RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
JUN n
9
2006
S LATE OF ILLINOIS
In the Matter of:
)
POllutton Control
Board
R06-19
Clean Construction or demolition
)
(Rulemaking-Land)
Debris Fill operations Under P .A. 94-272
)
(35
111 . Admin
. Code 1100/Docket R2006-19)
~
)
1
`C
PUBLIC COMMENT
Land Reclamation Services, Inc
. ("Land Reclamation") respectfully submits the
following continent on the proposed regulations currently pending before the Illinois
Pollution Control Board (the "Board")
. Land Reclamation is of the opinion that in their
current form, the proposed regulations are impermissibly vague and arc likely to create
litigation rather than provide workable standards for the operators of facilities subject to
those regulations
.
As discussed in more detail below, Land Reclamation suggests that
: (1) the IEPA be
required to state a specific definition of the word "uncontaminated" which takes into
account existing background levels of impurities already present in the enviroment as
well ; and (2) that the proposed rule be revised to make clear that clean fill operators who
accept loads after engaging in proper PLF/FID testing will not be required to remove
those loads from their facilities .
A .
The Meaning of The Word "Uncontaminated" and Its Possible
Interpretation Under the Existing Proposed Regulations.
Section 5/3/
.160 of the Illinois Environmental Protection Act (the "Act") defines
"Clean Construction Demolition Debris", in pertinent part,
as follows :
(h) "Clean construction or demolition debris" means
uncontaminated broken concrete without protruding metal
bars, bricks, rock, stone, reclaimed asphalt pavement, or soil
generated from construction or demolition activities .
The Act itself contains no definition of the word "uncontaminated ." The Illinois
Environmental Protection Agency's current regulations provide no interpretation of the
meaning of that word
. Nor do the proposed regulations regarding the disposal of Clean
Construction Demolition Debris ("CCDD") contain a definition of the tens
"uncontaminated ."
Indeed, rather than give guidance to clean-fill operators regarding the nature of
I " . 10.111
the materials they may accept, the proposed regulations, if implemented, will both
increase uncertainty and litigation . As of April 0, 2006 the proposed regulations contain
the following procedure which owner operators must follow when accepting putative
CCDD at a former quarry or mine :
Section 1100 .205 Load Checking
The owner or operator must institute and conduct a load
checking program designed to detect attempts to dispose of
waste at the facility. At a minimum, the load checking
program must consist of the following components:
a) Routine Inspections
I) An inspector designated by the facility must inspect every
load before its acceptance at the facility utilizing an elevated
structure, a designated ground level inspection area, or
another acceptable method as specified in the Agency
permit
. In addition to a visual inspection, the inspector must
use an instrument with a photo ionization detector utilizing a
lamp of 10 .6 eV or greater or an instrument with a flame
ionization detector, or other monitoring devices approved by
the Agency. to inspect each load
. All instruments shall he
interpreted based on the manufacturer's margin of
error. Any reading in excess of background levels using
any of these instruments must result in the rejection of
the inspected load
. In addition,any reading in excess of
background levels on any monitoring device used by the
Agency during an Agency inspection must result in the
rejection of the inspected load .
(emphasis added)
.
An examination of this proposed regulation reveals, that any given load will be
subject to the following minimum procedures upon its arrival'
(1) Each load will be subject to PID/FID screening
;
(2) The results of that screening will be interpreted based upon the
manufacturer's stated margin of
error;
(3) If
the screening shows readings in excess of background levels (taking into
account the margin of error) the load will be rejected
;
(4) if the IEPA chooses to inspect the load it must be rejected if any monitoring
device used by the ]EPA gives a reading in excess of background levels
.
The regulation in its current form does not address under what circumstances the
IEPA will perform further testing of materials received by a clean fill facility
. Nor does
the regulation state what standards the IEPA will apply in determining whether or not
such materials will be deemed "contaminated" within the meaning of the Act when it
performs its own testing .
While the language of the proposed regulation appears to recognize that
metropolitan areas, such as Chicago, will have heightened levels of background
impurities that should be taken into account in operating a PIF'FID instrument, the
regulation never specifically states that a clean fill operator is permitted to accept
materials that contain such background levels of impurities
. Nor for that natter, does the
proposed regulation state that it is permissible to accept loads that fall within the margin
of testing error inherent in any PIF%FID machine .
Ultimately, the proposed regulation provides no reasonable means for the operator
a clean fill facility that is subject to its terms to insure that he is complying with the rule
.
Ifa clean fill operator accepts a load that does not trigger his properly calibrated PIDiFID
i nstrument . i t is nonetheless possible that the IEPA will then arrive, subject that same
load to testing based upon more stringent standards nowhere stated in the proposed
regulations, and require the landfill operator to remove the load or loads at considerable
expense
.
In fact, the proposed regulations place no limits on the extent of the testing that
may he performed by the IEPA . The proposed regulations declare that "any reading in
excess of background levels on any monitoring device used by the agency" can lead to
a load's rejection
. Given this language, the IEPA might take the position that it can
proceed to subject the load to further, more stringent testing - including the use of
laboratory procedures - and that any level of impurities discovered by that testing should
lead to rejection . Such a practice would lead to the hapazard imposition of liability on
clean fill owners, and challenges to the regulation on the grounds that it was
impermissibly vague .
B
. Creating A Workable Testing Procedure
.
Land Reclamation believes that specific criteria for determining what constitutes
clean fill should he formulated prior to allowing the present proposed regulations to go
into effect, and that deten»ination of these standards will require further analysis by the
IEPA in conjunction with clean fill operators
. At a minimum, however, Land
Reclamation is of the opinion that any regulation put in place should contain a safe
harbor provision that would insure that a clean fill operator could be certain that his or
her acceptance of fill material would not lead to the need for removal or renediation in
the future
. By way of example only, Land Reclamation sets out the following possible
"safe harbor" provision, based non the current proposed regulations
:
Material wil be deemed to be CCDD
. and not subject to removal or
r 111
remediation based upon subsequent testing, if
: (1) it has passed
inspection by the site operator using a properly calibrated PID!FID meter
taking into account the error rate of that meter and background levels of
contamination
; and (2) in the event of an on-site inspection by the IEPA,
that load also passes inspection by the IEPA using a PIDIFID meter of no
greater sensitivity than that previously used by the site operator .
While such a provison would certainly require further consideration and review,
creating such a safe harbor could provide the certainty the current regulation lacks . In
conjunction with a specific standard defining the term contamination, it could help create
certainty and reduce litigation over a proposed regulation that is too vague to withstand
Scrlt ii' .
Sincerely,
Michael A
. Rakov
Attorney for Land Reclamation Services, Inc
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
in the Matter Of:
)
R06-19
Clean Construction or demolition
)
(Rulemaking-Land)
Debris Fill operations Under PA
. 94-272
)
(35 TIT . Admin
. Code 1.100/Doeket P2006-19)
)
PUBLIC COMMENT
Land Reclamation Services, Inc
. ("Land Reclamation") respectfully submits the
following comment on the proposed regulations currently pending before the Illinois
Pollution Control Board (the "Board")
. Land Reclamation is of the opinion that in their
current form, the proposed regulations are impermissibly vague and are likely to create
litigation rather than
. provide workable standards for the operators of facilities subject to
those regulations .
As discussed in more detail below, Land Reclamation suggests that
: (1) the IEPA he
required to state a specific definition of the word "uncontaminated" which, takes into
account existing background levels of impurities already present in the enviroment as
well; and (2) that the proposed rule be revised to make clear that clean
. fill operators who
accept loads after engaging in proper PIE/FID testing will not be required to remove
those loads from their facilities .
A.
The Meaning of The Word
"Uncontaminated" and Its Possible
Interpretation
Under the Existing Proposed Regulations .
Section 5/3/ .160 of the Illinois Environmental Protection Act
: (the "Act") defines
"Clean Construction Demolition
. Debris", in pertinent part; as follows
:
(b) "Clean
. construcl.ion or demolition debris" means
uncontaminated broken concrete without protruding metal
ars, bricks, rock, stone, reclaimed asphalt pavement, or soil
generated. from. conslru.cl:i.onn
or demolition activities .
The Act itself contains no definition of the word "uncontaminated
." The Illinois
Environmental Protection Agency's current regulations provide no interpretation of the
meaning of that word, Nor do the proposed regulations regarding the disposal of Clean
Construct
: ion Demolition Debris ("CCDD") contain a definition of the term
"uncontaminated ."
Indeed.,
rather than
. give guidance to clean-f 11 operators regarding the nature of
the materials they may accept, the proposed regulations, if implemented, will both
increase uncertainty and litigation . As of April
6, 2006 the proposed regulations contain
the following procedure which owner operators must follow when accepting putative
CCDD at a former quarry or mine :
Section 1100 .205 Load Checking
The owner or operator must institute and conduct a, load
checking program designed to detect : attempts to dispose of
waste at the facility . At
: a minimum, the load checking
program must consist of the following components
:
a) Routine Inspections
I) An inspector designated by fhe facility must inspect every
load before its acceptance at the facility utilizing an elevated
structure, a designated ground level inspection area, or
another acceptable method as specified in I
:he Agency
permit . In addition to a visual inspection, the inspector must
use an instrument with a photo ionization detector utilizing a
lamp of 10
.6 eV or greater or an instrument with a flame
ionization detector, or other monitoring devices approved by
the Agency, to inspect each load
. All instruments shall be
Interpreted based on the manufacturer's margin of
error
. Any reading in excess of background levels using
any of these instruments must result in the rejection of
the inspected load. In ad.dition,any
reading in excess of
background levels on any monitoring device used by the
Agency during an Agency inspection must
: result in the
rejection of the inspected load.
(emphasis added).
An examination of this proposed regulation reveals, that any given load, will be
subject to the following minimum procedures upon its arrival
:
(1) Each load will be subject to PID/FID screening
;
(2) The results of that screening will be interpreted based upon the
manufacturer's stated margin
. of error;
(3) If the screening shows readings in excess of background levels (taking into
account the margin. of error) the load will be
rejected;
(4) If the U--PA chooses to inspect the load it must be rejected if any monitoring
device used by the TEPA gives a reading in excess of background levels
.
The regulation in it, current form does not address under what circumstances the
IEPA will perform further testing of materials received by a clean fill facility, Nor does
the regulation state what standards the IEPA will apply in determining whether or not
such materials will be deemed "contaminated" within the meaning of the Act when it
performs its own testing.
While the language of the proposed regulation appears to recognize that
metropolitan areas, such as Chicago, will have heightened levels of background
impurities that should be taken into account in operating a PIT/FID instrument, the
regulation never specifically states that a. clean fill operator is permitted to accept
materials that contain such background levels of impurities . Nor for that matter, does the
proposed regulation state that it is permissible to accept loads that fall within the margin
of testing error inherent in any PTF/FlD machine,
Ultimatcly, the proposed regulation provides no reasonable means for the operator
a clean fill facility that is subject to its terms to insure that he is complying with the vile .
If a clean fill . operator accepts a load that. does not trigger his properly calibrated PID/FID
instrument, it is nonetheless possible that the IEPA will then arrive, subject that same
load to testing based upon more
stringent standards nowhere slated in the proposed
regulations, and require the landfill operator to remove the load or loads a .1: considerable
expense
.
In fact, the proposed regulations place no limits on the extent of the testing that
may be performed by the IEPA
. The proposed regulations declare that "any reading in
excess of background levels on any monitoring device used by the agency" can lead to
a. load's rejection . Given this language, the IEPA might take the position that it can
proceed to subject the load to further, more stringent testing -including the use of
laboratory procedures - and that any level of impurities discovered by that testing should
lead to rejection . . Such a. practice would
. lead to the hapazard imposition of liability on
clean Fill owners, an.dd
challenges to the regulation on the grounds that it was
impermissibly vague
.
B. Creating A Workable Testing Procedure .
Land Reclamation believes that specific criteria for determining what constitutes
clean .fill should be formulated prior to allowing the present proposed regulations to go
into effect, and that determination of these standards will require further analysis by the
IEPA in conjunction with clean fill operators . At
: a minimum, however, Land
Reclamation is of the opinion that any regulation put in place should contain a safe
harbor provision . that would insure that a
. clean fill operator could be certain that his or
her acceptance of fill material would not lead to the need for removal or remediation in
the future . By way of example only, Land Reclamation sets out the following possible
"safe harbor" provision, based uon the current proposed
. regulations :
Material wil be deemed to be CCDD, and. not subject to removal or
rcmcdi.ation based upon subsequent testing, if : (1.) it has passed
inspection by the site operator using a properly calibrated PIDiFID meter
taking into account the error rate of That meter and background levels of
contamination ; and (2) in the event of an on-site inspection by the JEPA,
that load also passes inspection by the JEPA using a PID/FID meter off no
greater sensitivity than that previously used by the site operator .
While such a provison would certainly require further consideration and review,
creating such a safe harbor could provide the certainty the current regulation lacks . In
conjunction with a specific standard defining the term contamination, it could help create
certainly and reduce litigation over a proposed regulation, that is too vague to withstand
scrutiny .
Sincerely,
Michael A, Rakov
Attorney for Land Reclamation Services, Jnc
.
