By Philip L. Comella
In July 2010, the Illinois General Assembly enacted amendments to the Illinois Environmental Protection Act that increase the regulation of Clean Construction and Demolition facilities and also create a new form of regulated facility known as an “Uncontaminated Soil Fill Operation.” The legislation set forth a two-tiered rulemaking process: The IEPA was first to propose rules implementing the new standards to the Pollution Control Board within one year of the effective date of the legislation (or by July 31, 2011), and then the Board is to adopt final rules within one year of receiving the Agency’s proposal. 415 ILCS 5/22.51(f).
On July 27, 2011, the Agency, after conducting two rounds of comments, submitted its proposal to the Board, triggering the second stage of the rulemaking. The Board has opened a rulemaking (R2012-009) on the proposal.
The Agency’s newest proposal contains a few noteworthy changes from earlier drafts. Among these are the following:
1) The initial drafts of the Agency’s proposal subjected both CCDD and soil fill operations to new groundwater monitoring requirements, but were unclear on when these significant requirements applied. The recent proposal resolves this uncertainty by providing that the groundwater monitoring requirements do not apply to fill operations that have been certified closed within one year after the effective date of the final rules issued by the IPCB. Proposed 35 ILCS 1100.700(b).
2) The new Agency proposal allows painted CCDD to be used as fill material under some conditions. Specifically, a professional engineer must take a representative sample of the painted CCDD and show that the concentrations of six metals (arsenic, cadmium, chromium, lead, mercury, and zinc) do not exceed the chemical-specific Class I groundwater quality standard under Part 620. Proposed 35 ILCS 1100.212.
3) The proposal and accompanying statement of reasons also make it clear that the Agency intends to use the Tier 1 soil remediation objectives from the TACO rules to provide the basis for the maximum allowable concentrations of contaminants that may be present in what will be considered “uncontaminated” soil.
In its statement of reasons the Agency addresses the apparent inconsistency between using TACO standards as the basis of a “no further remediation” determination under the site remediation program while using the same standards to define “uncontaminated” soil in the CCDD program. Under the SRP program, an NFR letter signifies the end of remedial efforts, including ongoing groundwater monitoring. Under the proposed CCDD rules, a fill operator may only accept soil meeting the TACO standards but then is required to conduct groundwater monitoring. The Agency distinguishes these two scenarios by saying that the SRP program addresses sites where “uncontrolled contamination” has occurred and the object is to return the property to a productive use. In contrast, fill operations will be accepting contaminated soil in areas where no such contamination previously existed. This may be true, but it does not answer the question of why one site is required to monitor groundwater while the other site is released from further remediation even though the same level of contamination is in the ground.
Stay tuned here for futher updates on this rulemaking.