II Solid Waste: a Look at Land Pollution and Refuse Disposal Under the Illinois Environmental Protection Act

• Library: Illinois Environmental Law for Non-Environmental Lawyers (2017 Ed.)

II. Solid Waste: A Look at Land Pollution and Refuse Disposal Under the Illinois Environmental Protection Act Lisle A. Stalter

Under Illinois environmental statutes, pollution falls within one of three categories: air, water or land. Pollution involving land generally deals with what most people would consider "solid waste" - waste other than what is emitted into the air or water.

The regulation of solid waste is extensive and addresses everything from the basic disposal of waste to handling and disposing of specific wastes, and management of transfer stations and landfills. These provisions are set forth in Title V of the Illinois Environmental Protection Act (Act)¹ and Title 35 of the Illinois Pollution Control Board Regulations (Regulations).² As this resource is geared towards the general practitioner, it will not include an in depth discussion of issues such as hazardous and special waste or landfill permitting and operation.³

A. Solid Waste - An Expansive Definition

Solid waste is generally defined as "waste."⁴ And, waste is defined as "any garbage, sludge from a waste treatment plant, water supply plant, or air pollution control facility or other discarded material...."⁵

Interestingly, waste does not have to be in a "solid" form but can be a liquid, semi-solid or contained gaseous material to be covered under the Act's Solid Waste provisions.⁶ And, like any good statute, the Act further defines the terms used within its definitions. Specifically, "garbage" is defined as:

waste resulting from the handling, processing, preparation, cooking, and consumption of food, and wastes from the handling, processing, storage and sale of produce.⁷

And, "sludge" is defined as:

any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility or any other such waste having similar characteristics and effects.⁸

These definitions refer to general waste. Additional definitions address specific types of waste, like hazardous, special or landscape waste. These will be discussed, as necessary, later in this chapter.

As the reader has probably surmised, solid waste has a very broad definition that can be generally summarized as any discarded material, in any form.

B. Do You Need a Permit?

Whether you need a permit is not an easy question to answer in a publication like this. The basic answer is that you will need a permit if you manage waste.⁹ Thus, if one treats, stores or disposes of some kind of waste, a permit will be needed. You and your client may have a different opinion than the Illinois Environmental Protection Agency ("Illinois EPA") as to what constitutes "treat, store or dispose" of waste to trigger the permit requirement.

If waste is accepted from another person or entity or from another facility for treatment, transfer, storage or disposal a permit is needed.¹⁰ Again, it is useful to look at the definitions to determine what activity this covers. "Storage" has a very broad application and means containment of waste in such a manner as to not constitute disposal, whether temporary or permanent.¹¹ "Treatment" is any activity which changes the physical, chemical or biological character or composition of the waste, including mixing it with other waste, burning, grinding or separating.¹² "Transportation" is not defined in the Act, but in such case the common understanding of the word would apply - and it is fair to say means taking waste from one site to another. And, "disposal" includes placing, dumping or discharging, in any manner, waste into or onto land or water.¹³ If your client is engaging in any of these activities, a permit must be obtained from the Illinois EPA prior to commencing such activity.¹⁴

There are further distinctions, and additional statutory provisions, for special and hazardous wastes. "Special wastes" include potentially infectious medical waste, industrial process waste, pollution control waste and hazardous waste.¹⁵ And, "hazardous waste" is a waste, or combination of wastes, which because of quantity, concentration or physical, chemical or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious, irreversible, or incapacitating reversible, illness.¹⁶ Because of the nature of special and hazardous waste, any time waste that fits within these definitions is handled, generated or transported, a permit will be needed.

There are exceptions to permitting requirements. One exception of note is when a person conducts waste-treatment, storage or disposal for wastes generated on the site where they were created.¹⁷ This exemption should be read narrowly - the wastes must be generated from a person's own activities, and must be treated, stored or disposed of on the site it was generated. The result is that one person cannot bring another's discarded material onto his site. This only applies to minor amounts of refuse which could be disposed without environmental harm upon the site where it is generated.¹⁸ Thus, the client who likes to collect other people's discarded material (or garbage as most people would call it) and store or dispose of it on his property is engaging in an activity which requires a permit. It is important to emphasize that the exception only applies if the on-site refuse cannot potentially cause environmental harm.

The same waste management system or facility may need multiple permits before waste can be accepted or processed. The Illinois EPA issues separate permits for construction/development and for operation. The construction/development permit needs to be obtained before construction is started and the application for operating permit is submitted when the new facility is constructed and ready to operate.

New pollution control facilities require siting approval by the local unit of government before the Illinois EPA will issue a permit.¹⁹ A "pollution control facility" is any waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility or waste incinerator.²⁰ The definition specifically includes facilities owned and operated by a sanitary district, but does provide a number of exemptions from the siting requirements.²¹ Further, a "new pollution control facility" is defined as: (1) a pollution control facility initially permitted for development after July 1, 1981; or (2) the area of expansion is beyond the boundary of a currently permitted facility; or (3) there is a first time request for approval to store, dispose of, transfer or incinerate any special or hazardous waste.²²

C. Specific Wastes

The Act has identified a number of specific wastes and included provisions for the proper handling and disposal of them. A few of the more common types of waste are addressed in this section.

1. Landscape Waste

Landscape waste is defined as one would expect ... "all accumulation of grass or shrubbery, cuttings, leaves, tree limbs and other materials accumulated as the result of the care of lawns, shrubbery, vines and trees."²³ One of the critical requirements to remember about landscape waste is that it cannot be disposed of in a landfill with the rest of one's garbage.²⁴ This prohibition applies equally to the person disposing of the landscape waste and the operator of the landfill who accepts waste for disposal.²⁵

The question then becomes, "How does one dispose of landscape waste?" Of course, composting and soil amendment for gardens are the best uses. But, to avoid regulation the landscape waste must stay on the property on which it was generated. As composting and soil amendment are not always an option for residents, many municipalities are providing separate landscape waste collection. The landscape waste is then taken to either a landscape waste transfer station or a composting facility. Alternatively, landscape waste can be taken to a sanitary landfill to be soil amendment for vegetative cover or used for alternative daily cover (which may also require additional permitting from the Illinois EPA).²⁶ Both of these activities will be discussed further below.

A landscape waste transfer station is just what the name implies, a facility to which landscape waste is brought and then taken to another location for disposal (or composting).²⁷ Landscape waste transfer stations require a permit from the Illinois EPA. And, if the landscape waste is transferred off site within twenty-four (24) hours from the time it is received, it is not considered a pollution control facility.²⁸ This is significant as pollution control facilities require siting approval from a local jurisdiction before a permit from the Illinois EPA will be issued.²⁹

The benefit of a transfer station is that the material can be processed to reduce its volume and loaded onto larger trucks for transport to another facility. Processing does not require additional permitting from the Illinois EPA. The primary component of a landscape waste transfer station is removal of the landscape waste within twenty-four (24) hours of receipt. Conceptually, this cuts down on the nuisance impacts related to taking in landscape waste, including odors and vectors. Landscape waste transfer stations must also have a designated area where the landscape waste is to be deposited. Although logical, it is important to emphasize that the waste must be limited to landscape materials. These provisions are specified in each permit and a violation of the permit is a citable violation under the Act.³⁰ Of course, the landscape material that is removed from the transfer station must be disposed of in accordance with the Act. It can either be taken to a sanitary landfill, as discussed above, or it can be taken to a landscape waste compost facility.

Due to the impacts from improperly managed landscape waste compost facilities - mold, odors, vectors - these facilities are highly regulated. Composting is defined as the "biological...