If you’re involved in construction in Illinois, you are probably well aware of new CCDD law passed last year and made effective immediately by our state legislators and governor. Many of us have been struggling to understand this new law because it was created with little guidance but severe penalties for noncompliance. Fortunately the Chicago Chapter of APWA is helping to spread the news about CCDD by hosting a traveling seminar throughout the region. So, if you live or work in the Chicago Metro region, here are two possible seminars you can attend – just click on the title to go to the registration page (I know I’ll be at the one on the 27th!). You don’t have to be an APWA member to attend:
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.
Most 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 we occasionally learn of laws passed with no discussion or input from those affected. And most of these laws end up creating huge impacts and crippling operations for business, government, and our economy and are the type of laws suggested by special interest groups. In early August, while we were still trying to figure out the FOIA law that recently passed, we found out a new law was passed to regulate dumping of clean fill like dirt, concrete, and asphalt.
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]
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.
The information, ideas, and opinions posted on this Website are my own and in no way represent or reflect those of my employer.