ILLINOIS POLLUTION CONTROL BOARD

December 21, 2000

IN THE MATTER OF:

PROPOSED AMENDMENTS TO TIERED

APPROACH TO CORRECTIVE ACTION

OBJECTIVES (TACO) (35 ILL. ADM. CODE

742)

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)

)

)

)

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R00-19(A)

(Rulemaking – Land)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis, M. McFawn, N.J. Melas):

By today’s order, the Board adopts amendments to the Tiered Approach to Corrective

Action Objectives found at 35 Ill. Adm. Code 742 of the Board’s land regulations, and

commonly referred to as the TACO rules. The TACO rules were originally adopted by the

Board on June 5, 1997

,

 

In re

Tiered Approach to Corrective Action Objectives (TACO): 35 Ill.

Adm. Code 742, R97-12(A). Part 742 contains procedures for developing remediation

objectives based on risks to human health and the environment posed by environmental

conditions at sites undergoing remediation in the Site Remediation Program, the Leaking

Underground Storage Tank Program, and pursuant to Resource Conservation and Recovery Act

(RCRA) Part B permits and closures.

PROCEDURAL HISTORY

Subdocket (A)

On May 15, 2000, the Illinois Environmental Protection Agency (Agency) submitted

proposed amendments to TACO. The Board’s adoption of these amendments is authorized by

Sections 27 and 28 of the Environmental Protection Act (Act) (415 ILCS 5/27, 28 (1998)).

The Board moved the Agency’s proposal to first notice on July 27, 2000. In doing so, the

Board divided the proposal into two subdockets based upon subject matter. Most of the

amendments proposed in this Subdocket A are required by Public Act 91-909, which was signed

and became effective July 7, 2000. Among other things, it created a new institutional control,

known as the Environmental Land Use Control or “ELUC” for use under the TACO regulations.

Public Act 91-909 requires regulations to be adopted implementing the ELUC by no later than

January 6, 2001.

The Board held public hearings in Chicago, on August 25 and September 21, 2000, and

in Springfield on September 11, 2000.

1

Numerous witnesses testified on behalf of the proposal

for the Agency. In addition, testimony was also received from representatives of the United

States Department of Defense, the United States General Services Administration, the Site

1 The transcripts of the hearings will be cited as “Tr. (8/25/00) at __” and “Tr. (9/11/00) at

__.”

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2

Remediation Advisory Committee, the Illinois Department of Transportation, and the Illinois

Petroleum Council.

Public comments were accepted by the Board through October 23, 2000. Four public

comments were received specifically in this Subdocket A from the following: Illinois

Environmental Regulatory Group (PC 1); Illinois Steel Group (PC 2); Stolar Partnership (PC 3);

and the Agency (PC 4). Additionally, five public comments were received in Subdocket B of

R00-19, which prompted action in this matter. Those Subdocket B comments were as follows:

Mitroff Companies (PC 3); Home Builders Association of Illinois (PC 5); The Green

Environmental Group, Ltd. (PC 6); Home Builders Association of Greater Chicago (PC 7); and

the Village of Palatine (PC 8).

The above-referenced public comments submitted in Subdocket B encouraged the Board

to expedite adoption of the proposed amendments to the background arsenic levels contained in

Part 742, Appendix A, Table G. In response to these compelling public comments, the Board

transferred Appendix A, Table G from Subdocket B to Subdocket A, and then proceeded with it

to second notice. It is important to note that Appendix A, Table G was a portion of the Board’s

original Subdocket B proceeding that was also adopted for first notice on July 27, 2000, and for

which hearings were held in conjunction with those held in Subdocket A. Because the Board is

not yet ready to proceed with second notice for the entirety of Subdocket B, we concluded that

adoption of the arsenic background table should be expedited in this Subdocket A.

On November 16, 2000, the Board adopted its second notice opinion and order, and sent

this matter to the Joint Committee on Administrative Rules (JCAR) for its consideration. See

In re

Proposed Amendments to Tiered Approach to Corrective Action Objectives (TACO) (35

Ill. Adm. Code 742) (November 16, 2000), R00-19(A). JCAR requested, and the Board agreed

to, a few minor changes to the rules proposed at second notice. JCAR then considered the

proposed rule at its December 12, 2000 meeting and voted a procedural objection to the Board’s

inclusion of Appendix A, Table G in this Subdocket A.

The Board acknowledges the objection and respectfully disagrees with JCAR’s

conclusion. The Board continues to believe that it was well within the procedural directives of

the Act and of the Administrative Procedures Act (5 ILCS 100/1

et seq

. (1998)) in its decision to

incorporate Appendix A, Table G into this Subdocket A. The Board currently has two

subdockets open in this rulemaking; R00-19(A) and R00-19(B). Both subdockets were adopted

for first notice at the Board’s July 27, 2000 meeting. Both were published in the

Illinois

Register

. Both proceeded to hearing simultaneously on August 25, September 11, and

September 21, 2000. Public comments were received in both subdockets. Because the Board

finds that it is both reasonable and prudent for it to adopt as final Appendix A, Table G as part of

this subdocket, the Board adopts the proposed rules today without substantive change from

second notice.

SUMMARY OF THE TACO AMENDMENTS

There are two major areas involved in these Subdocket A rules: (1) institutional controls

and (2) arsenic background levels.

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