By Philip L. Comella
Rulemaking procedures underway before the Illinois Pollution Control Board’s (Board) in the First Notice of proposed amendments to Clean Construction or Demolition Debris (CCDD) Fill Operations (35 Ill.Adm.Code 1100) show that battle lines have been drawn over how CCDD will be regulated in the State of Illinois. One of the key battles taking shape now is whether the Board will implement the legislative directive to protect groundwater at CCDD and uncontaminated soil fill operations by imposing groundwater monitoring requirements on the “back-end” (receiving facility) or by increasing the stringency of certification requirements on the “front-end” (source of material).
CCDD occupies a unique niche in the state’s regulatory scheme. CCDD is not a “waste” if, among other things, it is used as fill in a “quarry, mine or other excavation.” 415 ILCS 5/3.160. The Board’s rulemaking, following the General Assembly’s directive in P.A. 96-1416, also establishes a new category of facility call an “uncontaminated soil fill operation” and defines “uncontaminated soil.” 415 ILCS 22.51a.
The problem, as it seems with many environmental laws, is how one defines “clean” and “uncontaminated.” The Illinois Environmental Protection Act’s (Act) definition of “CCDD” is “uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement, or soil generated from construction or demolition activities.” In the 2010 amendments to the Act , the Illinois General Assembly defined “uncontaminated soil” by reference to the State’s Tiered Approach to Corrective Action Objectives (TACO), though the General Assembly did not mandate the use of TACO.
The General Assembly expressed an intent to protect groundwater at both CCDD operations and uncontaminated soil fill operations, but used different language to implement this directive for the two types of facilities. CCDD operations, it said, must include standards and procedures necessary to protect groundwater, which may include a number of measures, including groundwater monitoring. 415 ILCS 22.51(f)(1). “Uncontaminated soil fill operations” also must protect groundwater but on this occasion the General Assembly listed “testing and certification of soil” and “requirements for recordkeeping,” but not “groundwater monitoring.” Id. 22.51a(d)(1)
The rules proposed by the Illinois Environmental Protection Agency (Agency) required groundwater monitoring for all CCDD and uncontaminated soil fill operations in operation one year after the effective date of the final rules. Facilities that have entered post-closure within that one year period would be exempt. (Proposed Rule, 35 Ill. Adm. Code 1100, Subpart G.)
The Agency said it believed the groundwater monitoring requirements were necessary “because the facilities are not required to have a protective liner to control contaminant migration and because they are consolidating a large volume of off-site materials into one area with that material often placed directly into the groundwater flow.”
The Agency balanced the groundwater monitoring requirement on the back-end with relatively flexible certification requirements on the front-end. The owner/operator of the receiving facility must document that for all soil, it will either obtain a certification from the owner of the source site that the source site is not potentially impacted property, and is thus presumed to be uncontaminated, or will obtain a certification from a licensed PE or PG that the source soil is uncontaminated. Id. 1100.205(a). The forms relied upon by the Agency to implement these two certification requirements did not mandate testing, provided there is a basis for the owner’s or PE/PG’s certification.
In the Board’s First Notice Order and Opinion, issued on February 2, 2012, it inverted the Agency’s proposal by doing away with the groundwater monitoring requirement entirely and imposing certification requirements for uncontaminated soil on the front-end based on the ASTM standards. Under the Board’s First Notice, source site owners or operators must use the ASTM E 1528-06 Transaction Screen to establish that the source site is not a “potentially impacted property” and hence, any removed soil is presumed to be uncontaminated. If the source site owner is unable to make this certification or if the property is “potentially impacted,” then the fill site operator must obtain a certification from a professional engineer or geologist that the source site soil is uncontaminated based on an evaluation conducted in accordance with ASTM 1527-05, Phase I Environmental Site Assessment Process. This certification must include analytical testing to show that the soil does not contain contaminants in excess of the maximum allowable concentrations, based on the lowest applicable Tier 1 standards under TACO.
The Board found no factual evidence that that CCDD operations were actually contaminating groundwater and no legal directive that it necessarily had to include groundwater monitoring among the measures to ensure the protection of groundwater.
The Board heard testimony on its First Notice on March 13-14th and issued an order setting April 18, 2012 as the deadline for comments, and April 27, 2012 as the deadline for responses to those comments. Under the Act, the Board must issue final rules by July 29, 2012.
Thus, as matters now stand, the regulated community is sliding somewhere between mandatory groundwater monitoring requirements, which may drive many CCDD facilities out of business, and the mandatory use of ASTM procedures, which appear ill-suited for the majority of construction and excavation projects that generate CCDD and uncontaminated soil.
Stay tuned for further developments, as this rulemaking continues to unfold.