By Philip L. Comella

On July 30, 2010, the Illinois General Assembly signed into law Public Act 96-1416, which imposes additional technical and operational requirements upon Clean Construction and Demolition Debris fill operations. Among other things, this new law requires the Illinois EPA to propose new regulations implementing the statutory directives by July 30, 2011 and then for the Illinois Pollution Control Board (“IPCB”) to adopt final rules by July 30, 2012, setting up two rounds of public comments.

In the two-year period before the IPCB issues the final rules, the statute imposes a set of more general operational requirements upon CCDD operations. See 415 ILCS 22.51(f) and 22.51a.

As of today, the Illinois EPA has published its proposed rules and they are apparently awaiting sign-off by the IEPA Director and Governor before being filed with the Illinois Pollution Control Board. One of the more significant changes to existing law resulting from Public Act 96-416 concerns the revised approach to “uncontaminated soil.” The prior version of the statute did not define the term “uncontaminated soil.” (Current regulations require a CCDD operator to conduct both a visual inspection and use a photo ionization on incoming loads. Any reading in excess of background levels must be rejected.  35 Ill.Adm.Code 1100.201(a).)

Historically, IEPA has used the Tier 1 numerical limits in the State’s Tiered Approach to Corrective Action Ojectives (TACO) to define “uncontaminated soil.”  The new statutory provisions, however, define “uncontaminated soil” as soil that does not “pose a threat to human health and the environment” and then directs the Agency and the IPCB to quantify the maximum concentration of contaminants based on an “upper-bound cancer risk of 1 in 1,000,000.” 415 ILCS 5/3.160(c).  The Agency’s April 29, 2011 proposed rule (and the one apparently awaiting signature) would essentially codify its guidance on the topic and define “uncontaminated soil” in terms of the lowest Tier 1 chemical-specific soil value.  But this proposed rule, it should be noted, is not legally binding as the IPCB has not yet initiated rulemaking.  It is apparent, however, that given the legislative directive, the TACO standards are likely to appear in the final regulations.

This leads to another section of Public Act 96-1416 in regard to the new “uncontaminated soil fill opeations.” The statute directs the Agency and the IPCB to ensure the final rules contain standards and procedures for these fill operations “necessary to protect groundwater, which shall include, but not be limited to, testing and certification of soil used as fill material and requriements for recordkeeping.”  415 ILCS 22.51a(d)(1).  Accordingly, the Agency’s proposed rule imposes groundwater monitoring requirements upon operators of uncontaminated soil fill operations. Proposed Rule 35 Ill.Adm.Code Part 1100, subpart G (4/29/11).

As an initial matter, it should be noted that an “uncontaminated soil fill operation” does not include every place where soil is deposited.  Rather, the fill must be a former quarry, mine, or “other excavation.”  “Other excavations” do not include “holes, trenches, or similar earth removal created as part of normal construction, removal, or maintenance of a structure, utility, or transportation infrastructure.”

Achieving the Tier 1 clean-up levels at a former contaminated site authorizes the Agency to issue a “No Further Remediation” letter to the site owner.  These letters “shall be considered prima facie evidence that the site does not constitute a threat to human health and the environmental and does not require further remediation under the Act[.]”  415 ILCS 5/58.10(a).  One might wonder why achieving the Tier 1 levels at a Brownfield site establishes that no further remediation is required at that site, but disposing of soil meeting the same standards at an uncontaminated soil fill operation subjects the owner of the fill site to groundwater monitoring requirements?  In different words, if achieving the Tier 1 standards protects groundwater at a Brownfield site why wouldn’t it protect groundwater at a soil fill operation?