IN THE MATTER OF :
CLEAN CONSTRUCTION OR DEMOLITION
DEBRIS FILL OPERATIONS
(35 ILL
. ADM . CODE PART 1100)
Dorothy Gunn, Clerk,
Illinois Pollution Control Board
James R. Thompson Center
100 W . Randolph, Suite 11-500
Chicago, Illinois 60601
Matt Dunn
Environmental Bureau Chief
Office of the Attorney General
James R. Thompson Center
100 W. Randolph, 12`h Floor
Chicago, Illinois 60601
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board COMMENTS OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY a copy of which is herewith served upon you
.
DATE :
~
- Z-bz
1021 North Grand Avenue East
P
.O
. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
ILLINOIS ENVIRONMENTAL PROTECTION
AGENC
By:
AERK,'o vEo
R06-19
$T TUN 0 5 ?006
(Rulemaking-Landf6//1t onO P/to/NO/S
General Counsel
Office of Legal Counsel
Illinois Dept. of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Amy Antoniolli
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St .
Suite 11-500
Chicago, Illinois 60601
00-
Ste1
,t*/10
.
e Flowers
Assistant Counsel
Division of Legal Counsel
Board
Service List
Claire A. Manning
Brown, Hay & Stephens LLP
700 First Mercantile Bank Building
205 South Fifth St ., P .O
. Box 2459
Springfield, IL 62705-2459
John Henricksen, Executive Director
Illinois Association of Aggregate Producers
1115 S. Second Street
Springfield, IL 62704
Virginia Yang
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Steven Gobelman, Geologic/Waste Assessment Specialist
Illinois Department of Transportation
2300 S
. Dirksen Parkway
Springfield, IL 62764
Tiffany Chappell
City of Chicago
Mayor's Office of Intergovernmental Affairs
121 N. LaSalle Street
City Hall, Room 406
Chicago, IL 60602
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AF
IN THE MATTER OF :
)
J~~k\SOF~,~®
CLEAN CONSTRUCTION OR DEMOLITION )
R06-19
~S?006
DEBRIS FILL OPERATIONS UNDER P .A.
)
Rulemaking -
Op
94-272 (35 ILL . ADM. CODE PART 1100)
)
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Oarlsn
COMMENTS OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
NOW COMES the Illinois Environmental Protection Agency ("Illinois EPA") and
submits the following comments on the First Notice Proposal dated April 6, 2006 and as
published in the Illinois Register on April 21, 2006 and on the comments of Rockford Sand and
Gravel submitted in this matter on April 21, 2006 .
Comments on Board's First Notice Proposal
The Illinois EPA supports the rules proposed by the Illinois Pollution Control Board
("Board") in its First Notice Proposal dated April 6, 2006 ("Board's Order") and requests that the
Board proceed with adopting the rules
. However, the Illinois EPA would like to request some
non-substantive changes to the rules and to indicate some discrepancies between the Board Order
and the published version in the Illinois Register . Since the Hearing Officer indicated that the
Board Order language is the correct language, the Illinois EPA will simply indicate whether it
prefers the language of the Board Order or the Illinois Register .
1 . On page 10 of the Board's Order, in the table of contents, the title of Section
1100.307
reads "Proof of Property Ownership and Certification" . The title of Section 1100 .307
as published in the Illinois Register reads "Proof of Property Ownership and Certifications" . The
Page 1
Illinois EPA would request that "Certifications" be plural as has been published in the Illinois
Register because more than one certification is required and therefore the plural form is more
appropriate
. Additionally, the title at Section 1100
.307, both as published in the Board's Order
and the Illinois Register, contains the plural form, "Certifications"
.
2
. On page 11 of the Board's Order, Section 1100
.101 (a) reads, "This Part applies to all
CCDD fill operations that are required to be permitted
. .
." and as published in the Illinois
Register it reads, "This Part applies to all clear [sic] construction or demonlition [sic] debris
(CCDD) fill operations that are required to be permitted
. . .".
The Illinois EPA requests that the
Board style the paragraph introduction to 1100
.101(a) as it has been published in the Illinois
Register, apart from the spelling errors, because it is consistent with other regulations that
establish the full name of the acronym in its first appearance in the text, even when the acronym
is listed in the definition section .
3
. On page 13 of the Board's Order, in the last paragraph of the definition of CCDD, the
Board has copied the statutory definition exactly stating within (ii) that,
"it is used in accordance
with item (i) within 30 days
. .
.".
As published in the Illinois Register the statutory language
within (ii) has been changed to read,
"it is used in accordance with
the first identical paragraph
immediately above
within 30 days . . .".
The Illinois EPA requests that the statutory language be
stated as in the Board Order because the Illinois EPA finds the language "item
(i)" less confusing
and more accurate than the language "the first identical paragraph immediately above"
.
4
. On page 14 of the Board's Order, the Illinois EPA suggests that the definition of
"owner" and "operator" be italicized to indicate statutory language
. Public Act 94-725 effective
June 1, 2006 amended Section 22
.51 of the Illinois Environmental Protection Act [415 ILCS
Page 2
5/22.51 ] to include the definition of "owner" and "operator" for purposes of a clean construction
and demolition debris fill operation .
5
. On page 15 of the Board's Order, Section 1100 .201(b) reads, "CCDD fill operations
must not accept waste for use as fill ." As published in the Illinois Register, this Section goes on
to include three more sentences to clarify that uncontaminated soil and other non-wastes may be
accepted. The Illinois EPA requests that the language of Section 1100 .201(b) be stated as in the
Board's Order because the additional sentences are unnecessary and confusing
.
6 . On page 26 of the Board's Order, Section 1100 .306(h) reads, ". . . operator will
comply with Sections 1100 .204(c) and (e). . .", and in the Illinois Register it reads, " . . . operator
will comply with Section 1100 .204(c) and (e) The
Illinois EPA requests that the plural
form of "Sections" be used because more than one section is referenced and the plural form is
therefore appropriate .
7 . On page 29 of the Board's Order, the opening paragraph of Section 1100 .405 is
italicized to show statutory language and in the Illinois Register this opening paragraph is not
italicized
. The Illinois EPA would request that the opening paragraph be italicized as in the
Board's Order to reflect the fact that this paragraph is statutory language from Section 39 of the
Illinois Environmental Protection Act .
8. On page 30 of the Board's Order, Section 1100 .408(c) contains a reference to the
Illinois Environmental Protection Act and styles the reference as "415 ILCS 5/30"
. In the
Illinois Register this reference is styled as "415 ILCS 5/Title VIII" . The Illinois EPA would
request that the reference be styled as in the Illinois Register because the reference to Title VIII
is more appropriate
.
Page 3
9 . On page 30 of the Board's Order, Section 1100 .410(b)(2) states, "Modifications
initiated by the Agency must not become effective until after 45 days of receipt by the owner
. .
" As published in the Illinois Register, it states, "Modifications initiated by the Agency will not
become effective until 45 days after receipt by the owner . . ." The Illinois EPA requests that the
language be styled as it was published in the Illinois Register because this language more
accurately conveys the meaning of the sentence .
10. On page 31 of the Board's Order, at 1100 .411(b) the Illinois EPA requests that the
references to the Agency and the Board be capitalized as they were in the published version in
the Illinois Register .
11 . On page 31 of the Board's Order, at 1100 .412(a) the Illinois EPA requests that there
be a comma after "received" as was published in the Illinois Register . Also, at
1100.412(b)(1)(A) the Illinois EPA requests that the third comma in the sentence be after the
word "to" so that it reads closure of the facility, including, but not limited to, plans or
diagrams . . ."
12. On page 32 of the Board's Order the language of Section 1100
.412(c)(3) is different
than as published in Illinois Register . The Illinois EPA requests that the language be styled as it
was published in the Illinois Register because the sentence is easier to read
.
Comments on Rockford Sand and Gravel Comments
Rockford Sand and Gravel ("RSG"), individually and through the Illinois Association of
Aggregate Producers ("IAAP"), is one of the parties the Illinois EPA worked with in developing
the proposed rules for Part 1100 . The Illinois EPA appreciates the time and effort that Rockford
Sand and Gravel and others have put into the development of Part 1100
. They provided a great
Page 4
deal of feedback to the Illinois EPA, and many of their comments and suggestions have been
incorporated into the rules proposed by the Board
. However, the latest comments by Rockford
Sand and Gravel submitted in this proceeding as Public Comment #5 shows several
misconceptions about the permitting exemption provided for persons using CCDD as fill
material (in excavations other than quarries and mines) in accordance with MOT specifications
.
The Illinois EPA would like to make several clarifications based on the comments submitted by
Rockford Sand and Gravel
. Please note that the absence of an Illinois EPA comment to a
comment made by RSG should not be construed as Illinois EPA agreement with the RSG
comment.
RSG notes in its comments that IDOT's Road and Bridge Construction Specifications
contain two provisions dealing with how to determine whether material is considered
contaminated for purposes of the MOT Specifications
; specifically Sections 107
.19 and 669 . PC
#5 at 1-2
. RSG believes these two Sections of IDOT's Specifications should be used to
determine whether material is considered contaminated for the purposes of utilizing the statutory
exemption provided for CCDD that is used as fill in accordance with MOT Specifications at an
excavation that is not a quarry or a mine
. PC #5 at 2 .
Pursuant to Section 3
.160(b) of the Act, CCDD is by definition uncontaminated material
.
Since Part 1100 only applies to the use of CCDD (i .e.,
uncontaminated material), the
determination of uncontaminated versus contaminated is made prior to the applicability of Part
1100. Therefore Section 669 and Section 107
.19 of the IDOT Specifications are not applicable
in Part 1100 as suggested in RSG comments
. The Illinois EPA believes that the determination of
whether material is considered contaminated for the purposes of Section 3
.160(b) of the Act, as
Page 5
well as for the purposes of Part 1100, should continue to be determined under the Act and not
under MOT Road and Bridge Construction Specifications .
RSG suggests in its comments that the issue of whether material is CCDD or waste is
determined by whether the material is contaminated or uncontaminated, which in turn would
impact how and where the material can be disposed of See, e.g.,
PC #5 at 1 ("whether surplus
material is CCDD or is a waste
; i.e., whether the material is contaminated or not") and 2
("whether excess soil or other material from an IDOT project is CCDD ('uncontaminated') or a
waste?") . This analysis is improper
. It is the use of the CCDD that determines whether it is
considered a waste
. As noted above, CCDD is by definition uncontaminated material
. However,
CCDD by definition is also a waste except under the certain situations listed at Sections
3 .160(b)(i)-(iv) of the Act . See 415 ILCS 5/3 .160
. Part 1100 is regulating one of the activities in
which CCDD is not considered a waste, specifically Section 3
.160(b)(i) of the Act
. CCDD that
is not used in accordance with Sections 3
.160(b)(i)-(iv) of the Act is by definition waste and
must be appropriately managed . This is true regardless of whether the CCDD is considered
contaminated or uncontaminated under IDOT Specifications
.
A large part of RSG's comments are focused on Part 1100's impact on MOT contractors
.
Please note that Part 1100 applies only to the owners and operators of CCDD fill operations
.
The owners and operators are the persons that must comply with the Part 1100 or meet the
exemption for the use of CCDD in accordance with MOT Specifications
. If an IDOT contractor
wants to ensure that the CCDD it hauls from an IDOT project can be accepted at a CCDD fill
operation the contractor should not worry about whether the CCDD is or is not considered
contaminated material under IDOT's Specifications
. Rather, the contractor should consider
whether the CCDD can pass the fill operation's screening process and therefore be accepted by
Page 6
the facility
. Likewise, if an MOT contractor wants to ensure the CCDD it hauls from an IDOT
project can be accepted at a facility meeting the exemption for facilities using CCDD in
accordance with MOT Specifications, it should ensure that the CCDD it hauls meets the facility
owner's or operator's requirements . In both cases it is the owner or operator of the CCDD fill
operation, not the contractor, which must ensure that only appropriate material is accepted for
use as fill.
The Illinois EPA would also like to address the RSG comment at page three, the
paragraph entitled, "Documentation" . There is no need for separate documentation regarding
MOT material received at the fill operation as suggested by RSG . The requirements of Part
1100 are the same for all CCDD accepted a facility, regardless of its source .
The Illinois EPA would also like to address the RSG comment at page three, the
paragraph entitled, "Elevations" . RSG discusses IDOT Specifications applicable to material
disposedof off-site . See PC # 5 at 3
. Regardless of what IDOT Specifications allow, CCDD
that is placed above the highest point immediately adjacent to the fill area prior to filling does
not meet the criteria of Section 3 .160(b)(i) of the Act and therefore is considered waste
. Such
CCDD must be appropriately managed in accordance with the Act's provisions and Board's
rules applicable to waste. Please note that this does not prevent MOT or any other entity from
placing uncontaminated soil or other non-waste material above grade .
The Illinois EPA would also like to address the RSG comments under the paragraph
entitled "Departments Covered"
. RSG would like the statutory exemption for using CCDD in
accordance with MOT Specifications to be available to additional government entities
. The
Illinois EPA would like to clarify that the IDOT Specifications applicable to the use of CCDD as
fill can be found at Articles 107 .22 and 202
.03 of IDOT's Standard Specifications for Road and
Page 7
Bridge Construction
. Articles 107
.22 and 202
.03 refer to approval by an "Engineer" . The
capitalization of Engineer suggests that the term is not used generically but refers to a specific
definition
. The definition of Engineer is set forth in Article 101
.16 of IDOT's Standard
Specifications for Road and Bridge Construction and indicates that the Engineer can be only one
of the following depending on whether the state, county, municipality, or IDOT is the awarding
authority
: the Director of IDOT, IDOT engineer, the County Superintendent of Highways, the
county engineer, city engineer, or engineer employed by the municipality
. Therefore, since
approval of the Engineer is needed to be in compliance with IDOT Specifications, the population
available to take advantage of the IDOT exemption is limited to DOT, counties, municipalities,
and townships
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DATED : (O
-2 -o
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
By:
Page 8
,,/
St
;,~ anie Flowers
Assistant Counsel
Division of Legal Counsel
STATE OF ILLINOIS
)
COUNTY OF SANGAMON
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached
COMMENTS OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY upon the persons to whom they are
directed, by placing a copy of each in an envelope addressed to
:
Dorothy Gunn, Clerk,
Illinois Pollution Control Board
James R
. Thompson Center
100 W
. Randolph, Suite 11-500
Chicago, Illinois 60601
Matt Dunn
Environmental Bureau Chief
Office of the Attorney General
James R. Thompson Center
100 W
. Randolph, 12` h Floor
Chicago, Illinois 60601
ATTACHED SERVICE LIST
and mailing it by First Class Mail from Springfield, Illinois on June -
4,2006, with sufficient
postage affixed .
SUBSC
ED AND SWORN TO BEFORE ME
This
_2
h day of June,
2006.
-07k*L 2APIA*(
Notary Public
OFFICIAL SEAL
BRENDA BOENNER
a
NOTARY PUBLIC, STATE OF IUINOIS
:
MY COMMISSION EXPIRES 11 .
3.2008
General Counsel
Office of Legal Counsel
Illinois Dept . of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Amy Antoniolli
Illinois Pollution Control Board
James R. Thompson Center
100 W . Randolph St .
Suite 11-500
Chicago, Illinois 60601
Service List
Claire A . Manning
Brown, Hay & Stephens LLP
700 First Mercantile Bank Building
205 South Fifth St ., P .O. Box 2459
Springfield, IL 62705-2459
John Henrickson, Executive Director
Illinois Association of Aggregate Producers
1115 S . Second Street
Springfield, IL 62704
Virginia Yang
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Steven Gobelman, Geologic/Waste Assessment Specialist
Illinois Department of Transportation
2300 S . Dirksen Parkway
Springfield, IL 62764
Tiffany Chappell
City of Chicago
Mayor's Office of Intergovernmental Affairs
121 N. LaSalle Street
City Hall, Room 406
Chicago, IL 60602
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