RECEIVEDCLERK'S
OFFICE
JUNv 2 7 2006
IN THE MATTER
BEFORE
OF :
THE ILLINOIS POLLUTION CONTROL BOARDPollution
STATE OF
Control
ILLINOISBoard
)
CLEAN CONSTRUCTION OR DEMOLITION )
R06-19
DEBRIS FILL OPERATIONS UNDER P .A.
)
Rulemaking - Land
94-272 (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, Suite 11-500
Chicago, Illinois 60601
Tiffany Chappell
City of Chicago
Mayor's Office of Intergovernmental Affairs
121 N. LaSalle Street, City Hall, Room 406
Chicago, IL 60602
Kyle Rominger, Attorney
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
NOTICE OF FILING
General Counsel
Office of Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W
. Randolph, Suite 11-500
Chicago, Illinois 60601
Claire A
. Manning
Brown, Hay & Stephens LLP
700 First Mercantile Bank Building
205 South Fifth Street, P .O. Box 2459
Springfield, IL 62705-2459
Stephanie Flowers, Attorney
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Steven Gobelman
Virginia Yang
IDOT
Illinois Department of Natural Resources
2300 S . Dirksen Parkway
One Natural Resources Way
Springfield, IL 62764
Springfield, IL 62702-1271
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Illinois
Pollution Control Board the
ILLINOIS ASSOCIATION OF AGGREGATE PRODUCERS
RESPONSE TO COMMENTS FROM OFFICE OFT 0' , RN Y
GENERAL, a copy
of which is herewith served upon you .
0
DATE: June 26, 2006
1115 South Second Street
Springfield, Illinois 62704
(217) 241-1639
1 s Association of Aggregate Producers
RECEIVEDCLERK'S
OFFICE
JUN 2 7 2006
BEFORE THE ILLINOIS POLLUTION
CONTROL BOA
STATE OF ILLINOIS
IN THE MATTER OF :
)
Pollution Control Board
CLEAN CONSTRUCTION OR DEMOLITION )
R06-19
DEBRIS FILL OPERATIONS UNDER P .A.
)
Rulemaking - Land
94-272 (35 ILL. ADM
. CODE PART 1100)
)
ILLINOIS ASSOCIATION OF AGGREGATE PRODUCERS
RESPONSE TO COMMENTS FROM OFFICE OF THE ATTORNEY GENERAL
NOW COMES the Illinois Association of Aggregate Producers (IAAP) and submits the
following response to the Office of the Attorney General (OAG) comments filed June 8, 2006,
pursuant to Hearing Officer Antoniolli's June 13, 2006 Order
.
Historical / Legislative Background
The IAAP represents companies that produce crushed stone, sand, gravel, silica sand and
agricultural lime : "aggregates."
Aggregates are used for building and maintaining roads, bridges,
homes, hospitals, schools and commercial buildings, as well as a wide variety of other uses such
as for manufacturing glass and as soil additives
. In addition to producing aggregates, a number of
IAAP member companies accept clean construction or demolition debris ("clean fill") generated
by road and building contractors . These new business operations were triggered by State
legislation recognizing that clean fill is not a "waste" that should be intensively regulated by the
Illinois Environmental Protection Agency ("IEPA")
.
Aggregate producers use clean fill in order to accelerate the reclamation of excavations
generated by mining . Land disturbed by mining operations is thereby made ready for a variety
of post-mining uses : commercial, industrial, recreational or residential
. Aggregate mines have
historically charged only nominal fees for clean fill disposal in comparison to the high tipping
fees paid to ship these materials to solid waste landfills .
Clean fill operations currently accept millions of tons of materials each year generated by
construction and demolition activities, thereby providing an economical way to handle materials
that cannot be incorporated into building sites
. It is critical to bear in mind that costs would
increase for all sectors of our State's construction industry in the absence of these clean fill sites .
Every ton of material not accepted at a clean fill site will either be taken to a solid waste landfill
(thereby reducing the useful life of these facilities and increasing costs for the generator) or
dumped at a non-regulated site
.
Concerned that clean fill operations might become subject to burdensome regulatory oversight,
the LA-AP began discussions with the IEPA in 1999 regarding voluntary best management
practices for aggregate mines that accept these materials
. This effort resulted in the development
of IAAP Best Management Practices for clean fill that were endorsed by the IEPA, Bureau of
Land, prior to the enactment of P
.A. 94-272. These voluntary industry guidelines helped
ensure proper disposal of clean fill prior to P .A. 94-272 .
On July 19, 2005, Governor Blagojevich signed legislation (P.A.
94-272) that creates a
comprehensive regulatory scheme for the disposal of clean fill
: uncontaminated broken concrete
without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement, or soil generated
from construction or demolition activities
. Please note: the clean fill regulatory scheme outlined
in P.A
. 94-272 was not enacted in response to actual environmental concerns
. This legislation
was not an IEPA initiative given the lack of any significant agency enforcement activity to date
linked to the disposal of clean fill deposited at aggregate mines or other excavations
. In essence,
IEPA enforcement activity
has
not focused on clean fill operations because these sites have
historically posed no significant threat to the
environment or to public health.
Clean fill operations currently operate in accordance with interim authorizations issued by IEPA,
in accordance with the provisions of P .A
. 94-272. Clean fill sites currently operating under an
IEPA interim authorization are required to perform the following activities
:
•
Assure that only clean fill is being accepted by screening each truckload of material
received using a device approved by the IEPA that detects volatile organic compounds .
Such devices may include, but are not limited to, photo ionization detectors.
Unacceptable fill material shall be rejected from the site
.
•
Retain for a minimum of 3 years the following information :
•
The name of the hauler, the name of the generator, and place of origin of the
debris or soil
;
•
The approximate weight or volume of the debris or soil
; and
•
The date the debris or soil was received
.
Although the annual volume of clean fill is quite large, the types of materials that may be
accepted at clean fill sites are limited
. Specifically, the only materials that may be accepted by a
clean fill operation are defined in Section 3
.160(b) of the Illinois Environmental Protection Act
("Act") as follows
: "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
. 415 ILCS 5/3 .160(b).
General construction or demolition debris materials ("C&D waste") routinely generated by
construction and demolition activities cannot be accepted at clean fill operations and are defined
by Section 3.160(a) of the Act as follows :
a) "General construction or demolition debris" means non-hazardous, uncontaminated
materials resulting from the construction, remodeling, repair, and demolition of utilities,
structures, and roads, limited to the following: bricks, concrete, and other masonry
materials; soil; rock; wood, including non-hazardous painted, treated, and coated wood
and wood products; wall coverings; plaster
; drywall; plumbing fixtures; non-asbestos
insulation; roofing shingles and other roof coverings
; reclaimed asphalt pavement;
glass
; plastics that are not sealed in a manner that conceals waste ; electrical wiring and
components containing no hazardous substances
; and piping or metals incidental to any
2
of those materials . 415 5/3 .160(a) (emphasis added)
.
After extracting any materials that may be recycled and returned to the economic mainstream, or
taken to a clean fill operation, all remaining C&D waste must be deposited at a solid waste
landfill permitted by the IEPA
.
With the enactment of P .A
. 94-272, the IAAP Clean Fill Work Group actively negotiated with
the IEPA to develop a workable regulatory system
. These negotiations resulted in the IEPA
proposal adopted for first notice and published in the Illinois Register on April 21, 2006 . [See
Illinois Register, Vol . 30, Issue 16, 7711-740 (Apr
. 21, 2006).] Although these rules did not
address all IAAP concerns regarding the scope of this regulatory scheme, these rules represent a
reasonable compromise and are supported by our industry
.
With that background in mind, the IAAP offers the following response to the OAG's June 8,
2006 General Comments as well as to Specific Comment #1, #2 and #7
.
Response to General Comments
As a threshold matter, the OAG's general comments do not focus on the operations that are the
subject of this rulemaking : clean fill operations.
Clean fill and C&D waste are two distinct classes of material
. The distinction between the two
is evident in Illinois statutes, Illinois regulations, IEPA guidance documents, and in the
regulatory programs in other states
. These two distinct classes of materials carry markedly
different levels of risk, and should be regulated accordingly . C&D waste is already subject to
regulation in Illinois as a waste material
. The IPCB should not regulate clean fill in the same
manner as
C&D waste and should instead follow the Illinois legislature's directive and develop
regulations designed specifically for clean fill .'
The Illinois Environmental Protection Act contains very different definitions for clean fill and
C&D waste. Compare 415 ILCS 5/3 .160(a) (C&D waste) with 415 ILCS 5/3.160(b)
(clean fill
) .2
These statutory definitions are mutually exclusive
. C&D waste material is "waste" 3 and includes
items such as electrical wiring, piping, and plumbing fixtures . These materials would not fit
within the statutory definition of clean fill, which by definition is not "waste
."4 Similar
definitions are contained in the Proposed Rule s and IEPA guidance documents .6 Accordingly,
under the proposed clean fill regulations, C&D waste cannot be placed in a clean fill facility
.
'
In general landfills can be classified in three categories : (1) Hazardous Waste Landfills (Subtitle C RCRA
landfills), where EPA regulations set minimum standards, see 40 C .F.R
. Parts 260-279 ; (2) Municipal Solid Waste
Landfills (Subtitle D RCRA landfills), where EPA regulations set minimum standards, see 40 C
.F.R. Parts 239-259 ;
and (3) General Construction & Demolition Debris Landfills, where EPA has not created minimum standards and
where state regulations vary
. Clean fill operations are not "landfills" and are exempt from regulation in most states .
2
These statutory definitions are reproduced on page 2 of this Response .
'415 ILCS 5/3 .290
415 ILCS 5/22
.51(d).
s
6
hProposed
ttp://wwwRule
.epa.state§1100.il.103.us/small-business/construction-debris
.
.
3
The IPCB should not use a study of C&D waste to guide development of regulations for clean
fill. Attached to the Comment of OAG is the article, Clark, et al
., "A Review of Construction
and Demolition Debris Regulations in the United States" (published
in Critical Reviews in
Environmental Science in Technology, 2006)
. As the article's title suggests, it is an analysis of
C&D waste regulations in other states, not clean fill regulations
.
Specifically, the article's definition of construction debris
includes roofing material, gy sum
wallboard, lead, cadmium, arsenic, and even hazardous wastes such as PCBs and asbestos
Y As
noted above, these materials by definition cannot be present in clean fill
Further, a review of the
article's reference to regulations from the "border states"
of Indiana, Kentucky, Michigan,
Missouri, and Wisconsin, 8
shows that the cited regulations do not govern clean fill operators or
facilities . Instead, the cited regulations apply to solid waste operators and solid waste
management facilities
. By contrast, Missouri has a separate policy governing clean fill
.9 We are
aware of no clean fill regulations in Indiana, Kentucky, Michigan, and Wisconsin .
However,
Wisconsin DNR has promulgated a guidance document specifically
stating that Wisconsin's
solid waste regulations do not apply to clean fill
. 10 Presumably the Missouri and Wisconsin
guidance documents were not cited in the article because the focus of the article was C&D waste
.
Because the article ignored clean fill regulations and policy, the IPCB should not be
guided by
the article .
Through the Illinois legislature's mandate that clean fill operations be regulated,
Illinois and the
IEPA will be leaders in regulating a material that in most states is exempt from regulation .
The
IPCB would be in error if it ignored the legislature's directive to create appropriate regulations
for clean fill, and instead treated clean fill like C&D waste, which is already regulated in Illinois
.
Response to Specific Comments
Comment 1 - Scope of Load Checking Program (Proposed Section 1100.205)
Proposed Rules:
All loads need to be checked using PID/FID Meters
OAG Comment: Facilities should screen for the presence of asbestos-containing materials and
metals (i .e. lead, chromium and cadmium) by utilizing an X-ray fluorescence analyzer of "XRF ."
The OAG anticipates the cost of a XRF analyzer to be $35,000 and suggests that all labor and
maintenance costs are "clearly outweighed by the benefits to the environment ."
IAAP Response:
Clean fill can contain a variety of naturally occurring metals and other
chemical compounds .
It appears that the OAG is using the definition of C&D waste (i.e.
"Review of Construction and Demolition Debris Regulations" at 143 .
s GAG Comment at 6 . See 401 Ky . Admin. Regs . 48 ("Standards for Solid Waste Facilities") ; Mich. Admin. Code
R. 299 .4101 et seq
. ("Solid Waste Management") ; 10 Mo . C.S.R. Div . 80 ("Solid Waste Regulations") ; Wis . Admin.
Code ch. NR 500 et seq . ("General Solid Waste Management Requirements").
9 See http ://www .dnr.mo.gov/env/swmp/pubs-reports/cleanfill%2Opolicy .pdf.
'0 See http://dnr .wi .gov/org/aw/wm/faq/solidwaste/swfag l I .htm ("Wisconsin's solid waste codes and statutes do not
use the term `clean fill' . . . facilities accepting only clean soil, brick, building stone, concrete, reinforced concrete,
broken pavement, and unpainted or untreated wood are exempt from licensing and the requirements of chs. NR 500
to 538, Wis. Adm
. Code .") .
4
drywall, roofing materials, wood . . . .)
and applying the risk of those materials to standards for
clean fill operations (which primarily accept soil, aggregate and broken concrete)
. The clean fill
industry has a concern that the use of a XRF would result in many instances where naturally
occurring metals, including the metals outlined by the OAG, are positively identified in
incoming loads
. This positive reading of naturally occurring metals would result in rejection(s)
for irrelevant and irrational reasons
. We also believe that it would be difficult to determine a
justifiable and defensible "action" level for metals identified by a field XRF during the time line
upon the Board .
The cost of new XRF equipment is stated correctly
; however, competent persons and training
costs may increase the OAG's estimate significantly
. In addition, if the requirement is made that
all loads be inspected by an XRF, more than one XRF will need to be employed by each CCDD
acceptance location in the event that one is rendered inoperable
.
With regards to screening for asbestos and other unacceptable materials, the IAAP and IEPA are
currently developing a training program for clean fill sites
.
Proposed Rules
: All PID/FID Meters must be calibrated utilizing established background levels
and interpreted based on the manufacturer's margin of error
.
OAG Comment:
Using background levels would essentially "undercount" the amount of
organic contaminants contained in a load.
IAAP Response :
Background readings in existence at many sites may cause the devices
being used to screen loads to register above zero at all times
. This language ensures that the
decision to reject a load of fill material properly accounts for existing environmental conditions
.
The decision to allow instrument calibration for background levels was specifically negotiated in
the early discussions between IEPA and stakeholders during this rulemaking
.
Using ambient air when calibrating equipment would insure that background conditions are
considered, and therefore not undercount CCDD conditions, when screening incoming CCDD
loads
. It should be noted that in the majority of areas in the City of Chicago, an instrument
measuring ambient air would have a reading above zero
. In addition, it is important to note that
each PID and FID manufacturer has an estimated margin of error stated in the equipment
manual
. For example, the manufacturer's margin of error for one brand of PID is +/-0
.1 ppm for
all readings less than 10,000 ppm . This stated error should also be considered when screening
clean fill loads .
Comment 2 -- Leachate /
Contingent Groundwater Sampling Requirements
Proposed Rules : The IAAP and the IEPA have discussed such sampling and agreed that such
testing is not necessary and should not be included in the proposed regulations .
OAG Comment : The OAG suggests including groundwater monitoring or leachate sampling
and analysis to the Rules since the OAG feels it is likely that inappropriate materials will be sent
to clean fill facilities and may not be detected until a public water supply or private well is
5
contaminated.
The OAG states that other state programs include some form of ground water
monitoring, however, as discussed in more detail in our "Response to General Comments"
above, OAG's comments regarding other state programs reference C&D waste regulations .
IAAP Response: Leachate sampling is historically only required of licensed landfills
. The
OAG states that other state programs include some form of ground water monitoring ; however,
their comments regarding other state programs reference C&D waste regulations,
not clean fill
sites ." Thus, many of their statements are irrelevant to the proposed clean fill
regulation . For
instance, Wisconsin does NOT require ground water monitoring for clean fill landfills
and the
state merely recognizes and does not regulate "non-waste" materials that Illinois defines and
regulates as clean fill .
To reiterate, clean fill operations are not "landfills" and are exempt
from regulation in most
states.
Leachate sampling is the process of testing the water or groundwater that comes into contact
with the foreign material
. The results of this sampling indicate whether the potential for
groundwater contamination exists . It is important to note that background levels of contaminants
in the Chicagoland area are naturally elevated, making it virtually impossible for any soil
sample
in the area to pass a leachate test for comparison to the potable water standards.
The liability leachate testing places on the clean fill acceptance site operator is overwhelming
and unnecessary. If these rules are passed in their current form, it will likely
force most of the
aggregate producers to discontinue this acceptance practice .
Every ton of material not accepted
at a clean fill site will either be taken to a solid waste landfill (thereby reducing the useful life of
these facilities and increasing costs for the generator) or dumped at a non-regulated site. The
public eventually bears the enhanced costs associated with either of these options
.
OAG Cost Estimate : The OAG estimates that costs could be $2,000 to 3,000 per well for
installation with the number of wells wholly dependent on the size of the operation .
Additional
costs (geotechnical/hydrogeological studies and Phase I environmental site assessments) cannot
be estimated . The OAG estimates that sampling costs would be approximately $1200-1500
and
would depend on the number of wells .
IAAP
Response
: Well construction costs are in excess of the OAG's estimate and barely
account for the additional costs associated with contracting professional geological,
hydrogeological, and engineering consultants .
Comment 7 - Lack of Financial Assurance
Current Language: The current draft does not address this issue .
" See, e .g., 401 Ky . Admin . Regs . 48 :090(12) (groundwater monitoring for contained landfills) ; Mich. Admin . Code
R . 299 .4906 ("Landfill Groundwater Monitoring ; Systems") ; 10 Mo . C.S .R . 80-3 .010(11) (groundwater monitoring
at sanitary landfills), 10 Mo
. C .S .R . 80-4 .010(11) (groundwater monitoring at demolition landfills) ; Wis . Admin
Code Ch . NR 507 ("Environmental Monitoring for Landfills") .
6
OAG Comment : The OAG suggests that some sort of financial assurance requirement be
included such as letter of credit, performance or surety bond .
IAAP Response: Most clean fill operations are sited at aggregate mining operations with
reclamation bonds enforced by IDNR's Office of Mines and Minerals, an ongoing financial
assurance that negates the need for duplicate coverage . As for the rest of these sites, it is plain
that no financial assurance is required given that excavations accepting clean fill
in accordance
with the IEPA's pending rules do not pose a threat to the environment and therefore
will not
require environmental remediation. More significantly, the Board may not lawfully impose a
financial assurance requirement for clean fill sites regulated pursuant to P
.A. 94-272
.
The IEPA and Board's power to require any form of financial assurance from the regulated
community must be grounded in a specific grant of statutory authority conferred by the
Illinois
General Assembly. For example, waste disposal operations regulated by the IEPA, pursuant to
Section 21(d) of the Act, cannot accept waste unless the operator ". . . has posted with the
Agency a performance bond or other security for the purpose of insuring closure of the site and
post-closure and post-closure care in accordance with this Act and regulations adopted
thereunder ." 415 ILCS 5/21 .1 .
In contrast, the clean construction or demolition debris fill program established by P .A. 94-272
does not authorize the IEPA to require any form of financial assurance
from clean fill site
operators .
415 ILCS 5/22 .51 . The Board may not lawfully impose a financial assurance
requirement for clean fill sites by rule in the absence of specific statutory authority for such
requirement conferred by Section 22 .51 of the Act .
Conclusion
Aggregate mines that accept clean fill are willing to be regulated by the IEPA . The clean fill
requirements set forth in the April 21, 2006 rulemaking proposal are reasonable and reflect
IAAP discussions about this program with the IEPA during the last 6 years . The additional load
checking, sampling and financial assurance requirements proposed in the OAG's June 8, 2006
comments are not reasonable and were therefore eliminated during the
IAAP's rulemaking
negotiations with the IEPA
. Adopting unreasonable clean fill regulations will force
aggregate mines out of the clean fill acceptance business, thereby increasing the costs of
building and maintaining airports,
schools and other public works as well as the
commercial and residential construction driving our State's economic recovery .
The IAAP requests that the Board reject the suggested changes set forth in the OAG's June 8,
2006 Public Comment for the reasons set forth above . The IAAP supports the IEPA's April 21,
2006 proposal and requests that the Board's July 6, 2006 second notice order adopt the language
of this agreed-upon rulemaking .
ive Director
on of Aggregate Producers
7
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, Suite 11-500
Chicago, Illinois 60601
Tiffany Chappell
City of Chicago
Mayor's Office of Intergovernmental Affairs
121 N . LaSalle Street, City Hall, Room 406
Chicago, IL 60602
Kyle Rominger, Attorney
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Steven Gobelman
IDOT
2300 S . Dirksen Parkway
Springfield, IL 62764
CERTIFICATE OF SERVICE
The undersigned states that a true and correct copy of the foregoing
NOTICE OF FILING and
ILLINOIS ASSOCIATION OF
AGGREGATE PRODUCERS RESPONSE TO
COMMENTS FROM OFFICE OF THE ATTORNEY GENERAL
was served on the
following by mailing the same via the United States postal service, Springfield, Illinois, on June
26, 2006 :
8
General Counsel
Office of Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
James R
. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
Claire A. Manning
Brown, Hay & Stephens LLP
700 First Mercantile Bank Building
205 South Fifth Street, P
.O. Box 2459
Springfield, IL 62705-2459
Stephanie Flowers, Attorney
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Virginia Yang
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
, xecutive Director
ociation of Aggregate Producers
