By Philip L. Comella
On February 2, 2012, the Illinois Pollution Control Board (PCB) issued its First Notice of a Proposed Rule (FNPR) affecting the management and disposal of Clean Construction or Demolition Debris (CCDD), and “uncontaminated” soil. Significantly, the PCB’s proposal eliminates provisions previously proposed by the Illinois Environmental Protection Agency (IEPA) requiring groundwater monitoring for fill operations accepting CCDD and uncontaminated soil.
History. In July 2010, the Illinois General Assembly passed Public Act 96-1416, which changed the management and permitting standards for CCDD operations and created a new class of facility, called an “uncontaminated soil fill operation.” In general, CCDD and uncontaminated soil operations are not considered to be “waste disposal facilities” provided they (a) are a quarry, mine, or other excavation; and (b) accept only material meeting the definition of CCDD or uncontaminated soil.
Public Act 96-1416 provided that IEPA must first propose rules to the PCB by July 2011 and then the PCB must undergo its own rulemaking procedure and issue final rules by July 2012. The legislation further provides that the final regulations must include standards and procedures for protecting groundwater, which “may” include a number of controls, including testing, certification, and groundwater monitoring.
The IEPA’s proposal, timely submitted to the PCB in July 2011, subjected all operators of CCDD and uncontaminated soil fill operations to groundwater monitoring requirements. The environmental rationale for this requirement is not however, readily apparent, since CCDD is by definition “clean,” and “uncontaminated soil” is by definition, “uncontaminated.” Groundwater monitoring is typically required when waste materials, containing chemical contaminants, are deposited in a land disposal unit, and the objective is to monitor the boundaries of the unit to ensure contaminants do not migrate off-site. CCDD and uncontaminated soil are not supposed to be contaminated, so there is a question regarding the purpose of groundwater monitoring.
After hearing testimony and considering comments on IEPA’s proposal, the PCB considered the same question and concluded that there was no evidence showing that CCDD or uncontaminated soil fill operations cause groundwater contamination. In addition, the PCB found that the significant cost of groundwater monitoring outweighed any environmental benefit.
February 2012 Proposed PCB Rule. To satisfy the statutory directive of protecting groundwater in the absence of a requirement for groundwater monitoring, the PCB’s proposed rule instead increases the due diligence requirements on the “front end.” The IEPA’s July 2011 proposed rule allowed soil to be accepted by a fill operation as “uncontaminated” based on: (i) either a certification by the owner that the site from which the material was generated was not “potentially impacted property”; or (ii) or a certification from a professional engineer (PE) or geologist (PG) that the soil is uncontaminated. Neither the statute nor IEPA’s proposal necessarily required testing and gave the owner leeway in preparing the certification.
In contrast, the PCB’s new proposal requires the site owner either to conduct an ASTM E 1528-06, “Standard Practice for Limited Environmental Due Diligence: Transaction Screen Process,” to demonstrate that the site from which the material is generated is not a “potentially impacted property,” or to obtain a certification from a PE or PG that the soil is not contaminated based on conducting the more extensive ASTM E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” This assessment must include analytical data showing that the soil meets the requisite Tiered Approach to Corrective Action (TACO) concentration levels.
In other words, in exchange for deleting the groundwater monitoring requirements on the back or receiving end, the PCB’s proposal intensifies the soil characterization procedures on the front end.
Stay tuned for more developments in this unique rulemaking.