706, 811.711,

811.712, and 811.713, we have more accurately described P.A. 89-200 as extending the

deadline until the federal effective date, and the Board added references to the “good faith”

extension, now codified as Section 811.700(g).

PUBLIC COMMENTS

The Board adopted a proposal for public comment in this matter on August 7, 1997.

Notices of Proposed Amendments appeared in the August 29, 1997 issue of the

Illinois

Register

, at 21 Ill. Reg. 11835 (Part 810) & 11840 (Part 811). The 45-day public comment

period expired on October 13, 1997. The Board received the following three public comments

on the proposal:

PC 1 Browning-Ferris Industries (BFI) (September 19, 1997, by John H. Turner,

Divisional Vice President, State Government Affairs)

PC 2 Illinois Environmental Protection Agency (Agency) (October 14, 1997, by

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

PC 3 City of Peoria (October 14, 1997, by Jack Manahan, Peoria County

Administrator)

By PC 1, BFI expressed support for the adoption of amendments to Sections 811.716

and 811.717 based on the amendments to 40 CFR 258.74, pertaining to allowable mechanisms

for financial assurance. BFI believes that owners and operators in Illinois should have the full

scope of mechanisms allowed by USEPA. BFI went on to urge that the Board promptly adopt

the corporate financial test and guarantee for private entities when USEPA ultimately adopts

those amendments. BFI urged the Board to use the emergency rulemaking procedure when

USEPA ultimately adopts those amendments.

In response to BFI’s comments on the amendments not yet adopted by USEPA, the

Board makes a request of BFI. The Board lacks authority to adopt federal amendments until

after USEPA has adopted them. We have declined to use the emergency rulemaking authority

to make such amendments in the past. Rather, the Board has opted to use the identical-in-

substance rulemaking procedure in a very summary fashion, proposing amendments for public

comment as soon as they are brought to our attention. The Board hereby requests that BFI

submit a request of expedited consideration, as well as a copy of a notice of the federal action

from the

Federal Register

, as soon as USEPA acts to adopt the private corporate guarantee and

financial test. The Board will then act as quickly as Board resources allow to propose

corresponding amendments to the Illinois landfill regulations.

The Agency asserted in PC 2 that it had reviewed the August 7, 1997, proposal for

public comment in this matter. The Agency stated that it concurs that the amendments are

identical-in-substance to the federal amendments upon which they are based. The Agency did

not believe that revisions, deletions, corrections, or further amendments were necessary to

complete the rulemaking proceeding. Finally, the Agency stated that it agreed with the

Board’s assessment that no amendments based on 40 CFR 257 would be necessary or desirable

in this proceeding.

In PC 3, the City of Peoria stated that it is a joint owner of a landfill that it uses for

disposal of its municipal solid waste. The City stated that the proposed amendments would

lower the cost of financial assurance at that site. The City urged adoption of Section 811.717

as proposed.

The Board has not modified the text of the amendments as proposed based on any of

PC 1, PC 2, or PC 3. In addition to the three public comments, however, the Board received

a document entitled “Line Number Version” for each of Parts 810 and 811 from JCAR.

JCAR has suggested a number of non-substantive revisions to the text as proposed in these

documents. In fact, the text of the amendments included in these documents represent the way

they appeared in the

Illinois Register

. Thus, JCAR has already made the suggested changes.

The Board has reviewed the texts of the “Line Numbered Version” documents

submitted by JCAR. The Board has accepted all but one of the JCAR-suggested revisions.

Our review of the text has further prompted a number of additional non-substantive changes.

The following table indicates the revisions made to the text of the regulations as they appeared

in our August 7, 1997 opinion and order:

Revisions to the Text Since the Proposal for Public Comment

Part 810

Section

Source Revision(s)

810 Authority Note

JCAR Added missing entry for R96-1; removed

underlining of added text for R97-20 entry

810 Source Note

JCAR Added missing reference to Section “28.1;”

changed blank line for effective date to “November

27, 1997”

810.104(a)(3)

Board Revised telephone number format from “(215) 299-

5585” to “215-299-5585”

810.104(a)(4)

Board Added ending period

810.104(a)(5)

JCAR,

Board

Added missing reference to the Army Corps.

Added in R96-1; revised telephone number format

from “(301)394-0081” to “301-394-0081”; placed

in alphabetical order

810.104(a)(6)

Board Revised telephone number format from “(202) 783-

3238” to “202-783-3238”; placed in alphabetical

order

810.104 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

Part 811

Section

Source Revision(s)

811 Source Note

JCAR Corrected effective date for R95-13 entry; added

missing entry for R96-1; removed underlining of

added text for R97-20 entry; changed blank line for

effective date to “November 27, 1997”

811.106(b)

JCAR Deleted “above” from cross-reference

811.106(c)

JCAR,

Board

Deleted “above” from cross-reference; changed “a

MSWLF” to “an MSWLF”

811.106(c)

JCAR Deleted “above” from cross-reference

811.106(e)(3) Board

Note

JCAR Added ending period

811.106 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.310(c)(4)

Board Deleted “below” from cross-reference

811.310(c)(6)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.310(c)(7)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.310(e)

JCAR Changed “a MSWLF” to “an MSWLF;” changed

“this paragraph” to “this subsection (e)”

811.310(e) Board Note

JCAR Added ending period

811.310 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.314(b)(3)(A)(ii)

Board,

JCAR

Changed “1x10

-7

” to “1

-7

”

811.314(b)(4)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.314(d)

JCAR,

Board

Deleted “above” from cross-reference; changed “a

MSWLF” to “an MSWLF”; changed “must will”

to “must”

811.314(d) Board Note JCAR Added ending period

811.314 Source Note

Board, Changed blank line for effective date to “November

JCAR 27, 1997”

811.700(c)

JCAR Deleted “below” from cross-reference

811.700(f)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.700(g) Board Note JCAR Moved period inside closing parenthesis

811.700 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.706(a)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.706(b)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.706(c)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.706(d) Board Note JCAR Corrected “subsection (g)” to “Section 811.700(g)”

811.706 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.707 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.711(a)

JCAR Moved added language to follow parenthetical;

changed “a MSWLF” to “an MSWLF” in base text

811.711(b)

JCAR Removed period at end of statutory citation

811.711(e)(1)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.711(e)(2)(E)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.711(g)(3)

Board Changed “a MSWLF” to “an MSWLF” in base

text (twice)

811.711(h)(1)

Board Changed “a MSWLF” to “an MSWLF” in base

text (twice)

811.711(h)(2)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.711 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.712(a)

JCAR Moved added language to follow parenthetical;

changed “a MSWLF” to “an MSWLF” in base text

811.712(b)

JCAR Removed period at end of statutory citation

811.712(e)(1)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.712(e)(2)(E)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.712(h)(1)

Board Changed “a MSWLF” to “an MSWLF” in base

text (three times)

811.712(h)(2)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.712 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.713(a)

JCAR Moved added language to follow parenthetical;

changed “a MSWLF” to “an MSWLF” in base text

811.713(b)(1)

JCAR Removed comma at end after “or”

811.713(c)(2)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.713(e)(1)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.713(e)(2)(C)

JCAR Removed “or” at end

811.713(e)(2)(D)

JCAR Replaced ending period with semicolon and “or”

811.713(e)(2)(E)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.713(h)(1)

Board Changed “a MSWLF” to “an MSWLF” in base

text (twice)

811.713(h)(2)

Board Changed “a MSWLF” to “an MSWLF” in base

text

811.713 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.714(b)

JCAR Removed period at end of statutory citation

811.714 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.716

JCAR Deleted “below” from cross-reference

811.716(a)(1)

JCAR Deleted “below” from cross-reference

811.716(a)(1)(B)(i)

JCAR,

Board

Corrected subsection designation to “i)”

811.716(a)(1)(B)(ii)

JCAR,

Board

Corrected subsection designation to “ii)”

811.716(a)(3)(D)

JCAR Deleted “below” from cross-reference

811.716(a)(4)

JCAR,

Board

Put definitions in alphabetical order; changed

ending punctuation to periods

811.716(b)(1)

JCAR,

Board

Replaced “the effective date of this Section” with

“November 27, 1997”

811.716(c)(1)(A)(i)

Board Deleted “below” from cross-reference

811.716(c)(1)(A)(ii)

JCAR Deleted “above” from cross-reference

811.716(c)(1)(A)(iii)

JCAR Deleted “above” and “below” from cross-reference

811.716(c)(1)(B)

JCAR Added comma after “years”; deleted comma after

“independent;” added abbreviation “(CPA);”

changed ending punctuation to a period

811.716(c)(1)(C)

JCAR Deleted “above” from cross-reference (twice); used

abbreviation “CPA”

811.716(c)(1)(D)

JCAR Deleted “above” from cross-reference

811.716(c)(2)

JCAR Deleted “above” from cross-reference

811.716(c)(2)(A)

JCAR Changed “the effective date of this Section, which

is November 15, 1997” to “November 27, 1997;”

changed ending punctuation to a semicolon

811.716(c)(4)

JCAR Deleted “above” from cross-reference

811.716(c)(6)

JCAR,

Board

Added “determines” after “Agency”

811.716(d)(2)

JCAR Corrected “40 CFR Part 280” to “40 CFR 280”

811.716(d)(3)

JCAR Deleted “above” from cross-reference

811.716 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.717

JCAR Deleted opening words “Local Government

Guarantee.”

811.717(a)

JCAR,

Board

Replaced “the effective date of this Section” with

“November 27, 1997;” changed comma to “or”

811.717(b)(1)

JCAR,

Board

Replaced “the effective date of this Section” with

“November 27, 1997;” changed comma to “or;”

corrected to plural “Sections”

811.717(b)(2)

JCAR Deleted “above” from cross-reference

811.717(b)(2)(B)

JCAR Capitalized “Section;” corrected to singular

“Section”

811.717 Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.App. A, Illus. C

Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.App. A, Illus. D

Source Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

811.App. B (I)(1)

JCAR Removed underlining from superscript “

” for

existing footnote marking

811.App. B (II)(4)

JCAR Changed “4-5)” to “4)”

811.App. B (II)(5)

JCAR Added “5);” changed “see above” to “same as (4)”

811.App. B (III)(8)

JCAR Capitalized word “Same”

811.App. B (VII)(2)

JCAR Changed “2, 3, and 4)” to “2)”

811.App. B (VII)(3)

JCAR Added “3);” changed “same as above” to “same as

(2)”

811.App. B (VII)(4)

JCAR Added “4);” changed “same as above” to “same as

(2)”

811.App. B Source

Note

Board,

JCAR

Changed blank line for effective date to “November

27, 1997”

The sole JCAR-suggested change that the Board has declined to accept is presented in

the following table:

JCAR Suggestion Not Accepted

Section

Source: Suggestion

Board Response

811.718(d)

JCAR: remove subsection

designation and change indent

level

Secretary of State rules, at 1 Ill.

Adm. Code 100.340(c), prohibit

such a return to a higher indent

level

ORDER

The complete text of the adopted amendments follows:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 810

SOLID WASTE DISPOSAL: GENERAL PROVISIONS

Section

810.101

Scope and Applicability

810.102

Severability

810.103

Definitions

810.104

Incorporations by Reference

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

Section 27 of the Environmental Protection Act (Ill. Rev. Stat. 1991, ch. 111½, pars. 1005,

1021, 1021.1, 1022, 1022.17 and 1027) [415 ILCS 5/5, 21, 21.1, 22, 22.17, 28.1 and 27].

SOURCE: Adopted in R88-7 at 14 Ill. Reg. 15838, effective September 18, 1990; amended

in R93-10 at 18 Ill. Reg. 1268, effective January 13, 1994; amended in R90-26 at 18 Ill. Reg.

12457, effective August 1, 1994; amended in R95-9 at 19 Ill. Reg. 14427, effective September

29, 1995; amended in R96-1 at 20 Ill. Reg. 11985, effective August 15, 1996; amended in

R97-20 at 21 Ill. Reg. _________, effective November 27, 1997.

NOTE: Capitalization indicates statutory language.

Section 810.104

Incorporations by Reference

The Board incorporates the following material by reference:

Code of Federal Regulations:

40 CFR 141.40 (19881996).

40 CFR 258.Appendix II (19921996).

American Institute of Certified Public Accountants, 1211 Avenue of the

Americas, New York NY 10036:

Auditing Standards--Current Text, August 1, 1990 Edition.

ASTM. American Society for Testing and Materials, 1976 Race Street,

Philadelphia PA 19103 (215) -299-5585:

Method D2234-76, Test Method for Collection of Gross Samples

of Coal.

Method D3987-85, Standard Test Method for Shake Extraction of

Solid Waste with Water.

GASB. Government Accounting Standards Board, 401 Merritt 7, P.O.

Box 5116, Norwalk CT 06856-5116:

Statement 18.

U.S. Army Corps of Engineers, Publication Department, 2803 52nd

Ave., Hyattville, Maryland 20781, 301-394-0081:

Engineering Manual 1110-2-1906 Appendix VII, Falling-Head

Permeability Cylinder (1986).

46)

U.S. Government Printing Office, Washington, D.C. 20402, Ph: (202) -

783-3238:

Test Methods for Evaluating Solid Waste, Physical/Chemical

methods, EPA Publication SW-846 (Third Edition, 1986 as

amended by Update I (November, 1990):

U.S. Army Corps of Engineers, Publication Department, 2803 52nd

Ave., Hyattville, Maryland 20781, (301)394-0081:

Engineering Manual 1110-2-1906 Appendix VII, Falling-Head

Permeability Cylinder (1986).

This incorporation includes no later amendments or editions.

(Source: Amended at 21 Ill. Reg. _________, effective November 27, 1997)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 811

STANDARDS FOR NEW SOLID WASTE LANDFILLS

SUBPART A: GENERAL STANDARDS FOR ALL LANDFILLS

Section

811.101

Scope and Applicability

811.102

Location Standards

811.103

Surface Water Drainage

811.104

Survey Controls

811.105

Compaction

811.106

Daily Cover

811.107

Operating Standards

811.108

Salvaging

811.109

Boundary Control

811.110

Closure and Written Closure Plan

811.111

Postclosure Maintenance

SUBPART B: INERT WASTE LANDFILLS

Section

811.201

Scope and Applicability

811.202

Determination of Contaminated Leachate

811.203

Design Period

811.204

Final Cover

811.205

Final Slope and Stabilization

811.206

Leachate Sampling

811.207

Load Checking

SUBPART C: PUTRESCIBLE AND CHEMICAL WASTE LANDFILLS

Section

811.301

Scope and Applicability

811.302

Facility Location

811.303

Design Period

811.304

Foundation and Mass Stability Analysis

811.305

Foundation Construction

811.306

Liner Systems

811.307

Leachate Drainage System

811.308

Leachate Collection System

811.309

Leachate Treatment and Disposal System

811.310

Landfill Gas Monitoring

811.311

Landfill Gas Management System

811.312

Landfill Gas Processing and Disposal System

811.313

Intermediate Cover

811.314

Final Cover System

811.315

Hydrogeological Site Investigations

811.316

Plugging and Sealing of Drill Holes

811.317

Groundwater Impact Assessment

811.318

Design, Construction, and Operation of Groundwater Monitoring Systems

811.319

Groundwater Monitoring Programs

811.320

Groundwater Quality Standards

811.321

Waste Placement

811.322

Final Slope and Stabilization

811.323

Load Checking Program

811.324

Corrective Action Measures for MSWLF Units

811.325

Selection of remedy for MSWLF Units

811.326

Implementation of the corrective action program at MSWLF Units

SUBPART D: MANAGEMENT OF SPECIAL WASTES AT LANDFILLS

Section

811.401

Scope and Applicability

811.402

Notice to Generators and Transporters

811.403

Special Waste Manifests

811.404

Identification Record

811.405

Recordkeeping Requirements

811.406

Procedures for Excluding Regulated Hazardous Wastes

SUBPART E: CONSTRUCTION QUALITY ASSURANCE PROGRAMS

Section

811.501

Scope and Applicability

811.502

Duties and Qualifications of Key Personnel

811.503

Inspection Activities

811.504

Sampling Requirements

811.505

Documentation

811.506

Foundations and Subbases

811.507

Compacted Earth Liners

811.508

Geomembranes

811.509

Leachate Collection Systems

SUBPART G: FINANCIAL ASSURANCE

Section

811.700

Scope, Applicability and Definitions

811.701

Upgrading Financial Assurance

811.702

Release of Financial Institution

811.703

Application of Proceeds and Appeals

811.704

Closure and Postclosure Care Cost Estimates

811.705

Revision of Cost Estimate

811.706

Mechanisms for Financial Assurance

811.707

Use of Multiple Financial Mechanisms

811.708

Use of a Financial Mechanism for Multiple Sites

811.709

Trust Fund for Unrelated Sites

811.710

Trust Fund

811.711

Surety Bond Guaranteeing Payment

811.712

Surety Bond Guaranteeing Performance

811.713

Letter of Credit

811.714

Closure Insurance

811.715

Self-Insurance for Non-commercial Sites

811.716

Local Government Financial Test

811.717

Local Government Guarantee

811.718

Discounting

811.Appendix A

Financial Assurance Forms

Illustration A Trust Agreement

Illustration B Certificate of Acknowledgment

Illustration C Forfeiture Bond

Illustration D Performance Bond

Illustration E Irrevocable Standby Letter of Credit

Illustration F Certificate of Insurance for Closure and/or Postclosure Care

Illustration G Operator's Bond Without Surety

Illustration H Operator's Bond With Parent Surety

Illustration I Letter from Chief Financial Officer

811.Appendix B

Section-by-Section Correlation Between the Requirements of the Federal

MSWLF Regulations at 40 CFR 258 (1992) and the Requirements of

Parts 810 through 814.

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

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

27].

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

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

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

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

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

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

27, 1997.

NOTE: Capitalization indicates statutory language.

SUBPART A: GENERAL STANDARDS FOR ALL LANDFILLS

Section 811.106

Daily Cover

A uniform layer of at least 0.15 meter (six inches) of clean soil material shall be

placed on all exposed waste by the end of each day of operation.

Alternative materials or procedures, including the removal of daily cover prior

to additional waste placement, may be used, provided that the alternative

materials or procedures achieve equivalent or superior performance to the

requirements of subsection (a) in the following areas:

Prevention of blowing debris;

Minimization of access to the waste by vectors;

Minimization of the threat of fires at the open face; and

Minimization of odors.

Any alternative frequencies for cover requirements to those set forth in

subsections (a) and (b) for any owner or operator of an MSWLF that disposes of

20 tons of municipal solid waste per day or less, based on an annual average,

must be established by an adjusted standard pursuant to Section 28.1 of the Act

and 35 Ill. Adm. Code 106. Any alternative requirements established under this

subsection will:

Consider the unique characteristics of small communities;

Take into account climatic and hydrogeologic conditions; and

Be protective of human health and the environment.

BOARD NOTE: Subsection (c) is derived from 40 CFR 258.21(d), as

added at 62 Fed. Reg. 40707 (July 29, 1997).

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

SUBPART C: PUTRESCIBLE AND CHEMICAL WASTE LANDFILLS

Section 811.310

Landfill Gas Monitoring

This Section applies to all units that dispose putrescible wastes.

Location and Design of Monitoring Wells

Gas monitoring devices shall be placed at intervals and elevations within

the waste to provide a representative sampling of the composition and

buildup of gases within the unit.

Gas monitoring devices shall be placed around the unit at locations and

elevations capable of detecting migrating gas from the ground surface to

the lowest elevation of the liner system or the top elevation of the

groundwater, whichever is higher.

A predictive gas flow model may be utilized to determine the optimum

placement of monitoring points required for making observations and

tracing the movement of gas.

Gas monitoring devices shall be constructed from materials that will not

react with or be corroded by the landfill gas.

Gas monitoring devices shall be designed and constructed to measure

pressure and allow collection of a representative sample of gas.

Gas monitoring devices shall be constructed and maintained to minimize

gas leakage.

The gas monitoring system shall not interfere with the operation of the

liner, leachate collection system or delay the construction of the final

cover system.

At least three ambient air monitoring locations shall be chosen and

samples shall be taken no higher than 0.025 meter (1 inch) above the

ground and 30.49m (100 feet) downwind from the edge of the unit or at

the property boundary, whichever is closer to the unit.

Monitoring Frequency

All gas monitoring devices, including the ambient air monitors shall be

operated to obtain samples on a monthly basis for the entire operating

period and for a minimum of five years after closure.

After a minimum of five years after closure, monitoring frequency may

be reduced to quarterly sampling intervals.

The sampling frequency may be reduced to yearly sampling intervals

upon the installation and operation of a gas collection system equipped

with a mechanical device such as a compressor to withdraw gas.

Monitoring shall be continued for a minimum period of: thirty years

after closure at MSWLF units, except as otherwise provided by

subsections (c)(5) and (c)(6), below; five years after closure at landfills,

other than MSWLF units, which are used exclusively for disposing of

wastes generated at the site; or fifteen years after closure at all other

landfills regulated under this Part. Monitoring, beyond the minimum

period, may be discontinued if the following conditions have been met

for at least one year:

The concentration of methane is less than five percent of the

lower explosive limit in air for four consecutive quarters at all

monitoring points outside the unit; and

Monitoring points within the unit indicate that methane is no

longer being produced in quantities that would result in migration

from the unit and exceed the standards of subsection (a)(1).

The operator shall include in the permit, a list of air toxics to be

monitored in accordance with subsection (d). The Agency shall

determine the monitoring frequency of the listed compounds based upon

their emission rates and ambient levels in the atmosphere.

The Agency may reduce the gas monitoring period at an MSWLF unit

upon a demonstration by the owner or operator that the reduced period is

sufficient to protect human health and environment.

The owner or operator of an MSWLF unit shall petition the Board for an

adjusted standard in accordance with Section 811.303, if the owner or

operator seeks a reduction of the postclosure care monitoring period for

all of the following requirements:

Inspection and maintenance (Section 811.111);

ii)

Leachate collection (Section 811.309);

iii)

Gas monitoring (Section 811.310); and

iv)

Groundwater monitoring (Section 811.319).

BOARD NOTE: Changes to subsections (c) are derived

from 40 CFR 258.61 (19921996).

Parameters to be Monitored

All below ground monitoring devices shall be monitored for the

following parameters at each sampling interval:

Methane;

Pressure;

Nitrogen;

Oxygen;

Carbon dioxide; and

Any compound on the list of air toxics, adopted by the Board

pursuant to Section 9.5 of the Act, which is expected to be

produced in the landfill unit.

Ambient air monitors shall be sampled for methane only when the

average wind velocity is less than 8 kilometers (five miles) per hour at a

minimum of three downwind locations 30.49 meters (100 feet) from the

edge of the unit or the property boundary, whichever is closer to the

unit.

All buildings within a facility shall be monitored for methane by

utilizing continuous detection devices located at likely points where

methane might enter the building.

Any alternative frequencies for the monitoring requirement of subsection (c) for

any owner or operator of an MSWLF that disposes of 20 tons of municipal solid

waste per day or less, based on an annual average, must be established by an

adjusted standard pursuant to Section 28.1 of the Act and 35 Ill. Adm. Code

106. Any alternative monitoring frequencies established under this subsection

(e) will:

Consider the unique characteristics of small communities;

Take into account climatic and hydrogeologic conditions; and

Be protective of human health and the environment.

BOARD NOTE: Subsection (d) is derived from 40 CFR 258.23(e), as

added at 62 Fed. Reg. 40707 (July 29, 1997).

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

Section 811.314

Final Cover System

The unit shall be covered by a final cover consisting of a low permeability layer

overlain by a final protective layer constructed in accordance with the require-

ments of this Section.

Standards for the Low Permeability Layer

Not later than 60 days after placement of the final lift of solid waste, a

low permeability layer shall be constructed.

The low permeability layer shall cover the entire unit and connect with

the liner system.

The low permeability layer shall consist of any one of the following:

A compacted earth layer constructed in accordance with the

following standards:

The minimum allowable thickness shall be 0.91 meter (3

feet);

ii)

The layer shall be compacted to achieve a permeability of

-7

centimeters per second and minimize void spac-

es.

iii)

Alternative specifications may be utilized provided that

the performance of the low permeability layer is equal to

or superior to the performance of a layer meeting the

requirements of subsections (b)(3)(A)(i) and (b)(3)(A)(ii).

A geomembrane constructed in accordance with the following

standards:

The geomembrane shall provide performance equal or

superior to the compacted earth layer described in

subsection (b)(3)(A).

ii)

The geomembrane shall have strength to withstand the

normal stresses imposed by the waste stabilization

process.

iii)

The geomembrane shall be placed over a prepared base

free from sharp objects and other materials which may

cause damage.

Any other low permeability layer construction techniques or

materials, provided that they provide equivalent or superior

performance to the requirements of this subsection.

For an MSWLF unit, subsection (b)(3) notwithstanding, if the bottom

liner system permeability is lower than 1 x 10

-7

cm/sec, the permeability

of the low permeability layer of the final cover system shall be less than

or equal to the permeability of the bottom liner system.

Standards for the Final Protective Layer

The final protective layer shall cover the entire low permeability layer.

The thickness of the final protective layer shall be sufficient to protect

the low permeability layer from freezing and minimize root penetration

of the low permeability layer, but shall not be less than 0.91 meter (3

feet).

The final protective layer shall consist of soil material capable of

supporting vegetation.

The final protective layer shall be placed as soon as possible after

placement of the low permeability layer to prevent desiccation, cracking,

freezing or other damage to the low permeability layer.

Any alternative requirements for the infiltration barrier in subsection (b) for any

owner or operator of an MSWLF that disposes of 20 tons of municipal solid

waste per day or less, based on an annual average, must be established by an

adjusted standard pursuant to Section 28.1 of the Act and 35 Ill. Adm. Code

106. Any alternative requirements established under this subsection must:

Consider the unique characteristics of small communities;

Take into account climatic and hydrogeologic conditions; and

Be protective of human health and the environment.

BOARD NOTE: sSubsection (b)(4) is derived from 40 CFR 258.60(a)

(19921996). Subsection (d) is derived from 40 CFR 258.60(b)(3), as

added at 62 Fed. Reg. 40707 (July 29, 1997).

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

SUBPART G: FINANCIAL ASSURANCE

Section 811.700

Scope, Applicability and Definitions

This Subpart provides procedures by which the owner or operator of a permitted

waste disposal facility provides financial assurance satisfying the requirements

of Section 21.1(a) of the Act.

Financial assurance may be provided, as specified in Section 811.706, by a trust

agreement, a bond guaranteeing payment, a bond guaranteeing payment or per-

formance, a letter of credit, insurance or self-insurance. The owner or operator

shall provide financial assurance to the Agency before the receipt of the waste.

Except as provided in subsection (f), this Subpart does not apply to the State of

Illinois, its agencies and institutions, or to any unit of local government;

provided, however, that any other persons who conduct such a waste disposal

operation on a site that is owned or operated by such a governmental entity shall

provide financial assurance for closure and postclosure care of the site.

The owner or operator is not required to provide financial assurance pursuant to

this Subpart if the owner or operator demonstrates:

That closure and postclosure care plans filed pursuant to 35 Ill. Adm.

Code 724 or 725 will result in closure and postclosure care of the site in

accordance with the requirements of this Part; and

That the owner or operator has provided financial assurance adequate to

provide for such closure and postclosure care pursuant to 35 Ill. Adm.

Code 724 or 725.

Definition: “Assumed closure date” means the date during the next permit term

on which the costs of premature final closure of the facility, in accordance with

the standards of this Part, will be greatest.

On or after April 9, 1997, no person, other than the State of Illinois, its

agencies and institutions, shall conduct any disposal operation at an MSWLF

unit that requires a permit under subsection (d) of section 21.1 of the Act,

unless that person complyscomplies with the financial assurance requirements of

this Part.

The standards adopted in this subpart that are identical in substance to the

federal Subtitle D regulations that are individually indicated as applicable to

MSWL units shall not apply to such units until April 9, 1997.The Board will

grant a variance pursuant to Sections 35 through 38 of the Act and 35 Ill. Adm.

Code 104 that allows a facility to operate not in compliance with the otherwise

applicable requirements of this Section for up to one year, until April 9, 1998,

for good cause, if it determines that an owner or operator has demonstrated that

the prior April 9, 1997 effective date for the requirements of this Section did

not provide sufficient time to comply and that operating not in compliance with

the otherwise applicable provisions of this Section would not adversely affect

human health or the environment.

BOARD NOTE: Subsection (f) clarifies the applicability of the financial

assurance requirements to units of local governments, since the Subtitle D

regulations exempt only federal and state governments from financial assurance

requirements. (See 40 CFR 258.70 (19941996), as amended at 60 Fed. Reg.

17652 (Apr. 7, 1995)).) P.A. 89-200, signed by the Governor on July 21,

1995 and effective January 1, 1996, amended the deadline for financial

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

assurance requirements actually become effective, which was April 9, 1997.

On November 27, 1996 (61 Fed. Reg. 60327), USEPA added 40 CFR

258.70(c) (1996), codified here as subsection (g), to allow states to waive the

compliance deadline until April 9, 1998.

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

Section 811.706

Mechanisms for Financial Assurance

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

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

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

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

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

A trust Fund (see Section 811.710);

A surety Bond Guaranteeing Payment (see Section 811.711);

A surety Bond Guaranteeing Performance (see Section 811.712);

A letter of Credit (see Section 811.713);

Closure Insurance (see Section 811.714); or

Self-insurance (see Section 811.715).;

Local Government Financial Test (see Section 811.716); or

Local Government Guarantee (see Section 811.717).

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

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

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

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

post-closure care, and corrective action; and

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

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

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

following dates:

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

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

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

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

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

action.

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

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

Adm. Code 813.403(b) or Section 811.326.

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

(19941996). Amendments prompted by amendments to 40 CFR 258.74(a)(5)

(19941996), as amended at 60 Fed. Reg. 17652 (Apr. 7, 1995). P.A. 89-200,

signed by the Governor on July 21, 1995 and effective January 1, 1996,

amended the deadline for financial assurance for MSWLFs from April 9, 1995

to the date that the federal financial assurance requirements actually become

effective, which was April 9, 1997. On November 27, 1996 (61 Fed. Reg.

60327), USEPA added 40 CFR 258.70(c) (1996), codified here as Section

811.700(g), to allow states to waive the compliance deadline until April 9,

1998.

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

Section 811.707

Use of Multiple Financial Mechanisms

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

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

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

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

as applicablerespectively, except that it is the combination of mechanisms, rather than the

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

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

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

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

closure and postclosure care of the site or corrective action.

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

Section 811.711

Surety Bond Guaranteeing Payment

An owner or operator may satisfy the requirements of this Subpart by obtaining

a surety bond which conforms to the requirements of this Section and submitting

the bond to the Agency. A surety bond obtained by an owner or operator of an

MSWLF unit must be effective before the initial receipt of waste or before April

9, 1997 (the effective date of the financial assurance requirements under RCRA

Subtitle D regulations), or such later date granted pursuant to Section

811.700(g), whichever is later, in the case of closure and post-closure care, or

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

requirements of Section 811.325.

The surety company issuing the bond shall be licensed by the Illinois

Department of InsuranceLICENSED TO TRANSACT THE BUSINESS OF

INSURANCE BY THE DEPARTMENT OF INSURANCE, pursuant to the

Illinois Insurance Code [215 ILCS 5], OR AT A MINIMUM THE INSURER

MUST BE LICENSED TO TRANSACT THE BUSINESS OF INSURANCE

OR APPROVED TO PROVIDE INSURANCE AS AN EXCESS OR

SURPLUS LINES INSURER BY THE INSURANCE DEPARTMENT IN

ONE OR MORE STATES, and approved by the U.S. Department of the

Treasury as an acceptable surety. Section 21.1(a.5) of the Act [415 ILCS

5/21.1(a.5)]

BOARD NOTE: The U.S. Department of the Treasury lists acceptable sureties

in its Circular 570.

The surety bond must be on the forms specified in Appendix A, Illustration C,

D, or H.

Any payments made under the bond will be placed in the landfill closure and

postclosure fund within the State Treasury.

Conditions:

The bond must guarantee that the owner or operator will provide closure

and postclosure care in accordance with the approved closure and

postclosure care plans. If the facility is an MSWLF unit, then the

corrective action bond must guarantee that the owner or operator will

implement corrective action in accordance with Section 811.326.

The surety will become liable on the bond obligation when, during the

term of the bond, the owner or operator fails to perform as guaranteed

by the bond. The owner or operator fails to perform when the owner or

operator:

Abandons the site;

Is adjudicated bankrupt;

Fails to initiate closure of the site or postclosure care or

corrective action when ordered to do so by the Board pursuant to

Title VII of the Act, or when ordered to do so by a court of

competent jurisdiction;

Notifies the Agency that it has initiated closure or corrective

action, or initiates closure or corrective action, but fails to close

the site or provide postclosure care or corrective action in

accordance with the closure and postclosure care or corrective

action plans; or

For a corrective action bond, fails to implement corrective action

at an MSWLF unit in accordance with Section 811.326

Penal sum:

The penal sum of the bond must be in an amount at least equal to the

current cost estimate.

The Agency shall approve a reduction in the penal sum whenever the

current cost estimate decreases.

Term:

The bond must be issued for a term of at least five years and must not be

cancelable during that term.

If the owner or operator fails to provide substitute financial assurance

prior to expiration of a bond, the term of the bond must be automatically

extended for one twelve-month period starting with the date of expiration

of the bond. During such extension the bond will cease to serve as

financial assurance satisfying the requirements of this Part, and will not

excuse the owner or operator from the duty to provide substitute

financial assurance.

The Agency shall release the surety if, after the surety becomes liable on

the bond, the owner or operator or another person provides financial

assurance for closure and postclosure care of the site or corrective action

at an MSWLF unit, unless the Agency determines that the closure or

postclosure care plan, corrective action program at an MSWLF unit, or

the amount of substituted financial assurance is inadequate to provide

closure and postclosure care or implement corrective action in

compliance with this Part.

Cure of default and refunds:

The Agency shall release the surety if, after the surety becomes liable on

the bond, the owner or operator or another person provides financial

assurance for closure and postclosure care of the site or corrective action

at an MSWLF unit, unless the Agency determines that the closure or

postclosure care plan, corrective action at an MSWLF unit or the amount

of substituted financial assurance is inadequate to provide closure and

postclosure care or implement corrective action in compliance with this

Part.

After closure and postclosure care have been completed in accordance

with the plans and requirements of this Part or after the completion of

corrective action at an MSWLF unit in accordance Section 811.326, the

Agency shall refund any unspent money which was paid into the

“Landfill Closure and Postclosure Fund” by the surety.

BOARD NOTE: MSWLF corrective action language at subsection (a) is

derived from 40 CFR 258.74(b)(1) (19941996), as amended at 60 Fed.

Reg. 17652 (Apr. 7, 1995). P.A. 89-200, signed by the Governor on

July 21, 1995 and effective January 1, 1996, amended the deadline for

financial assurance for MSWLFs from April 9, 1995 to the date that the

federal financial assurance requirements actually become effective,

which was April 9, 1997. On November 27, 1996 (61 Fed. Reg.

60337), USEPA added 40 CFR 258.70(c) (1996), codified here as

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

until April 9, 1998. The other clarifying changes reflect the inclusion of

financial assurance requirements for implementing corrective action at

MSWLF units under this Section.

(Source: Amended at 21 Ill. Reg. ________, effective November 27, 1997)

Section 811.712