RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDJUN
082004
N
THE
MATTER OF:
RCRA SUBTITLE D UPDATE, USEPA
REGULATIONS (January
1, 2003 through
June 30, 2003)
IN THE MATTER OF:
RCRA SUBTITLE D UPDATE, USEPA
REGULATIONS (July
1, 2003, through
December 31, 2003)
)
)
STATE OF ILLINOIS
Pollution Control Board
)
R04-5
)
(Identical-in-Substance
)
Rulemaking
—
Land)
)
)
)
R04-15
)
(Identical-in-Substance
)
Rulemaking
—
Land)
To:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois
60601-3218
Michael J. McCambridge, Hearing Officer
Illinois Pollution
Control Board
James R. Thompson Center
100
West Randolph, Suite 11-500
Chicago, IL
60601-3218
NOTICE OF FILING
PLEASE TAKE NOTICE that on June 3, 2004,
I filed with the Clerk ofthe Illinois
Pollution Control Board, an original and nine (9) copies of a PUBLIC COMMENT and
MOTION TO FILE INSTANTER, with the Cle~
and the HEARII~TGOFFICER of the
ILLINOIS POLLUTION CONTROL BC
ofw1~
~thserved upon you.
CLAIRE A. MANNING
Posegate &
Denes, P.C.
Ill
N. Sixth Street, Suite 200
Springfield,
Illinois 62701
(217) 522-6152
(217) 522-6184 (FAX)
claire~posegate-denes.com
Claire A. Manning, Attorney
Printed on
Recycled Paper
in Accordance with 35
III.
Adm, Code
101.202 and
101. 302(g
PROOF OF SERVICE
The undersigned, being duly sworn, states that a true and correct copy of the foregoing
NOTICE OF FILING, together with a copy ofPUBLIC COMMENT, was served on the
individuals as listed below, by mailing the same via the United States postal service, Springfield,
Illinois on June 3, 2004:
Mathew J. Dunn, Chief
Environmental Bureau North
Office ofthe Attorney General
188 West Randolph Street
Suite 2001
Chicago, Illinois 60601
Jonathan Furr, ChiefLegal Counsel
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, Illinois
62702-1271
SUBSCRIBED AND SWORN to before me
CLAIRE A. MANNING
111 N. Sixth Street, Suite 200
Springfield, Illinois 62701
(217) 522-6152
(217) 522-6184 (FAX)
claire@posegate-denes.com
Mark Wight, Assistant Counsel
1021
North Grand Avenue East
P0 BOX 19276
Springfield, IL 62794-9276
2
Printed
on
Recycled Paper
in
Accordance with
35
III,
Adrn. Code
101.202 and
0!. 302(g
OFFICIAL
SEAL
DEBORAH D.
COOPER
:~
NOL~RYPUBLIC,
STATE
OF
IIUNQIS
MY
COMMISSION
EXPIRES
11-2-2305
~
RECEIVW
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
JUN08
2004
)
STATE OF
ILLINOIS
)
Pollution ControlBoard
IN THE MATTER OF~
RCRA SUBPTITLE 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
)
R04-5
REGULATIONS (July
1,
2003 through
)
(Identical in Substance
December 31, 2003)
)
Rulemaking
—
Land)
MOTION TO FILE
PUBLIC COMMENT INSTANTER
Now comes CLAIRE A. MANNING, for and
on behalf ofMarion Ridge Landfill and,
forthe following reasons, seeks to file the enclosed comment
instanter.
Marion Ridge Landfill only became aware that the Board was proposing to adopt the
USEPA note concerning the Wendell H. Ford Aviation after the close ofbusiness Friday, May
28, 2004,
afterthe close ofthe Board’s 45-day comment period.
The undersigned immediately
alerted staff at the Board to inform them of Marion Ridge Landfill’s desire to
file this public
comment. The Board’s agenda does not show that this matter will be moved at the Board’s June
3,
2004 meeting as originally contemplated. Thus, it appears that no one has been prejudiced by
Marion Ridge Landfill submitting this comment after the public comment period
and that the
Board will have sufficient time
to consider it.
Accordingly, Marion Ridge Landfill respectfully
requests that the Board accept the filing ofthis
)
)
)
Printed on
Rccyclcd
Paper in Accordance with
35 III.
Adm. Code
101,202 and
101.301(g)
CLAIRE
A. MANNING
Posegate
& Denes, P.C.
ill
N. Sixth Street
Springfield, Illinois
62705
(217) 522-6152
(217) 522-6184 (FAX)
claire~posegate-denes.com
Printed on
Recycled
Paper in Accordance with 35
III. Adm.
Code
101,202 and lOl.3O1(g)
R~CERVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
082004
STATE
OF
ILLINOIS
Pollution Control Board
NTHEMATTEROF:
)
)
RCRA SUBPTITLE 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
)
R04-5
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 pending with 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 fully expects
that the development permit will finally be issued on orbefore July 24, 2004.
Printed on Recycled Paper in Accordance with 35 III, Adm. Code
101.202 and
101.
302(g)
Because the proposed landfill is located within the location parameters set forth in the
recent Wendell H. Ford Aviation Investment and
Reform Act for the
2l~~
Century, Pub.
L.
106-
181, effective April
5,
2000,
amended 49 U.S.C. 44718(d) (“Ford Act”), Marion Ridge makes
the following public comment, seeking Board clarification and amendment of the Board note,
and the applicable definition of”putrecible.”
II. Proposed Board
Note Reflecting USEPA Note Giving Public Notice
of Location
Standards Set Forth
In the Wendell Holmes Ford Act
—35 ID.
Adm. Code
811.302
First,
Marion Ridge Landfill
is fully aware of the 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 ofthe Ford Act, by assuringthe
federal agency responsible for its administration, the Federal Aviation Administration (FAA),
that the landfill will be operated in such a way that 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 of a denial of the permit, because the Ford Act
location standards are not a part ofthe environmental 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
Printed on Recycled
Paper in Accordance with 35 Ill.
Adm. Code
101.202 and
101.302(g)
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” ofthese
standards in federal environmental rules was the source of much 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
orresponsibility 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 constructing 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 ofthe Ford Act in a note to 40
CFR 25810, which is
the section ofthe 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
at page 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 of 35
Ill. Adm. Code 811.302
(0
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
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Recycled Paper
in Accordance with
35 III.
Adm. Code
101.202 and
101.
302(g)
HI.
Clarification of the Applicability of Distinct Definitions 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 respectfully suggests that the Board provide
clarification, in the rule itself,
that, for purposes of application of the standards set forth in the
Ford Act, the definition of“putrecible” set forth in 35
111.
Adm. Code 810.103
is not applicable.
Rather, the definition established by the FAA is the applicable definition.
That definition is much different thanthe definition found at 35
Ill. Adm.
Code 8 10.103,
as the FAA definition is concerned with
aviation safety, not the regulation of specific types of
landfills.
Specifically, the FAA defines “putrecible waste” as
“solid waste which contains organic matter capable ofbeing decomposedby micro-
organism and ofsuch a character and proportion as to be capable of attracting or
providing food forbirds.” 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 “putrecible” definitions.
For the Board’s convenience, Marion Ridge
Landfill provides the following suggested amendment to the Board note, which addresses the
4
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on
Recycled
Paper
in
Accordance with
35111. Adm.
Code
101.202
and
101. 302(g)
concerns set forth above and which is consistent with the federal language set forth in its
“adoption” ofthis
note.
BOARD NOTE:
Subsection (1) ofthis Section
is derived from 40 CFR
258.l0(1992)(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 21st Century (Ford Act) (49 U.S.C.
447 18(d)).
Section 503
prohibits the “construction or establishment’ ofa new MSWLF after April
5,
2000 within
six miles ofcertain smaller public
airports
absent federal approval.
The Federal
Aviation Administration, (FAA) administers the Ford Act and has issued guidance in
FAA Advisory Circular 150/5200-34, 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 of the
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, Attorney
CLAIRE A.
MANNING
Posegate &
Denes, P.C.
111 N. Sixth Street
Springfield, Illinois 62705
(217) 522-6152
(217) 522-6184 (FAX)
claire~posegate-denes.com
5
Printed on Recycled Paper in
Accordance
with 35
III.
Adm. Code
101.202 and
101.
302(g)
