HB1671 97TH GENERAL ASSEMBLY

LRB097 08911 JDS 49043 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1671

Introduced , by Rep. Dan Reitz

SYNOPSIS AS INTRODUCED:

415 ILCS 5/3.160	was 415 ILCS 5/3.78 and 3.78a
415 ILCS 5/22.51
415 ILCS 5/22.51a

Amends the Environmental Protection Act. In a provision specifying the acceptable level of carcinogens that may be in uncontaminated soil used as fill material, establishes that the maximum exposure concentration is the Tier 1 exposure route value. Provides, however, (i) that the acceptable detection limit shall be deemed to be the Tier 1 exposure route value when the acceptable detection limit is less demanding than the Tier 1 exposure route value and (ii) that the lowest background concentration shall be deemed to be the Tier 1 exposure route value when the lowest background concentration is less demanding than the Tier 1 exposure route value. In provisions concerning clean construction or demolition debris fill operations and uncontaminated soil fill operations, provides that the term "other excavation" does not include holes, trenches, or similar earth removal created as part of normal construction, removal, or maintenance of a structure, utility, or transportation infrastructure. Exempts certain types of excavations, including excavations that comply with Department of Tranportation specifications, from the provisions concerning clean construction or demolition debris fill operations and uncontaminated soil fill operations. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Environmental Protection Act is amended by changing Sections 3.160, 22.51, and 22.51a as follows:

(415 ILCS 5/3.160) (was 415 ILCS 5/3.78 and 3.78a)

Sec. 3.160. Construction or demolition debris.

(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 or other asphalt pavement; glass; plastics that are not sealed in a manner that conceals waste; electrical wiring and components containing no hazardous substances; and corrugated cardboard, piping or metals incidental to any of those materials.

General construction or demolition debris does not include uncontaminated soil generated during construction, remodeling, repair, and demolition of utilities, structures, and roads provided the uncontaminated soil is not commingled with any general construction or demolition debris or other waste.

To the extent allowed by federal law, uncontaminated concrete with protruding rebar shall be considered clean construction or demolition debris and shall not be considered "waste" if it is separated or processed and returned to the economic mainstream in the form of raw materials or products within 4 years of its generation, if it is not speculatively accumulated and, if used as a fill material, it is used in accordance with item (i) in subsection (b) of this Section.

(b) "Clean construction or demolition debris" means uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed or other asphalt pavement, or soil generated from construction or demolition activities.

Clean construction or demolition debris does not include uncontaminated soil generated during construction, remodeling, repair, and demolition of utilities, structures, and roads provided the uncontaminated soil is not commingled with any clean construction or demolition debris or other waste.

To the extent allowed by federal law, clean construction or demolition debris shall not be considered "waste" if it is (i) used as fill material outside of a setback zone if the fill is placed no higher than the highest point of elevation existing prior to the filling immediately adjacent to the fill area, and if covered by sufficient uncontaminated soil to support vegetation within 30 days of the completion of filling or if covered by a road or structure, and, if used as fill material in a current or former quarry, mine, or other excavation, is used in accordance with the requirements of Section 22.51 of this Act and the rules adopted thereunder or (ii) separated or processed and returned to the economic mainstream in the form of raw materials or products, if it is not speculatively accumulated and, if used as a fill material, it is used in accordance with item (i), or (iii) solely broken concrete without protruding metal bars used for erosion control, or (iv) generated from the construction or demolition of a building, road, or other structure and used to construct, on the site where the construction or demolition has taken place, a manmade functional structure not to exceed 20 feet above the highest point of elevation of the property immediately adjacent to the new manmade functional structure as that elevation existed prior to the creation of that new structure, provided that the structure shall be covered with sufficient soil materials to sustain vegetation or by a road or structure, and further provided that no such structure shall be constructed within a home rule municipality with a population over 500,000 without the consent of the municipality.

For purposes of this subsection (b), reclaimed or other asphalt pavement shall not be considered speculatively accumulated if: (i) it is not commingled with any other clean construction or demolition debris or any waste; (ii) it is returned to the economic mainstream in the form of raw materials or products within 4 years after its generation; (iii) at least 25% of the total amount present at a site during a calendar year is transported off of the site during the next calendar year; and (iv) if used as a fill material, it is used in accordance with item (i) of the second paragraph of this subsection (b).

(c) For purposes of this Section, the term "uncontaminated soil" means soil that does not contain contaminants in concentrations that pose a threat to human health and safety and the environment.

(1) No later than one year after the effective date of this amendatory Act of the 96th General Assembly, the Agency shall propose, and, no later than one year after receipt of the Agency's proposal, the Board shall adopt, rules specifying the maximum concentrations of contaminants that may be present in uncontaminated soil for purposes of this Section. For carcinogens, the maximum concentrations shall not allow exposure to the chemical's most stringent Tier 1 exposure route value exceed an excess upper-bound lifetime risk of 1 in 1,000,000; provided that the Board may consider allowing benzo(a)pyrene up to the applicable background concentration set forth in Table H of Appendix A of 35 Ill. Adm. Code 742 in soil used as fill material in a current or former quarry, mine, or other excavation in accordance with Section 22.51 or 22.51a of this Act and rules adopted under those Sections. A chemical's most stringent Tier 1 exposure value shall be determined as follows: (1) if a chemical's most stringent Tier 1 exposure route is less than the chemical's acceptable detection limit (ADL) listed in 35 Ill. Adm. Code 742, Appendix B, as amended, then the ADL shall serve as the most stringent Tier 1 exposure route value and (2) if a chemical's most stringent Tier 1 exposure route value is less than the chemical's lowest background concentration listed in 35 Ill. Adm. Code 742, Appendix A, Table G or H, as amended, then the chemical's lowest background concentration listed in Table G or H shall serve as the most stringent Tier 1 exposure route value. For purposes of this Section, the lowest background concentration listed in Table H shall be used, regardless of whether it is the background concentration listed for Chicago, a Metropolitan Area, or a Non-Metropolitan Area. The most stringent Tier 1 exposure route values shall be determined solely from the values listed in 35 Ill. Adm. Code 742, Appendix A and Appendix B. Other provisions of the Board's rules, such as those pertaining to the use of engineered barriers or institutional controls, cannot be used to exclude or otherwise alter exposure routes or exposure route values for purposes of determining the most stringent Tier 1 exposure route. , so long as the applicable background concentration is based upon the location of the quarry, mine, or other excavation.

(2) To the extent allowed under federal law and regulations, uncontaminated soil shall not be considered a waste.

(Source: P.A. 95-121, eff. 8-13-07; 96-235, eff. 8-11-09; 96-1416, eff. 7-30-10.)

(415 ILCS 5/22.51)

Sec. 22.51. Clean Construction or Demolition Debris Fill Operations.

(a) No person shall conduct any clean construction or demolition debris fill operation in violation of this Act or any regulations or standards adopted by the Board.

(b)(1)(A) Beginning August 18, 2005 but prior to July 1, 2008, no person shall use clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation, unless they have applied for an interim authorization from the Agency for the clean construction or demolition debris fill operation.

(B) The Agency shall approve an interim authorization upon its receipt of a written application for the interim authorization that is signed by the site owner and the site operator, or their duly authorized agent, and that contains the following information: (i) the location of the site where the clean construction or demolition debris fill operation is taking place, (ii) the name and address of the site owner, (iii) the name and address of the site operator, and (iv) the types and amounts of clean construction or demolition debris being used as fill material at the site.

(C) The Agency may deny an interim authorization if the site owner or the site operator, or their duly authorized agent, fails to provide to the Agency the information listed in subsection (b)(1)(B) of this Section. Any denial of an interim authorization shall be subject to appeal to the Board in accordance with the procedures of Section 40 of this Act.

(D) No person shall use clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation for which the Agency has denied interim authorization under subsection (b)(1)(C) of this Section. The Board may stay the prohibition of this subsection (D) during the pendency of an appeal of the Agency's denial of the interim authorization brought under subsection (b)(1)(C) of this Section.

(2) Beginning September 1, 2006, owners and operators of clean construction or demolition debris fill operations shall, in accordance with a schedule prescribed by the Agency, submit to the Agency applications for the permits required under this Section. The Agency shall notify owners and operators in writing of the due date for their permit application. The due date shall be no less than 90 days after the date of the Agency's written notification. Owners and operators who do not receive a written notification from the Agency by October 1, 2007, shall submit a permit application to the Agency by January 1, 2008. The interim authorization of owners and operators who fail to submit a permit application to the Agency by the permit application's due date shall terminate on (i) the due date established by the Agency if the owner or operator received a written notification from the Agency prior to October 1, 2007, or (ii) or January 1, 2008, if the owner or operator did not receive a written notification from the Agency by October 1, 2007.

(3) On and after July 1, 2008, no person shall use clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation (i) without a permit granted by the Agency for the clean construction or demolition debris fill operation or in violation of any conditions imposed by such permit, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with Board regulations and standards adopted under this Act or (ii) in violation of any regulations or standards adopted by the Board under this Act.

(4) This subsection (b) does not apply to:

(A) the use of clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation located on the site where the clean construction or demolition debris was generated;

(B) the use of clean construction or demolition debris as fill material in an excavation other than a current or former quarry or mine if this use complies with Illinois Department of Transportation specifications; or

(C) current or former quarries, mines, and other excavations that do not use clean construction or demolition debris as fill material.

(c) In accordance with Title VII of this Act, the Board may adopt regulations to promote the purposes of this Section. The Agency shall consult with the mining and construction industries during the development of any regulations to promote the purposes of this Section.

(1) No later than December 15, 2005, the Agency shall propose to the Board, and no later than September 1, 2006, the Board shall adopt, regulations for the use of clean construction or demolition debris as fill material in current and former quarries, mines, and other excavations. Such regulations shall include, but shall not be limited to, standards for clean construction or demolition debris fill operations and the submission and review of permits required under this Section.

(2) Until the Board adopts rules under subsection (c)(1) of this Section, all persons using clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation shall:

(A) Assure that only clean construction or demolition debris is being used as fill material by screening each truckload of material received using a device approved by the Agency that detects volatile organic compounds. Such devices may include, but are not limited to, photo ionization detectors. All screening devices shall be operated and maintained in accordance with manufacturer's specifications. Unacceptable fill material shall be rejected from the site; and

(B) Retain for a minimum of 3 years the following information:

(i) The name of the hauler, the name of the generator, and place of origin of the debris or soil;

(ii) The approximate weight or volume of the debris or soil; and

(iii) The date the debris or soil was received.

(d) This Section applies only to clean construction or demolition debris that is not considered "waste" as provided in Section 3.160 of this Act.

(e) For purposes of this Section:

(1) The term "operator" means a person responsible for the operation and maintenance of a clean construction or demolition debris fill operation.

(2) The term "owner" means a person who has any direct or indirect interest in a clean construction or demolition debris fill operation or in land on which a person operates and maintains a clean construction or demolition debris fill operation. A "direct or indirect interest" does not include the ownership of publicly traded stock. The "owner" is the "operator" if there is no other person who is operating and maintaining a clean construction or demolition debris fill operation.

(3) The term "clean construction or demolition debris fill operation" means a current or former quarry, mine, or other excavation where clean construction or demolition debris is used as fill material.

(3.5) The term "other excavation" does not include holes, trenches, or similar earth removal created as part of normal construction, removal, or maintenance of a structure, utility, or transportation infrastructure.

(4) The term "uncontaminated soil" shall have the same meaning as uncontaminated soil under Section 3.160 of this Act.

(f)(1) No later than one year after the effective date of this amendatory Act of the 96th General Assembly, the Agency shall propose to the Board, and, no later than one year after the Board's receipt of the Agency's proposal, the Board shall adopt, rules for the use of clean construction or demolition debris and uncontaminated soil as fill material at clean construction or demolition debris fill operations. The rules must include standards and procedures necessary to protect groundwater, which may include, but shall not be limited to, the following: requirements regarding testing and certification of soil used as fill material, surface water runoff, liners or other protective barriers, monitoring (including, but not limited to, groundwater monitoring), corrective action, recordkeeping, reporting, closure and post-closure care, financial assurance, post-closure land use controls, location standards, and the modification of existing permits to conform to the requirements of this Act and Board rules. The rules may also include limits on the use of recyclable concrete and asphalt as fill material at clean construction or demolition debris fill operations, taking into account factors such as technical feasibility, economic reasonableness, and the availability of markets for such materials.

(2) Until the effective date of the Board rules adopted under subdivision (f)(1) of this Section, and in addition to any other requirements, owners and operators of clean construction or demolition debris fill operations must do all of the following in subdivisions (f)(2)(A) through (f)(2)(D) of this Section for all clean construction or demolition debris and uncontaminated soil accepted for use as fill material. The requirements in subdivisions (f)(2)(A) through (f)(2)(D) of this Section shall not limit any rules adopted by the Board.

(A) Document the following information for each load of clean construction or demolition debris or uncontaminated soil received: (i) the name of the hauler, the address of the site of origin, and the owner and the operator of the site of origin of the clean construction or demolition debris or uncontaminated soil, (ii) the weight or volume of the clean construction or demolition debris or uncontaminated soil, and (iii) the date the clean construction or demolition debris or uncontaminated soil was received.

(B) For all soil, obtain either (i) a certification from the owner or operator of the site from which the soil was removed that the site has never been used for commercial or industrial purposes and is presumed to be uncontaminated soil or (ii) a certification from a licensed Professional Engineer that the soil is uncontaminated soil. Certifications required under this subdivision (f)(2)(B) must be on forms and in a format prescribed by the Agency.

(C) Confirm that the clean construction or demolition debris or uncontaminated soil was not removed from a site as part of a cleanup or removal of contaminants, including, but not limited to, activities conducted under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; as part of a Closure or Corrective Action under the Resource Conservation and Recovery Act, as amended; or under an Agency remediation program, such as the Leaking Underground Storage Tank Program or Site Remediation Program, but excluding sites subject to Section 58.16 of this Act where there is no presence or likely presence of a release or a substantial threat of a release of a regulated substance at, on, or from the real property.

(D) Document all activities required under subdivision (f)(2) of this Section. Documentation of any chemical analysis must include, but is not limited to, (i) a copy of the lab analysis, (ii) accreditation status of the laboratory performing the analysis, and (iii) certification by an authorized agent of the laboratory that the analysis has been performed in accordance with the Agency's rules for the accreditation of environmental laboratories and the scope of accreditation.

(3) Owners and operators of clean construction or demolition debris fill operations must maintain all documentation required under subdivision (f)(2) of this Section for a minimum of 3 years following the receipt of each load of clean construction or demolition debris or uncontaminated soil, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. Copies of the documentation must be made available to the Agency and to units of local government for inspection and copying during normal business hours. The Agency may prescribe forms and formats for the documentation required under subdivision (f)(2) of this Section.

Chemical analysis conducted under subdivision (f)(2) of this Section must be conducted in accordance with the requirements of 35 Ill. Adm. Code 742, as amended, and "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as amended.

(g)(1) No person shall use soil other than uncontaminated soil as fill material at a clean construction or demolition debris fill operation.

(2) No person shall use construction or demolition debris other than clean construction or demolition debris as fill material at a clean construction or demolition debris fill operation.

(3) This Section shall not apply to the use of uncontaminated soil or clean construction or demolition debris as fill material in an excavation other than a current or former quarry or mine if the use complies with Illinois Department of Transportation specifications.

(h) For certification purposes of this Section and the rules adopted by the Board, soil removed from public highway right-of-way shall not be presumed to be removed from a site used for commercial or industrial purposes. Whether public highway right-of-way as a removal site has been used for commercial or industrial purposes shall be determined based on uses of the property prior to acquisition as right-of-way or the uses of the adjoining property affecting the site. Until such time as the Board adopts a new definition in the rules for industrial or commercial purposes, owners and operators of clean construction or demolition debris fill operations accepting soil shall accept the certification by the highway authority having jurisdiction of the right-of-way that the soil removed from the project site has been determined to be uncontaminated soil in accordance with the environmental assessment policies, procedures, and specifications of the highway authority.

(Source: P.A. 96-1416, eff. 7-30-10.)

(415 ILCS 5/22.51a)

Sec. 22.51a. Uncontaminated Soil Fill Operations.

(a) For purposes of this Section:

(0.5) The term "other excavation" does not include holes, trenches, or similar earth removal created as part of normal construction, removal, or maintenance of a structure, utility, or transportation infrastructure.

(1) The term "uncontaminated soil" shall have the same meaning as uncontaminated soil under Section 3.160 of this Act.

(2) The term "uncontaminated soil fill operation" means a current or former quarry, mine, or other excavation where uncontaminated soil is used as fill material, but does not include a clean construction or demolition debris fill operation.

(b) No person shall use soil other than uncontaminated soil as fill material at an uncontaminated soil fill operation.

(c) Owners and operators of uncontaminated soil fill operations must register the fill operations with the Agency. Uncontaminated soil fill operations that received uncontaminated soil prior to the effective date of this amendatory Act of the 96th General Assembly must be registered with the Agency no later than March 31, 2011. Uncontaminated soil fill operations that first receive uncontaminated soil on or after the effective date of this amendatory Act of the 96th General Assembly must be registered with the Agency prior to the receipt of any uncontaminated soil. Registrations must be submitted on forms and in a format prescribed by the Agency.

(d)(1) No later than one year after the effective date of this amendatory Act of the 96th General Assembly, the Agency shall propose to the Board, and, no later than one year after the Board's receipt of the Agency's proposal, the Board shall adopt, rules for the use of uncontaminated soil as fill material at uncontaminated soil fill operations. The rules must include standards and procedures necessary to protect groundwater, which shall include, but shall not be limited to, testing and certification of soil used as fill material and requirements for recordkeeping.

(2) Until the effective date of the Board rules adopted under subdivision (d)(1) of this Section, owners and operators of uncontaminated soil fill operations must do all of the following in subdivisions (d)(2)(A) through (d)(2)(F) of this Section for all uncontaminated soil accepted for use as fill material. The requirements in subdivisions (d)(2)(A) through (d)(2)(F) of this Section shall not limit any rules adopted by the Board.

(A) Document the following information for each load of uncontaminated soil received: (i) the name of the hauler, the address of the site of origin, and the owner and the operator of the site of origin of the uncontaminated soil, (ii) the weight or volume of the uncontaminated soil, and (iii) the date the uncontaminated soil was received.

(B) Obtain either (i) a certification from the owner or operator of the site from which the soil was removed that the site has never been used for commercial or industrial purposes and is presumed to be uncontaminated soil or (ii) a certification from a licensed Professional Engineer that the soil is uncontaminated soil. Certifications required under this subdivision (d)(2)(B) must be on forms and in a format prescribed by the Agency.

(C) Confirm that the uncontaminated soil was not removed from a site as part of a cleanup or removal of contaminants, including, but not limited to, activities conducted under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; as part of a Closure or Corrective Action under the Resource Conservation and Recovery Act, as amended; or under an Agency remediation program, such as the Leaking Underground Storage Tank Program or Site Remediation Program, but excluding sites subject to Section 58.16 of this Act where there is no presence or likely presence of a release or a substantial threat of a release of a regulated substance at, on, or from the real property.

(D) Visually inspect each load to confirm that only uncontaminated soil is being accepted for use as fill material.

(E) Screen each load of uncontaminated soil using a device that is approved by the Agency and detects volatile organic compounds. Such a device may include, but is not limited to, a photo ionization detector or a flame ionization detector. All screening devices shall be operated and maintained in accordance with the manufacturer's specifications. Unacceptable soil must be rejected from the fill operation.

(F) Document all activities required under subdivision (d)(2) of this Section. Documentation of any chemical analysis must include, but is not limited to, (i) a copy of the lab analysis, (ii) accreditation status of the laboratory performing the analysis, and (iii) certification by an authorized agent of the laboratory that the analysis has been performed in accordance with the Agency's rules for the accreditation of environmental laboratories and the scope of accreditation.

(3) Owners and operators of uncontaminated soil fill operations must maintain all documentation required under subdivision (d)(2) of this Section for a minimum of 3 years following the receipt of each load of uncontaminated soil, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. Copies of the documentation must be made available to the Agency and to units of local government for inspection and copying during normal business hours. The Agency may prescribe forms and formats for the documentation required under subdivision (d)(2) of this Section.

Chemical analysis conducted under subdivision (d)(2) of this Section must be conducted in accordance with the requirements of 35 Ill. Adm. Code 742, as amended, and "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as amended.

(e) This Section does not apply to:

(1) the use of uncontaminated soil as fill material in a current or former quarry, mine, or other excavation located on the site where the uncontaminated soil was generated;

(2) the use of uncontaminated soil as fill material in an excavation other than a current or former quarry or mine if the use complies with Illinois Department of Transportation specifications; or

(3) current or former quarries, mines, or other excavations that do not use uncontaminated soil as fill material.

(f) For certification purposes of this Section and the rules adopted by the Board, soil removed from public highway right-of-way shall not be presumed to be removed from a site used for commercial or industrial purposes. Whether public highway right-of-way as a removal site has been used for commercial or industrial purposes shall be determined based on uses of the property prior to acquisition as right-of-way, use of the property by the highway authority, or the uses of the adjoining property affecting the site. Until such time as the Board adopts a new definition in the rules for industrial or commercial purposes, owners and operators of uncontaminated soil fill operations shall accept the certification by the highway authority having jurisdiction of the right-of-way that the soil removed from the project site has been determined to be uncontaminated soil in accordance with the environmental assessment policies, procedures, and specifications of the highway authority.

(Source: P.A. 96-1416, eff. 7-30-10.)

Section 99. Effective date. This Act takes effect upon becoming law.