RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD JUN 2 9 2006
In the matter of:
STATE OF ILLINOIS
)
Pollution Control Board
Clean Construction or Demolition
Debris Fill Operations Under P .A. 94-272
(35 IL Adm . Code 1100)/Docket R2006-19
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph
Suite 11-500
Chicago IL, 60601
Matt Dunn. Environmental Bureau Chief
Office of the Attorney General
James R. Thompson Center
100 W
. Randolph
Suite 11-500
Chicago IL 60601
Tiffany Chappell
City of Chicago
Mayor's Office of Intergovernmental Affairs
121 N . LaSalle Street
City Hall, Room 406
Chicago IL, 60602
Claire A. Manning
Brown, Hays and Stephan's LLP
700 First Mercantile Bank Building
205 South
5th
Street
PO Box 2459
Springfield IL, 62705-2459
Notice of Filing
General Counsel
Office of Legal Counsel
Illinois Department of Natural
Resources
One Natural Resources Way
Springfield IL 62707
R06-19
(Rulemaking- Land)
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph
Suite 11-500
Chicago IL 60601
Kyle Rominger, Attorney
IEPA
1021 North Grand Ave. East
PO Box 19276
Springfield IL 62794
Steven Gobelman
Geologic/Waste Assessment
Specialist
IDOT
2300 S. Dirksen Parkway
Springfield IL 62764
John Henricksen
Virginia Young
Executive Director
Illinois Department of
Illinois Association of Aggregate Producers
Natural Resources
1115 S
. Second Street
One Natural Resources Way
Springfield, IL 62704
Springfield IL 62702
Stephanie Flowers, Attorney
IEPA
1021 North Grand Avenue East
PO Box 19276
Springfield IL 62794
Please take notice that I have today filed with the Office of the Clerk of the Illinois
Pollution Control Board, LAND AND LAKES COMPANY'S RESPONSE TO
COMMENTS FROM THE OFFICE OF THE ATTORNEY GENERAL,
a copy of
which is herewith served upon you
.
Charlene
Land and
J .
Lakes
TroyCompany
61
123 N . Northwest HWY
Park Ridge IL60068
RECEIVEDCLERKS
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 2 9 2006
In the matter of
:
STATE OF ILLINOIS
)
Pollution Control Board
R06-19
Clean Construction or Demolition
)
Debris Fill Operations Under P
.A. 94-272
)
(Rulemaking- Land)
(35 IL Adm
. Code 1100)/Docket R2006-19
)
Public Comment
Land and Lakes Company is submitting the following Public Comments in response to
Public Comment No. 6, submitted by Vulcan Materials Inc . and Public Comment No . 9,
submitted by the Office of the Attorney General of the State of Illinois .
Comments in Response to Public Comment No
. 6
Land and Lakes Company supports Vulcan Materials Inc. proposal that the Illinois
Environmental Protection Agency (IEPA) remand the proposed regulations and
adequately define the term "uncontaminated" . We believe this is needed to guide
operators of clean fills and educate generators to properly identify and handle both their
clean construction and demolition Debris (CCDD) and waste . A definition of the term
"uncontaminated" and adherence to the definition would put to rest many of the concerns
about soils in clean fill sites
.
However, the guidance sought by Vulcan and other clean
fill operators might better be termed, "a maximum concentration level (MCL) in soil" .
This would be consistent with other regulations that allow specific maximum levels of
naturally occurring and abundant environmental contaminant concentrations which are
protective of human health and the environment (for example
: Federal MCLs for
Drinking Water).
Comments in Response to Public Comment No . 9
On June 8, 2006, the Office of the Attorney General (OAG) submitted numerous
comments in regard to R06-19 . Land and Lakes Company realizes the challenges that
the OAG is having in prosecuting those who are taking advantage of `loopholes" in the
Environmental Protection Act . However, some of the proposed solutions are not the
answer to the problems at these sites
. Modifications to the proposed regulations are
needed; however, these changes should focus on defining uncontaminated and installing
additional reasonable safeguards to prevent contaminated materials from entering the
receiving sites.
A summary of the comments from OAG are written in bold below followed by rebuttal
comments from Land and Lakes Company
. Please note, omission of any direct comment
does not confirm or deny Land and Lakes Company's support of the proposal or
comment from OAG .
Comment No.
1
Scope of the load Checking Program
A.
The OAG office recommends the use of X-Ray Fluoresence in
screening incoming loads .
Land and Lakes Company agrees that the proper use of X-Ray
Fluoresence (XRF) in screening loads for heavy metals could be an added
safeguard for protecting human health and the environment . However, the
proposal from the OAG office does not suggest or request the IEPA to
propose numeric values acceptable at clean fill sites . In other words, a
definition of "uncontaminated soil" or "maximum contamination level for
clean soil" needs to be established . The numeric limitations should be
established with reference to natural levels present in the environment and
the limitations of the equipment .
B.
The OAG Office recommends training in the identification of ACM
Land and Lakes Company agrees that site personnel should be trained in
the identification of materials which might contain asbestos . However, we
also believe that a generator certification process should be required by
operators to avoid this material arriving at the site in the first place
.
C.
Calibration to Background Conditions
The OAG office disagrees with the use of a background correction factor
for PID and FID meters as proposed by the Illinois Association of
Aggregate Producers (IAAP) . One must take into account limitations
of equipment when setting boundaries for that equipment . All metering
devices, no mater how well calibrated, can vary slightly from baseline . .
These instruments may pick up ink from a printer, perfume from a site
clerk or freon from a window air conditioner . Once zeroed with filtered
air, any reading seen on the meter when a sample is not present needs to
be considered as background interference . All efforts should be made to
identify and limit these interferences . However, loads being received
while the interference is present should not be required to be rejected if
they do not add to the background concentration . For example, if a PID is
reading 2 mg/L with no truck load present and a truck load arrives on the
scale and the meter remains at 2 mg/L, the load should pass the screening
process. The instrument's performance and variations from the zeroing
process should be verified though a record keeping program
.
Comment No . 2
Leachate Contingent Groundwater Sampling Requirements
The OAG noted that there are no provisions for groundwater or leachate
sampling for clean fill sites
. Groundwater and leachate analysis were
initially proposed by IEPA . This option was discussed in depth at
meetings to develop the currently proposed regulations during the summer
of 2005 .
However, it was concluded during these meetings that if the sites were not
accepting contaminated material, there is no threat to groundwater and
thus no reason to implement a groundwater or leachate monitoring
program .
The OAG presents a paper documenting regulations from neighboring
states as justification for implementing a groundwater and leachate
monitoring program .
However, the references given appear to apply to
waste disposal sites accepting materials that are outside the definition of
clean construction and demolition debris contained in the Illinois
Environmental Protection Act
. The type of sites represented by the
evidence presented by the OAG are currently defined in Illinois as Inert
Landfills which are allowed to accept a plethora of demolition debris
including wood, roofing material, cardboard, and wall board . All of these
are excluded from the definition of clean
construction and demolition
debris in the Act. If a proposed clean fill site is accepting these materials,
they are obviously in violation of the act and the IEPA and OAG should
respond accordingly .
Requiring leachate and groundwater monitoring at
unlined sites
surrounded by bedrock is equivalent to "shutting the barn door after the
horse got out"
. In order to protect human health and the environment a
proactive approach must be employed . We believe the OAG and IEPA
should review the proposal to adopt the "two pronged" approach as
presented by Vulcan Materials . The use of this methodology would
ensure that generating sites are screened for their ability to negatively
impact groundwater at the receiving site. In short, if a generating site is
proven not to affect groundwater by meeting or exceeding the criteria for
residential groundwater ingestion standards or is already being used as a
residential property, there is no greater threat to human health and the
environment when the material is deposited in a quarry
.
Subsequently,
there would be no need to test leachate or groundwater at these sites .
Comment No . 3
"Other Materials"
The IPCB asked the IEPA if there was any possibility that material other
than CCDD would ever be disposed of in CCDD sites .
The IEPA
correctly responded that the Act does not allow disposal of any waste into
these facilities .
Land and Lakes Company agrees the IPCB may not use
the rulemaking to add "other materials", however, the IPCB and IEPA
should use this regulation to further define uncontaminated clean
construction and demolition debris
.
For example, if a site has undergone TACO (Tiered Approach to
Corrective Action Objectives) remediation and is qualified for Residential
Use by IEPA through a No Further Remediation (NFR) letter, are soils
removed for construction or foundations considered "waste" or clean fill?
It is illogical to state that soils removed from these areas are waste or
special waste then let a contractor build residential units on the property
with no institutional barriers or restrictions
. Using the "two pronged
system" proposed by Vulcan Materials, this type of generating site would
be acceptable because it was shown through chemical testing not to be a
threat to human health and the environment (it is safe for residential use)
.
Alternatively, a site that received an NFR letter stating the site must be
used for industrial purposes could not be accepted
.
In addition, an official decision needs to be made and published
concerning the condition of soils from the City of Chicago
. It is common
knowledge that much of the City of Chicago soils contain background
PNA contamination that is higher than other areas of the state
.
However,
precedence for using these soils for beneficial purposes has already been
established by the IEPA's use of the material from the Dan Ryan
Construction site for cover material at the Lake Calumet Cluster Sites
.
This material has also been made available by the IEPA as fill material at
other State Remediation Plan (SRP) sites in the city
. Clean fill operators
and generators should be able to use the same methodologies that allowed
the [EPA to use this material for landfill cover and fill as an acceptance
policy for material from other parts of the City .
Comment No. 4
Signatories for Limited Liability Companies
land and lakes Company has no comments for this proposal
.
Comment No. 5
Notification Requirements
Land and Lakes Company has no comments for this proposal
.
Comment No. 6
Fill Elevation
The OAG is opposed to allowing operators to use CCDD to extend the
elevation of the fill beyond the existing contours
. It is Land and Lakes
Company opinion that the IEPA shares this view as it is expressly not
allowed by the Act
. However, IEPA has acknowledged that the Act does
not address the use of clean soils to increase the elevation of the site in the
Board Note of proposed section 1100
.204. Land and Lakes Company
believes use of clean soils to increase the elevation of the site beyond the
elevation of the surrounding property should be made on an individual
basis depending on the projected use of the reclaimed quarry property
.
Many of these sites already have plans to be used as retail centers or
warehouses
. Some of these future construction projects may require the
property be elevated to construct these buildings . Prohibiting the use of
soils to accomplish this destroys the purpose of the quarry filling which is
to reclaim the land for beneficial use
. The permitting process should be
used to establish the validity of each individual quarries need to have
additional elevation when the site closes.
Comment No. 7
Lack of Financial Assurance
The OAG believes that operators should set aside funds to for remediation
should the need arise for each site to undergo remediation .
Land and
Lakes Company believes that if the IEPA takes steps to ensure that
uncontaminated materials are not introduced to these sites by defining the
term "uncontaminated", remediation will never be required
. The sites will
remain clean
.
It is not in the best interest of
owners or operators to accept contaminated
materials at these sites . The endeavors of the quarry owners to fill the
quarries are based on beneficial reuse of the land
. To limit end use of the
property or render it useless is not in the best interest if the owners or
operators . Therefore, it stands to reason, that owners and operators will do
everything within their power to avoid accepting contaminated material
into their sites.
Land and Lakes Company opposes the inclusion of a requirement for
Financial Assurance
. The requirement is unnecessary and redundant for
quarry fill operations whose mining permits already require a financial
assurance fund to insure the reclamation plan for the quarry is completed
(62 Illinois Administrative Code 1800) . To require a second fund is
redundant.
Comment No. 8
Items Prohibited From Inclusion in CCDD
The OAG has proposed a list of items to be added to the regulations to
expressly forbid acceptance of these materials at CCDD sites
. All of the
items on this list are clearly waste (hazardous, universal or special wastes)
and are already banned by the Act
. Land and Lakes Company supports
the proposal of an exclusion list in the regulations
. However, the list
should include types of remediation sites and potential spill areas that
could be contaminated rather than materials that are obviously wastes
.
These would include properties whose historic use would render the
property contaminated and subject to remediation . Excluded sites could
consist of:
I .
Properties which are limited to industrial or commercial
uses after remediation ;
2 .
Properties that are listed in the Leaking Underground
Storage Tank Program or SRP program and not classified
for Residential Use through a NFR letter;
3 .
Areas with in a specific geographic location i .e. Downtown
Chicago ;
4 .
Areas within close proximity to an above ground or
underground storage tank ;
5 .
Properties within close proximity to dry cleaning
operations, gas stations or known generators of hazardous
waste .
Comment No. 9
Additional Certification Requirements
The OAG suggests that generators of bulk materials provide a certification
to the IEPA stating that the materials meet the definition of the Act . Land
and Lakes Company supports this proposal
. However, a certification
procedure is meaningless if the generator does not have the ability to
recognize his or her site as clean. Currently, all individuals that bring
materials into our site are required to certify that the materials meet the
definition of clean construction and demolition debris . In addition the
generator must answer a series of questions to indicate possible
contamination . Land and Lakes Company then searches the addresses
within two databases available on line through US EPA and IEPA prior to
approval for disposal at the clean fill . Land and Lakes Company
processes approximately 300 of these certifications a year . Often, data
indicating the site has a history of a leaking underground storage tank or
was part of a State Remediation Plan is disclosed through this search, not
the certification process .
It is our experience that most generators and hauling companies have very
limited knowledge in regard to what is clean and what is contaminated .
TACO regulations and No Further Remediation (NFR) Letters further
complicate this determination
. Many generators, haulers, and consultants
have the mistaken idea that a site that obtains a NFR letter is "clean"
because it requires "no further remediation"
.
This
research requires a substantial
amount
of time to review the
databases in addition to managing the records for three years
. Therefore,
Land and Lakes Company disagrees that there would be no cost associated
with this activity .
It is unclear whether or not the OAG intends IEPA to receive these
certifications or if operating sites will receive them and keep them on file
for inspection .
It is also unclear whether or not the certifications will be
reviewed for completeness and accuracy as well as confirming the
material in question is clean construction or demolition debris
. Additional
staff will be required for either scenario
.
In order for a certification program like this to work, the IEPA should
provide a detailed definition of "uncontaminated" or a "maximum
contamination level for soils" and a list of the type of sites that should be
prohibited from disposing of material in clean fills
. In addition, the
general public, generators and consultants need to be further educated on
the definition of clean fill .
The certifications cannot merely be an un-
reviewed form filed away somewhere
.
The content of the proposed
certification should question the origins of the material and the history of
the site as well as guide the generator to an accurate determination of
uncontaminated clean fill
.
In addition, a mechanism to provide evidence
that the site is clean needs to be developed
.
Recommendations
An enforceable and adequate means of qualifying clean fill generating
sites needs to be developed .
Vulcan Materials Inc
. has proposed the
adoption of a "two pronged" system similar to the one used by the
Commonwealth of Pennsylvania
. Land and Lakes Company supports this
approach.
Our recommended for the "two pronged" or, our preferred
terminology, "two-tier" system is summarized below
:
Tier I
Residential Sources, Small Generators and Non-Soil
CCDD
Residential properties and properties that have no history of an
environmental release should be confirmed as such through
mapping and database searches prior to being accepted as clean fill
(due diligence) .
A responsible party, either the hauler or the
generator, will complete a certification form
.
2 .
Due to their inert nature materials such as concrete, used asphalt
and rock will be accepted as CCDD when not mixed with soil,
chemically treated, or painted
. A responsible party, either the
hauler or the generator, will complete a certification form
.
Tier 11
Bulk Generators and Former Remediation Sites
1 .
Sites generating soil or mixed CCDD, which have experienced a
spill or are in close proximity to a spill site, would be required to
have analytical testing performed . All non-residential areas of the
City of Chicago fall into this category .
2.
The analysis should include a reasonable list of common potential
contaminates . The results should be compared to a prescribed list
of standards that are protective of human health and the
environment. The most obvious data set are current TACO
Residential Standards .
Note: If the use of TACO residential remediation standards
is not considered safe for use at all sites, alternative
standards could be easily developed based on the
analytical list coupled with lower concentration thresholds
for these parameters proposed. Alternatively, IEPA could
adopt the parameters and concentrations utilized by
Pennsylvania (Residential Statewide Health Standards
referred to in the Vulcan submittal as Tables FP-la and
1 b) .
3.
Soils whose analytical results are less than the standards could be
accepted as clean fill.
Materials whose results exceed the
standards would be rejected as clean fill .
4.
A responsible party, either the hauler or the generator, will
complete a certification form
.
Sincerely
Charlene J
.. Troro
Environmental ompliance Manager
Land and Lakes Company
Conclusions
The OAG has presented many comments concerning the proposed
regulation of clean fill sites
. However, it is more protective of human
health and the environment to promote and enforce regulations aimed at
preventing contaminated materials from entering the facilities
. This is the
philosophy of many owners and operators of clean fill sites
. It should be
noted that the majority of these sites have and will continue to operate
above the compliance level currently required by Public Act 094-0725
.
Using a tiered or two-pronged system to classify generating sites as clean
fill will assist in preventing contaminated materials entering these sites
. In
addition, this system would increase involvement on the part of generators
to insure they are properly disposing excavated materials
.
The undersigned states
that a true and correct copy
of the foregoing PUBLIC
COMMENT, was served on the individuals listed on the Board's Notice List as reflected
on the Board's website on June 28, 2006, below by mailing the same via the United
States Postal Service, Park Ridge Illinois on June 28, 2006
.
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R
. Thompson Center
100 W. Randolph
Suite 11-500
Chicago IL, 60601
Matt Dunn
. Environmental Bureau Chief
Office of the Attorney General
James R. Thompson Center
100 W . Randolph
Suite 11-500
Chicago IL 60601
Tiffany Chappell
City of Chicago
Mayor's Office of Intergovernmental Affairs
121 N . LaSalle Street
City Hall, Room 406
Chicago IL, 60602
Claire A. Manning
Brown, Hays and Stephan's LLP
700 First Mercantile Bank Building
205 South 5' h Street
PO Box 2459
Springfield IL, 62705-2459
Certificate of Service
General Counsel
Office of Legal Counsel
Illinois Department of Natural
Resources
One Natural Resources Way
Springfield IL 62707
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
James R
. Thompson Center
100 W. Randolph
Suite 11-500
Chicago IL 60601
Kyle Rominger
IEPA
1021 North Grand Ave
. East
PO Box 19276
Springfield IL 62794
Steven Gobelman
Geologic/Waste Assessment
Specialist
IDOT
2300 S. Dirksen Parkway
Springfield IL 62764
John Henrickson
Virginia Young
Executive Director
Illinois Department of
Illinois Association of Aggregate Producers
Natural Resources
1 115 S . Second Street
One Natural Resources Way
Springfield, IL 62704
Springfield IL 62702
Stephanie Flowers, Attorney
IEPA
1021 North Grand Avenue East
PO Box 19276
Springfield IL62794
J't 0,
Barbara Jarecki ~
Land and Lakes Coal
y
123 N. Northwest HWY
Park Ridge IL60068
