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RECE~VED

CLERK’S OFFICE

JUN

032004

BEFORE THE ILLINOIS POLLUTION CONTROL

BOA3~U~TE

OF ILLINOIS

Pollution

Control Board

N

THE MATTER OF:

)

7

RCRA SUBPT1TLE D

UPDATE, USEPA

)

R04-5

REGULATIONS (January

1, 2003 through

)

(Identical in Substance

‘

June 30, 2003)

)

Rulemaking

—

Land)

)

IN THE

MATTER OF:

)

)

RCRA SUBPTITLE D UPDATE.

USEPA

)

R04/I

‘~

REGULATIONS (July

1, 2003 through

)

(Identical in Substance

December 31, 2003)

)

Rulemaking

—

Land)

PUBLIC

COMMENT

MARION RIDGE LANDFILL, by and through its attorney,

Claire A. Manning,

respectfully submits its comment in the above..titled proceeding

to the Illinois Pollution Control

Board (“Board”).

I.

Background

Marion Ridge Landfill is a landfill that has been sited for development in Williamson

County.

See

Concerned Citizens of Williamson County and Rev. Paul crane

and

Rose Rowell

v.

Bill Kibler Development

Corp.

PCB

96-60 (February 15,

1996). Subsequent to that

siting

approval, Marion Ridge Landfill has had

a development permit pendingwith the Illinois

Environmental Agency.

Marion Ridge Landfill has cooperated with the Agency on all

regulatory and technical issues raised during the lengthy period ofpermit review

and has spent

considerable time and technical and financial resources on ensuring the public health and

environmental safety ofthe proposed landfill.

Accordingly, Marion

Ridge Landfill fi.iily expects

that the development permit will finally be issued on or before July 24,

2004.

Printed

on Recycled Paper

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35

Ut. Adni. Code 101.202

and

101.

302(g)

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Because the proposed landfill is located within the location parameters set forth in the

recent Wendell

H. Ford Aviation Investment and

Refonn Act for the 21~

Century, Pub.

L.

106—

181,

effective

April

5,

2000, amended

49

U.S.C. 4471.8(d) (“Ford Act.”), Marion Ridge maJces

the following public comment, seeking Board clarification and amendment ofthe Board note,

and the applicable definition of”putrecible.”

H. Proposed

Board

Note Reflecting USEPA Note Giving

Public Notice ofLocation

Standards Set Forth

In

the Wendell

Holmes Ford

Act

—35

IlL

Adm. Code 811.302

First, Marion Ridge Landfill is fully aware ofthe

applicability ofthe Ford Act and has

every expectation that while

the Agency, in issuing the permit, may condition

the permit upon

compliance with all

applicable laws and regulations (including the Ford Act), it will not deny the

permit on the basis ofthe location standards set forth in that Act.

Second, Marion Ridge

Landfill has every expectation that

it can meet the provisions of the Ford Act, by assuring the

federal

agency responsible for its administration,

the Federal Aviation Administration (FAA),

that the landfill will be operated in such a waythat

it will not pose an attractant or hazard to

birds; thus, it expects

to fully meet the policy parameters which underlie the Ford Act and looks

forward to presenting its case to FAA.

Heretofore, the Agency has taken the position, correctly,

that the location standards set

forth

in the Ford Act cannot be used a basis ofa denial ofthe permit:, because the Ford Act

location standards

are not

a part ofthe

enviromnental regulations that the Agency regulates,

Certainly,

in determining not to “adopt”

the Ford Act location standards, and instead providing a

simple informational note referencing other applicable federal regulations

(See

Federal

Register/Vol.

68, No.

189, October

15, 2003), the United States Environmental Protection

Agency (USEPA) also recognized that the regulatory responsibility of enforcing the standards

2

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on Recycled Paper in

Accordance with

35

Ut.

Adrn.

Code 101.202 and

101.

302(g)

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therein lies with the FAA (and

corresponding state and local transportation entities) and not the

USEPA.

As the Board noted in

its March 18 order

in this matter, the actual ~‘adoption”

of these

standards in

federal environmental

rules was the source ofmuch controversy during the federal

rulemaking and,

accordingly, the USEPA ultimately determined not to promulgate any

substantive standard, but instead determined

to simply refer to the reader to the applicability of

these other federal standards.

Marion Ridge Landfill appreciates that the Board’s note is

drawn from identical language

as the USEPA note and accordingly,

like the federal note, provides a simple informational notice

to the public that other federal location standards may be applicable.

In order to ensure that there

is no confusion, however, Marion Ridge Landfill respectfully requests that the Board clarify,

in

its opinion adopting this note,

that the note is not intended to give the Agency any new authority

or responsibility to regulate concerning the standards set forth in the Ford Act. Such clarification

is provided by the USEPA in its federal register notice:

these landfill siting restrictions are directly applicable to any person constmcting or

establishing

a new landfill as those terms are defined in the statute and interpreted by the

FAA, the agency charged with administering the Ford Act.

Therefore, it is not necessary

for EPA to incorporate these provisions into the MSWLF criteria. Today’s amendment to

include

a reference to

section 503 of the Ford Act in a note to 40 CFR 25810, which is

the section of the criteria that

sets forth the location restrictions for airport safety under

RCRA,

Subtitle D, is solely for the convenience ofthe public.”

Federal

Register!

VoL

68, No.

199

atpage 59334 (October 15, 2003)

Also, as the proposed note

is drafted, the Ford Act notification

is contained in

a pre-

existing note which explains that the genesis of35

IlL

Adm. Code 811.302

(f) was 40 CFR

258.10, federal

environmental regulations administered by the USEPA.

To add the Ford Act

informational note to this same note presents unnecessary confusion.

3

Printed on Recycled Paper in Accordance with

35

111.

Adni. Code 101.202

and

lOt.

302(g)

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HI.

Clarification

of the Applicability of Distinct I)efinitions of“Putrecible”.

Again so as to

cause no confusion regarding the appropriate standards

and definitions

Illinois landfills must meet regarding Illinois

environmental regulations. as distinct from federal

aviation safety regulations, Marion Ridge Landfill respectftilly suggests that the Board provide

clarification, in

the rule itself’, that, for purposes ofapplication of the standards set forth in the

Ford Act, the definition of “putrecibic” set forth in 35

Ill.

Adm.

Code

8 10.103

is not applicable.

Rather, the definition established by the FAA is the applicable definition.

That. definition is much different than the definition found at 35 Ill. Adm.

Code

8 10.103,

as the

FAA definition is concerned with aviation safety, not the regulation ofspecific types of

landfills.

Specifically, the FAA defines “putrecible waste” as

“solid waste which

contains organic matter capable of being decomposed by micro-

organism and of such a character and proportion as to be capable ofattracting or

providing food for birds.” See Aviation Circular 150/5200-34,

Appendix

1

As it

is the FAA definition that is

key to an exception

to the location standards under the Ford

Act, in order to avoid any confusion that might result from the Board’s single rulemaking (which

provides

a reference to the Ford Act at the same time it technically amends the definition of

“putrecible”), Marion Ridge Landfill respectfully requests that the Board consider adding a note

after the definition of”putrecible.”

This note should clearly indicate that for purposes of

application ofstandards under the Ford Act, the FAA definition ofputrecible applies.

Thus, Marion Ridge Landfill suggests that the Board consider splitting this note into two

separate sections (since they refer to two distinct regulatory constructs) and also adding language

concerning the distinct “putrecihie” definitions.

For the Board’s convenience, Marion Ridge

Landfill provides the following suggested amendment to the Board note, which addresses the

4

Printed on Recycled Paper in Accordance with 35

11.

Adrn.

Code 101.202

and

101.

302(g)

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concerns sct forth above and which is consistent with the

federal

language set forth in its

“adoption” of this note.

BOARD NOTE:

Subsection (f) ofthis Section is derived from

40 CFR

258.10(4-992-)(2003),

as amended at 68

Fed. Reg.

59333 (October

15, 2003).

SECOND BOARD

NOTE:

A prohibition

on locating a new MSWLF near certain

airports was enacted in Section

503 ofthe

federal Wendell H.

Ford Aviation Investment

and Reform Act for the 2l5t Century (Ford Act) (49

U.S.C.

44718(d)).

Section

503

prohibits the “construction or establishment’ ofa new MSWLF after April

5,

2000 within

six miles of certain smaller public

airports

absent

federal approval.

The Federal

Aviation Administration. (FAA) administers the Ford Act and has issued guidance in

FAA Advisory Circular

1 50/5200-34. dated August

26,2000.

The terms defined

therein, including

the. definition of “putrecible,”

are the terms that apply to location

standards

under the Ford Act.

This note is adopted solely for the convenience ofthe

public and

should not be considered as the promulgation of new location standards

under the Illinois Environmental Protection Act.

Marion Ridge Landfill thanks

the Board for its consideration and for the opportunity to

present this public comment.

CLAIRE A.

MANNING

Posegate & Denes, P.C.

111 N.

Sixth Street

Springfield, illinois

62705

(217) 522-6152

(217) 522-6184 (FAX)

claire~posegate—denes.

corn

5

Claire A. Manning, Attorney

Prinn~dart Recycled Paper

in Accordance

with

35

111.

Mn,.

Code 101.202 and

101.302(g)