9729NEW3.PDF

ILLINOIS POLLUTION CONTROL BOARD

June 17, 1998

IN THE MATTER OF:

AMENDMENTS TO REQUIREMENTS FOR

LANDSCAPE WASTE COMPOST

FACILITIES, 35 ILL. ADM. CODE

830.203(c), 831.107, AND 831.109(b)(3)

)

R97-29

(Rulemaking - Land)

Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by K. M. Hennessey):

In this proceeding, two citizens, Dr. Renuka Desai and Susan Garrett

(proponents), ask the Board to require that composting areas at certain landscape waste

compost facilities be located at least 1/2 mile from the property line of a hospital,

school, athletic field, or public park. Proponents also ask the Board to require existing

composting areas located within that setback distance to relocate. Proponents state that

the amendments are necessary because these composting areas release spores that

present risks to human health, particularly spores of the fungus

Aspergillus fumigatus

(

A. fumigatus

Today the Board adopts for first notice a modified version of proponents’

proposal. The Board acknowledges that responsible composting is environmentally

beneficial and the record indicates that composting has not been shown to increase risks

to the general public. Furthermore, the fungus

A. fumigatus

is ubiquitous, and at

approximately 500 feet from composting areas, the concentration of

A. fumigatus

spores generally is not higher than its background concentration. However, as a

precaution, and consistent with the recommendations of public health experts, this first

notice order would extend the 1/8 mile setback from residences that currently applies to

composting areas to health care facilities, pre-school and child care facilities, and

primary and secondary school facilities. The modified proposal would apply only to

composting areas developed or expanded after January 1, 1999. The Board also

proposes corresponding changes to requirements for permit applications.

This opinion is organized as follows: first, the Board discusses the current

composting setback requirements and proponents’ proposal; second, the Board sets

forth a summary of its major conclusions in this rulemaking; third, the Board

summarizes the rulemaking proceedings to date and addresses several procedural

matters; fourth, the Board discusses the evidence in this record on the sources and

effects of

A. fumigatus

, followed by the Board’s related findings; fifth, the Board

discusses the evidence on the need for additional setbacks, followed by the Board’s

related findings; and lastly, the Board sets forth its conclusions. The opinion is

followed by the Board’s order, which sets forth the amendments proposed for first

notice.

BACKGROUND AND PROPOSAL

Proponents propose that the Board amend the location standards for compost

facilities that the Board adopted in 1994,

specifically 35 Ill. Adm. Code 830.203(c).

Section 830.203(c) implements Section 39(m) of the Illinois Environmental Protection Act

(Act), 415 ILCS 5/39(m) (1996), and currently provides as follows:

With the exception of on-farm landscape waste operations, all landscape

waste compost facilities subject to this Part shall comply with the

following:

* * *

located so as to minimize

incompatibility with the character of the surrounding area, including at

least a 200 foot setback from any residence, and in the case of a facility

that is developed or the permitted composting area of which is expanded

after November 17, 1991, the composting area shall be located at least

1/8 mile from the nearest residence (other than a residence located on the

same property as the facility).

(Note: italicized language is from Section

39(m).)

The legislature defined “landscape waste,” “compost,” and “composting” in the

Act, and the Board incorporated the same definitions into its rules. “Landscape waste”

means:

all accumulations of grass or shrubbery cuttings, leaves, tree limbs and

other materials accumulated as the result of the care of lawns, shrubbery,

vines and trees. 415 ILCS 5/3.20 (1996).

“Compost” means:

the humus-like product of the process of composting waste, which may be

used as a soil conditioner. 415 ILCS 5/3.69 (1996).

“Composting” means:

the biological treatment process by which microorganisms decompose the

organic fraction of the waste, producing compost. 415 ILCS 5/3.70

(1996).

The location standards that the Board adopted in 1994 apply to the “composting

areas” of “on-site facilities,” “on-site commercial facilities,” and permitted “landscape

See Regulation of Landscape Waste Compost Facilities 35 Ill. Adm. Code 830-832

(November 3, 1994), R93-29.

waste compost facilities.” They do not apply to “garden compost operations”

or “on-

farm landscape waste compost facilities.” See 35 Ill. Adm. Code 830.102 (definitions),

830.104(a) (exemption for garden compost operations), and 830.201 (scope and

applicability of Part 830).

Proponents propose that the Board amend the location standards of 35 Ill. Adm.

Code 830.203(c) by adding the language underlined below:

With the exception of on-farm landscape waste operations, all landscape

waste compost facilities subject to this Part shall comply with the

following:

* * *

(c)

The composting area of the facility must be

located so as to minimize

incompatibility with the character of the surrounding area, including

at least a 200 foot setback from any residence, and in the case of a

facility that is developed or the permitted composting area of which is

expanded after November 17, 1991, the composting area shall be

located at least 1/8 mile from the nearest residence (other than a

residence located on the same property as the facility)

, and a minimum

of 1/2 mile from the property line of a hospital, school, an athletic field

and a public park. Existing composting operations that are located

within 1/2 mile of the above-mentioned facilities shall be relocated to

more than 1/2 mile within six months of the effective date of this

regulation.

Proponents maintain that these amendments are necessary because landscape waste

compost facilities release spores into the air that present risks to human health. The

spores that cause proponents greatest concern are spores of the fungus

A. fumigatus

The task of deciding whether to adopt these amendments is the Board’s

responsibility under Section 5 of the Act, which provides that the Board “shall determine,

define and implement the environmental control standards applicable in the State of Illinois

and may adopt rules and regulations in accordance with Title VII of the Act.” 415 ILCS

5/5(b) (1996). Sections 8 and 10 of the Act also authorize the Board to adopt rules

regarding air pollution. Section 10 provides:

The Board . . . may adopt regulations to promote the purposes of this Title.

415 ILCS 5/10(a) (1996).

“Garden compost operation” means “an operation which (1) has no more than 25

cubic yards of landscape waste, composting material or end-product compost on-site at

any one time and (2) is not engaging in commercial activity.” 35 Ill. Adm. Code

830.102.

The “Title” to which Section 10 refers is Title II: Air Pollution. Section 8 sets forth the

purposes of Title II as follows:

It is the purpose of this Title to restore, maintain, and enhance the purity of

the air of this State in order to protect health, welfare, property, and the

quality of life and to assure that no air contaminants are discharged into the

atmosphere without being given the degree of treatment or control

necessary to prevent pollution. 415 ILCS 5/8 (1996).

In adopting or amending regulations, the Board must follow the procedures set

forth in Title VII of the Act, including Section 27(a) of the Act, which provides in part:

The Board may adopt substantive regulations as described in this Act. Any

such regulations may make different provisions as required by

circumstances for different contaminant sources and for different

geographical areas . . . may make special provision for alert and abatement

standards and procedures respecting occurrences or emergencies of

pollution or on other short-term conditions constituting an acute danger to

health or to the environment; and may include regulations specific to

individual persons or sites. In promulgating regulations under this Act, the

Board shall take into account the existing physical conditions, the character

of the area involved, including the character of surrounding land uses,

zoning classifications, the nature of the existing air quality, or receiving

body of water, as the case may be, and the technical feasibility and

economic reasonableness of measuring or reducing the particular type of

pollution. 415 ILCS 5/27(a) (1996).

When the Board adopts regulations, it is acting in its quasi-legislative capacity. Granite

City Division of National Steel Company v. PCB, 155 Ill. 2d 149, 180, 613 N.E.2d 719,

733 (1993). When acting in that capacity, the Board “has no burden to support its

conclusions with a given quantum of evidence.” Granite City, 155 Ill. 2d at 180, 613

N.E.2d at 733. However, before the Board adopts or amends a regulation, Section 27(b)

requires the Board to determine whether the new or amended regulation “has any adverse

economic impact on the people of the State of Illinois.” 415 ILCS 5/27(b) (1996).

SUMMARY OF CONCLUSIONS

The Board reaches the following major conclusions in this first notice opinion

and order. A more complete discussion of each of these issues is included in the

Discussion section beginning at page 7.

1. The fungus

A. fumigatus

is ubiquitous. While responsible composting is

environmentally beneficial, composting generates elevated levels of

fumigatus

. Airborne

A. fumigatus

spores from compost facilities may occur

at levels above background in nearby, downwind off-site areas.

A. fumigatus

spores pose little, if any, health threat to healthy individuals in

the general public. However, they do pose a potential health threat to

persons with asthma, cystic fibrosis, immunocompromised or

immunosuppressed conditions, or bioaerosol allergies. Very young children

are also potentially at greater risk because their immune systems are

immature. No relationship between exposure to certain levels of

fumigatus

spores and adverse health effects (

i.e.

, a “dose-response

relationship”) has been demonstrated.

3. While operating standards can minimize the off-site distribution of

fumigatus

spores, it appears that even good management practices at

compost facilities do not necessarily prevent downwind

A. fumigatus

spore

concentrations from being above background levels in nearby off-site areas.

4. As a precaution, and consistent with the recommendations of public health

experts, compost facilities sited in the future should be set back from the

following facilities: (a) health care facilities; (b) primary and secondary

schools and their associated recreational areas; and (c) pre-school and child

care facilities and their associated recreational areas.

5. Generally, the concentration of

A. fumigatus

spores falls to background

within approximately 500 feet of a composting area. The current 1/8 mile

(660 feet) setback applied for residences will be extended to these other

facilities. The Board also proposes corresponding changes to requirements

for permit applications.

6. Since the additional setback requirements would be imposed as a matter of

prudence in the face of a potential health threat, and in light of the potential

economic costs of relocating or closing existing compost facilities, the Board

proposes applying the new setback requirements prospectively. As proposed

in this first notice order, the new setbacks will apply only to a composting

area developed or expanded after January 1, 1999.

PROCEDURAL MATTERS

Proponents filed their proposal with the Board on May 6, 1997. On June 19,

1997, the Board accepted this proposal for hearing. The Board held two public hearings

in this matter: the first, in Chicago, on September 8, 1997; and the second, in Springfield,

on October 7, 1997.

A number of witnesses testified at each hearing. At the first

hearing, the following witnesses testified: Susan Garrett, a resident of the City of Lake

Forest and one of the proponents; Steven Handler, a resident of the City of Lake Forest;

Gloria Loukas, a resident of the City of Lake Forest; Dr. Renuka Desai, a resident of the

City of Lake Forest and one of the proponents; Jack Darin of the Sierra Club; William

The transcript of the September 8, 1997, hearing is cited as “Tr.1 at _;” the transcript

of the October 7, 1997, hearing is cited as “Tr.2 at _.”

Holleman of the Illinois Citizen Action Public Education Committee; Earl Johnson of the

Illinois Citizen Action Public Education Committee; Cheryl Doros, a resident of the City

of Lake Forest; Peter Mueller, a resident of the City of Lake Forest; Edward Grskovich, a

resident of the City of Lake Forest; Jacob Dumelle of the American Lung Association of

Metropolitan Chicago; Mary Matthews, a resident of the City of Lake Forest; Scott

Garrett, a resident of the City of Lake Forest; Joyce Munie of the Illinois Environmental

Protection Agency; Elizabeth Harvey on behalf of Land and Lakes Company; Thomas

Naatz, Director of Parks, Forestry, and Public Works for the City of Lake Forest; and

Charles Pick of Organics Management Company.

At the second hearing, the following witnesses testified: Dr. Karen Strauss, on

behalf of the City of Lake Forest; Dr. Shirley Baer, Joyce Munie, and Edwin Bakowski of

the Illinois Environmental Protection Agency; Clyde Wakefield, Director of Public Works

and Engineering for the City of Crystal Lake; Dr. Paul Walker of Illinois State University;

and Andrew Quigley of the Solid Waste Agency of Lake County.

On December 10, 1997, the hearing officer set a public comment deadline of

January 23, 1998. On January 26, 1998, the Illinois Environmental Protection Agency

(Agency) filed a motion for leave to file instanter its public comment, along with its public

comment. No one opposed the motion. The Board grants the motion.

Complete lists of exhibits entered into the record, and public comments filed with

the Board, are attached to this opinion and order as Attachment 1 and Attachment 2,

respectively.

In adopting the rules that the Board proposes for first notice, the Board considered

all matters of record, including the proposal presented by proponents, testimony, exhibits,

and public comments. The Board’s proposed rules will be published in the

Illinois

Register

, upon which a public comment period of at least 45 days will begin.

The Board also notes that the caption of this opinion and order has been changed

to reflect the Board’s proposed amendments to permit application requirements for site

location maps (35 Ill. Adm. Code 831.107) and other information (35 Ill. Adm. Code

831.109(b)(3)). All future filings in this rulemaking must set forth this amended

caption.

ADDITIONAL PROCEEDINGS

The Board directs the hearing officer to schedule an additional hearing in this

matter. The primary purpose of the hearing is to receive testimony on the first notice

version of the proposed rules.

Another purpose of the hearing is to receive testimony on the decision of the

Department of Commerce and Community Affairs, under Public Act 90-489, effective

The Board would like to receive testimony from all interested persons on the

following issues: (1) the technical feasibility and economic reasonableness of the

proposed rules in this first notice order; (2) if the setbacks proposed in this first notice

order were applied to existing compost facilities, should they apply immediately or

after some period of time expires; (3) if the setbacks proposed in this first notice order

were applied to existing compost facilities, would that render the regulation an invalid

retroactive regulation; (4) if the setbacks proposed in this first notice order were

applied to existing compost facilities, how many existing compost facilities would have

to close or relocate; and (5) of those facilities identified in item (4), how long would it

take to amortize the respective investments in those facilities. The Board will receive

testimony on other issues if relevant and not repetitive. The Board also welcomes

public comments.

DISCUSSION

The Board will first discuss the evidence in the record on the sources and effects of

A. fumigatus

, followed by the Board’s related findings. Then the Board will discuss the

evidence on the need for additional setbacks, followed by the Board’s related findings.

Sources and Effects of

A. Fumigatus

Sources of

A. Fumigatus

Participants in this rulemaking generally agreed that composting facilities are

associated with higher levels of the fungus

A. fumigatus

. Dr. Elliot Epstein

stated in

public comment that the predominant public and worker health concern with composting

facilities is the potential impact of bioaerosols:

Bioaerosols are organisms or biological agents that can be dispersed into

the air and affect human health. The principal bioaerosols in yard waste

composting operations are fungal spores since fungi are present in soils,

grass, leaves, and woody material. Although there are numerous fungi and

other organisms which are normally found in soils and organic materials,

the most common bioaerosols of concern in composting operations from a

public health point of view is the fungus

Aspergillus

fumigatus

. . . . PC 14

at 2.

Composting generates heat through microbial activity, and unlike many other

organisms,

A. fumigatus

can “survive the high temperatures generated during

composting.” PC 14 at 4; Exh. 34, Att. 2 at 4.

A. fumigatus

is “an integral and

January 1, 1998, to not perform an economic impact study on proponents’ proposed

rules.

Dr. Epstein is the president of E&A Environmental Consultants, Inc. and an Adjunct

Professor of Public Health at the Boston University School of Public Health’s School of

Medicine. PC 14 at 2, Att. (

curriculum vitae

unavoidable part of composting . . . .” Exh. 34, Att. 2 at 4; see also Exh. 36, Att. 4 at 11

(“One should recognize that composting facilities do represent sites where there is a

massive culturing of

Aspergillus

fumigatus

organisms in relatively small areas compared to

most ‘natural’ or background circumstances.”).

Furthermore,

A. fumigatus

spores generated at composting facilities may become

airborne.

Dr. Epstein explained that “[s]creening, mixing, and other activities in which

material is moved or agitated allow the spores to become airborne.” PC 14 at 4; see also

Exh. 34, Att. 2 at 5 (“turning and mixing the compost is ideal for getting the spores

airborne”). These airborne spores may travel downwind of the facilities. The Haines

report

states:

spores from compost will be in the air currents downwind from

composting facilities. How much and how far depends on the volume of

compost, its age, temperature, and moisture, the method and frequency of

mixing, the obstacles the wind meets, the speed and direction of the wind,

and possibly factors we haven’t thought of yet. There is a point at which

the level of AF spores from a compost source reaches a level

indistinguishable from the natural level for the region. Exh. 34, Att. 2 at 5.

Supporters and opponents of proponents’ proposal also agreed that while compost

facilities are associated with elevated levels of

A. fumigatus

, the fungus can be found in

many places. Dr. Karen Strauss,

testifying on behalf of the City of Lake Forest, explained

that

A. fumigatus

participates in natural decay processes and is ubiquitous. She noted that

most urban and suburban residential exposures result from common sources, for example:

digging in one’s yard, earth moving or activities that disturb the soil,

construction dust, lawn mowing, particularly with a mulching lawn mower,

gardening and landscaping, raking leaves, household plants, walking

through an arboretum or along a nature trail, animal feces, bird nests,

household pets, contaminated air conditioners or ventilation systems,

household dust, bathroom mold, basements or crawl spaces, particularly

those with dirt floors, gas stoves, and heating systems

. . . . Tr.2 at 14; Exh. 34 at 4-5; see also PC 26 at 11, n.18; Exh. 34, Att. 2

at 5; Tr.2 at 259.

Effects of

A. Fumigatus

on Human Health

“Spores” are “one of the stages of the fungus’ life cycle” and are the form of the

fungus “responsible for dispersal in the ambient environment.” Exh. 36, Att. 4 at 4.

Haines, Aspergillus in compost: Straw man or fatal flaw?, BioCycle (Apr. 1995).

A.fumigatus

is also referred to as “AF.”

See Exh. 35 (

curriculum vitae

of Dr. Strauss).

Diseases. Both supporters and opponents of proponents’ proposal also agree that

A. fumigatus

is an organism that can invade and infect humans, or a “pathogen.” It is

considered a secondary or opportunistic pathogen. As Dr. Epstein explained:

Unlike primary pathogens (bacteria, viruses, or parasites) which can invade

and infect healthy persons,

A. fumigatus

generally only invades and infects

highly debilitated or immuno-suppressed individuals. PC 14 at 3; see also

Exh. 34, Att. 2 at 6-7, Att. 4 at 104-106; Exh. 36, Att. 4 at 6-8.

The diseases that

A. fumigatus

causes are referred to generally as “aspergillosis.”

Exh. 34, Att. 2 at 6-7; see also Exh. 36, Att. 4 at 6-8; PC 26, Supp. (Maritato report (see

footnote 14) at 42). The Ault and Schott report

describes the different types of

aspergillosis. Initially, it notes that approximately 3 to 5% of the U.S. population suffers

from extrinsic (allergic) asthma and that approximately 20% of the U.S. population is

genetically predisposed to react to allergens in the environment:

In the first type of aspergillosis illness [extrinsic (allergic) asthma], people

with this predisposition may develop this form of asthma upon becoming

sensitized to

Aspergillus

species. Asthmatics may find their asthmatic

condition aggravated upon exposure to

A. fumigatus

. Exh. 36, Att. 4 at 8;

see also Exh. 34, Att. 2 at 6.

The second type of aspergillosis, allergic bronchopulmonary aspergillosis, is a

condition in which:

Aspergillus

spores germinate and the resultant . . . growth can potentially

block the bronchi . . . . There is no invasion of tissue. However, the

patient may suffer lung fibrosis and may, over time, become more

susceptible to other lung diseases. Exh. 36, Att. 4 at 8; see also Exh. 34,

Att. 2 at 7.

The link between allergic bronchopulmonary aspergillosis and asthma has been

documented since 1952. The link is so well established that allergic bronchopulmonary

Ault and Schott, Aspergillus, Aspergillosis, and Composting Operations in California,

Local Enforcement Agency Advisory (Dec. 16, 1993). The California Integrated Waste

Management Board published this report to provide information on

A. fumigatus

and to

address the potential health effects of

A. fumigatus

from compost facilities. The report is

based upon a review of scientific information available in the literature. Exh. 36, Att. 4.

Aspergillus

is one of the largest genera of molds.

A. fumigatus

is one of many

species of

Aspergillus

. Exh. 34, Att. 2 at 4.

A. fumigatus

is “the

Aspergillus

species

most pathogenic to humans . . . .” Exh. 36, Att. 4 at 6. Participants in this

rulemaking occasionally use the more general term “

Aspergillus

.” As expressed

throughout the record of this rulemaking, however, the primary bioaerosol of concern

with compost facilities is the

Aspergillus

species known as “

A. fumigatus

.”

aspergillosis is considered a complication of bronchial asthma. Tr.2 at 23-24; Exh. 34 at

11.

The third type of aspergillosis, extrinsic allergic alveolitis (hypersensitivity

pneumonitis) “is often associated with repeated exposure to an identified—often

occupational—source of high levels of antigen.” Exh. 36, Att. 4 at 8; see also Exh. 34,

Att. 2 at 6-7 (This disease is “characterized by coughing, difficulty in breathing, and

sometimes a fever about six hours after exposure. . . . This condition is more serious than

extrinsic asthma, but not life threatening.”). Lastly, invasive aspergillosis “is seen in

people whose normal immune systems are compromised . . . . In [invasive aspergillosis],

there is an actual invasion of lung tissue or skin, and often dissemination by means of

blood to other parts of the body. The prognosis for [invasive aspergillosis] is grave.”

Exh. 36, Att. 4 at 8; see also Exh. 34, Att. 2 at 7.

Population at Risk. Dr. Strauss acknowledged that it is widely recognized that

there are particularly susceptible individuals “who may be at greater risk for developing

health complications from exposure to bioaerosols.” Tr.2 at 22-23; see also Tr.2 at 37

(Dr. Strauss read the following from the Millner report (see footnote 12): “There are

subpopulations within the general population and work force that may be at increased risk

from exposure to composting bioaerosols.”).

Dr. Strauss quoted the Millner report’s

description of the class of susceptible

individuals:

Of particular concern, immunocompromised and/or immunosuppressed

individuals (

e.g.

, chemotherapy recipients, organ transplant recipients,

AIDS patients, individuals with congenital defects, and children with cystic

fibrosis who may be at increased risk of infection) may have greater

susceptibility to colonization and infection by

A. fumigatus

Atopic/asthmatic individuals may be at increased risk for developing

allergic reactions to various components of composting bioaerosols. A

variety of common components of aerosols (

e.g.

, pollen, fungal spores,

household dust) are associated with allergic reactions or can induce

asthmatic reactions. Exh. 34 at 10; see also Tr.2 at 48-50, 89, 91-92

(related testimony of Dr. Strauss).

Millner,

et al

., Bioaerosols Associated With Composting Facilities, Compost Science

and Utilization (1994). This report is a result of a workshop convened by the United

States Environmental Protection Agency, the United States Department of Agriculture,

and the National Institute of Occupational Safety and Health with the assistance of the

Composting Council to address the issue of whether bioaerosols associated with

composting operations endanger public health and the environment. The primary goal

of the collaborative workshop was to evaluate the results from the few available

quantitative studies to address the issue of what levels of bioaerosols are safe and what

levels of protection are adequate for occupational and public health. Exh. 36, Att. 7.

Dr. Renuka Desai, one of the proponents and a resident of Lake Forest, testified

that there is adequate evidence of a potential health risk for individuals who have allergies

or asthma, or who are immunocompromised. Tr.1 at 46-47. She also testified that

children are especially at risk from bioaerosols because children’s immune systems are not

mature. Tr.1 at 180; see also Exh. 20 at 1 (Dr. Rita Messing, Environmental Toxicologist

for the Minnesota Department of Health stated that “the very young are also at risk since

their immune systems are immature.”). Jacob Dumelle, Chairman of the Environmental

Health Committee, American Lung Association of Metropolitan Chicago, testified that

“mold spores, irritant gases, and odors generated by large compost piles may pose a

serious health risk for children, hospital patients, and other sensitive individuals.” Tr.1 at

102.

Dose-Response Relationship. Both supporters and opponents of proponents’

proposal also agree that no relationship between exposure to certain levels of

A. fumigatus

spores and adverse health effects (

i.e.

, a “dose-response relationship”) has been

demonstrated. PC 14 at 3; see also Exh. 34, Att. 2 at 6-7, Att. 4 at 104-106; Exh. 36, Att.

4 at 6-8, Att. 7 at 10 (the Millner report states that, at present, neither minimum threshold

levels nor dose-response data are available for

A. fumigatus

and other biological

constituents in compost feed stock that stimulate inflammatory, allergic, asthmatic, or

infectious processes in humans). Dr. Desai also acknowledged that levels of exposure to

A. fumigatus

spores that would be considered significant have not been defined. Tr.1 at

142. The Illinois Department of Public Health acknowledged that there is no dose-

response relationship, as did Dr. Strauss and Dr. Paul Walker.

Exh. 21-A at 1; Tr.2 at

63-64, 250.

The Haines report similarly states that “we don’t know how much AF is ‘too

much.’ We can measure the spores in air, but, except for very high or very low figures,

we don’t know whether it is dangerous or safe. . . . [W]e don’t have a scale that tells safe

from dangerous levels.” Exh. 34, Att. 2 at 6, 8. The Maritato report

states:

The precise does(s) of A. fumigatus required to elicit adverse health effects

in either healthy or sensitive individuals has not been determined. [] As

described by EPA, “Humans vary in their susceptibility to pathogens,

depending on route of exposure, age of exposed individuals, quality of

normal bodily defense systems, existing microbial populations in the host,

and other poorly defined properties.” PC 26, Supp. (Maritato report at

43).

Dr. Walker is a Professor of Animal Science at Illinois State University. Tr.1 at

240.

Maritato,

et al

., Potential Human Health Concerns from Composting, BioCycle

(Dec. 1992). Mr. Maritato of ChemRisk is a co-author of the Millner report. See

Exh. 36, Att. 7.

The Maritato report states that

A. fumigatus

appears to present widely different

potential health hazards depending upon the segment of the population at issue:

In humans, the potential hazards associated with A. fumigatus appear to

vary widely. In the general population, Wyngaarden and Smith report that

although spores (or conidia) of Aspergillus are frequently identified in the

air of many indoor and outdoor environments, and therefore are inhaled

routinely, the rarity of disease attributable to these fungi emphasizes the

apparent effectiveness of host organism (human) immune responses against

their potency in healthy individuals. For individuals whose immune systems

may be sensitive or inadequate to protect against the presence of inhaled A.

fumigatus spores, a range of possible health effects, from allergic responses

to chronic pulmonary disease, may result. [] For individuals whose

immune systems are severely compromised, such as those undergoing

treatment for cancer or recipients of organ transplants, even a single colony

forming unit (CFU) per cubic meter of air may lead to the onset of

“aspergillosis.” . . . In analyzing the public health risks associated with

sewage sludge composting, it is important to recognize that A. fumigatus is

a naturally-occurring, pervasive organism that, in individuals predisposed

to allergies or aspergillosis, is capable of disease induction at background

environmental concentrations. . . . While we know that severely

immunocompromised individuals may become ill from exposure to even a

single A. fumigatus conidia, healthy individuals in the general population

appear to show no significant health impacts from exposure to ambient

concentrations. PC 26, Supp. (Maritato report at 42-43).

Board Findings on Sources and Effects of

A. Fumigatus

The Board recognizes that

A. fumigatus

is ubiquitous. However, compost

facilities generate greater concentrations of

A. fumigatus

than typically occur in nature.

The Board also finds that

A. fumigatus

is a secondary pathogen that causes invasive

aspergillosis, allergic bronchopulmonary aspergillosis, and hypersensitivity pneumonitis.

A. fumigatus

is also a common fungal allergen source and can induce asthma. While

fumigatus

spores pose little, if any, health risk to healthy individuals in the general public,

it is widely recognized that

A. fumigatus

spores pose a potential health threat to persons

with asthma, cystic fibrosis, immunocompromised or immunosuppressed conditions, or

bioaerosol allergies. Very young children also are sensitive receptors because their

immune systems are immature.

The Board also recognizes that no dose-response relationship has been established

for

A. fumigatus

spores. Obviously, such information would be helpful. Nevertheless,

there are portions of the population at greater risk of health impacts from some level of

fumigatus

spore exposure.

Need for Additional Setbacks

Participants in this rulemaking vigorously contest whether the Board should

require compost facilities to be set back 1/2 mile from hospitals, schools, public parks, and

athletic fields. As further discussed below, proponents argue that: (1) the existing

regulations do not adequately address

A. fumigatus

spores released from compost

facilities; (2) scientific evidence suggests that additional setbacks of 1/2 mile are necessary

and prudent; (3) consistency in regulation requires the additional setbacks; and (4) the 1/2

mile setback is technically feasible and economically reasonable, both for existing and new

compost facilities.

As also discussed below, those opposing proponents’ proposal argue that: (1)

existing regulations adequately address the increased concentrations of

A. fumigatus

spores that compost facilities produce; (2) scientific studies do not show any increased

health risks from compost facilities; (3) both general and sensitive populations are more

likely to be exposed to

A. fumigatus

spores from sources other than compost facilities; (4)

imposing additional setbacks would be inconsistent with Illinois’ regulatory scheme

generally; (5) no scientific studies justify a 1/2 mile setback; and (6) the 1/2 mile setback is

not technically feasible or economically reasonable, especially for existing compost

facilities.

Proponents’ Position

Existing Regulations. Proponents assert that compost facilities pose a public

health risk even if they are operated in compliance with existing Illinois regulations. Tr.1

at 186-187. Proponents maintain that a setback is the best means of addressing their

concerns. Tr.1 at 186, 187, 192-193.

Scientific Evidence. Dr. Desai testified that while health studies are inconclusive

regarding health risks posed by compost facilities, there is adequate evidence of a potential

health risk to surrounding communities to justify additional setbacks. Tr.1 at 46-47. She

noted that this evidence is especially strong for individuals who have allergies or asthma,

or who are immunocompromised. Tr.1 at 46-47. Dr. Desai testified that not only are

fumigatus

spore concentrations from compost facilities much greater than occur from

common sources, but “I can take care of the certain circumstances like home or a pet . . .

but I don’t have control over the composting facility . . . .” Tr.1 at 137-139.

While proponents acknowledge that there are few reported cases linking compost

facilities to adverse health effects, William Holleman, President of Illinois Citizen Action,

stated that there may be thousands of unidentified cases. Tr.1 at 151. In this regard, he

testified that while aspergillosis has been previously recognized, it is very often

Illinois Citizen Action describes itself as a “public education committee . . . of

concerned citizens” whose mission is to “protect public health and welfare and preserve

the environment.” Exh. 8; Tr.1 at 75.

misdiagnosed since physicians are not aware of the disease. Tr.1 at 152. One of those

opposing the amendments, Dr. Epstein, acknowledged that:

exposure to

A. fumigatus

can result in allergic-type symptoms, such as

irritation to the eyes, nose, and throat. It is difficult to isolate the effect of

A. fumigatus

, since many of these symptoms are similar to those caused by

other common allergies and smoking. PC 14 at 3; see also Exh. 34, Att. 2

at 6.

In addition, Mr. Holleman testified that the lack of reliable scientific information

concerning

A. fumigatus

levels in the vicinity of compost sites is mainly due to difficulty in

collecting the data and the high cost associated with the monitoring. Tr.1 at 75, 78.

Dr. Desai also noted that even scientists who do not believe that compost facilities

pose a health threat recommend a buffer zone between compost operations and schools,

hospitals, and public parks. Tr.1 at 47. For example, proponents rely on the Islip study.

The State of New York Department of Health conducted the Islip study to address citizen

concerns about bioaerosol emissions from a yard waste composting facility in the town of

Islip, New York. The study included environmental monitoring and a health impact

assessment. The study concluded that average

A. fumigatus

spore levels in the study

neighborhood when it was downwind of the facility were four times the average

background levels. The frequency of elevated

A. fumigatus

spore levels was also higher in

the study neighborhood than in a reference neighborhood. However, the health study

could not establish any correlation between elevated

A. fumigatus

spore levels and an

increased incidence of allergy or asthma symptoms. Exh. 36, Att. 5. Nevertheless, the

study concludes that:

[h]ospitals with the most severely immuno-compromised patients (

e.g

bone-marrow transplant wards) must take extreme precautions to prevent

infection of these patients. If outdoor

A. fumigatus

spore levels at such a

hospital were more frequently elevated than normally occurs, the risk of

life-threatening infection could be increased. . . . [C]omposting facilities

should not be sited close to hospitals or other health care facilities where

extreme precautions are being taken to prevent infection of severely

immunocompromised patients, unless bioaerosol emissions can be

controlled. Exh. 36, Att. 5 at 45-46

Similarly, a medical advisory panel of various health officials, doctors, and experts

was formed to address the health concerns of residents about exposure to bioaerosols

from a composting operation at a San Jose, California landfill. The panel reported in 1994

that there:

State of New York Department of Health, A Prospective Study of Health Symptoms

and Bioaerosol Levels Near a Yard Waste Composting Facility, (Mar. 1994). See Exh.

36, Att. 5.

is no evidence that composting at the . . . landfill will result in an increase in

aspergillosis among residents living near the landfill. But there is a

potential

risk of increased exposure to

Aspergillus

spores in areas located

downwind from a composting area. An increase in aspergilli exposure has

the potential to cause disease.

To be certain that there is no increase in health risk, efforts should be made

to ensure that spore concentrations in the neighborhoods near the

composting facility do not increase above baseline levels during the time of

composting operations. PC 5, Att. 2 at 57 (emphasis in original).

Likewise, the Ault and Schott report recommends buffer zones to reduce the

exposure of neighboring communities to

A. fumigatus

spores from compost facilities. It

recognizes that “[n]o one has yet demonstrated a clear dose-response curve[,] . . . a

threshold spore concentration, or duration of sensitization needed to cause” extrinsic

(allergic) asthma, allergic bronchopulmonary aspergillosis, hypersensitivity pneumonitis, or

invasive aspergillosis, but states:

However, in microbiology, like toxicology, “the dose makes the poison.”

Thus, while we [] do not have good data on infective doses of these

organisms, it is reasonable to expect that increasing the potential dose

increases the likelihood of eliciting a response, even in otherwise normal

people. Exh. 36, Att. 4 at 6-8.

Dr. Strauss testified that she supports having a setback—although not a 1/2 mile

setback—between compost facilities and hospitals, including health care facilities that

house immunocompromised individuals.

Tr.2 at 33-34, 47, 75, 77. She also supports a

buffer zone for schools, athletic fields, and public parks. Tr.2 at 72, 74-76. She supports

a setback for these facilities not because of odor concerns but because of the potential for

exposure to elevated levels of

A. fumigatus

spores generated by composting facilities.

Tr.2 at 97, 120-122.

In her testimony, Dr. Strauss read from the Ault and Schott report, which set forth

the findings on buffer zones of several other reports:

Some scientists have recommended that buffer zones may be considered

between certain types of composting facilities and nearby residences,

hospitals, or schools to reduce the risk of exposure to odors and air

contaminants. Millner,

et al

., in their 1977 study, noted “in consideration

Dr. Strauss’ 1994 Winnetka report (see footnote 20) on potential health hazards from

compost facilities states: “Although pulmonary aspergillosis is not a health threat to

the public, siting criteria should include guidelines for the proximity of composting

facilities to health care facilities.” Exh. 34, Att. 1 at 3.

of off-site health matters related to air dispersal of spores, a buffer distance

between a composting operation and health care facilities and residential

areas may be needed.” Olver noted the “buffer zones that should normally

be provided around the composting site for odor control should work

equally well to confine the highest candida levels of the fungus to the

processing area.” . . . Diaz, et al. noted in a 1992 study, “prudence

indicates that an open air compost plant should not be sited in close

proximity to human habitations.” Tr.2 at 69-70.

The Haines report states that “[c]ommon sense, and government recommendations

in some states, should curtail the siting of compost facilities near health care facilities that

house aspergillosis susceptible individuals.” Exh. 34, Att. 2 at 7; see also Tr.2 at 43-45.

The Millner report states that:

[w]hen siting new facilities, critical evaluations should be made of several

factors including the proximity to residences and public facilities . . . . The

proximity to residences and public places should also be a key

consideration when upgrading composting facilities. . . . The layout of

composting activities associated with bioaerosolization, particularly

material handling processes, should be located downwind or as far as

possible from sensitive receptors. Exh. 36, Att. 7 at 37.

Several other participants also favored additional setbacks on health grounds. Mr.

Dumelle testified that the American Lung Association of Metropolitan Chicago supports

proponents’ proposed amendments. Tr.1 at 101. Jack Darin, field representative of the

Sierra Club, Illinois Chapter, testified that because of the potential health impacts, his

organization supports proponents’ proposed setbacks “with regard to schools, hospital,

and other public areas, particularly for large scale facilities.” Tr.1 at 66-68. The Will

County Land Use Department, Waste Services Division stated in public comment that it

“recognizes the need to set a reasonable setback from hospitals and other entities housing

low immunity patients.” PC 23 at 1.

Dr. Desai explained that proponents proposed a 1/2 mile setback in part because

the Islip report shows elevated

Aspergillus

spore levels at 2,200 feet from the compost

facility. Tr.1 at 128; Exh. 36, Att. 5 at 45 (note that the study neighborhood in the Islip

report showing elevated

A. fumigatus

spore levels was actually 1,775 feet away from the

compost facility). Dr. Desai noted that some scientists and physicians advocate a two mile

buffer because studies show that pollen spores can travel up to two miles. She added that

Aspergillus

spores are lighter than pollen spores and she suspects they can travel farther

than two miles. Tr.1 at 127-128.

Consistency. Those supporting proponents’ proposal also argued that the current

regulation arbitrarily protects only residences, while hospitals, schools, athletic fields, and

public parks are equally deserving of protection. Tr.1 at 26-27, 31. Mr. Steven Handler,

a resident of Lake Forest, stated that there is no reason to distinguish between residences

and these public facilities “because people with asthma, people with immune system

deficiencies are as likely, if not more likely, to use some of the facilities like hospitals or

schools than are likely to be in residences.” Tr.1 at 31. Mr. Handler and Susan Garrett,

one of the proponents and a resident of Lake Forest, testified that concerns with compost

facilities about nuisance noise, odors, dust, and quality of life apply to these other facilities

as well as residences. Tr.1 at 26-27, 31-32. Mr. Handler added:

Our point is it doesn’t make sense to say you can’t locate a residence

within 600 and some feet of a composting facility, but you can have kids

playing [on a school’s athletic fields] within 50 feet of the windrows. So

the same policy reasons in terms of both quality of life and health that

support a buffer zone for residents also support a buffer zone for these

other facilities. Tr.1 at 32.

He and Peter Mueller, a resident of Lake Forest, also noted that the Board has established

setbacks from putrescible and chemical waste landfills for occupied dwellings, schools,

and hospitals. Tr.1 at 33, 89; Exh. 4; Exh. 11 at 1.

Ms. Garrett and others testified that students generally do not have a choice over

where they go to school and that athletic fields are often connected to schools. Tr.1 at

173; see also Tr.1 at 107. Mary Matthews, a resident of Lake Forest, testified that

children are more at risk at school than at home because at home parents can close

windows and use air filters. She added that children at home are more at rest and not

breathing as heavily as when they are playing at school. Tr.1 at 108. Mr. Mueller testified

that people spend substantial amounts of time in hospitals and schools and “are exposed to

the same environment that a person in a residence would be exposed to.” Tr.1 at 185; see

also Tr.1 at 25.

Proponents also introduced a letter to them from Dr. John R. Lumpkin, Director of

the Illinois Department of Public Health, dated August 7, 1997:

[Y]ou may consider the following statement as this Department’s position

on your proposal: Compost facilities have the potential to release

bioaerosols into the environment and expose individuals to

microorganisms. Insufficient data are available to establish dose-response

relationships for bioaerosols among populations that reside near these

facilities. Nonetheless, it would be prudent public health policy to site new

compost facilities away from populations. We also concur that the siting of

compost facilities with regard to schools, hospitals, athletic fields and

public parks should be at least as protective as that provided for residences.

Exh. 21-A at 1.

Similarly, State Representative Lauren Beth Gash stated in public comment:

I find it noteworthy that current regulations require a setback from

residences but not from schools, hospitals, athletic fields, public parks and

other settings where individuals might be exposed to airborne pollutants

emanating from landscape waste facilities. I understand that in particular

there is growing concern about the harmful potential of aspergillus fungi.

I urge the Illinois Pollution Control Board to make every effort to protect

Illinoisians from harmful exposures from landscape waste facilities. PC 3

at 1.

Proponents also supported the distance proposed for the setback, 1/2 mile, on

consistency grounds. Dr. Desai noted that the current regulations (referring to 35 Ill.

Adm. Code 830.203(d)) require that “landscape waste must be processed by the end of

the operating day on which it was received if . . . [the] composting area is located within

one-half mile of the nearest platted subdivision or facility boundaries are located within

one-half mile of more than ten residences.” Tr.1 at 129-130, 135 -136. However, the

City of Lake Forest noted that the 1/2 mile distance in that section relates to the

processing of landscape waste and is not a setback distance. PC 26 at 7.

Technical Feasibility and Economic Reasonableness. Those supporting

proponents’ proposal argued that “[c]ost becomes a non-issue when . . . the quality of life

for citizens improves dramatically.” Tr.1 at 123; Exh. 15 at 4. Scott Garrett, a resident of

the City of Lake Forest who testified for proponents on technical feasibility and economic

reasonableness, asserted that the proponents’ proposed amendments will save hundreds of

thousands of dollars annually “through reduced needs for medical care, less absenteeism

by teachers, and better health for susceptible students attending school and participating in

school-related sports activities. At the same time, we should see an increase in the quality

of life standards for the community in general.” Tr.1 at 117; Exh. 15 at 2.

Mr. Garrett argued further that “[r]equiring a greater distance between compost

areas and schools, athletic fields, public parks, and hospitals will not require additional

funds. It will require instead [that] proper siting be a greater priority and included with

other criteria when establishing a compost operation.” Tr.1 at 117-118. He

recommended that municipalities adopt programs to offset the cost of closing facilities,

including: making residents responsible for their own yard waste disposal; having

municipalities provide yard waste services on a pay-as-you-go basis; or having

municipalities “work with their respective county governments to establish either a small

number of properly located facilities to handle yard waste or contract on a county-wide

basis to secure a low-cost alternative with a private refuse company.” Tr.1 at 120-121;

Exh. 15 at 3-4.

Mr. Garrett asserted that these alternatives render proponents’ proposal technically

feasible. Tr.1 at 119. He noted that only 20% of municipalities in Illinois operate

compost facilities, and argued that “it cannot be a hardship to adopt a practice currently in

use by 80% of the communities in the State.” Exh. 15 at 4.

Proponents did not dispute that at least some facilities would have to close if the

Board adopts their proposal, but argued that the benefits of their proposal outweigh the

cost of relocating. For example, Dr. Desai testified that the cost of treating an

aspergillosis patient was 1.8 million, and “I don’t think relocating these facilities is going

to cost $2 million.” Tr.1 at 179.

Although supporters of proponents’ proposal questioned how many facilities

would have to close (Tr.1 at 179), Mr. Garrett did not speak to compost site operators or

owners to find out how the proposal would affect them, or to municipalities (other than

the City of Lake Forest). Tr.1 at 166. He also stated that he is not aware of: how many

compost sites there currently are in Illinois, how many would be closed by the proposal,

the current capacity of facilities that would remain open, whether they would accept

landscape waste from the facilities that would be closed, the distance in additional miles

traveled to reach these facilities, the cost of opening a new facility, the cost of going

through the permit/zoning process, the length of time required for closure, the cost to

municipalities if all citizens implemented backyard composting, the cost of training

individuals to do backyard composting, or any municipality that has had a successful

backyard composting program with no backstop for municipal waste disposal. Tr.1 at

166-168. Mr. Garrett had not calculated the economic impact of relocation on private

compost companies. Tr.1 at 190.

Supporters of proponents’ proposal also did not agree that the proposal would be

considered a regulatory taking, or an invalid retroactive regulation, if applied to existing

facilities (see pages 32-34). Mr. Handler, an attorney and a resident of the City of Lake

Forest, stated that the Board’s general authority regarding public health and welfare

supported a rule that existing composting areas be relocated. Tr.1 at 33. He argued that

the Board can respond to new information about health risks, and that if there is a health

risk, there is no taking. Tr.1 at 38.

Opponents’ Position

Existing Regulations. Dr. Shirley Baer, Environmental Specialist with the

Agency,

testified that operational standards are more important than siting requirements.

Tr.2 at 174, 207. She testified that Illinois’ current operational standards minimize the

dispersal of

Aspergillus

spores because they include requirements for moisture, turning,

and wind direction. They also require that the facility address odor complaints. Tr.2 at

203, 221-222.

When asked if at risk individuals face greater risk by attending a public school,

playing in a sports field or public park, or spending time in a hospital that abuts a

composting facility, Dr. Baer testified that, in light of Illinois’ operational standards, “I

don’t think they are at any additional risk than what is already there in the background.”

See Exh. 36, Att.1 (

curriculum vitae

of Dr. Baer).

Tr.2 at 206. She also testified that the operational requirements of 35 Ill. Adm. Code

830.202 take into account not only residences but also all public facilities because the

requirements are designed “to protect the surrounding receptors.” Tr.2 at 203-205.

Similarly, Joyce Munie, Manager of the Solid Waste Unit of the Permit Section, Division

of Land Pollution Control of the Agency, testified that these provisions of the regulations

contain requirements to control odors and other nuisances. Tr.2 at 196-197.

Dr. Strauss also testified that recommended management practices for composting

sites can minimize not only odors and noise pollution, but also bioaerosol distribution.

Tr.2 at 96-97. Other participants pointed out that if a particular compost facility does not

follow composting regulations or creates air pollution, the State or any citizen can bring

an enforcement action against the facility under the Act. Tr.1 at 220, 241-242; Exh. 31 at

3 (Elizabeth Harvey on behalf of the Land and Lakes Company); PC 21 at 1 (Illinois

Composting Council); PC 24 at 5 (National Solid Waste Management Association, Illinois

Chapter).

Scientific Studies. Several participants in the rulemaking testified or commented

that there is no scientific evidence that compost facilities present a public health threat,

including Dr. Epstein; Dr. Baer; Dr. Strauss; Dr. Walker; the Illinois Composting Council;

the Illinois Chapter of the National Solid Wastes Management Association; and the Solid

Waste Agency of Lake County. Their testimony or comments are briefly outlined below.

Dr. Elliot

Epstein

. Dr. Epstein stated that:

[a] review of the medical literature (Medline, 1966-1997) shows 1,273

citations regarding

A. fumigatus

and health effects. Based on the literature,

98 percent of the reported cases of

A. fumigatus

-related infections occur in

hospitals. Nearly all of the reports on infection due to

A. fumigatus

have

been from hospitals where people are already severely debilitated (due to

heart and kidney transplants, leukemia, AIDS, and other very debilitating

diseases). PC 14 at 3.

He also stated that there is no published or documented evidence of worker health being

impaired from yard waste composting facilities in the U.S.:

Workers are the most exposed individuals; not only are they more

frequently exposed to high levels of

A. fumigatus

and other spores, but

they are also exposed to much higher levels of bioaerosols than the public

surrounding composting sites. PC 14 at 4.

Dr. Epstein concluded that there is “no scientific or technical evidence warranting

modification of the setback requirements in 35 Ill. Adm. Code 830.203(c).” PC 14 at 5.

Dr. Shirley

Baer

. Dr. Baer of the Agency testified that it is her “professional

opinion that the current landscape waste regulation[] is protective of public health as it is

written.” Tr.2 at 135. She stated that there is nothing in proponents’ proposal that

“scientifically and technically demonstrates that a landscape waste compost setback

greater than what is currently set in the regulation is necessary.” Exh. 36 at 2.

Further, she stated that in the original compost facility rulemaking,

the Agency

reviewed many scientific and technical papers concerning the impact of bioaerosols from

composting operations. Based on the review, Dr. Baer noted that the Agency concluded

that:

Aspergillus and other fungi or molds are ubiquitous and should not be

regarded as an off-site or product related problem for healthy individuals.

Exh. 36 at 2-3.

She added that the Agency literature review for the prior rulemaking showed that

“properly operated composting facilities should not present a health risk.” Exh. 36 at 3.

Dr. Baer testified that based on her professional opinion, there is no need based on health

risks to establish a setback for schools, public facilities, or hospitals. Tr.2 at 184, 219-

221. She also stated that “based on the information that we have obtained,” the existing

rules are “protective of children.” Tr.2 at 218-219. Nevertheless, Dr. Baer admitted that

the Agency’s expertise is in chemical risks and that for an evaluation of health risks posed

by compost facilities, the Agency would probably defer to the Illinois Department of

Public Health. Tr.2 at 145.

Dr. Karen

Strauss

. While Dr. Strauss favors setbacks for certain additional

facilities, as discussed at pages 15-16, she disagreed with other aspects of proponents’

proposal. Dr. Strauss testified that the proposal “ignores or dismisses the majority of

conclusions from scientific peer review and literature.” Tr.2 at 13-14, 17; Exh. 34 at 7.

She stated that proponents also have failed to present “thorough scientific, peer-reviewed

literature demonstrating a health risk from exposure to yard waste composting operations”

or any “formal epidemiological evidence linking composting sites to human disease.” Tr.2

at 17; see also PC 26 at 5, 8.

Dr. Strauss stated that she investigated and analyzed “the medical and scientific

literature pertaining to the public health effects of landscape waste composting” and that

her conclusions (discussed below) are based on “peer-reviewed, well-documented

studies,” including epidemiological studies. Tr.2 at 10. She testified that based on her

literature review, “landscape waste poses virtually no infectious hazard to the general

public.” Tr.2 at 11. She also testified that the “international expert consensus,” based on

the body of literature over the past two decades, is that yard waste composting “is not a

threat to healthy individuals . . . .” Tr.2 at 13.

Referring to the Millner report, Dr. Strauss testified that in 1994:

See Regulation of Landscape Waste Compost Facilities 35 Ill. Adm. Code 830-832,

R93-29.

a panel of composting experts from many disciplines and backgrounds,

such as government, academia, industry, and environmental groups,

concluded, quote, “composting facilities do not pose any unique

endangerment to the health and welfare of the general public,” end quote.

That panel further elaborated, quote, “there is little reason for concern

about the risk of potential infections from exposure to Aspergillus

fumigatus among healthy individuals in either the general population that is

defined as nonoccupational exposure, or the work force exposure to

composting bioaerosols,” end quote. Tr.2 at 20-21; Exh. 34 at 9; see also

Tr.2 at 39.

Dr. Strauss also noted that the Ault and Schott report reached a similar conclusion. Tr.2

at 13, 21; Exh. 34 at 9.

Dr. Strauss also relied upon a report she prepared in 1994 for the Village of

Winnetka on the health hazards of yard waste composting.

She testified that she recently

reviewed the relevant literature to update her Winnetka report. Tr.2 at 12; PC 26, Supp.

Her update revealed:

no reports of health effects in the populations around the more than 3,000

yard waste composting sites in the United States nor around the thousands

of operating sites on the European continent. The absence of new findings

substantiates prior conclusions and those of the consensus of recognized

experts in the field. Tr.2 at 12-13.

Dr. Strauss testified that a survey of the medical literature reveals “only four cases

in the United States and Europe of bioaerosol-related disease that experts have associated

with any form of composting, including composting of yard waste.” Tr.2 at 18-19; Exh.

34 at 7. She stated that the most relevant of these four cases for this rulemaking involved

“an asthmatic young man who was being treated with immunotherapeutic agents and

developed aspergillosis.” Tr.2 at 19; Exh. 34 at 7-8. Specifically, he developed allergic

bronchopulmonary aspergillosis. Tr.2 at 23-24. Dr. Strauss stated that the individual

lived 250 feet from a leaf composting facility and across the street from a heavily forested

Strauss, Investigation of Potential Public Health Effects from Yard Waste

Composting Operations in Winnetka, IL, (Nov. 10, 1994). See Exh. 34, Att. 1. Dr.

Strauss described the conclusion of her 1994 Winnetka report: “there is abundant

scientific evidence, from testing at dozens of yardwaste composting sites similar to

Winnetka’s, that there is no substantiated public health hazard from spores of

Aspergillus fumigatus

released outside site boundaries from composting operations.

Strauss (1994). Occupational exposures vary and may necessitate protective ventilation

equipment.” Exh. 34 at 3; see also Tr.2 at 45-46.

area. She criticized the report (Kramer report

) that linked this case of aspergillosis to

compost exposure because “the authors failed to investigate other potential background

sources of aspergillus.” Tr.2 at 19, 24, 82; Exh. 34 at 8; see also Exh. 34, Att. 1 at 3

(referring to Kramer report as “methodologically flawed”); PC 26 at 6, n.6.

Dr. Strauss described the other three cases as involving occupational exposure,

one of which involved an individual working directly in the compost industry. Tr.2 at 19;

Exh. 34 at 8. She stated that the four individual cases “bear attention but do not represent

the general population.” Tr.2 at 19. She concluded that despite all of the occupational

and potential residential exposure to

Aspergillus

from the more than 3,000 compost

facilities currently operating in the U.S., along with hundreds of other compost facilities

that process sewage sludge, kitchen waste, and other organic material and farms that

compost organic material:

only four cases of the disease have been discussed in the past 30 years of

medical literature review. Given the volume of material that is composted

in the United States and Europe, the literature would be replete with

references to compost-related illness if composting posed a general health

threat asserted by the proponents of this rulemaking. Just the opposite is

true. Tr.2 at 19-20; Exh. 34 at 8; see also PC 14 at 4 (Dr. Epstein stated

that if “composting was such a serious threat and caused illness to the

public and workers, one would expect to find much more evidence in the

medical or public health literature reporting cases or warnings to the

public.”)

Regarding the Islip study, Dr. Strauss testified that the New York State

Department of Public Health searched for a connection between the Islip facility’s

composting operations and increased incidences of allergy and asthma around the facility.

Tr.2 at 24. She stated that:

[a]fter reviewing medical reports of over 100 individuals with a previous

history of allergic or asthmatic reactions, the study concluded, quote,

“aspergillus and other mold spores were not observed to be associated with

increased allergy and asthma symptoms reported. However, the

occurrence of these symptoms was associated with ragweed pollen, ozone,

temperature, and the time since start of the study period. Allergy and

asthma symptoms could also have been influenced by exposures that were

not measured or accounted for in the study,” end quote. Tr.2 at 24-25; see

also Tr.2 at 51 (Dr. Strauss testified that the Islip study “is perhaps the best

Kramer,

et al

., Allergic Bronchopulmonary Aspergillosis from a Contaminated

Dump Site, Am. Rev. Respir. Dis. (1989). See Exh. 34, Att. 5.

representative study in the United States, and that was an epidemiological

study. . . .”), 55.

Dr. Paul Walker

. Dr. Walker, who conducted a literature review of available

scientific information, stated that proponents’ proposal is not supported by the current

scientific information. He testified that there is “a preponderance of evidence in the

literature that there is no substantial public health risk from the spores of aspergillus

fumigatus released from composting operations.” Tr.2 at 241-242; Exh. 43 at 1.

Other Participants

. The City of Lake Forest argued that “adopting the

[proponents’] proposal would be arbitrary, capricious, and unreasonable largely because

the speculative health risks raised by Proponents have not been observed around the

thousands of operating compost facilities.” PC 26 at 12. Scott Smith, Chair of the Illinois

Composting Council, stated that “[s]tudies have been conducted across the nation and to

my knowledge, nothing substantive has been discovered that would lead to the

conclusions made by the proponents for this overly broad change.” PC 21 at 1.

Similarly, the Illinois Chapter of the National Solid Wastes Management

Association stated that proponents’ proposed amendments are “premised upon alleged

adverse health impacts that result from composting,” but that “[a]t best, the scientific

evidence on this point is inconclusive.” PC 24 at 4. Andrew Quigley, Executive Director

of the Solid Waste Agency of Lake County, Illinois, testified that a technical consultant for

the Solid Waste Agency of Lake County conducted a literature search on the impacts of

bioaerosols and compost facilities. Tr.2 at 258. Mr. Quigley testified that only the Islip

study began to examine the potential health effects of compost facilities and that study

concluded that despite the level of

A. fumigatus

in a neighborhood near a compost facility

being well above background, “there was no evidence of the facility impacting the nearby

neighborhood.” Tr.2 at 259-260. In asserting the importance of conducting

comprehensive health evaluations prior to changing setback requirements, he testified that

“there is not enough information available which links [compost facilities] or even home

composting to increased health risk.” Tr.2 at 260-261. The Will County Land Use

In a January 12, 1995, letter to the City of Lake Forest City Manager, Dr. Patricia

Millner (co-author of the Millner report), Research Leader, Soil Microbial Systems

Laboratory, Natural Resources Institute, United States Department of Agriculture,

recounted a conversation she had with Dr. Desai regarding the compost facility in the City

of Lake Forest: “Dr. Desai asked me if I’d agree that the compost site was a public health

hazard. I told her then (and I stand by that now), that until there is substantive[]

documentation of hazard, there is no reasonable basis for that conclusion. Such

documentation would consist of 1) airborne concentrations of bioaerosols that are

significantly above background and concurrent 2) evidence that the pulmonary or irritated

membrane responses of neighborhood residents are specifically directed toward the agents

or groups of agents in the air transported from the compost site.” PC 1, Att. 1 at 2.

Department, Waste Services Division stated that “no convincing evidence has been

brought forward to support setbacks from schools, athletic fields or public parks.” PC 23

at 1.

Background Exposure. Opponents also argued that proponents ignored

information on background sources of

Aspergillus

. Tr.2 at 17. Dr. Strauss testified that

measurements at multiple locations in the U.S. and Europe show that residential exposure

Aspergillus

spores from compost facilities is generally negligible because the time and

distance of spore dispersion is short. Tr. 2 at 15; Exh. 34 at 5. She concluded that

individuals live and work in much closer proximity to “more significant” sources of

Aspergillus

than a compost facility:

In a community like Lake Forest, for example, which prizes manicured

lawns, mulched shrubs and trees, natural vegetative spaces, and family pets,

residents may well be exposed to levels of aspergillus that exceed levels

from the compost facility [in the City of Lake Forest]. Tr.2 at 16; Exh. 34

at 6.

She testified that this conclusion is supported by the following findings of a report

prepared on a compost facility in the City of Lake Forest:

(1) outdoor fungal

concentrations in the City of Lake Forest community adjacent to the compost facility were

similar to those in communities with no known point source of bioaerosol emissions; and

(2) bioaerosol concentrations upwind of the compost facility were comparable to

downwind concentrations. Tr.2 at 16; Exh. 34 at 6; see also PC 26 at 12-13, n.23.

According to Dr. Strauss, Dr. John Haines

best summarizes the potential for

residential exposure from compost facilities:

Hryhorczuk,

et al

., Environmental Characterization of Bio-Aerosol Emissions from

the DK Recycling Systems, Inc. Composting Facility in Lake Forest, Illinois, (Apr. 15,

1996). At the request of the City of Lake Forest, the Great Lakes Center for

Occupational and Environmental Safety and Health at the University of Illinois at

Chicago and the Illinois Department of Public Health performed a hazard evaluation

study of a compost facility in the City of Lake Forest, Illinois. The main objective of

the study was to determine whether the composting facility posed a health risk to on-

site workers, community residents, and children attending a middle school located

adjacent to the facility. The study was designed to characterize the on-site and off-site

concentrations of bioaerosols, and determine the impact of the facility on community

bioaerosol concentrations. The report states that the data collected “do not demonstrate

an imminent hazard to community residents,” but cautions that the “data, however, are

not sufficient to fully characterize the bioaerosol emissions from the site.” Exh. 32,

Att. 1.

Dr. Haines (see footnote 7) is a mycologist with the New York State Biological

Survey. He participated in the Islip study and is a co-author of the Millner report.

simply filling a bird feeder, raking the lawn, digging in the garden, or

sweeping the basement may give greater exposure to aspergillus fumigatus

than a day near a compost facility . . . . Tr.2 at 16-17; Exh 34 at 6.

Dr. Strauss also relied upon the following from the Millner report:

immunocompromised individuals are at increased risk to infections by

various opportunistic pathogens, such as aspergillus fumigatus which

occurs not only in compost but also in other organic materials present in

the natural environment. . . . [A]sthmatic and allergic individuals are at

increased risk to responses from bioaerosols from a variety of

environmental and organic dust sources including compost. Tr.2 at 39; see

also PC 26 at 9, 11 (similar comment from the City of Lake Forest).

Consistency with Illinois’ Regulatory Scheme. The City of Lake Forest argued

that proponents’ proposal also is unreasonable because it is more stringent than existing

Illinois standards for air emissions from activities that “arguably present greater risks to

human health than landscape waste composting.” PC 26 at 15. The City of Lake Forest

asserted that Illinois’ air pollution regulations have no setback requirements for air

emission sources:

As a result, fully permitted organic chemical companies, polymer

manufacturing plants, printing operations, and similar operations that emit

several tons per year of hazardous air pollutants may be located directly

adjacent to a residential neighborhood, school, hospital, athletic field or

public park. Moreover, automobiles and trucks that emit particulate

matter, which has been implicated as a cause of increased incidents of

childhood asthma and other respiratory problems, drive in residential

neighborhoods, or idle near schools, hospitals, athletic fields or public

parks without being subject to environmental regulations that limit their

destinations. PC 26 at 15.

The City of Lake Forest argued that where the Board has imposed air pollution

regulations on these activities, it has relied on “management standards that limit or control

emissions, rather than on standards that proscribe the location of these activities in

particular areas.” PC 26 at 15-16.

Several participants also claimed that proponents’ proposal is ambiguous. Dr.

Walker asked whether the use of the term “school” would mean that universities could not

operate compost sites on their property. Tr.2 at 245; Exh. 43 at 1. He testified that

because Illinois State University operates a compost facility on campus, he would not

want the definition of “school” to include the entire campus area. Tr.2 at 247-248, 253.

Waste Management stated in public comment that proponents’ proposal fails to

define athletic field or public park:

Certainly, these terms can be used to describe a number of facilities such as

race tracks, stadiums, private recreation facilities, golf courses, state

conservation areas, state parks, and other natural greenbelt areas that are

used by local planning bodies to transition compost facilities from other

land uses. PC 9 at 1.

Evidence on the 1/2 Mile Setback. The City of Lake Forest noted that the

physicians’ letters submitted by proponents repeatedly refer to a two mile setback and

“never mention, much less advocate, the 1/2 mile setback that Proponents presented to the

Board.” PC 26 at 5. The City of Lake Forest argued that the letters also fail to provide

“any technical foundation” for the 1/2 mile setback of proponents’ proposal. PC 26 at 7.

Land and Lakes Company and the City of Lake Forest argued that proponents’

proposed amendments are inconsistent with the current setback requirements because they

would create a larger setback for hospitals, schools, athletic fields, and public parks (1/2

mile) than for residences (1/8 mile). They asserted that proponents have not explained the

reason for this difference. PC 26 at 8; Exh. 31 at 3.

Dr. Strauss recommended a 500 foot buffer, which she based on the literature

addressing the fall off of spore exposure. Tr.2 at 72-73, 76. She explained that studies of

commercial compost facilities have found that “concentrations of aspergillus tend to fall

off sharply within 500 feet of the operational site.” Tr.2 at 15; Exh. 34 at 5. The 500 feet

should be measured from the area at a facility where the compost is located or handled

because that is where bioaerosols would be generated, not from the facility’s property line,

according to Dr. Strauss. Tr.2 at 107-108, 117-119. Dr. Walker agreed that the property

line is immaterial to this issue. Tr.2 at 251.

While acknowledging that there is some variation in the distances from compost

sites to locations where background levels are reached, Dr. Strauss testified that the

consensus of the literature has determined that

A. fumigatus

spore exposure drops to

background within 500 feet from compost sites. Tr.2 at 40, 73, 79, 95, 101-102, 115-

117; PC 26, Supp. In other words, at the 500 foot boundary, the composting facility does

not add substantially to exposure that persons might otherwise encounter in a play field,

forest preserve, or school yard, according to Dr. Strauss. Tr.2 at 102. In her testimony,

she quoted the Ault and Schott report:

[T]he concentrations fell off sharply within 500 feet of the operational site.

If the nearest human receptor is located beyond the point at which

concentrations fall to background levels, there is no elevated exposure

occurring. Tr.2 at 15, 111-112; Exh. 34 at 5.

She also quoted the Millner report:

When the exposure is within or below the average range of background

concentrations found in the natural environment, compost bioaerosols do

not constitute additional exposure. Tr.2 at 15; Exh. 34 at 5-6.

Similarly, Dr. Epstein stated that a “majority of the studies on the dispersion of

fumigatus

and other bioaerosols from composting facilities indicates that background

levels are achieved within 250 to 500 feet of a composting site (Millner,

et al

., 1993).”

PC 14 at 4. He added that his environmental consulting company has done studies that

have produced similar results. PC 14 at 4.

Dr. Walker’s literature review corroborated the 500 foot figure. Tr.2 at 248-249.

In addition, Dr. Strauss testified that the literature supports the additional distance

provided by the current 1/8 mile (660 feet) setback in Illinois’ regulations. Tr.2 at 78-79.

Dr. Strauss testified that proponents’ proposed setback distance of 1/2 mile “is not

warranted based on what is known about spore distribution and public health risks.” Tr.2

at 77-78. She also disagreed with the conclusion of the Kramer report that these facilities

should be sited more than two miles from residential areas. She testified that a two mile

buffer is not supported from a scientific, environmental, or medical standpoint. Tr.2 at 70-

73, 80-82, 88; see also Exh. 34, Att. 5.

Dr. Baer of the Agency also disagreed with the Kramer report’s recommendation

of a setback greater than two miles. Tr.2 at 195. The Agency stated in public comment

that:

[it] would not, as a matter of public policy, oppose the prospective

application of a setback of one-eighth of a mile from schools, public parks,

athletic fields and hospitals if the Board finds and the record supports that

such a setback is necessary to protect human health and the environment.

PC 27.

Technical Feasibility. Several witnesses testified that proponents’ proposal was

not technically feasible. For example, Land and Lakes Company operates five compost

facilities in Chicago: one in Deerfield, Dolton, and Romeoville, and two in Chicago. PC

25 at 2. Land and Lakes stated that each of these facilities is within 1/8 mile of a medical

facility, athletic field, public park, or proposed park

and therefore would be affected by a

setback of 1/8 mile or more, if applied to existing facilities. PC 25 at 2.

Ms. Harvey argued that proponents’ proposed amendments are not technically

feasible because “there is no method by which an existing facility can comply with the

proposed regulation, no control equipment or operational change the facility could use to

One of the facilities in Chicago is within 1/8 of a mile of a proposed park. This

particular facility is not within 1/8 of a mile of a medical facility or athletic field. PC

25, Att. 1.

comply.” Tr.1 at 219; Exh. 31 at 1. She also noted that relocating these facilities might

not be feasible. Tr.1 at 221.

Several other witnesses also testified or commented that proponents’ proposal

would require many existing facilities to close down. Ms. Munie of the Agency estimated

that 35 out of the 68 currently operating and permitted facilities would have to close.

Exh. 30 at 3. She based this estimate on discussions with other personnel in her unit. Tr.1

at 207. Charles Pick, Vice President of Business Development for Organics Management

Company, a national owner and operator of composting and compost-related businesses,

estimated that at least 50% of the facilities in Chicago would have to be closed. Tr.1 at

274. The Illinois Chapter of the National Solid Wastes Management Association, the

Illinois Composting Council, the Solid Waste Agency of Lake County, and the Will

County Land Use Department, Waste Services Division all commented that proponents’

proposed amendments would require many composting facilities to close. See PC 9 at 1

(comments of Waste Management); PC 21 at 1 (comments of the Illinois Composting

Council); PC 23 at 1 (comments of the Will County Land Use Department, Waste

Services Division); PC 24 at 5 (comments of the National Solid Wastes Management

Association, Illinois Chapter); Exh. 45 at 1 (comments of Andrew Quigley, Executive

Director of the Solid Waste Agency of Lake County).

The municipalities of Crystal Lake, Elgin, Evanston, Lake Forest, and Normal

stated that proponents’ proposal would force their facilities to close. See Tr.2 at 233

(testimony of Clyde Wakefield, Director of Public Works and Engineering for the City of

Crystal Lake); PC 10 at 1 (comments of the City of Elgin); PC 7 at 1 (comments of the

City of Evanston); Tr.1 at 246 (testimony of Thomas Naatz, Director of Parks, Forestry,

and Public Works for the City of Lake Forest); PC 15 at 1 (comments of the Town of

Normal).

Economic Reasonableness. Several participants argued that proponents’ proposal

was not economically reasonable based on investments in existing facilities that would

have to be closed under the proposal; the costs of relocating facilities; the costs of the

closures and relocations to the State of Illinois; and the costs of various alternatives to

existing facilities (including relocating facilities and other measures). The Board discusses

the evidence on these issues below.

Investments in Existing Facilities

. Land and Lakes Company has invested

$7,678,200 in its five compost facilities in the Chicago area. PC 25 at 2, Att. 1. This

figure includes land acquisition costs, capital costs for equipment, permitting expenses,

and other costs associated with developing and operating a compost facility in compliance

with regulations. PC 25 at 2-3. As Land and Lakes Company noted earlier, each of these

facilities is within 1/8 mile of a medical facility, athletic field, public park, or proposed

park, and therefore would be affected by a setback of 1/8 mile or more, if applied to

existing facilities. PC 25 at 2.

Mr. Naatz testified that the City of Lake Forest’s facility would have to close if

proponents’ proposal is adopted. Tr.1 at 246. He testified that the facility has had

permits since July 11, 1989. Its current permit expires on July 17, 2002. Tr.1 at 245;

Exh. 32 at 2. Since 1993, the City of Lake Forest has invested $120,000 in site

improvements. Tr.1 at 245, Exh. 32 at 3. It incurred additional costs between 1989 and

1993 that Mr. Naatz did not quantify. PC 2 at 7.

Mr. Wakefield testified that the City of Crystal Lake’s facility would have to close

if proponents’ proposal is adopted. Exh. 42 at 2. The City of Crystal Lake has invested

over $800,000 in its compost site: $375,000 to acquire land, and $450,000 for developing

the site, obtaining equipment, and related costs. Exh. 42 at 1-2. Several residents of the

City of Crystal Lake also filed comments opposing the proposal on economic grounds and

noting that the City of Crystal Lake’s facility works well. See PC 16 at 1 (comments of

Cathy Mueller); PC 17 at 1 (comments of Franklin Pease); PC 18 at 1-2 (comments of

Barbara Zimmerman); PC 19 at 1 (comments of Carolyn Schaper); PC 20 at 1 (comments

of Keith and Libby Leman).

As noted earlier, other municipalities argued that proponents’ proposal would

force them to close their facilities. See PC 10 at 1 (comments of the City of Elgin); PC 7

at 1 (comments of the City of Evanston); PC 15 at 1 (comments of the Town of Normal).

However, these municipalities did not state how much they had invested in these facilities.

Similarly, other witnesses estimated that the proposal would force some compost facilities

in Illinois to close, but did not provide estimates of how much had been invested in these

facilities. See Exh. 30 at 3 (prefiled testimony of Joyce Munie of the Agency); Tr.1 at 274

(testimony of Charles Pick of Organics Management Company); PC 9 at 1 (comments of

Waste Management); PC 21 at 1 (comments of the Illinois Composting Council); PC 23 at

1 (comments of the Will County Land Use Department, Waste Services Division); PC 24

at 5 (comments of the National Solid Wastes Management Association, Illinois Chapter);

Exh. 45 at 1-2 (comments of Andrew Quigley, Executive Director of the Solid Waste

Agency of Lake County).

Costs of Relocating Facilities

. Mr. Pick testified that relocating these facilities

would be expensive in high-density areas. “The cost of land alone for a typical industrial

property in a high density population area often exceeds $200,000 per acre.” Tr.1 at 259;

Exh. 33 at 2. He also noted that many other location standards (regarding flood zones,

archeological sites, and the like) apply to these facilities that make them difficult to site.

Exh. 32 at 2. For the City of Lake Forest’s compost facility, he estimated the

administrative costs of getting a new permit at $80,000 to $90,000. Tr.1 at 307.

Mr. Pick also testified that the cost of developing a ten-acre facility, which could

handle 70,000 cubic yards/year, would be approximately three million dollars. Tr.1 at

312-314. That capacity is larger than average, but he believes that developers would look

to develop larger sites under proponents’ proposed amendments because if they have to be

in a rural area, they will want to have a lot of capacity. He believes that if proponents’

proposal is adopted, new sites would be approximately about 40 acres in size. Tr.1 at

315.

Land and Lakes Company also argued that proponents’ proposed amendments

would make it very difficult to develop new composting facilities in urban areas. Tr.1 at

221. The Illinois Chapter of the National Solid Wastes Management Association also

commented:

The proposed amendment will increase the difficulty of developing new

composting facilities in metropolitan areas. As discussed above, landscape

waste has been banned from landfills since July 1, 1990.

415 ILCS

5/22.22. Moreover, the burning of landscape waste is prohibited in

counties with a population of more than 400,000. 415 ILCS 5/9. Many

municipalities throughout the State have adopted ordinances prohibiting

the burning of landscape waste. Thus, composting facilities remain the

only viable option for handling landscape waste in many metropolitan

areas. PC 24 at 4-5.

While the City of Crystal Lake did not provide cost estimates for relocating its

facility, Mr. Wakefield testified that the City and its taxpayers would face serious financial

harm if the Board adopted proponents’ proposal. Exh. 42 at 2. Several of the City of

Crystal Lake residents who submitted public comments concurred. See PC 16 at 1

(comments of Cathy Mueller); PC 17 at 1 (comments of Franklin Pease); PC 18 at 1-2

(comments of Barbara Zimmerman); PC 19 at 1 (comments of Carolyn Schaper); PC 20 at

1 (comments of Keith and Libby Leman).

Costs of Closures and

Relocations to the State of Illinois

. Ms. Munie of the

Agency testified about the cost of closures and relocations to the State of Illinois if

proponents’ proposed amendments are adopted. She testified that there would be

administrative costs to the Agency if proponents’ proposed setback is applied retroactively

and some facilities are forced to close. Tr.1 at 205-206. The cost of informational

workshops on the new requirements would result in a total cost of between $2,830 and

$7,104. Exh. 30 at 2. The cost of meetings with existing facilities to determine the effect

of the new requirements on them would cost a total of between $1,415 and $1,776. Exh.

30 at 2.

Her unit estimated that 35 new facilities would need to be built to make up for

those that would have to be closed because of proponents’ proposal. Exh. 30 at 3. She

estimated that the Agency’s cost of reviewing 35 closure reports would be between

$3,962 and $6,216. Exh. 30 at 3.

The Board notes that there are exceptions to this ban. See,

e.g.

, Pub. Act 90-266,

eff. July 30, 1977 (amended 415 ILCS 5/22.22).

Ms. Munie stated that closures may result in some additional illegal dumping of

landscape waste, but the cost of additional field work for inspections and enforcement

would be hard to quantify. Exh. 30 at 3. Assuming that at least five facilities would close

only in response to enforcement, she estimated that the total costs for inspection and trial

preparation would be between $9,472 and $25,110. Exh. 30 at 2.

Ms. Munie explained that new facilities would require public hearings and new

permit applications. Exh. 30 at 3. Each public hearing costs between $15,000 to $20,000.

Exh. 30 at 3. Her cost estimate includes costs of reviewing new permit applications. Tr.1

at 213-214. If 35 new facilities were needed, total costs to the Agency would be between

$525,000 and $700,000 during the first few years after proponents’ proposal became

effective. Exh. 30 at 3. However, Ms. Munie did state that the Agency “does not believe

that adding a non-retroactive setback requirement would have any impact on our

administrative cost.” Exh. 30 at 2.

Several opponents also argued that if facilities were forced to close because of

proponents’ proposed amendments, the amendments would be considered a regulatory

taking. These opponents also argued that the U.S. and Illinois constitutions would require

the State of Illinois to compensate those whose facilities would be closed because of

proponents’ proposal.

The proposed regulation may force the State of Illinois to pay millions of

dollars as compensation for a regulatory taking. Regulations that

substantially interfere with the value of property interests can constitute an

impermissible regulatory taking under the Fifth and Fourteenth

Amendments to the U.S. Constitution. PC 25 at 3, citing Browning-Ferris

Industries v. City of Maryland Heights, Missouri, 747 F. Supp. 1340, 1347

(E.D. Mo. 1990), citing Nollan v. California Coastal Commission, 483 U.S.

825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987). The remedy is either the

payment of compensation or the invalidation of the regulation. PC 25 at 3,

citing Williamson County Regional Planning Commission v. Hamilton Bank

of Johnson City, 473 U.S. 172, 197, 105 S. Ct. 3108, 3122, 87 L. Ed. 2d

126 (1985), Browning-Ferris Industries, 747 F. Supp. at 1346-1351. See

also Tr.1 at 219-221, 236.

The City of Lake Forest, the City of Crystal Lake, the Illinois Chapter of the National

Solid Wastes Management Association, the Solid Waste Agency of Lake County, and

Land and Lakes Company raised a similar argument. See PC 26 at 22 (comments of the

City of Lake Forest); Tr.2 at 232-234 (testimony of Mr. Wakefield on behalf of the City of

Crystal Lake); Tr.2 at 264 (testimony of Mr. Quigley on behalf of the Solid Waste Agency

of Lake County); PC 24 at 6-7 (comments of the National Solid Wastes Management

Association, Illinois Chapter); Exh. 31 at 2 (testimony of Ms. Harvey on behalf of Land

and Lakes Company).

In a related argument, the City of Lake Forest also argued that proponents’

proposal is unconstitutional because it is retroactive:

Retroactive application of a standard is prohibited under the due process

clauses of both the United States and Illinois Constitutions if such

application impermissibly eliminates or impairs vested rights acquired under

existing laws, or creates new obligations, imposes new duties, or attaches

new disabilities with respect to past transactions or issues. PC 2 at 6,

citing First of America Trust Company v. Armstead, 171 Ill. 2d 282, 664

N.E.2d 36 (1996); United States Steel Credit Union v. Knight, 32 Ill. 2d

138, 142, 204 N.E.2d 4 (1965); Chemrex, Inc. v. PCB, 257 Ill. App. 3d

274, 628 N.E.2d 963, 966 (1st Dist. 1993).

In deciding whether to invalidate a retroactive rule, Illinois courts consider

“whether the agency action would result in injury or substantial prejudice; whether the

regulation represents an abrupt departure from well-established practice; the extent to

which the party against whom the regulation is applied relied on the former regulation; and

the degree of burden imposed upon that party.” PC 2 at 8, citing Gonzales-Blanco, 110

Ill. App. 3d at 197; Cartwright v. Civil Service Commission, 80 Ill. App. 3d 787, 400

N.E.2d 581 (1st Dist. 1980), citing Retail, Wholesale and Department Store Union v.

NLRB, 466 F.2d 380 (D.C. Cir. 1972) and International Association of Machinists v.

United Aircraft Corp., 534 F.2d 422 (2d Cir. 1975).

The City of Lake Forest argued that an Illinois court is likely to invalidate

proponents’ proposed rule upon consideration of these factors. It noted that existing

facilities have made expenditures in reliance on the existing regulations, and that they

could not have anticipated this change. PC 2 at 8-9. The City of Lake Forest conceded

that a government may enact an “amortization” regulation that will gradually eliminate

existing, non-complying facilities, but only upon a clear finding that the public welfare

requires it. PC 26 at 29. According to the City of Lake Forest, the balance of interests in

this situation favors the compost facilities, which have spent considerable sums to develop

their facilities and would incur substantial relocation costs to comply with proponents’

proposal, as opposed to proponents, who have not shown a scientific consensus that these

facilities pose a public health threat. PC 26 at 30.

The City of Lake Forest argued that even if the regulation applied to existing

facilities only upon the expiration of their current permits, it would be an invalid

retroactive rule. The City noted that under the Board’s current regulations, an application

for permit renewal need address only changed circumstances, and as long as those

changed circumstances do not result in a violation of the Act, the facility is entitled to

renewal of its permit. PC 26 at 24, citing 35 Ill. Adm. Code 831.116(a), 832.106(a). The

City stated that the Agency may modify “operating standards” at the time of permit

renewal as necessary to prevent violations of the Act but these changes “only impact

facility operation and not location.” PC 26 at 24 (emphasis in original), citing 415 ILCS

5/21(d), 35 Ill. Adm. Code 832.106. The City argued that the current regulations create

an expectation that permits will be renewed if they meet these requirements. PC 26 at 25.

Costs of Alternatives

. Mr. Pick argued that even those facilities that can

successfully relocate will incur higher costs because they would be situated at greater

distances from landscape waste sources and would incur greater transportation costs to

reach those more remote sites. Tr.1 at 260. He testified that he expects transportation

and tipping fees to rise 30 to 40% if proponents’ proposal is adopted. Tr.1 at 303-304.

Higher prices would result, according to Mr. Pick. Tr.1 at 261. Furthermore, since the

profit margin on compost is low, “private operators would have little incentive to start

over and accept lower margins [as compared to the higher margins on peat moss and

wood mulches]. A disposal capacity vacuum would likely result.” Tr.1 at 262; Exh. 33 at

Mr. Naatz testified that the cost of managing landscape waste would increase by at

least $100,000 per year for the City of Lake Forest if proponents’ proposal is adopted.

Tr.1 at 246, 247; Exh. 32 at 5. Several opponents of proponents’ proposal also argued

that it will increase open dumping or burning of landscape waste, or encourage backyard

compost piles that could become a nuisance. See PC 23 at 1 (comments of Will County

Land Use Department, Waste Services Division); Tr.2 at 237 (testimony of Mr. Wakefield

on behalf of the City of Crystal Lake); Tr.1 at 263 (testimony of Charles Pick of Organics

Management Company); Exh. 45 at 2 (testimony of Mr. Quigley on behalf of the Solid

Waste Agency of Lake County). One opponent noted that the proposal could lead to a

need for more landfills. PC 8 at 1 (comments of Lois Grimm, resident of Chicago).

Board Findings on the Need for Additional Setbacks

The Board finds that compost facilities may increase the concentrations of airborne

A. fumigatus

spores in nearby, downwind off-site areas. The Board recognizes that

mowing the lawn, sweeping the basement, and other activities may expose some people to

higher levels of

A. fumigatus

spores than they would be exposed to from being near a

compost facility. However, individuals typically have greater control over limiting the

former types of exposures and they often do not face such exposures on a daily basis. The

Board also recognizes that even very low levels of

A. fumigatus

spores from any source

may adversely affect certain individuals. Nevertheless, there is a potential risk of increased

exposure to

A. fumigatus

spores in areas downwind of compost facilities and

A. fumigatus

spores can harm some people. The Board finds that it would be prudent to minimize the

opportunities for compost facilities to expose surrounding sensitive populations to levels

A. fumigatus

spores above background.

The Board acknowledges that compost facilities may be sued if they do not comply

with operational requirements or if they cause air pollution in violation of Section 9(a) of

the Act (415 ILCS 5/9(a) (1996)). The Board notes that citizens may bring such

enforcement actions before the Board. See 415 ILCS 5/31(d) (1996); 35 Ill. Adm. Code

103.120. This option remains available regardless of setback requirements, but is not an

adequate substitute for setback requirements.

The Board finds that while operational standards are important for minimizing the

off-site distribution of

A. fumigatus

spores from compost facilities, it appears that even

good management practices at compost facilities do not necessarily prevent

A. fumigatus

spore concentrations downwind from being above background levels in nearby off-site

areas. The Board also notes that procedures already exist (

e.g.

, adjusted standards, site-

specific rules) to allow individual facilities the opportunity to demonstrate site-specific

circumstances calling for site-specific relief from general requirements, including setback

requirements.

As stated above at page 13, persons potentially at greater risk from higher

exposure to

A. fumigatus

spores are (a) persons with asthma, cystic fibrosis,

immunocompromised or immunosuppressed conditions, or bioaerosol allergies, and (b)

very young children. The Board believes that health care facilities, child care facilities, and

schools are locations where these susceptible individuals have greater opportunities for

extended exposure. These are also locations that these individuals typically have little

choice about frequenting. Setback protection for these facilities is consistent with the

Illinois Department of Public Health’s position on this issue. It is also consistent with the

recommendations of various experts, inlcuding those who acknowledge the lack of

epidemiological studies linking compost facilities to human disease and the lack of a dose-

response relationship for

A. fumigatus

spores.

Accordingly, while responsible composting is environmentally beneficial, the Board

finds that the following facilities should have setback protection: (a) health care facilities;

(b) primary and secondary schools and their associated recreational areas;

and (c) pre-

school and child care facilities and their associated recreational areas.

The Board declines to include setback protection for public parks at this time.

Besides the potential ambiguity of the term “public parks” and the fact that such places are

often rich sources of

A. fumigatus

, persons typically have control over whether they

frequent a particular public park. On this record, the case for providing a setback at this

time for public parks due to potential

A. fumigatus

spore exposure is less compelling.

In proposing these amendments, the Board notes that it is not persuaded by the

City of Lake Forest’s argument that it is arbitrary for the Board to regulate the proximity

of compost facilities to schools and hospitals while not imposing a similar restriction on

other sources of air pollution that may operate near schools and hospitals. First, the

Board notes that unlike various designated hazardous air pollutants,

A. fumigatus

spores

from compost facilities do not have requirements for specific control technologies or

Because the Board’s proposed amendments are limited to primary and secondary

schools, it does not present the ambiguities that Dr. Walker raised regarding

universities.

emission rates based on ambient air quality standards. Second, “it has been recognized

that evils in the same field may be of different dimensions and reform may take place one

step at a time. The legislature may address itself to one stage of a problem and not take

action at the same time as to other phases.” Illinois Coal Operators Association v. PCB,

59 Ill. 2d 305, 312-313, 319 N.E.2d 782, 786 (1974) (upholding the Board’s decision to

exempt equipment used in construction, but not similar equipment used in mining, from

certain noise regulations); see also Chicago National League Ball Club v. Thompson, 108

Ill. 2d 357, 367, 483 N.E.2d 1245, 1250 (1985) (“The legislature need not choose

between legislating against all evils of the same kind or not legislating at all.”). The same

principles apply to the Board when it adopts rules in its quasi-legislative capacity.

The Board finds that proponents’ proposed 1/2 mile setback distance is not

supported by the record. Most studies show that

A. fumigatus

spore concentrations from

compost facilities generally decrease to background levels within approximately 500 feet

of the composting area. Accordingly, at that distance, the compost facility typically would

not expose people to elevated levels of

A. fumigatus

spores.

In lieu of a 1/2 mile setback, the Board proposes that the current 1/8 mile (660

feet) setback distance applied for residences be extended to the following facilities: (a)

health care facilities; (b) primary and secondary schools and their associated recreational

areas; and (c) pre-school and child care facilities and their associated recreational areas.

As Dr. Strauss testified, the literature supports an additional 160 foot buffer distance

Consistent with the current 1/8 mile setback for residences, the setback distance

should be measured not from the property line of the compost facility, but from the

“composting area.” See 35 Ill. Adm. Code 830.203(c). “Composting area” is defined as:

the area of a composting facility in which waste, composting material or

undistributed end-product compost is unloaded, stored, staged, stockpiled,

treated or otherwise managed. 35 Ill. Adm. Code 830.102.

As was pointed out at hearing, this is the relevant area from which to measure because

that is the potential source of the airborne

A. fumigatus

spores. The setback should be

measured from the nearest edge of the composting area to the nearest property line of the

protected facilities listed above.

The Board also proposes to amend 35 Ill. Adm. Code 831.107 and 831.109(b)(3).

Section 831.107 currently requires that permit applications contain a site location map

showing certain items. The Board proposes to add a requirement that this map also reflect

any of the additional facilities within 1/8 mile of the nearest edge of the composting area.

Section 831.109 currently requires that permit applications contain various information,

including proof that the facility complies with location standards. The Board proposes to

add a requirement that this information include proof of compliance with the proposed 1/8

mile setback.

Given that the additional setback requirements would be imposed as a matter of

prudence in light of a potential health threat, and given the potential economic costs of

relocating or closing existing compost facilities, the Board proposes applying the new

setback requirements prospectively. Consistent with the current language of Section

830.203(c), the new setback requirements would apply only to a compost facility

developed or the permitted composting area of which is expanded after January 1, 1999.

The Board reiterates that while the proposed setback amendments in this first notice order

will only apply prospectively, existing compost facilities must comply with applicable

performance standards and must not cause air pollution in violation of Section 9(a) of the

Act (415 ILCS 5/9(a) (1996)).

The Board will receive testimony and comment on whether it would be

appropriate to apply the Board’s proposed 1/8 mile setback to existing facilities, either

immediately or after some period of time, such as when a facility’s permit, if any, expires.

In that regard, the Board notes that it does not agree that the application of such a setback

to existing facilities would constitute a taking. A taking occurs in two ways. First, a

taking occurs when “there is an actual physical invasion by the government onto an

individual’s property . . . .” Forest Preserve District of DuPage County v. West Suburban

Bank, 161 Ill. 2d 448, 456, 641 N.E.2d 493, 497 (1994), citing Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1014-1015, 112 S. Ct. 2886, 2892-93 (1992). Second, a

taking occurs “where governmental regulation radically curtails a property owner’s rights

such that ‘all economically beneficial or productive use of land’ is denied.” Forest

Preserve, 161 Ill. 2d at 457, 641 N.E.2d at 497, quoting Lucas, 505 U.S. at 1015, 112 S.

Ct. at 2893.

In this case, the application of a new setback to existing compost facilities would

not involve any physical invasion of the facilities. Furthermore, the amendments proposed

in this first notice order, if applied to existing facilities, would not so radically curtail a

compost facility owner’s rights so that all economically beneficial or productive use of the

land is denied. In Forest Preserve, for example, the Illinois Supreme Court held that an

injunction barring defendants from building a parking lot on their land did not deprive

defendants of all economically viable uses of the property because defendants could use

the property for other activities, including farming and storing equipment. Forest

Preserve, 161 Ill. 2d at 457, 641 N.E.2d at 497. Similarly, even if the Board’s proposed

amendments were to apply to existing compost facilities and require some of those

facilities to close, the amendments would not bar the owners of those facilities from

The City of Lake Forest argues that proponents’ proposal is ambiguous because it is

unclear whether a compost facility that “complies with the location standard at the time

the facility is permitted will be in violation of the standard once a school or hospital is

subsequently constructed within the 1/2 mile setback.” PC 26 at 17. To clarify, the

proposed first notice amendments to 35 Ill. Adm. Code 830.203(c) are siting

requirements. A compost facility sited in compliance with these requirements would

not violate them because a health care facility, for example, is thereafter constructed

within 1/8 mile.

erecting other facilities or conducting other operations on their properties. See also Tim

Thompson, Inc. v. Hinsdale, 247 Ill. App. 3d 863, 888-889, 617 N.E.2d 1227, 1245 (2d

Dist. 1993) (holding a change in a local zoning ordinance, which decreased the number of

houses a developer could put in a subdivision, did not substantially deprive the developer

of all economically viable use of the property and did not constitute a taking).

The Board acknowledges, however, that the question remains of whether such a

regulation would constitute an invalid retroactive regulation. As noted earlier, the Board

seeks testimony and comment on how long it would take to amortize investments in those

facilities.

CONCLUSION

The Board acknowledges that responsible composting is environmentally

beneficial. Nevertheless, airborne

A. fumigatus

spores from compost facilities may

occur at levels above background in nearby off-site areas downwind of compost

facilities.

A. fumigatus

spores pose a potential health threat to persons with asthma,

cystic fibrosis, immunocompromised or immunosuppressed conditions, or bioaerosol

allergies. Very young children are also potentially at greater risk because their immune

systems are immature.

Based on the presence of these susceptible individuals, the Board proposes that

the following additional facilities have setback protection: (a) health care facilities; (b)

primary and secondary schools and their associated recreational areas; and (c) pre-

school and child care facilities and their associated recreational areas. Because the

consensus of studies shows that

A. fumigatus

spore concentrations from compost

facilities generally decrease to background levels within approximately 500 feet of the

composting area, the current 1/8 mile (660 feet) setback applied for residences will be

extended to these other facilities. The Board also proposes corresponding changes to

requirements for site location maps and other information in permit applications.

Since the additional setback requirements would be imposed as a matter of

prudence in the face of a potential health threat, and in light of the potential economic

costs of relocating or closing existing compost facilities, the Board at this time proposes

applying the new setback requirements only to a compost facility developed or the

permitted composting area of which is expanded after January 1, 1999. The Board

requests testimony and comment, however, on the technical feasibility and economic

reasonableness of its proposed 1/8 mile setback on both a retroactive and prospective

basis.

ORDER

The Board proposes for first notice the following amendments to 35 Ill. Adm.

Code 830.203(c), 831.107, and 831.109(b)(3). The Clerk of the Board is directed to file

these proposed rules with the Secretary of State.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 830

STANDARDS FOR COMPOST FACILITIES

SUBPART A: GENERAL PROVISIONS

Section

830.101

Purpose, Scope and Applicability

830.102

Definitions

830.103

Incorporations by Reference

830.104

Exempt Operations and Activities

830.105

Permit-Exempt Facilities and Activities

830.106

On-Farm Landscape Waste Compost Facility

830.107

Compliance Dates

830.108

Severability

SUBPART B: STANDARDS FOR OWNERS AND OPERATORS OF LANDSCAPE

WASTE COMPOST FACILITIES

Section

830.201

Scope and Applicability

830.202

Minimum Performance Standards and Reporting Requirements for

Landscape Waste Compost Facilities

830.203

Location Standards for Landscape Waste Compost Facilities

830.204

Additional Stormwater and Landscape Waste Leachate Controls at

Permitted Landscape Waste Compost Facilities

830.205

Additional Operating Standards for Permitted Landscape Waste Compost

Facilities

830.206

Operating Plan for Permitted Landscape Waste Compost Facilities

830.207

Salvaging at Permitted Landscape Waste Compost Facilities

830.208

Access Control at Permitted Landscape Waste Compost Facilities

830.209

Load Checking at Permitted Landscape Waste Compost Facilities

830.210

Personnel Training for Permitted Landscape Waste Compost Facilities

830.211

Recordkeeping for Permitted Landscape Waste Compost Facilities

830.212

Contingency Plan for Permitted Landscape Waste Compost Facilities

830.213

Closure Plan for Permitted Landscapse Waste Compost Facilities

SUBPART E: QUALITY OF END-PRODUCT COMPOST

Section

830.501

Scope and Applicability

830.502

Compost Classes

830.503

Performance Standards for General Use Compost

830.504

Testing Requirements for End-Product Compost Derived from Landscape

Waste

830.507

Sampling Methods

830.508

Off-Specification Compost

SUBPART F: FINANCIAL ASSURANCE

Section

830.601

Scope and Applicability

830.602

Financial Assurance Plan

830.603

Written Cost Estimate

830.604

Financial Assurance Fund

830.605

Financial Assurance Mechanism

830.606

Financial Assurance Certification

Appendix A Early Detection and Groundwater Monitoring Program

Appendix B Performance Test Methods

Table A

Inorganic Concentration Limits for General Use Compost

Table B

Sampling and Handling Requirements

Table C

Seed Germination Record Sheet

AUTHORITY: Implementing Sections 5, 21, 22.33, 22.34, 22.35 and 39 and authorized

by Section 27 of the Environmental Protection Act [415 ILCS 5/5, 21, 22.33, 22.34,

22.35, 27 and 39].

SOURCE: Adopted at 18 Ill. Reg. 17017, effective November 15, 1994; amended in

R97-29 at _____ Ill. Reg. _____________, effective _____________.

BOARD NOTE: This Part implements the Illinois Environmental Protection Act as of July

1, 1994.

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

are denoted by brackets.

Section 830.203 Location Standards for Landscape Waste Compost Facilities

With the exception of on-farm landscape waste operations, all landscape waste compost

facilities subject to this Part shall comply with the following:

The composting area of the facility must include

a setback of at least 200

feet from the nearest potable water supply well

. (Section 39(m) of the

Act.)

The composting area of the facility must be

located outside the boundary

of the 10-year

floodplain or the site shall be

floodproofed

. (Section 39(m)

of the Act.)

The composting area of the facility must be

located so as to minimize

incompatibility with the character of the surrounding area, including at

least a 200 foot setback from any residence, and in the case of a facility

that is developed or the permitted composting area of which is expanded

after November 17, 1991, the composting area

shall be

located at least 1/8

mile from the nearest residence (other than a residence located on the

same property as the facility

). (Section 39(m) of the Act.) In addition, in

the case of a facility that is developed or the permitted composting area of

which is expanded after January 1, 1999, the composting area shall be

located at least 1/8 mile from each of the following:

health care facilities;

primary and secondary schools and their associated recreational

areas; and

pre-school and child care facilities and their associated recreational

areas.

If, at the time the facility permit application is deemed complete by the

Agency pursuant to 35 Ill. Adm. Code 832, the composting area of the

facility is located within 1/4 mile of the nearest off-site residence or within

1/2 mile of the nearest platted subdivision containing a residence, or if

more than 10 residences are located within 1/2 mile of the boundaries of

the facility, in order to minimize incompatibility with the character of the

surrounding area, landscape waste must be processed by the end of the

operating day on which the landscape waste is received into windrows,

other piles or a contained composting system providing proper conditions

for composting.

The composting area of the facility must be designed

to prevent any

compost material from being placed within 5 feet of the water table, to

adequately control runoff from the site, and

collect and manage any

landscape waste

leachate that is generated on the site

. (Section 39(m) of

the Act.) Compliance with the water table distance requirement may be

demonstrated by either of the following means:

Using published water table maps or other published documentation

to establish the location of the water table in relation to site

elevation; or

Actual measuring of the water table elevation at least once per

month for three consecutive months.

The facility must meet all requirements under the Wild and Scenic Rivers

Act (16 U.S.C. 1271 et seq.).

The facility must not restrict the flow of a 100-year flood, result in washout

of landscape waste from a 100-year flood, or reduce the temporary water

storage capacity of the 100-year floodplain, unless measures are

undertaken to provide alternative storage capacity, such as lagoons,

holding tanks, or provision of drainage around structures at the facility.

The facility must not be located in any area where it may pose a threat of

harm or destruction to the features for which:

An irreplaceable historic or archaeological site has been listed

pursuant to the National Historic Preservation Act (16 U.S.C. 470

et seq.) or the Illinois Historic Preservation Act [20 ILCS 3410];

A natural landmark has been designated by the National Park

Service or the Illinois State Historic Preservation Office; or

A natural area has been designated as a Dedicated Illinois Nature

Preserve pursuant to the Illinois Natural Areas Preservation Act

[525 ILCS 30].

The facility must not be located in any area where it may jeopardize the

continued existence of any designated endangered species, result in the

destruction or adverse modification of the critical habitat for such species,

or cause or contribute to the taking of any endangered or threatened

species of plant, fish or wildlife listed pursuant to the Endangered Species

Act (16 U.S.C. 1531 et. seq.), or the Illinois Endangered Species

Protection Act [520 ILCS 10].

(Source: Amended at ___ Ill. Reg. ______, effective ___________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 831

INFORMATION TO BE SUBMITTED IN A COMPOST FACILITY PERMIT

APPLICATION

SUBPART A: GENERAL INFORMATION REQUIRED FOR ALL COMPOST

FACILITIES

Section

831.101

Scope and Applicability

831.102

Severability

831.103

Certification by Professional Engineer

831.104

Application Fees

831.105

Required Signatures

831.106

Site Identification

831.107

Site Location Map

831.108

Site Plan Map

831.109

Narrative Description of the Facility

831.110

Legal Description

831.111

Proof of Land Ownership and Certification

831.112

Closure Plan

831.113

Financial Assurance

831.114

Operator-Initiated Modification of an Approved Permit

831.115

Modification to Obtain Operating Authorization

831.116

Permit Renewal

AUTHORITY: Implementing Sections 5, 21, 22.33, 22.34, 22.35 and 39 and authorized

by Section 27 of the Environmental Protection Act [415 ILCS 5/5, 21, 22.33, 22.34,

22.35, 27 and 39].

BOARD NOTE: This Part implements the Illinois Environmental Protection Act as of July

1, 1994.

SOURCE: Adopted at 18 Ill. Reg. 16942, effective November 30, 1994; amended in

R97-29 at _____ Ill. Reg. _________, effective _____________.

Section 831.107 Site Location Map

All permit applications shall contain a site location map on the most recent United States

Geological Survey ("USGS") quadrangle of the area from the 7 1/2 minute series

(topographic), or on such other map whose scale clearly shows the following information:

The permit area and all adjacent property, extending at least 1/2 mile

beyond the boundary of the facility;

The prevailing wind direction;

All rivers designated for protection under the Wild and Scenic Rivers Act

(16 U.S.C. 127 et seq.);

The limits of all 10-year floodplains;

All natural areas designated as a Dedicated Illinois Nature Preserve

pursuant to the Illinois Natural Areas Preservation Act [525 ILCS 30];

All historic and archaeological sites designated by the National Historic

Preservation Act (16 U.S.C. 470 et seq.) and the Illinois Historic

Preservation Act [20 ILCS 3410];

All areas identified as a critical habitat pursuant to the Endangered Species

Act (16 U.S.C. 1531 et seq.) and the Illinois Endangered Species

Protection Act [520 ILCS 10];

All main service corridors, transportation routes, and access roads to the

facility;

All residences and areas in which people congregate within 1/2 mile of the

facility boundaries;

The locations of all on-site potable water supply wells and all potable water

supply wells within 1/8 mile of the boundaries of the facility; and

The types of land use for the properties immediately adjacent to the facility

(i.e., residential, commercial, industrial, agricultural, etc.). This must

include any zoning classifications of these properties and the location (and

function) of all buildings within 1/2 mile of the facility; and.

In the case of a facility that is developed or the permitted composting area

of which is expanded after January 1, 1999, all of the following within 1/8

mile of the nearest edge of the composting area:

health care facilities;

primary and secondary schools and their associated recreational

areas; and

pre-school and child care facilities and their associated recreational

areas.

(Source: Amended at ____ Ill. Reg. _______, effective ____________)

Section 831.109 Narrative Description of the Facility

The permit application must contain a written description of the facility with supporting

documentation describing the procedures and plans that will be used at the facility to

comply with the requirements of this Part and any other applicable Parts of 35 Ill. Adm.

Code: Chapter I. Such description must include, but not be limited to, the following

information:

An estimate of the maximum annual volume and peak daily volume of

landscape waste the facility will be able to process;

Proof of the following:

The facility includes a setback of at least 200 feet from the nearest

potable water supply well

;

The facility is located outside the boundary of the 10-year

floodplain or the site will be

floodproofed

;

The facility is located so as to minimize incompatibility with the

character of the surrounding area, including at least a 200 foot

setback from any residence and in the case of a facility that is

developed or the permitted composting area of which is expanded

after November 17, 1991 the composting area is located at least

1/8 mile from the nearest residence (other than a residence located

on the same property as the facility)

. In addition, in the case of a

facility that is developed or the permitted composting area of which

is expanded after January 1, 1999, the composting area is located at

least 1/8 mile from each of the following:

health care facilities;

primary and secondary schools and their associated

recreational areas; and

pre-school and child care facilities and their associated

recreational areas; and

The design of the facility will prevent any compost material from

being placed within 5 feet of the water table, will adequately

control runoff from the site, and will collect and manage any

leachate that is generated on the site

(Section 39(m) of the Act);

An operating plan, satisfying the requirements set forth in 35 Ill. Adm.

Code 830.206;

An early detection or groundwater monitoring system design, in

accordance with 35 Ill. Adm. Code 830.Appendix A, if required pursuant

to 35 Ill. Adm. Code 830.205(b)(1)(A)(iii) or 830.205(b)(2)(A)(iii);

A contingency plan, satisfying the requirements set forth in 35 Ill. Adm.

Code 830.212;

Specification of the operating hours of the facility;

The types of landscape waste that are proposed to be received by the

facility;

Descriptions of the storage areas (including their capacities) that will be

used to stage the waste before windrowing, to store bulking agent(s) or

additives and to store the end-product compost; and

Description of personnel training procedures, satisfying the requirements of

35 Ill. Adm. Code 830.210.

(Source: Amended at ____ Ill. Reg. ________, effective ___________)

IT IS SO ORDERED.

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

certify that the above opinion and order was adopted on the 17th day of June 1998 by a

vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

ATTACHMENT 1

EXHIBITS R97-29

Exh. 1

: Prefiled testimony of Susan Garrett.

Exh. 2

: Additional testimony of Susan Garrett.

Exh. 3

: Prefiled testimony of Steven Handler.

Exh. 4

: Additional testimony of Steven Handler.

Exh. 5

: Prefiled testimony of Gloria Loukas.

Exh. 6

: Prefiled testimony of Renuka Desai.

Exh. 7

: Prefiled testimony of Jack Darin of the Sierra Club.

Exh. 8

: Prefiled testimony of William Holleman of the Illinois Citizen Action Public

Education Committee.

Exh. 9

: Prefiled testimony of Earl Johnson of the Illinois Citizen Action Public Education

Committee.

Exh. 10

: Prefiled testimony of Cheryl Doros.

Exh. 11

: Prefiled testimony of Peter Mueller.

Exh. 12

: Prefiled testimony of Edward Grskovich.

Exh. 13

: Prefiled testimony of Jacob Dumelle of the American Lung Association of

Metropolitan Chicago.

Exh. 14

: Prefiled testimony of Mary Matthews and two lung diagrams.

Exh. 15

: Prefiled testimony of Scott Garrett.

Exh. 16

: NIOSH Alert, “Request for Assistance in Preventing Organic Dust Toxic

Syndrome.”

Exh. 17

Curriculum Vitae

of Stephen Charles Edberg.

Exh. 18

: Proponents’ binder of miscellaneous materials forwarded to various persons and

responses received from various persons, including persons in the health field.

Exh. 19-A

: National Institute of Allergy and Infectious Disease, “Asthma and Allergy

Statistics,” February 1996.

Exh. 19-B

: “Data Watch, The case for managing asthma care.”

Exh. 19-C

: “An Economic Evaluation of Asthma in the United States,” Weiss, Gergen,

and Hodgson, March 26, 1992.

Exh. 20

: Letter of August 30, 1994, from Rita Messing of the Minnesota Department of

Health to Jerry Johnson.

Exh. 21-A

: Letter of August 7, 1997, from John Lumpkin of the Illinois Department of

Public Health to Susan Garrett and Renuka Desai.

Exh. 21-B

: Letter of July 8, 1997, from Clinton Mudgett of the Illinois Department of

Public Health to Renuka Desai.

Exh. 22

: Letter of July 25, 1997, from Colin Thacker of the Lake County Health

Department to Renuka Desai.

Exh. 23

: “Allergic Bronchopulmonary Aspergillosis from a Contaminated Dump Site,”

Kramer, Kurup, and Fink.

Exh. 24

: “Locally invasive pulmonary aspergillosis occurring in a gardener:

occupational hazard?,” Zuk, King, Zakhour, and Delaney, 1989.

Exh. 25-A

: “Hypersensitivity pneumonitis from residential composting: residential

composter’s lung,” Brown, Masood, Couser, and Patterson, January 1995.

Exh. 25-B

: “Hypersensitivity pneumonitis due to Aspergillus fumigatus in compost,”

Vincken and Roels.

Exh. 26-A

: “Comparisons of Organic Dust Exposures in Agricultural Occupations and

Waste Processing Industries,” Clark, 1986.

Exh. 26-B

: “Organic Dust Exposure From Compost Handling: Response of an Animal

Model,” Frazer, Jones, Petsonk, Kullman, Barger, Afshari, Jones, and Castranova, 1993.

Exh. 26-C

: “Organic Dust Exposures From Compost Handling: Case Presentation and

Respiratory Exposure Assessment,” Weber, Kullman, Petsonk, Jones, Olenchock,

Sorenson, Parker, Marcelo-Baciu, Frazer, and Castranova, 1993.

Exh. 27

: “Respiratory pathophysiologic responses, Effect of environmental molds on risk

of death from asthma during the pollen season,” Targonski, Persky, and Ramekrishnan.

Exh. 28

: “Medical Issues related to Municipal Waste Composting,” Johanning, Olmsted,

and Yang.

Exh. 29 reserved by hearing officer

Exh. 30

: Prefiled testimony of Joyce Munie of the Illinois Environmental Protection

Agency.

Exh. 31

: Prefiled testimony of Elizabeth Harvey on behalf of Land and Lakes Company.

Exh. 32

: Prefiled testimony of Thomas Naatz and two color maps (one map entitled

“Aspergillosis Cases by Zip Code Primary or Secondary Diagnosis 1993 Cases per

100,000 Population” and the other map entitled “Allergic Alveolitis Cases by Zip Code

Primary or Secondary Diagnosis 1993 Cases per 100,000 Population”) from a report

entitled “Environmental Characterization of Bio-Aerosol Emissions from the DK

Recycling Systems, Inc. Composting Facility in Lake Forest, Illinois,” dated April 15,

1996, which is included with Mr. Naatz’s prefiled testimony.

Exh. 33

: Prefiled testimony of Charles Pick.

Exh. 34

: Prefiled testimony of Karen Strauss.

Exh. 35

Curriculum Vitae

of Karen Strauss.

Exh. 36

: Prefiled testimony of Shirley Baer of the Illinois Environmental Protection

Agency.

Exh. 37

: “Asthma Mortality and Hospitalization Among Children and Young Adults—

United States, 1980-1993,” May 22/29, 1996.

Exh. 38

: “Environmental Risk Factors of Childhood Asthma in Urban Centers,”

Malveaux and Fletcher-Vincent, September 1995.

Exh. 39

: “Observations on Asthma,” Bates, September 1995.

Exh. 40

: “Guidelines for the Diagnosis and Management of Asthma, National Heart,

Lung, and Blood Institute, National Asthma Education Program, Expert Panel Report,”

September 1991.

Exh. 41

: Illinois Environmental Protection Agency’s “Comparison of Landscape Waste

Standards.”

Exh. 42

: Comments of the City of Crystal Lake.

Exh. 43

: Comments of Paul Walker and Timothy Kelley of Illinois State University.

Exh. 44 reserved by hearing officer

Exh. 45

: Comments of Andrew Quigley of the Solid Waste Agency of Lake County,

Illinois.

ATTACHMENT 2

PUBLIC COMMENTS R97-29

PC 1 Comments of Robert Gillespie of DK Recycling Systems, Inc.

PC 2 Comments of the City of Lake Forest

PC 3 Comments of Lauren Beth Gash, State Representative

PC 4 Comments of the City of Crystal Lake

PC 5 Comments of the Chicago Recycling Coalition

PC 6 Comments of the Lake County Conservation Alliance

PC 7 Comments of the City of Evanston

PC 8 Comments of Lois Grimm

PC 9 Comments of Waste Management

PC 10 Comments of the City of Elgin

PC 11 Comments of Mark Teegen

PC 12 Comments of Proponents

PC 13 Comments of Proponents

PC 14 Comments of Eliot Epstein, Ph.D., of E&A Environmental Consultants, Inc.

PC 15 Comments of the Town of Normal

PC 16 Comments of Cathy Mueller

PC 17 Comments of Franklin Pease

PC 18 Comments of Barbara Zimmerman

PC 19 Comments of Carolyn Schaper

PC 20 Comments of Keith and Libby Leman

PC 21 Comments of the Illinois Composting Council

PC 22 Comments of Gloria Loukas

PC 23 Comments of Will County Land Use Department, Waste Services Division

PC 24 Comments of the National Solid Wastes Management Association, Illinois Chapter

PC 25 Comments of Land and Lakes Company

PC 26 Comments of the City of Lake Forest with Karen Strauss’ Supplemental

Information

PC 27 Comments of the Illinois Environmental Protection Agency