By Philip L. Comella

Ending, for the time being, a fiercely contested rulemaking in which even the Chicago Tribune’s editorial board weighed in, the Illinois Pollution Control Board on August 23, 2012 issued its Final Rule changing the standards for Clean Construction or Demolition Debris (CCDD) Fill Operations. The heart of the controversy in this rulemaking was whether the Board should require these fill operators to conduct groundwater monitoring to satisfy amendments the General Assembly made to the Environmental Protection Act in 2010.

As a perceptual matter, it did not look good to some observers that a fill operator would be able to dispose of debris and clean soil without conducting groundwater monitoring.  This is what caught the attention of the Chicago Tribune, which said, “We don’t believe self-policing within the waste industry is a wise strategy when drinking water is at stake.”  But fears, politics, and business interests wound up giving way to the evidence.  The Board “found no evidence .  .  . to demonstrate that CCDD or uncontaminated soil fill sites were a source of drinking water contamination.”  It must be remembered that under the Act “uncontaminated soil” and “clean construction debris” are not solid wastes and therefore deserve separate management standards.  Furthermore, even though it did not require groundwater monitoring, the Board imposed strict certification requirements on the “front-end” to ensure that fill operators accept only clean soils meeting the same general standards as required to obtain a “no further remediation” letter from the Illinois Environmental Protection Agency.  (The point of a “no futher remediation” letter is that once a site is found to meet the requisite standards, no further action is required, including of course groundwater monitoring. )

But the groundwater monitoring issue is not completely dead. Before the issuance of the final notice, the Joint Committee on Administrative Rules issued a recommendation that the Board give further consideration to whether groundwater monitoring should be required for these facilities. Finessing this recommendation, the Board opened another docket in the rulemaking to further evaluate the monitoring issue, indicating it will issue an order in that docket “at a later date.”

Stay tuned for further developments.