As I mentioned when I last covered this topic, keeping poison out of groundwater is an honorable goal. So is keeping benign material from taking up precious landfill space. And saving precious taxpayer dollars by diverting that material to an old mine or quarry that charges one-tenth a landfill's tipping fee.

If only it were that easy.

Amended just before the construction season this year, the state's clean construction and demolition debris law requires soil-only fills to certify the material they're accepting isn't from a former commercial/industrial operation or, if it is, to have a licensed professional engineer certify it's no longer contaminated.

The changes were immediately effective and are enforceable during the 18 to 24 months it'll take the Illinois EPA and Pollution Control Board to specify how much of a particular contaminant "uncontaminated" soil can contain before it's considered contaminated (if you get my drift). And that's got public works agencies and their consulting partners nervous.

I can't say that I blame them.

First, the language is intimidating. Though by law the fill owner and soil generator must determine what constitutes industrial/commercial property, the form effectively places that burden on the signatory. Then it says, right there in boldface type in case anyone was inclined to miss it, that misrepresenting information is a Class 4 felony. (Doing it again after being caught and convicted is a Class 3 felony.)

I don't know any engineers who'd purposely commit fraud. They're more worried about the state's statute of repose - not limitations - that extends liability to five years after groundwater is found to be contaminated, which could be anywhere from the day after they signed the certificate until the Twelfth of Never.

They wouldn't be quite so squeamish if their cohort weren't ensnared in a case that arose after the state began permitting clean-debris fills in 2008 without defining "uncontaminated." Allegedly (because I couldn't find anything or anyone online to substantiate the following), a quarry in Lyons, Ill., is involved in pending litigation over "contaminated" soil. That's one reason fill owners formed the Land Reclamation and Recycling Association (LRRA) in 2008, the other being to meet the ultimate goal - remember that from the first graph? - without unduly burdening fill and property owners, engineers, haulers, and contractors.

The group's first task was getting a definition of "uncontaminated." When the state EPA essentially said "what God put there," someone pointed out that some poisons occur naturally. In fact, did you know that when subjected to an anaerobic environment like soil, one of the compounds propylene glycol - a major ingredient in de-icers - breaks down into the compound that makes your eyes water when you slice an onion? Though benign, it sets off portable photoionization detectors (PIDs) like crazy. So in Illinois any soil containing the compound must be landfilled.

Trying to avoid developing and enforcing a comprehensive, cost-prohibitive list of contaminants to be tested on every single site, Illinois EPA inadvertently confused the issue. Public rights of way on land that's never been used for industrial/commercial purposes - theoretically, residential streets - are by definition uncontaminated. Then the agency deemed all public rights of way as industrial/commercial, which was amended to apply only to rights of way adjacent to former industrial/commercial property.

No need to panic, says LRRA President and Winston Engineering and Construction Owner Greg Wilcox. Fills are required by law to confirm that materials are not from an old industrial/commercial site. To do this, they subscribe to a database of historical land use information.

"Calling the quarry to confirm you're not approving material from rights of way adjacent to, say, a former gas station solves 80% of the problem right off the bat," he says.

Because that's not good enough for engineers leery of being hauled off to jail despite their due diligence, the Illinois Society of Professional Engineers has proposed new language for the form's item 4. Executive Director Kim Robinson expects to hear from EPA after the new year.

Until the state's pollution control board promulgates specific standards for specific compounds; how, where, and under what circumstances to test them; and by whom they should be tested, Wilcox recommends including certifications in bid documents so contractors can provide realistic quotes. His organization suggests putting composite soil samples through three tests:

  • A full metals test for nonsoluble compounds
  • The toxicity characteristic leaching procedure (TCLP) or synthetic precipitation leaching procedure (SPLP) for soluble compounds, because the procedures model what could potentially leach into groundwater
  • Using portable photoionization detectors (PIDs).
  • "The more documentation you have to say 'my stuff's clean,' the more protection you have," he says.

    I believe folks on the East and West coasts have addressed this issue and come to a solution that balances the needs, wants, and desires of all the parties involved. If so, what's your take? Let me know by e-mailing sjohnston@hanleywood.com.

    And have a very safe holiday season.