In the Matter
BEFORE
of
:
THE ILLINOIS POLLUTION CONTROL BOA
CLERK'S
ECEIVEDOFFICE
)
Clean Construction or Demolition
)
R06-19
Debris Fill Operations Under P.A
. 94-272
) (Rulemaking-Land)
(35111. Admin
. Code 1100)/Docket R2006-19 )
PUBLIC COMMENT
Vulcan Materials Company (Vulcan) submits the following Public Comment in
support of its position that IEPA should clarify the definition of "uncontaminated" in its
proposed Clean Construction or Demolition Debris ("CCDD") Fill Operations Rule
("Rule").
EXECUTIVE SUMMARY
The current version of the Rule is unworkable because if fails to clarify what is meant
by the term "uncontaminated
." The definition and interpretation of the word
"uncontaminated" is of paramount importance in the Rule because under § 1100
.103 of
the Rule, only uncontaminated materials qualify as CCDD fill
. IEPA did not define this
critical term in the Rule's text, instead apparently opting for a "we know it when we see
it" approach
. Absent a clear guideline, responsible members of the regulated community
will be forced to guess at the practical meaning of "uncontaminated
." To play it safe, a
member of the regulated community would have to assume that "uncontaminated" means
free from any foreign substances
. Yet few, if any, materials meet the definition of
uncontaminated in that sense, as IEPA has recognized by promulgating statewide
background concentrations for certain contaminants
. IEPA's approach to leave the term
"uncontaminated" undefined is out of step with similar "clean fill" rules in other states
that have incorporated either numerical limits or easily understood definitions as to what
is regulated
. By contrast, IEPA's Rule creates a "don't ask, don't tell" incentive to avoid
testing potential CCDD fill for fear of what the testing will reveal
. For these reasons,
Vulcan asks this Board to remand the Rule to IEPA so that it may add a definition for
"uncontaminated" to the Rule .
As a solution to this problem, Vulcan suggests adoption of a two-pronged approach
consisting of performing environmental due diligence on the proposed fill material, and
testing the material only if the due diligence turns up evidence that the fill has been
impacted by a spill or release
. When testing is required, the results would be compared to
numerical limits to be established by IEPA, and the material used as clean fill only if the
results did not exceed the prescribed limits
. This approach is currently in use in
Pennsylvania .
JUN 0 5 2006
Pollution
STATE OF
Control
ILLINOIS
Board
BACKGROUND
Vulcan currently operates a Clean Fill Acceptance Program and has been an active
participant in discussions between IEPA and the Illinois Association of Aggregate
Producers over earlier drafts of the Rule. Vulcan's Program will be subject to the Rule
once it becomes effective, and Vulcan considers itself obligated to raise its principal
remaining concern about the Rule now .
During this rulemaking, IEPA has repeatedly been made aware of the importance of
how it defines "uncontaminated ." At the January 26, 2006 hearing on the Rule, an IEPA
representative was asked why IEPA had not defined "uncontaminated" in the Rule's text .
She responded by noting that the term "uncontaminated" "has been used [in the Illinois
Environmental Protection Act, 415 ILCS 5] for 15 years . . ."
and thus did not need
further definition . Transcript at 20-21 . When pressed as to how IEPA had interpreted
"uncontaminated" under that law, she responded :
. . . I didn't mean to say that we've been implementing this
law for the last 15 years because we have not been
implementing the law . The law stood on its own and
allowed an exemption from the term "waste" using the term
"uncontaminated ." It was a matter of, we knew
contaminated [material] when we saw it . Transcript at 21-
22 (emphasis added) .'
DISCUSSION
Vulcan urges this Board to require clarification of the meaning of "uncontaminated,"
as that term is used in the Rule, for the following reasons .
I.
THE RULE IS UNWORKABLE IN ITS CURRENT FORM
The rule is unworkable in its current form for at least three reasons
: it is overbroad, it
is impermissibly vague, and it creates a perverse incentive to avoid testing proposed clean
fill material .
A. THE RULE IS OVERBROAD BECAUSE FEW, IF
ANY,
MATERIALS ARE "UNCONTAMINATED" IN THE SENSE THAT
THEY ARE FREE FROM ANY FOREIGN MATERIAL
Absent a clear definition, one potential interpretation of "uncontaminated" would be
that a material is free from foreign material
. Such an interpretation would rule out nearly
all potential CCDD fill material . Media accounts have made most people aware of the
ubiquitous presence of trace quantities of contaminants throughout the environment, and
even within animals and people. The Illinois Legislature and IEPA itself have recognized
that every county in Illinois contains background levels of certain contaminants
. See,
' In its Opinion and Order dated April 6, 2006, this Board acknowledged that IEPA's plan
is to use the "we
know it when we see it" approach
. Opinion and Order at 4 .
e.g., Ill. Admin. Code tit
. 35, §742, App . A.,
Table G (statewide background levels for
inorganics
.) This IEPA recognition of the existence of statewide background levels for
contaminants such as cyanide (0 .50-0.51
mg/kg), lead (20
.9-36 mg/kg), and mercury
(0.05-0
.06 mg/kg) is, standing alone, enough to take most material that would otherwise
be clean fill outside of IEPA's stated definition of "uncontaminated
." (Table G is
attached as
Exhibit A) .
As another example, recently on IEPA's website homepage was a
link to two recent studies performed in consultation with IEPA documenting the
background levels of certain polycyclic aromatic hydrocarbon (PAH) concentration
levels in urban areas across Illinois
.2 In the report IEPA notes, "Parks, roadways,
residential yards, non-industrialized properties, etc
., are typical background areas ."
These recognized statewide background levels have been part of the analysis in
various IEPA programs, such as the Tiered Approach to Corrective Action Objectives
(TACO) rule
. The Illinois Legislature has explicitly stated within the text of the
Environmental Protection Act that "this Section shall not require remediation of regulated
substances to levels that are less than area background levels
." 415 ILCS 5/58
.5 ; see also
Ill. Admin. Code tit
. 32, §332.170(d) (direct radiation exposure "shall be reduced to
background levels"); Ill. Admin. Code tit
. 35, §307 .2400 (allowance for background
levels in non-metal bearing waste streams)
; Ill. Admin. Code tit . 35, §725
.213 (defining
"release" as "a statistically significant increase . . .
in hazardous constituents over
background levels")
. Because the presence of background quantities of contamination is
well recognized, IEPA must recognize the existence of background contaminants in this
case.
B.
IEPA'S "WE KNOW IT WHEN WE SEE IT" APPROACH IS
IMPERMISSIBLY
VAGUE
The absence of a definition for "uncontaminated" is an indication not of IEPA's
inability to define it, but of its unwillingness to do so
. The "we know it when we see it"
test is usually applied to subject matters that defy quantification, such
as obscene
material
. A test for "contamination" is much easier to propose, because such a thing can
be numerically quantified
. Indeed, in Part II of this comment, Vulcan notes several
approaches successfully in use in other states
. "Inability to describe [a thing] in general
terms . . .
suggests that there is no definition
- and `I know it when I see it' is not a rule
of any kind .
. . ." United States v. Miller,
891 F.2d 1265, 1273 (7th Cir
. 1989)
(Easterbrook, J ., concurring) (emphasis added)
.
Even if IEPA has the experience to "know contaminated [material] when we [see] it,"
the average member of the regulated community may not
. Ruling out the impractical
option of consulting IEPA to ask whether every individual load of fill is
"uncontaminated," the recipient of such loads would have no idea whether the fill
satisfied the regulations or not
. And it is black-letter law that if a governmental
pronouncement leaves the public uncertain of the conduct it prohibits, it violates the Due
Process Clause
. See, e.g., Chicago v
. Morales, 527 U.S . 41, 56 (1999);
United Disposal
of Bradley, Inc
. v. Pollution Control Board,
842 N.E.2d 1161, 1166 (Ill
. Ct . App. 2006)
'See http
://www .epa .state .il
.us/land/site-remediation/urban-area-pah-study.pdf
.
("A regulation is unconstitutionally vague and violates due process if it leaves the
community regulated unsure of what conduct is prohibited or fails to provide adequate
guidelines to the administrative body charged with its enforcement .").
C. IEPA'S RULE CREATES A PERVERSE INCENTIVE TO AVOID
TESTING CCDD FILL
Currently, before Vulcan accepts "clean fill" (typically soil) for disposal in one of its
quarries, it engages in a rigorous due diligence and verification program . The final
element of Vulcan's program is periodic testing of received material to ensure that the fill
soil meets TACO Tier I, Class 2 standards (residential, no use of groundwater) . Not
surprisingly, Vulcan periodically detects compounds, including PAHs, in received
material, although at levels below the TACO, Tier I, Class 2 cleanup standards . Under
the proposed Rule in its current form, regulated entities might be reluctant to conduct
such a program for the fear of finding any foreign material in the soil-as they
undoubtedly would, given the ubiquitous nature of certain substances in the modem era
.
See,
e.g., Ill. Admin. Code tit. 35, §742, App . A., Table G . Companies with an
established, high-quality program such as Vulcan would actually be placed at a
competitive disadvantage . The likely result would be that less fill material would be
tested - and that less truly harmful material would be detected and removed, as occurs
under Vulcan's program
. This result would be suboptimal from both environmental and
economic perspectives .
II. EXPERIENCE IN OTHER STATES SHOWS THAT
"UNCONTAMINATED" WOULD NOT BE DIFFICULT TO DEFINE
Many states that have promulgated formal "clean fill" policies similar to the proposed
Rule have developed much more detailed descriptions of the qualifying material . These
include :
•
Due diligence and follow-up testing if necessary (Pennsylvania) :
Pennsylvania
uses a two-pronged approach requiring prospective users of clean fill to perform
due diligence on the proposed fill material
. If the due diligence does not reveal
evidence that the fill material has been affected by a spill or release, the material
may be managed as "clean fill" without further testing . If due diligence shows
that a spill or release may have affected the material, the user must test the
material and compare the results to numeric standards published in the policy
. If
contaminant levels in the fill do not exceed the prescribed levels, the material may
be managed as clean fill. If contaminant levels exceed the prescribed levels, the
material must be managed as regulated fill and cannot be used as clean fill .
See
Pennsylvania Department of Environmental Protection ("PaDEP") "Management
of Fill Policy" (April 24, 2004).'
•
Risk-based standards (Connecticut) :
Some states link the definition of "clean fill"
to pre-existing risk-based cleanup standards akin to Illinois' TACO standards
.
For example, in Connecticut, "clean fill" includes "polluted soil
. . . [which] has
'Attached as Exhibit B .
been treated to reduce the concentration of pollutants to levels which do not
exceed the applicable pollutant mobility criteria and direct exposure criteria
established in . . .
the Regulations of Connecticut State Agencies . . . ." RCSA
§22a-209
.
•
Detailed description (Delaware) :
Other states use a specifically worded definition
of "clean fill
." For example, in Delaware, "clean fill" must be, among other
things, "nondecomposable" and "environmentally inert
." Delaware "Regulations
Governing Solid Waste," §3, available at
http ://www.dnrec.state.de.us/DNREC2000/Divisions/AWM/hw/sw/swreg
.htm .
•
Numeric standards (Oregon) : hi draft regulations promulgated May 1, 2006, the
Oregon Department of Environmental Quality ("ODEQ") proposed numerical
contaminant screening levels for open-water and upland disposal of dredged
sediment
. ODEQ also noted that "if a suspected contaminant is also a naturally
occurring substance (e.g., arsenic or lead), you may use a site-specific background
level as the screening level instead of the risk-based level in Table 1 ." See
http
://www .deq.state.or.us/news/publicnotices/uploaded/06050 1
3447 UplandDi
sposalGuidance-PublicCommentDraft .pdf.
III.
IEPA'S REGULATIONS SHOULD EMBODY THE PENNSYLVANIA
TWO-PRONGED APPROACH DESCRIBED ABOVE, AND THIS BOARD
SHOULD REMAND THE RULE TO IEPA FOR DETERMINATION OF
APPROPRIATE NUMERICAL LIMITS
Of the various approaches currently in use in other states, Vulcan believes that IEPA
should adopt Pennsylvania's
. The two-pronged approach of due diligence with follow-up
testing if necessary strikes the appropriate balance between environmental protection and
the economic infeasibility of testing every load of proposed fill material
. It would be
cost-prohibitive for many small clean fill operators to conduct detailed environmental
testing on every load of clean fill
. If the requisite due diligence showed evidence of a
spill or release affecting the fill, the party evaluating the fill could simply choose to
decline the fill rather than conducting the testing
.
The relevant part of Pennsylvania's policy is reproduced below
:
FILL DETERMINATION
1) To determine whether fill is clean or regulated, a person must perform environmental
due diligence .4
a) If due diligence shows no evidence of a release of a regulated substance, the
material may be managed as clean fill under this policy .
b) If due diligence shows evidence of a release, the material must be tested to
determine if it qualifies as clean fill
. Testing must be performed in accordance with
Appendix A.
Analytical assessment, testing or sampling is only required if visual inspection or reviews of historic
property use indicates evidence of a release of a regulated substance .
i) If testing reveals that the material contains concentrations of regulated
substances that are below the residential limits in Table FP-1 a and b, the material
must be managed as clean fill .
ii) If testing reveals that the material contains concentrations of regulated
substances that exceed the limits in Table FP-1 a and b, the material must be
managed as regulated fill .
2) A person may not blend or mix materials to become clean fill . Materials that contain
regulated substances that are intentionally released may not be managed under this
policy.
The Pennsylvania policy defines "environmental due diligence" as "investigative
techniques, including, but not limited to, visual property inspections, electronic data base
searches, review of ownership and use history of property, Sanbom maps, environmental
questionnaires, transaction screens, analytical testing, environmental assessments or
audits."
Accompanying guidance makes clear that it is up to the fill user to determine
which of these methods to use . Vulcan believes that this definition of "environmental
due diligence" reflects the appropriate level of effort necessary to determine whether a
particular fill qualifies as "clean fill ."
However, Vulcan understands that IEPA would very likely need additional time to
develop "second prong" numerical standards analogous to Pennsylvania's Table FP-la
5
and b, and therefore proposes that this Board remand the Rule to IEPA so that such a
process may take place . The establishment of such standards would also necessarily
determine the requisite level of environmental testing, because the test will have to show
that the material meets the standards . Vulcan, and other stakeholders, would welcome
the opportunity to engage in a dialog with IEPA to resolve the appropriate numerical
standards and test procedures .
CONCLUSION
The Rule in its current form is unworkable because it does not define
"uncontaminated ." This renders the Rule overbroad and impermissibly vague, and
creates a perverse incentive to avoid testing the material . Vulcan is ready and willing to
work with IEPA to clarify the term "uncontaminated," and suggests adoption of the
Pennsylvania approach, modified as necessary for use in Illinois
. Vulcan urges this
Board to require IEPA to clarify the meaning of "uncontaminated" to avoid rendering the
Rule unconstitutionally vague .
s Clean Fill Concentration Limits for Organics .
6
Clean Fill Concentration Limits for Metals and Inorganics
.
QUARLES & BRADY LLP
David A. Strifling
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
(414) 277-5527
(414) 978-8778 (fax)
dstrifli@quarles.com
Respe fully submitted,
David A. Strifling
Thomas P . McElligott
Quarles & Brady LLP
On Behalf of Vulcan Materials Company
CERTIFICATE OF SERVICE
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 2, 2006, below by mailing the same via the United States
postal service, Milwaukee, Wisconsin on June 2, 2006 .
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, Hay & Stephens LLP
700 First Mercantile Bank Building
205 South Fifth Street
P .O. Box 2459
Springfield, IL 62705-2459
John Henrickson
Executive Director
Illinois Association of Aggregate Producers
1115 S . Second Street
Springfield, IL 62704
QUARLES & BRADY LLP
David A . Strifling
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
(414) 277-5527
(414) 978-8778 (fax)
dstrifli cr,
quarles
.com
Kyle Rominger
Stephanie Flowers, Attorney
IEPA
1021 North Grand Avenue East
P.O . Box 19276
Springfield, IL 62794-9276
Steven Gobelman
Geologic/Waste Assessment Specialist
IDOT
2300 S. Dirksen Parkway
Springfield, IL 62764
Virginia Young
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
