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Tuesday, August 20, 2019

Illinois Supreme Court says state board can decide not to monitor groundwater for contamination from 'clean fill'

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By D.M. Herra | Jun 28, 2019


Illinois Supreme Court | Vimeo livestream screenshot

SPRINGFIELD -- A divided Illinois Supreme Court sided with the state's Pollution Control Board in a dispute over the board’s rules for disposing of “clean fill" construction debris, despite arguments from the state and Will County that the rules do not do enough to protect groundwater.

Writing for the majority, Justice Mary Jane Theis noted the question was not whether the board’s rules were right or wrong, but only whether its decision not to include mandatory groundwater monitoring was “arbitrary and capricious” based upon its instructions from the General Assembly.

“Because the board is composed of technically qualified individuals, their expertise is essential in crafting regulations,” Theis wrote. “We do not judge the wisdom of a decision by the board, only whether it is arbitrary and capricious.”


Illinois Supreme Court Justice Mary Jane Theis

A 1997 amendment to the Environmental Protection Act defined general materials and clean materials discarded from construction or demolition sites. By definition, clean materials are uncontaminated broken concrete, brick, stone, soil or reclaimed asphalt. Because the material is considered clean and uncontaminated, its disposal is not subject to the same rigorous regulatory requirements as general waste. 

Chief Justice Lloyd A. Karmeier and Justices Rita B. Garman, Robert R. Thomas and P. Scott Neville concurred in Theis' majority opinion.

In a dissenting opinion, Justice Thomas L. Kilbride noted freedom from those requirements also makes disposing of clean materials about 75 percent cheaper than general materials.

In 2005 the legislature asked the Environmental Protection Agency to propose rules for the use of clean materials as fill in old mines, quarries and other pits. In 2010 it amended the request to include “standards and procedures necessary to protect groundwater.” The amendment offered a list of 12 ways the agency and board might go about protecting groundwater, including testing.

The agency created draft regulations for clean fill, including a requirement for sites using construction debris as clean fill to install wells for periodic groundwater testing. After twice revising the draft with input from stakeholder groups, the agency submitted it to the board for approval and adoption. The board held multiple hearings and drafted three versions of its final order, none of which included the water testing requirement.

“The record does not include evidence to demonstrate that [clean construction debris] sites are a source of groundwater contamination,” the board wrote. “The record does not support groundwater monitoring at this time.”

Instead, the board focused on “front-end” testing to make sure that debris coming into disposal sites is clean and uncontaminated. Loads that meet the clean requirements, the board reasoned, should pose no threat to groundwater, making expensive groundwater monitoring unnecessary. The state and Will County appealed the final order, insisting water testing is the only way to fulfill the intent of the legislature’s directive to protect groundwater.

In his dissent, Kilbride said simply trusting that material coming into the site is clean is unreasonably optimistic, particularly when there is financial incentive to haulers and disposal companies to skirt the rules. Even properly run sites in full compliance have been found to have dangerous levels of contaminants, he said.

“The vast majority of sites already subject to regulation by the board contain serious contamination problems,” he wrote. “The evidence proves that the prospect of industry noncompliance is far from speculative.”

The state and county argued that in making its decision, the board gave too much weight to whether clean debris fits the legal definition of “waste” and that it ignored the costs of groundwater monitoring and the hazards of noncompliant fill that finds its way into disposal sites.

“The board did not ignore the costs of groundwater monitoring,” Theis wrote. “In its first order, the board discussed costs at length. …The board declined to impose a ‘costly groundwater monitoring program to protect against a perceived problem that the record does not support.’”

As for concerns about contamination that already exists from fill disposed of before the regulations took effect, the court wrote that the legislature’s order concerned only “materials that met the statutory definitions, not older and noncompliant materials that may not have.”

The majority noted that “at every point in this process, the board returned to the language of the act.” The legislature offered 12 suggestions of ways the board might protect groundwater, the court wrote, and the board’s decision not to choose groundwater monitoring was supported by the evidence before it.

In his dissent, Kilbride disagreed with virtually all the majority’s findings. In particular, he wrote, it was notable that the board said there was no evidence groundwater at clean fill sites had been contaminated – although that evidence could not exist without a provision for groundwater testing.

“In my view the board’s errors can be traced to its focus on the wrong question: considering whether there was evidence of groundwater contamination rather than how to protect groundwater from potential contamination,” he wrote.

Justice Anne M. Burke took no part in the decision, siding with neither Kilbride nor the majority.

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