Tag Archives: Illinois

Illinois’ CCDD Law Update

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Most people working in the construction industry in Illinois are now aware of the new Clean Construction and Demolition Debris (CCDD) law that has rocked our world. With no notice and still no mention of it in the Illinois EPA news feed, this law has shut down jobs in a time when they are most needed and flooded EPA information sessions with angry, upset contractors, engineers, and others working in the industry. Since my last post on this subject, Illinois – Land of Nonengagement, I have learned more from those lucky enough to have attended these sessions. Here is a list of comments and observations they have shared:

First, not everyone is allowed in the sessions. As I pointed out before, the IEPA started out with only a handful of sessions to help explain this law to everyone. Even though I signed up, I was sent an email telling me there was no room. More sessions were scheduled, and I again sent in my request to attend. However, I never even received back any confirmation or invite or an email telling me they had no room. So professional engineers are tasked by the law with having to sign off that CCDD is clean, but we have no way of finding out what this means.

  • People attending said there was really no guidance offered at these sessions anyway. No handouts, 10 minutes of upfront introduction and basic information about the law, then 50 minutes of angry, upset people yelling, complaining, and arguing with the IEPA representatives about the complete lunacy of this law.
  • They said about four IEPA representatives ran the meeting with two trying to talk to everyone and two on laptops typing furiously as people expressed their frustration. Some felt that the group probably studied questions and statements from earlier groups to help answer the same questions that came up at later sessions.
  • Contractors at the meeting worried that they will bear the ultimate responsibility as they already have on jobs currently under way when this law hit. No owner of a project is going to sign off on these certifications; instead the contractor will have to provide a professional engineer's signature on each load hauled off a jobsite. He will also face the consequences of any dirt being rejected at the dump which means he will then lose that driver for a significant part of the day as he takes the load to a landfill. The bottom line to all this is much higher costs for all projects which will be paid by taxpayers for public projects.
  • Right now, the way the law is written, dirt hauled from home construction would be covered by this. So the cost to build homes goes up since the dirt on the site must either be tested to ensure it is clean, or the contractor will just tack on an amount to deal with any surprises. So all home construction just went up.
  • Many expressed the thought that all this will lead to "fly dumping" or the practice of sneaking out into the night at secluded areas to get rid of loads. Then the government, or taxpayers, pay to send out someone to dispose of this dirt in a landfill.
  • Others said many will just not bother with trying to get the certification – they will just take all dirt to a landfill. This just means we will need more landfills to hold dirt for no good reason. So we need more landfills to open up. And because it costs significantly more to landfill dirt, costs of all projects will go up.
  • IEPA reps could not tell anyone what the parameters were for ensuring dirt is clean or what defined contamination. They said it is up to the professional engineer to make that decision. Wow – that sure puts a lot of burden on our profession. And because we are so conservative, the tests we would take would greatly increase the cost of the project. Because who wants to put their license on the line for a load of dirt? Again this means higher costs for each project to pay for all that testing. And this does not allow for any uniformity which seems to increase the chance for litigation.
  • The IEPA reps also indicated that they felt the law governed moving dirt on a project. Someone asked if they removed dirt at station 1+00 could it be put back in the ground 100 feet away at 2+00 – they said no. That dirt would have to be hauled off the jobsite. What? That means all those years of learning the guiding principle of earthwork – mass balance – goes out the window! Based on what they said, we can no longer balance cuts and fills.
  • The other concern expressed is that at the dump, there will be someone with a device used to determine contamination. But this device only picks up volatile contaminants. If there are other wastes in the dirt such as heavy metals, no one can tell this without extensive testing. So if an engineer signs off on it, not knowing about the metals or other non-volatile contaminants, it is accepted at the dump, and then years later they test this area of the dump and decide it's a problem, is that engineer liable? No one at the session could answer this.
  • Some I have talked to said they were told by the IEPA to just sign it based on what they knew to the best of their knowledge about the excavation and tried to assure them it wasn't a big deal. But we rely on our professional engineer's license as the foundation of our career. Few of us want to jeopardize our whole career for one load of dirt. We are not trained to be so flippant and uncertain about what we sign off on.
  • The problem cities have is that we often need to dispose of dirt from water main breaks or small projects. Because this dirt from many sites can sometimes be stockpiled at a public works site, one person asked what address should be noted on the document to indicate the location from which the dirt was excavated. They said to use the address of the public works facility. But then if one of those piles was found to be contaminated, the whole pile would be contaminated and the public works site would be flagged as contaminated. The original site from where the dirt was dug would go uncited. But no further guidance was offered on how to handle this.
  • The other problem indicated is that a certified load could easily be switched out for a "hot" load. How is the engineer going to be assured that the load for which he signed is the actual load dumped with his certification? So if loads are switched out, the wrong person can end up paying to dispose of the problem material. Again, no help in how to address this concern.

There are many more problems like this – the list could go on and on. And it would be interesting to see the transcription from those sessions. Everyone seemed to agree that the IEPA was "the horse they tied this cart to." They didn't seem prepared for the onslaught of questions and complaints. And although they tried to reassure everyone the law had input from all agencies such as IDOT, the IDOT representatives at these sessions said the law was news to them, and no one from IDOT was going to sign off on these certifications. Based on what I heard, I wonder if anyone from the IEPA had any input into it. Instead attendees came away with the impression it was a law passed swiftly by our legislators and pushed by the governor to make some special interest group happy.

As engineers, we are concerned about the environment and understand the need to take steps to protect it, but we also don't believe in making decisions without considering all aspects of that step. In this case, it appears no thought was given to how this would be implemented, how it would impact the industry, what level of protection is really needed, what impact this will actually have on the environment, and how much it will cost taxpayers. All projects – public and private – will experience a significant increase in cost to accommodate this law, particularly because of its uncertainty.

Here are the legislators who sponsored this law:

Senate Sponsors Sen. Don Harmon – John J. Millner – Dan Cronin and Martin A. Sandoval

House Sponsors Rep. Barbara Flynn Currie - Jim Sacia – Patrick J. Verschoore – Thomas Holbrook – Mike Fortner, Angelo Saviano, Brandon W. Phelps, Marlow H. Colvin, Edward J. Acevedo and Luis Arroyo)

Below is a listing of all the legislators who voted on this law – at least for me, I can say my representatives were the few reasonable ones who voted NO. 

Illinois Senate vote on Public Act 96-1416, CCDD

 

Illinois House vote on Public Act 96-1416, CCDD

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Illinois – Land of Nonengagement

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BiosolidsMost of us working for government at one time or another have watched our organizations respond to someone calling a politician to demand some type of law. Fortunately most elected officials realize that passing a law just because someone told you to is not always a good idea. So instead committees are created or meetings are held to discuss the proposed piece of legislation. This allows everyone – citizens, staff, elected officials, and other agencies and businesses – to offer comments on the pros and cons and costs of what was proposed. This is important because usually someone is going to think of something that might be important to know before that law is passed.

Unfortunately in Illinois our state legislators no longer seem to be operating under this method. Instead we are learning of laws passed with no discussion or input from those affected. And most of the laws creating huge impacts and crippling operations for business, government, and our economy are those suggested by special interest groups. In early August, while we were still trying to figure out the confusing and cumbersome FOIA law recently passed, we found out a new law was passed to regulate dumping of clean fill like dirt, concrete, and asphalt. And again, instead of asking how to best administer this and what impact it will have on operations and costs, legislators seem to have just passed it only because some special interest group told them too.

My first inkling of something being up came from a call by our contractor asking me to sign a document as a professional engineer certifying that each load off our jobsite was free of any contamination. My initial reaction, along with a coworker's, was how can we sign something like that and why would we have to? Later that night I learned about the law, Public Act 96-1416.  You can go read it, but like most laws, it is difficult to determine exactly what this means – there is no Common Man's Guide to a Law.

The person who told me about the law explained, as our contractor suggested, that starting August 1, 2010, a landfill in Illinois can no longer take clean fill unless each load has a certification signed by a professional engineer that it is free of contaminants. But as a professional engineer, I certainly do not feel comfortable signing something like this. Questions arise such as what testing is required to determine this, what liability do I take on signing this, don't I have to follow each load to the landfill to ensure nothing else is thrown in, and so on.

So like any other person working in public works who depends on having to dump dirt on a daily basis, I need to know just what is this law and what does it mean to our department and to me as a professional engineer. Since the legislators named professional engineers as the certifying profession, you would have thought they would have asked us about the terms of the law. But no professional engineer I know had heard this law was in the works. So for a few weeks, all of us wondered what was going on.

A couple weeks after the law went into effect, we received a flyer from the Illinois EPA advertising seminars to explain what had just happened. The only problem was so many of us have been wondering what the hell is going on that they were inundated with registrations. I received an answer to my registration telling me:

"Thank you for your RSVP regarding CCDD training.  Due to an overwhelming response, we are not able to accommodate your request.  However, four more sessions have been scheduled (see attached flyer).  Please e-mail reply which session you would like to attend.  A single company or agency is limited to 2 people per session." [the bold is their emphasis - a copy of the flyer is below]

CCDD Training Flyer2

Based on all that, I have to believe the EPA was also not consulted based on this. They are normally very good at getting out information and being responsive. And there is nothing about it in their list of news releases on their main website page. They have, however, now created a page on their Website that helps explain the new law: http://www.epa.state.il.us/land/ccdd/index.html

So it seems, we have legislation that had no input from the profession designated to certify compliance and no input from the regulating agency and no input from the contractors or landfill operators hauling the material, and no input from the governments whose operations are affected, and no input from the majority of the citizens who have to pay for the cost to comply. No one dealing with it understands it, the regulatory agency is still trying to figure out how to administer it, and we have yet to see what this is going to cost the public. Unfortunately, as the rest of the world's governments embrace the Gov 2.0 culture and encourage stakeholder input, Illinois appears to be careening out of control in the opposite direction. And as usual the taxpayers pay the cost.

 

The information, ideas, and opinions posted on this Website are my own and in no way represent or reflect those of my employer.

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Illinois’ Dirty Little Secret

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BiosolidsOn Tuesday the Illinois Emergency Management Agency (IEMA) will hold a public hearing for the purpose of enacting a new regulation concerning radium in land application of biosolids. I tried to find out from their Web site and Facebook and Twitter pages about the ruling, but it was not prominently displayed. Finally I found it here: Licensing of Radioactive Material (32 Ill. Adm. Code 330.40) But if this is an important change and it requires public input and will affect several communities throughout Illinois and taxpayers through their utility bills, why is IEMA not announcing it through their news channels?  Instead I found out about it through a presentation given last week in Geneva (WARNING: GEEK level of post is 10 and apologize if I made a mistake on the tech info – this post is based on my notes):

Background of Radium Regulations in Illinois

Uranium 238 was produced when the universe was created. This material decays to Radium 226 and Radium 222. Radium 226 will not decay significantly in our lifetimes; however Radium 222 decays to Po 218, Pb 214, Bi 214, Po 214. During the decay process, Radon gas is also created.

While drinking water standards were first established in 1914 and later revised in 1925, 1946, and 1962, it wasn't until the 1976 amendment of the Safe Drinking Water Act that radionuclides were regulated. At this time, the rules applied to Radium 226 and Radium 228.

In 1991, USEPA revised this 1974 act to raise the limits from 5 to 19 pCi/L. However this generated a lot of discussion and research. In the year 2000, USEPA finalized their rule leaving the standard limit in drinking water at 5 pCi/L for these contaminants. But this would allow 5 pCi/L for each, not a combined measurement.

In 1983, on the wastewater side in Illinois, the Illinois Pollution Control Board (IPCB) approved the land application of biosolids program. In 1984 IEPA and IEMA created a Memorandum of Agreement (MOA) regarding this program. The MOA said the residuals in sludges must be less than 5 pCi/gm and allowed land application as long as levels in the soils did not exceed this limit. Land application would still be allowed for levels between 5 pCi/gm and 50 pCi/gm but only if the Radon in the soil measured below 0.1 pCi/gm. For land application above 50, the disposal method had to be reviewed by IEMA, but could still occur if Radon levels in the soil remained below 0.5 pCi/gm.

What happened next was this MOA was never enforced by the IEPA through the sludge permits until 2004. The city of Joliet was one of the first to see this requirement in their new permit. They appealed and a decision was rendered in May 2009 when it was decided the MOA was in violation of the Illinois procedures act since IEMA did not go through the requirements of that act so the terms of the MOA could not be implemented as a rule. So IEMA began steps to formalize the terms of the agreement into an actual rule.

Why is Radon Bad?

Before going much further, it is important to have a little background on the enemy here: Radon. Radon, as stated above, is a byproduct of the decay of Radium. The problem with Radon is that it has been found to cause lung cancer. The EPA estimates that more than 20,000 deaths per year from lung cancer are due to Radon in our homes. The average Radon level in a U.S. home is 0.25 pCi/L which can also be expressed as 300 mrem/yr. 

An Introduction To Radon

 

 

 

View more presentations from Pam Broviak.

Radon is easily dissipated through the air so it didn't really become an issue until we began sealing up our homes to be more energy efficient. This trapped the Radon in our homes and gave it more opportunity to get into and damage our lungs. Building codes have been created to help prevent this from happening. And there are removal systems that can be installed if Radon levels are high in a home.

The bottom line is we don't want Radon in our homes; building codes exist to prevent this from happening; and there are removal systems available if Radon is found in a home. (This is why everyone should be testing their homes for Radon.) So IEMA is pursuing this rule with the focus that it is necessary to prevent Radon from entering homes and reduce lung cancer in humans.

What's wastewater got to do with it?

Wastewater got involved in all this because the Radium that EPA requires to be removed from drinking water ends up at the wastewater plant. This happens when the water plant discharges their waste from the treatment process. It travels down the sewer to the wastewater plant where it settles out in the sludges or biosolids. The wastewater plant then collects these solids and must dispose of them in some manner. A typical method is land application or dumping it on farm fields and having the farmer till the biosolids into the soil. This process is regulated and permitted by the EPA. But because in Illinois IEMA regulates radioactive materials, that agency is concerned about the levels of Radium in the biosolids applied to fields.

So What's the Problem?

Like most regulations, they sound good – the government is trying to set rules to make sure we don't get hurt. IEMA is just trying to make sure people have a reduced risk of exposure to Radon. The problem comes in when there is a high cost associated with compliance, and there is not good reason for the limits. This is the most challenging part of making any rule. It is easy to set a rule that places full restriction on something – that way no one ever has to determine or think about a risk. An example here would be make everyone build their house ten feet off the ground. Then no problem – we never have to worry about Radon again. This is called going to extremes. Usually the government doesn't do this; instead they try to study the issue and decide upon a reasonable limit based on scientific information. Any other method of setting rules is based on speculation and can lead to a significant waste of taxpayer dollars.

ALARA is the method by which radiation levels are to be set that takes into account science and cost. If this method is applied here, the costs are orders of magnitude higher than what is mandated by ALARA. Eli Port, an expert on radiation who spoke, said this new rule could cost communities millions of dollars.

So let's look at the science behind Radon levels. One hundred mrem/year of Radon is the current limit in nuclear safety regulations. (Cleanups must achieve a 25 mrem/yr level.) But IEMA is requiring a 10 mrem/yr dose limit or 10% of the total recommended by the safety regulations. By comparison, a person normally living in Illinois spending one month in Denver will increase their annual level by 15 mrem. Or a person flying at 30,000 feet for 20 hours a year will experience an increase of 15 mrem. However neither of these activities are regulated to prevent exposure – nor is the public even told about this risk.

The Resulting Limits

The IEMA ruling will results in the following:

  • Communities with less than 5 pCi/gm in their biosolids to land apply as long as the increase level in the soil does not go above 0.4 pCi/gm (the USEPA sets this limit at 5 pCi/gm).
  • Communities with readings between 5 pCi/gm and 50 pCi/gm can dispose of the material in a landfill but it must have a 10-foot cover and "reasonable assurance that the exhalation rate of radon to the atmosphere, or into a dwelling, will not exceed an average rate of 5 pCi per square meter per second; and reasonable assurance against accidental intrusion into the residuals or sludge in the future."
  • Communities with readings greater than 50 must have their method of disposal reviewed and approved by IEMA, and the material must be placed in an out of state landfill or licensed low-level facility and both parties must register with IEMA.

IEMA has also expressed the need for this limit in order to protect anyone who might not comply with building codes when they build a home. They are worried someone might choose to neglect the code and build on topsoil and not mitigate for Radon. Joliet and other communities are replying that they already deal with this risk by enforcing building codes. No one has testified they have built a home on topsoil – this is always removed prior to construction. So there is a concern by all communities affected that their citizens will end up paying exorbitant utility fees to deal with an issue that could be better dealt with existing regulations. And that the limits set do not accurately reflect an actual health risk.

Community Positions and Final Costs

Studies and research by the communities are showing a need for a 1.0 pCi/gm limit while IEMA is planning on enforcing the 0.4 pCi/gm limit. Communities involved have also been concerned because the hearings have not really open to the public; instead they take place in a locked-down facility. In order to attend, you have to register at their facility, be escorted to the room, and if you want to leave, you have to ask to be escorted out. Other comments regarding the hearing have been that it is primarily a Northern Illinois issue, but IEMA is requiring everyone to travel to Springfield for the hearing. And the cities involved have requested a stakeholder's meeting but none have been scheduled.

In the end, if IEMA is successful with passing this rule with the limits they chose, some communities in Illinois are faced with having to either install Radium reduction facilities at their water or wastewater plant to reduce the amount of material. And these communities will have to find a landfill that will take radioactive waste and pay to haul it to that site. It could also be an issue for communities that have Radium in their drinking water but not of a high enough level to require removal because this Radium also finds its way to the wastewater plant.

Some increased costs that have been reported are:

  • $10 million over 20 years if land applied (due to need to find more farmland to avoid exceeding levels)
  • $48 million if landfilled
  • $58 million if landfilled outside of the state

The other issues that have come up as a result of all this is that not everyone has been notified the original MOA is no longer valid and the entire matter has given the impression that land application is not a good choice. 

The Next Step

Our country is not in a good financial position right now. There is even more need to carefully consider how we spend the small amount of revenue we already have. Can we really afford to raise fees and taxes on people who are struggling financially if we cannot justify or prove the actual risk? In a way we are asking what safety factor can our country afford to pay for and are we willing to accept?

For those who are interested in the hearing, below are the details:

Tuesday, April 13, 2010

9:00 AM to 12:00 PM and 1:00 to 4:00 PM
Illinois Emergency Management Agency
2200 South Dirksen Parkway
Springfield, Illinois
 
 
Full disclosure: I work for the city of Geneva, one of the possible 110 communities to be directly affected by this ruling. Our city testified at the first hearing held last year. However, all information and opinions expressed on this blog are entirely my own and not those of my employer.
 
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