State’s High Court Referees Environmental Regulators’ Groundwater Battle

The Illinois Supreme Court is being asked to settle a fight between two of the state’s environmental regulators. At issue is whether certain waste disposal sites should have to do groundwater testing.

Debris and soil from construction and demolition projects can be disposed of at some quarries, if it’s considered “clean.”

The state’s Pollution Control Board only requires some up-front testing of the material. Officials from Will County and the Illinois Environmental Protection Agency argue that’s not enough.

Marie Quinlivan Czech, an attorney for Will County, told the court the only way to ensure groundwater is potable is to monitor it.

“Like a doctor who hasn’t examined the patient, they’ve concluded—without ever looking at the water—that they’ve done their job,” Czech said. “There’s no way to verify that the water is fine.”

Attorney Marie Tipsord represents the Pollution Control Board. She said there is no evidence to suggest the current testing procedure is inadequate.

“The fact that something comes to the facility and gets rejected shows that the front-end screening, and the requirements that the board put on for checks and balances, work,” Tipsord said.

Not every load of material is tested. Tipsord said debris is considered clean if it originates from a construction or demolition area that has been certified by a licensed professional engineer or geologist.

Upon delivery to the disposal site, the soil undergoes a visual and olfactory check for contamination, and is also tested using a photo ionization detector.

Assistant Attorney General Carl Elitz told the court contaminants often pass through checks due to errors in the certifying process, as well as loose regulations allowing low levels of things like lead, arsenic and other cancer-causing elements.

The IEPA and Will County officials propose a two-step testing process, where groundwater is tested before and after it passes through construction debris. The Pollution Control Board held hearings about about groundwater testing in 2015, but decided not to change its testing standards.

Tipsord said the cost of groundwater monitoring could force sites that accept clean construction or demolition debris (CCDD) and uncontaminated soil fill (USF) to close, which would leave that material to go to a landfill.

Will County officials estimate groundwater monitoring would cost between six and 16 cents per cubic yard. More than 350,000 county residents rely on groundwater wells for their drinking supply.

The case is County of Will v. Illinois Pollution Control Board, Nos. 122798, 122813 cons.