SB2166sam001 95TH GENERAL ASSEMBLY

Sen. John J. Millner

Filed: 4/11/2008

09500SB2166sam001 LRB095 19613 HLH 49434 a

AMENDMENT TO SENATE BILL 2166

AMENDMENT NO. ______. Amend Senate Bill 2166 by replacing everything after the enacting clause with the following:

"Section 5. The Environmental Protection Act is amended by changing Sections 3.160 and 22.51 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 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" or "CCDD" means broken concrete without protruding metal bars, bricks, rock, stone, or reclaimed or other asphalt pavement, that is generated from construction or demolition activities. "CCDD" also includes clean soil generated from construction or demolition activities, alone or in combination with the materials referenced in this paragraph.

(1) "CCDD" is not waste if it is not mixed with any waste and if it is:

(A) used as fill material in a current or former quarry, mine, or other excavation pursuant to Section 22.51 of this Act and the rules adopted under that Section;

(B) used as fill material outside of a setback zone if the fill is placed no higher than the highest point of elevation adjacent to the fill area immediately prior to the filling and is covered with sufficient residual soil to support vegetation within 30 days of filling or is covered by a road or structure;

(C) separated or processed and returned to the economic mainstream in the form of raw materials or products and is not speculatively accumulated; for purposes of this item, 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, and (ii) it is returned to the economic mainstream in the form of raw materials or products within 4 years after its generation;

(D) consists solely of broken concrete without protruding metal bars and is used for erosion control;

(E) generated from the construction demolition of a building, road, or other structure if it is used to construct, on the site where the construction or demolition has taken place, a manmade functional structure that does not 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 shall be covered by a road, 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; or

(F) used on the site where the clean construction or demolition debris was generated.

(c) "Clean soil" means soil that contains concentrations of regulated substances that are within the most stringent residential Tier 1 remediation objective adopted by the Board under Title XVII of this Act or as specified in Section 22.51 (d) of this Act. Clean soil is not waste. Clean soil is CCDD and subject to the requirements of subsection (b) of this Section and, for CCDD fill operations, subject also to the requirements of Section 22.51. "Clean fill soil" means soil that (i) does not contain contaminants which exceed a list of contaminants that shall be published by the Agency, which shall not exceed 50% of the most stringent residential Tier 1 remediation objectives adopted by the Board under Title XVII of this Act; (ii) is not co-mingled with CCDD; and (iii) does not contain waste. Clean fill soil is not regulated under this Act.

Soil excavated from a developed commercial site in an urban area, an industrial site, or a site enrolled in the site remediation program shall not be considered clean soil or clean fill soil unless it has been properly characterized as it exists at the site of origin in accordance with a statistically valid method of sampling and analysis conducted pursuant to standards adopted by the United States Environmental Protection Agency, the Agency, or the American Society for Testing and Materials and which has been certified as to its accuracy by a licensed professional engineer.

(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, 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).

(Source: P.A. 94-272, eff. 7-19-05; 95-121, eff. 8-13-07.)

(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 or without a permit. A clean construction demolition debris fill operation is any former quarry, mine, or other excavation that accepts CCDD, as defined in Section 3.160 of this Act, as fill. 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.

(b)(1)(A) Beginning 30 days after the effective date of this amendatory Act of the 94th General Assembly 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 a permit or 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 in violation of this Act or any Board regulation adopted pursuant to this Act or 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.

(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, as provided below or as may later be necessary. 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) CCDD fill operations that are former quarries, mines, or other excavations may accept soil within the Agency's Tiered Approach to Corrective Action Objectives (TACO) Tier 1 residential standards adopted by the Board under Title XVII of this Act and as hereinafter may be amended, as relevant to specific site conditions at the CCDD fill operation and excluding the use of the ingestion and inhalation exposure route-specific values found at 35 Ill. Adm. Code 742, Appendix B, Table A, provided the following conditions are met:

(1) Deed. The CCDD fill operation has recorded a land use restriction that restricts the fill operation property to industrial or commercial use and that such restriction is recorded in the chain of title for the property on which the quarry, mine, or other excavation is located.

(2) Soil Acceptance Plan. The CCDD fill operation has implemented a soil acceptance plan, certified by a licensed professional engineer, which delineates the parameters of the soil the facility will be authorized to accept, consistent with this subsection.

(3) Soil Testing Plan. The CCDD fill operation has implemented a soil testing plan, certified by a licensed professional engineer, which sets forth a sampling, screening, and testing protocol for all incoming and filled soil, sufficient to demonstrate that the conditions outlined in this subsection will be achieved.

(4) Groundwater Protection. The CCDD fill operation has implemented a groundwater protection plan, certified by a licensed professional engineer, which demonstrates, through the use of engineered barriers and other appropriate groundwater and surface water controls and monitoring, that the fill operation will not violate this Act.

(5) Closure and Post Closure Plan. The CCDD fill operation shall develop for implementation a Closure and Post-Closure Plan, certified by a licensed professional engineer, which provides that, upon closure, the fill site will be covered with a minimum of 3 feet of soil meeting the strictest TACO Tier I residential standards. Upon closure, a CCDD fill operation that sufficiently demonstrates to the Agency that the site meets the stringent residential Tier 1 remediation objective adopted by the Board under Title XVII of the Act, shall be eligible for removal of the land use condition set forth in paragraph (1) above, pursuant to procedures that may be adopted pursuant to this Section.

(6) Record Keeping. The CCDD fill operation shall maintain adequate records as may be necessary to ensure compliance with paragraphs (1) through (5) and this Act. The Agency shall have full access to such records and to the inspection of CCDD fill operations.

(7) Permit Procedures. The Agency is authorized to develop permit conditions and procedures with sufficient specificity as may be necessary to ensure compliance with this subsection. Any such permit procedures and conditions are subject to Sections 39 and 40 of this Act.

(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 a clean construction or demolition debris fill operation:

(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.

(f) This Section does not apply to State agencies and units of local government that reuse CCDD or clean soil, when both the site of excavation and the site of fill is within their jurisdictional territories so long as such use is consistent with Section 3.160(c) of this Act. Such entities may, by ordinance or regulation, develop procedures and protocols for such reuse.

(Source: P.A. 94-272, eff. 7-19-05; 94-725, eff. 6-1-06.)

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