1
ILLINOIS POLLUTION CONTROL BOARD
November 16, 2000
IN THE MATTER OF:
PROPOSED AMENDMENTS TO TIERED APPROACH TO CORRECTIVE ACTION OBJECTIVES (TACO) (35 ILL. ADM. CODE 742)
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R00-19(A) (Rulemaking – Land)
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Proposed Rule. Second Notice.
OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis, M. McFawn, N.J. Melas):
On May 15, 2000, the Illinois Environmental Protection Agency (Agency) filed a proposal to amend 35 Ill. Adm. Code 742 of the Board’s land regulations, which are commonly referred to as the Tiered Approach to Corrective Action Objectives (TACO) rules. The TACO rules were originally adopted by the Board on June 5, 1997, in In the Matter of: 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.
The Board accepted this matter for hearing on May 18, 2000. On July 27, 2000, the Board sent this matter to first notice without commenting on the merits of the proposal. By today’s action, the Board sends this proposal to second notice, pursuant to the Administrative Procedure Act (5 ILCS 100/1-1 et seq. (1998)), for consideration by the Joint Committee on Administrative Rules.
PROCEDURAL HISTORY
Subdocket (A)
The Agency submitted these proposed amendments to address several aspects of TACO that, with the benefit of time and practical experience, it believes are in need of clarification and correction. Statement of Reasons at 2. The Agency also proposed the adoption of a new legal instrument called the Environmental Land Use Control (ELUC). The adoption by the Board of these amendments is authorized pursuant to Sections 27 and 28 of the Environmental Protection Act (Act) (415 ILCS 5/27, 28 (1998)).
When the Board sent this proposal to first notice, it created two subdockets based upon subject matter: Subdockets A and B. The amendments proposed in this Subdocket A are required by Pub. Act 91-909, which was signed and became effective July 7, 2000. Among other things, it added the ELUC as an available institutional control under the TACO regulations and created a new Section 58.17 of the Act. Public Act 91-909 requires regulations to be adopted implementing the ELUC by no later than January 6, 2001. In today’s action, the Board proceeds to second notice with the entire Subdocket A.
Arsenic Background Levels
Today, the Board also proceeds to second notice with the proposed revision to the background level for arsenic that was previously contained in Subdocket B. The remainder of Subdocket B, which is not driven by the same statutory deadline as Subdocket A, will be the subject of future Board action. The portion of Subdocket B which is being included in this second notice proposal is Table G of Appendix A, in which a proposed change to the background level of arsenic is made. The Board is incorporating this Table G into today’s second notice proposal in response to significant public comment requesting that adoption of this revised standard be expedited. See page 4 supra, for the list of those public comments. While the substance of this proposed amendment will be addressed in more detail below, it is important to note that the Board directed Subdocket B, including Appendix A, Table G, to first notice on July 27, 2000. Hearings on the Subdocket B first notice proposal were held in conjunction with the hearings identified below for Subdocket A.
Development of the Proposal
Three hearings were held in this matter during the first-notice period. The first hearing was held on August 25, 2000, in Chicago. The second hearing was held on September 11, 2000, in Springfield. The final hearing, held on September 21, 2000, in Chicago, was reserved for the purpose of receiving comments or questions regarding the Board’s request of the Department of Commerce and Community Affairs (DCCA) to conduct an economic impact study, and DCCA’s declining to perform one.
At the first hearing in Chicago, the Agency presented testimony from one witness, Gary King, regarding the ELUC proposal contained in this Subdocket A. King is the manager of the Division of Remediation Management within the Agency’s Bureau of Land. Also testifying at the first hearing regarding the ELUC proposal were representatives from the United States Department of Defense: Gary Zolyak, Regional Counsel for the United States Army Environmental Center’s Northern, Southern, and Central Regional Office; and Georgia Vlahos, counsel for the Naval Training Center.
During the first hearing, the Agency also presented testimony from Connie Sullinger regarding the proposed increase in acceptable background levels of arsenic, found in Appendix A, Table G. Sullinger is an Environmental Protection Specialist IV with the Agency’s Office of Chemical Safety. No rebuttal or contrary evidence regarding the proposed change in arsenic background levels was presented during any of the hearings or during the public comment period.
At the second hearing, the following persons presented testimony regarding the ELUC proposal: Gary Zolyak; Steve Beverly, United States Department of the Navy; Carl Smith, Assistant Regional Counsel for the United States General Services Administration, Region 5, Great Lakes Region; Andrew Kendrick, Hydrogeologist with Tetra Tech Nus; Harry Walton, Chairman of the Site Remediation Advisory Committee of the Illinois State Chamber of Commerce; Randle Schick, Assistant Chief Counsel at Illinois Department of Transportation; David Sykuta, Executive Director of the Illinois Petroleum Council; Harold Primack, Registered Professional Engineer and Environmental Business Manager for BP Amoco; and Gary King.
No one appeared at the third hearing in Chicago and no testimony was given.
The following exhibits were submitted into the record at hearing: 1
Exhibit No. Exhibit Name
Agency Ex. 1 Group exhibit consisting of prefiled
testimony of Agency witnesses,
including Gary King and Connie
Sullinger 2
Department of
Defense (DOD) Ex. 1 Prefiled testimony of Gary Zolyak
DOD Ex. 2 Steve Beverly’s Power Point
Presentation
DOD Ex. 3 Written comments of Richard
Butterworth, Chief Counsel for the
Office of Property Disposal in the
United States General Service
Administration
DOD Ex. 4 Andrew Kendrick’s Power Point
Presentation
DOD Ex. 5 Suggested Revisions Submitted by
the United States Department of
Defense
In addition to the testimony and exhibits presented at hearing, the Board has also received public comments in this matter. The public comment period expired on October 23, 2000. The following public comments were received regarding Subdocket A:
Public Comment No. Date Public Comment Name
PC 1 10/23/00 Illinois Environmental Regulatory Group
(IERG)
PC 2 10/23/00 Illinois Steel Group (ISG)
PC 3 10/25/00 The Stolar Partnership
PC 4 10/25/00 Illinois Environmental Protection Agency
(Agency)
The following comments were received in Subdocket B regarding the proposed amendment to the background level for arsenic found in Appendix A, Table G:
Public Comment No. Date Public Comment Name
PC 3 10/24/00 Mitroff Companies
PC 5 10/25/00 Home Builders Association of Illinois
PC 6 10/25/00 The Green Environmental Group, Ltd.
PC 7 10/25/00 Home Builders Association of Greater
Chicago
PC 8 10/27/00 Village of Palatine 3
OVERVIEW OF THE ELUC PROPOSAL
With the adoption of the ELUC in Pub. Act 91-909, the Agency proposes a completely rewritten Section 742.1010. The proposal would delete the terms “restrictive covenants,” “deed restrictions,” and “negative easements” from the TACO regulations. The ELUC would replace each of those terms as the authorized institutional control. The Agency proposes this change based on experiences with the “restrictive covenants,” “deed restrictions,” and “negative easements,” that have proven the use of those restrictions to be very difficult. Agency Ex. 1 at 3-4.
The ELUC is to be used as an institutional control in those instances where a “No Further Remediation Letter” cannot be issued. Tr. (8/25/00) at 18. Both prior to and after submitting its proposal for rulemaking to the Board, the Agency discussed the use of the ELUC with the regulated community. Tr. (8/25/00) at 19-20.
The proposed language of Section 742.1010 explains how the ELUC will function. King explains the various parts of Section 742.1010 in his prefiled testimony: subsection (a) provides examples of when an ELUC may be used; subsection (b) contains the recording requirements; subsection (c) contains the duration of an ELUC (generally in perpetuity) and how an ELUC may be modified; and subsection (d) sets forth the elements that an ELUC must contain. Agency Ex. 1 at 4.
During the first hearing, King explained how an ELUC would work in a typical clean up scenario involving a RCRA site:
| To give you an example, this is a situation where we had some | ||
| problems. . . . Under that program [RCRA] they don’t issue no further remediation letters. They issue either a permit or a closure certification. So in that kind of setting what they would do is they would follow the RCRA program procedures, develop remediation objectives, a proposal for remediation objectives, submit it to the agency, and that would be included as part of their proof or their proposal as to what kind of cleanup activities should occur. If they’re proposing something, a type of remediation which necessitates the use of an institutional control, for instance, if they were proposing a institutional – excuse me, an industrial or commercial use, that would be a situation where a land use control would need to be in place to have cleanup objectives above the residential use. So as part of that proposal they would also develop the ELUC document. And what that would say, at some point then when the approval – when the cleanup is approved and had been completed, then that ELUC document would be filed on a chain of title. And then once proof of that’s been filed, then the Agency would issue the RCRA permit or the RCRA closure document referencing that ELUC, the recording of that ELUC as being the institutional control in place. Tr. (8/25/00) at 23-24. | ||
OVERVIEW OF THE DEPARTMENT OF DEFENSE’S PROPOSED REVISIONS
The federal government, through DOD representatives, is asking the Board for an exemption of federal facilities from the ELUC provisions. DOD Ex. 1; Tr. (8/25/00) at 32. The exemption is being sought because DOD lacks the legal ability to deed record land use restrictions for property deemed “nonexcess.” DOD Ex. 1; Tr. (8/25/00) at 33. “Nonexcess” property is federal property that is being managed indefinitely by the federal government and which is not being transferred from government to private hands. Tr. (8/25/00) at 33.
Gary Zolyak testified on behalf of DOD entities, including the Army, Navy, and Air Force, and the General Services Administration. Tr. (8/25/00) at 31. Zolyak explained that the inability to deed record stems from the fact that the ultimate authority to manage federal land rests solely with the United States Congress pursuant to the Property Clause of the United States Constitution. Tr. (8/25/00) at 33. Congress has not granted DOD broad authority to manage lands that it occupies. Id. As a result, DOD seeks an exemption from the ELUC provisions for the length of time that the nonexcess property remains under federal ownership. Tr. (8/25/00) at 34.
In lieu of the ELUC requirements, DOD proposed entering into a Memorandum of Agreement (MOA) with the Agency that would commit DOD to taking certain actions with regard to federal properties within the borders of the State of Illinois. Tr. (8/25/00) at 34. The proposed MOA would address, among other things, periodic site inspections and reporting requirements. Id.
During the first hearing in Chicago, Zolyak outlined the specific concerns DOD had with regard to the ELUC proposal. First, with regard to proposed Sections 742.1010(b)(1), (b)(2), and (b)(3), an Agency-approved ELUC must be recorded with the Recorder of Deeds for the County in which the property is located and attached to the Agency’s no further remediation determination, in order for it to be effective. Zolyak testified that there is currently no federal authority to deed record land use restrictions for nonexcess DOD facilities. Tr. (8/25/00) at 35. Without this authority, DOD would be precluded from the benefit of an ELUC-type control at any of its leaking underground storage tank or RCRA remediation sites. Tr. (8/25/00) at 36.
Second, pursuant to proposed Section 742.1010(d)(2), the property to which the ELUC applies must be identified in the ELUC by the common address of the property and by the legal description and real estate tax index/parcel index number. DOD finds this requirement problematic as well because federal properties typically do not have real estate tax or parcel index numbers. Tr. (8/25/00) at 37. Furthermore, most federal properties are not legally surveyed and to do so for a legal description would require the federal government to incur costs that it believes are unnecessary. Id. In response to this last concern, DOD proposes an alternative that would allow for the use of Geographic Information System (GIS) coordinate data to identify the property. The use of GIS coordinate data will be addressed later in this opinion.
Finally, DOD seeks an exemption from Section 742.1010(d)(6), which requires that an ELUC contain a statement that the limitations contained therein apply not only to the current owner, but to all owners, occupants, heirs, successors, assigns, and lessees. DOD has very limited authority in this area as well. Tr. (8/25/00) at 38.
Accordingly, DOD seeks an exemption for federal facilities from the ELUC rules. Tr. (8/25/00) at 39. The exemption would be conditioned upon DOD entering into a MOA with the Agency and the United States Environmental Protection Agency (USEPA) that would establish procedures for maintaining institutional controls on affected federal property. Id.
OVERVIEW OF BACKGROUND ARSENIC LEVELS
The Agency recommends changes to the allowable background concentrations of arsenic in soils located both within and without counties in Metropolitan Statistical Areas (MSA). Agency Ex. 1 (Sullinger) at 2. The Agency recommends these changes, “due to the large number of sites in Illinois where naturally occurring levels of arsenic exceed the risk-based remediation objectives for the residential and industrial/commercial scenarios.” Id.
In 1994, the Agency issued a report entitled, “A Summary of Selected Background Conditions for Inorganics in Soil” (IEPA/ENV/94-161). Agency Ex. 1 (Sullinger) at 2. Since that time, the data used to compile the report has been updated and supplemented. Id. As a result, the Agency has determined that “the 95th percentile of the background concentrations for arsenic was determined to be 13.0 mg/kg for those counties located within MSAs and 11.3 mg/kg for those counties located outside MSAs.” Id. Because background concentrations of naturally occurring arsenic are actually higher than those levels currently listed as background levels, the Agency is proposing the change to Appendix A, Table G.
DISCUSSION OF SECOND-NOTICE PROPOSAL
Section 742.200 Definitions
Only minor changes have been made to the definitions section from those published at first notice. A vast majority of the changes originally reflected in this Section are the result of a change in the manner in which the Board cites statutory language; that change replaces capitalization with italics. Definitions of “negative easement” and “restrictive covenant or deed restriction” have been deleted entirely due to the new ELUC.
Several additional changes were prompted by DOD’s request for exemption from the ELUC requirements. In response to DOD’s suggestions, the Board has added the following terms and definitions: “federally owned property,” “federal landholding entity,” “GIS,” and “GPS.” On its own motion, the Board has also added a definition of “land use control memorandum of agreement.”
Section 742.1000 Institutional Controls
The main change to this Section, as set forth in the Board’s first notice opinion and order, is the deletion of “restrictive covenants,” “deed restrictions,” and “negative easement” from the list of instruments that may be used as institutional controls. These three terms were replaced by the ELUC and by the Land Use Control Memorandum of Agreement (LUC MOA).
Additionally, the Agency suggested some alternative language to Section 742.1000(d) in the errata sheet. This language, with a minor grammatical change, has been incorporated into this second-notice proposal.
Section 742.1010 Environmental Land Use Controls
Public Comments
The majority of public comments received pertaining specifically to Subdocket A were favorable and encouraged the Board to proceed with the ELUC proposal. The Stolar Partnership (Stolar) also provided comments in favor of the Board’s adoption of the ELUC proposal. Stolar’s comments, however, also contained a few substantive questions and comments worth mentioning here.
Stolar’s Comments. In comments to the Board’s first notice proposal , Stolar raised a number of questions, some of which require clarification both here and in the rules. First, Stolar questions the use of the term, “defined remediation area” in proposed Section 742.1010(a)(1). PC 3 at 2. “Defined remediation area,” as proposed, is used to help define a situation when a No Further Remediation (NFR) Letter would not be available, “(e.g. when contamination has migrated off-site or outside a defined remediation area)” (emphasis added). Stolar suggests that this term may be misleading and cause confusion in determining which sites will be covered by an NFR Letter and which by an ELUC. Id. Stolar proposes substituting the term, “remediation site.” Id. The Board agrees and changes the language accordingly.
Another change proposed by Stolar is with regard to the parenthetical reference in proposed Section 742.1010(d)(4). Stolar suggests that a change in the parenthetical language is needed in order to clarify that soil and groundwater may already be contaminated at the time an ELUC is prepared. PC 3 at 4. In response to this comment, the language has been clarified.
In addition to these proposed changes, Stolar seeks clarification of the language in proposed Section 742.1010(C)(2)(A), which provides, among other things, that “an ELUC may be released or modified only if the NFR Letter is modified under the Site Remediation Program to reflect the change.” Stolar questioned whether it is contemplated that NFR Letters issued under the Leaking Underground Storage Tank program may only be modified under the Site Remediation Program (SRP). PC 3 at 3. The Board believes that the Agency’s proposed language is very clear that ELUC’s may only be released or modified if the NFR Letter is modified under the SRP. Since only clarification of this point was sought, no changes to the proposed rule are necessary.
Additionally, there are two changes proposed by Stolar that the Board acknowledges here, but declines to make. First, Stolar suggests that a change be made to proposed Section 742.1010(c)(2), which would grant the Agency broad powers to review an ELUC and to release and/or modify it without regard to no further remediation determinations. PC 3 at 3. The Board declines to make this proposed change. The Agency is already given the authority to release and/or modify an ELUC pursuant to the terms of proposed Section 742.1010(c)(2), and has the authority, pursuant to proposed Section 742.1010(c)(3), to seek relief for failures to comply with the terms of an approved ELUC. Furthermore, the Agency itself, did not seek this broad range of power. For these reasons, the Board declines this change.
Finally, Stolar seeks guidance as to what the “preferred terminology for referring to property restrictions which may be contained in the NFR Letter.” PC 3 at 4. Because the terminology employed in an NFR Letter is a matter within the purview of the Agency and applicant, the Board declines to make any change to the proposed amendments in response to this comment.
Elements of an ELUC
The Agency provided an errata sheet along with its prefiled testimony. Some additional changes to the text of the rule, as it appeared at first notice, have been made based on the proposed revisions in the errata sheet. Most of the changes were to Section 742.1010.
Of particular interest are two suggested changes to Section 742.1010(d)(8), which would remove from the elements of an ELUC the “vertical extent” of contaminants of concern, and the “nature, location of the source, and direction of movement of the contaminant of concern.” Agency Ex. 1 (Errata Sheet at 4). Although the Agency proposes deleting this information from the ELUC, the Board believes that the vertical extent of contamination, nature of the contaminant, location of the source, and direction of movement are all basic pieces of information that should be included in an ELUC. During the first hearing, King testified that persons interested in getting this specific information could simply make a Freedom of Information Act request of the Agency. Tr. (8/25/00) at 26. However, upon further questioning, King conceded that it would “make sense” to include this information in the ELUC itself. Tr. (8/25/00) at 28. Because this information is so fundamental to a fully informed appreciation of the status of a site, the Board, in this Second Notice proposal, has declined to make these specific changes proposed by the Agency in the Errata Sheet to Section 742.1010(d)(8). We do note however, that one change proposed in the Agency’s Errata Sheet, involving deletion of the language “Tier 1 residential” from Section 742.1010(d)(8)(B) has been made and is reflected in this second-notice proposal.
Federal Exemption from the ELUC
DOD also provided suggested revisions to Section 742.1010. These suggested revisions are contained in DOD Exhibit 5, which was submitted during the second hearing in this matter. These suggested revisions exempt “federally owned property for which the federal landholding entity does not have the authority under federal law to record land use limitations on the chain of title” from the ELUC provisions. DOD Ex. 5 at 7. DOD’s revisions also provide alternative requirements that the “federal landholding entities” must comply with in lieu of the ELUC. Specifically, at proposed Section 742.1012, the “federal landholding entities” are required to enter into a LUC MOA to ensure future maintenance of any land use limitations.
A LUC MOA has been negotiated and approved by the Agency, DOD, and USEPA and was attached as Exhibit 1 to the Agency’s public comments. The LUC MOA provides, in pertinent part, as follows:
The Parties agree that when land use controls (“LUCs”) are necessary to ensure the reliability of land use assumptions, it is essential that appropriate procedures be put in place to ensure such controls will be maintained for as long as necessary to keep the chosen remedy fully protective of human health and the environment. In addition, the Parties agree that it is imperative to ensure that prospective purchasers of the property are fully informed of the existence of such controls and their responsibility to maintain them. The Parties also recognize that (Installation Name) does not have the authority to place land use restrictions in county land records because it would be considered an unauthorized disposal of an interest in federal property (since title is held by the United States and not by (Installation Name). PC 4, Ex. 1 at 1-2.
In public comments submitted to the Board on October 23, 2000, the Agency committed to the LUC MOA with DOD and stated that it “believes with reasonable certainty that the terms of the LUC MOA, including all its necessary appendices, offer the same protection of human health and the environment as the provisions in Part 742 from which the federal facilities desire to be exempt.” P.C 4 at 4. Accordingly the Agency supports the proposed revisions to Part 742 submitted by DOD and referred to as DOD Ex. 5. Id.
Based on the testimony and evidence presented by DOD throughout this proceeding, and in light of the Agency’s agreement and the approved LUC MOA, the Board accepts the exemption proposed by DOD. As a result, this second notice proposal exempts “federally owned property” from the ELUC provisions at Section 742.1010(b)(4). This exemption, however, is only applicable so long as the “federally owned property” is being held as “nonexcess” property for which the “federal landholding entity” lacks the authority to record land use restrictions and limitations in the chain of title. The federal exemption and LUC MOA requirements are found in newly proposed Section 742.1012, which is entitled, “Federally Owned Property: Land Use Control Memorandums of Agreement.”
In lieu of the ELUC requirements, land use controls on federally owned property are now memorialized in LUC MOAs entered into between one or more agencies of the United States and the Agency. Pursuant to Section 742.1012, the LUC MOA requires the federal landholding entities to, at a minimum: (1) identify the location of the site with land use limitations or restrictions; (2) implement periodic site inspections; (3) periodically advise the Agency of continued compliance with the LUC MOA; (4) notify the Agency of planned or emergency changes in land use; and (5) notify the Agency in advance of a conveyance of the site by the federal landholding entity.
GIS Coordinate Information System
In addition to the exemption from the ELUC requirements, DOD also proposes a revision that would allow the use of “site specific GIS and/or GPS coordinates, plat maps, or any other means which identifies the property in question. . . .” DOD Ex. 5 at 7. This proposal stems from DOD’s concern over the proposed language in Section 742.1010(d)(2), which requires identification of the property “by common address, legal description, and Real Estate Tax Index/Parcel Index Number.” Both in his prefiled testimony and in testimony at hearing, Zolyak stated that this requirement is problematic because DOD facilities do not typically have real estate tax or parcel index numbers. DOD Ex. 1 at 7; Tr. (8/25/00) at 37. Furthermore, Zolyak suggests that there are better ways to identify federal properties other than by a legal survey. DOD Ex. 1 at 7. For example, DOD suggests that the Board make the use of GIS coordinate information available to federal and private entities alike. DOD Ex. 1 at 8; Tr. (8/25/00) at 37.
During the hearing on September 11, 2000, in Springfield, DOD provided the Board with testimony from Andrew Kendrick, a hydrogeologist from Tetra Tech Nus. The purpose of Kendrick’s testimony was to explain the GIS coordinate information system for the Board. Kendrick testified that GIS is,
a computer-based technology for compiling, storing, analyzing and displaying geographically referenced information. . . . geographically referenced information . . . is physical entities, buildings, roads, streets, environmental sites, as well as any data that describes all of those entities. Tr. (9/11/00) at 38.
Kendrick also testified about why GIS is a good option for use in supporting the land use controls involved in the TACO rules. Kendrick testified that GIS is:
[a] large relational database [that] can be queried to answer the questions at hand by the decision makers, by the stakeholders. It increases accessibility to that information, both internally within your organization or externally to any other data user who you want to have access to this information. Perhaps the most important for the discussion at hand today is it, in essence, answers the questions of site location, site history, limitations, [and] current status, . . . [I]t increases the level of trust . . . because it provides direct access to the information. . . . The data are updated and managed in a central, secure repository. In other words, the GIS is created, revised and updated once in a central facility and then served to whoever the data uses are and the stakeholders. Tr. (9/11/00) at 40-41.
During the second hearing, Stephen Beverly testified on behalf of DOD and explained further that what DOD is really looking for is not necessarily permission to use the GIS system exclusively, but rather some flexibility in determining which means of identifying a given property is most appropriate for that specific property. Tr. (9/11/00) at 48. DOD’s proposed revisions to Section 742.1010 provide this flexibility to federal facilities only, as information that must be part of a MOA.
The Agency did not address this DOD proposal in its written comments. However, in Appendix B to the LUC MOA, DOD is given the option of using the GIS index number in providing information regarding site location. See PC 4, Ex. 1 at 13. Given the fact that the Agency has agreed to the terms of the LUC MOA, including all appendices, the Board interprets this as an acceptance of the DOD proposal.
In this proposal for Second Notice, the Board has accepted DOD’s proposed revision which makes it permissible for a federal landholding entity to provide site location information based on the GIS coordinate information system. The proposed language allowing for federal use of the GIS coordinate information system is found in newly proposed Section 742.1012(a)(1). The Board notes, however, that this flexibility only applies to qualifying properties, i.e., those properties being retained under federal ownership and deemed “nonexcess.” Pursuant to the terms of the LUC MOA, when any of this property is transferred out of federal ownership, all requirements of the Act and corresponding regulations will apply to that property. In other words, the exemption from the ELUC and the use of the GIS information is only applicable so long as the property at issue remains in federal hands.
Implementation
An additional suggestion that has been incorporated into this second notice Proposal comes from Public Comment 1, submitted by IERG. IERG requests that the Board clarify in Section 742.1010 that the ELUC requirement apply only to requests for a no further remediation determination submitted to the Agency after the effective date of the amendments. PC 1 at 3. IERG explains in its comments that this clarification is needed in order to ensure that those persons who have already expended substantial effort and money in negotiating deed restrictions, restrictive covenants, and/or negative easements, have not done so in vain. The Board believes this is a valid point.
Although the comments submitted by ISG do not specifically address the issue of implementation of the ELUC, they do echo the same ideas contained in IERG’s comments. Specifically, ISG addressed the implementation of the new regulations involving Tier I objectives, detection limits, and sampling requirements, all of which are involved in Subdocket B of this rulemaking proposal. See PC 2 at 3. With regard to these proposed regulations, ISG suggests that it would be unfair for the Board to impose the new regulations upon entities that are already in the midst of an ongoing TACO-based clean up. Id. The Board believes this reasoning is equally as applicable to the implementation of the ELUC requirements, and therefore, interprets ISG’s comments as being consistent with those of IERG.
In its comments, the Agency also reiterates a similar idea. Specifically, the Agency stated its opinion that it “applies the law that is on the books (effective) on the date of its decisions.” PC 4 at 8. Furthermore, during the hearing on September 11, 2000, in response to a question from IERG, King testified that the Agency does not intend to reopen or reexamine situations in which a no further remediation determination has already been made based on restrictive covenants, deed restrictions, or negative easements. Tr. (9/11/00) at 98.
The Board would take the Agency’s clarification one step further by saying that the law that is on the books as of the time an application or request is made to the Agency is the law that governs that application or request. Accordingly, just as IERG proposed, the date a request for a no further remediation determination is made to the Board should govern which type of institutional control may be employed. The Board has made this clarification by adding new subsection (5) to proposed Section 742.1010(b).
Part 742, Appendix A, Table G
As previously mentioned, in response to a number of public comments, the Board is expediting its consideration of the proposed change in the arsenic background levels contained in Appendix A, Table G. The public comments were all very similar, in that they each urged the Board to adopt the updated standard proposed by the Agency. For example, in public comment 3, the Mitroff Companies suggest that various samples they have taken reveal an arsenic level that is above the current 7.2 mg/kg background level, but below the proposed 13.0 mg/kg level. PC 3. From the information contained in the public comments, it is clear to the Board that because the current background levels do not reflect the actual background levels of arsenic in Illinois, needless expenditures of both time and money are being made by both the regulated community and the Agency. These needless expenditures can be avoided with the adoption of the proposed arsenic levels in Appendix A, Table, G.
The amended arsenic levels in Appendix A, Table G are unchanged from those proposed at first notice.
ECONOMIC AND TECHNICAL CONSIDERATION
Section 27(a) of the Environmental Protection Act, requires that in promulgating regulations, the Board “shall take into account . . . the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.” 415 ILCS 5/27(a) (1998).
Pursuant to a letter dated August 1, 2000, the Board requested that the Department of Commerce and Community Affairs (DCCA) conduct an economic impact study related to these proposed amendments. As is the Board’s practice, the August 1, 2000 letter contained a provision providing that in the event DCCA failed to respond to the letter within ten days, the Board would rely on a previous letter from DCCA, dated March 10, 2000, in which DCCA expressed its inability to perform the requested economic impact study. DCCA did not respond to the Board’s August 1, 2000 letter. A hearing was scheduled to examine the Board’s request and DCCA’s lack of response, but no one appeared to give testimony.
Considering that the majority of the proposed amendments in this second notice proposal will have little if any economic impact on either State agencies or the regulated community, the Board concludes that the proposed amendments are economically reasonable. The main economic impact identified by the Board is that which results from the proposed increase in the arsenic background levels; and this impact will be a positive one for the regulated community.
The Board also finds that the proposed amendments are technically feasible and are strongly supported by the regulated community.
ORDER
The Board finds ample evidence in the record before it to warrant proceeding to second notice with the proposed amendments contained herein. Accordingly, the Board hereby directs that the second notice of the following revised proposal be submitted to the Joint Committee on Administrative Rules.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE G: WASTE DISPOSAL
CHAPTER I: POLLUTION CONTROL BOARD
SUBCHAPTER f: RISK BASED CLEANUP OBJECTIVES
PART 742
TIERED APPROACH TO CORRECTIVE ACTION OBJECTIVES
SUBPART A: INTRODUCTION
| Section |
| 742.100 | Intent and Purpose | |
| 742.105 | Applicability | |
| 742.110 | Overview of Tiered Approach | |
| 742.115 | Key Elements | |
| 742.120 | Site Characterization | |
SUBPART B: GENERAL
Section
742.200 Definitions
742.205 Severability
742.210 Incorporations by Reference
742.215 Determination of Soil Attenuation Capacity
742.220 Determination of Soil Saturation Limit
742.225 Demonstration of Compliance with Remediation Objectives
742.230 Agency Review and Approval
SUBPART C: EXPOSURE ROUTE EVALUATIONS
Section
742.300 Exclusion of Exposure Route
742.305 Contaminant Source and Free Product Determination
742.310 Inhalation Exposure Route
742.315 Soil Ingestion Exposure Route
742.320 Groundwater Ingestion Exposure Route
SUBPART D: DETERMINING AREA BACKGROUND
Section
742.400 Area Background
742.405 Determination of Area Background for Soil
742.410 Determination of Area Background for Groundwater
742.415 Use of Area Background Concentrations
SUBPART E: TIER 1 EVALUATION
Section
742.500 Tier 1 Evaluation Overview
742.505 Tier 1 Soil and Groundwater Remediation Objectives
742.510 Tier 1 Remediation Objectives Tables
SUBPART F: TIER 2 GENERAL EVALUATION
Section
742.600 Tier 2 Evaluation Overview
742.605 Land Use
742.610 Chemical and Site Properties
SUBPART G: TIER 2 SOIL EVALUATION
Section
742.700 Tier 2 Soil Evaluation Overview
742.705 Parameters for Soil Remediation Objective Equations
742.710 SSL Soil Equations
742.715 RBCA Soil Equations
742.720 Chemicals with Cumulative Noncarcinogenic Effects
SUBPART H: TIER 2 GROUNDWATER EVALUATION
Section
742.800 Tier 2 Groundwater Evaluation Overview
742.805 Tier 2 Groundwater Remediation Objectives
742.810 Calculations to Predict Impacts from Remaining Groundwater Contamination
SUBPART I: TIER 3 EVALULATION
Section
742.900 Tier 3 Evaluation Overview
742.905 Modifications of Parameters
742.910 Alternative Models
742.915 Formal Risk Assessments
742.920 Impractical Remediation
742.925 Exposure Routes
742.930 Derivation of Toxicological Data
SUBPART J: INSTITUTIONAL CONTROLS
Section
742.1000 Institutional Controls
742.1005 No Further Remediation Letters
742.1012 Federally Owned Property: Land Use Control Memorandums of Agreement
742.1015 Ordinances
742.1020 Highway Authority Agreements
SUBPART K: ENGINEERED BARRIERS
| Section | |||
| 742.1100 | Engineered Barriers | ||
| 742.1105 | Engineered Barrier Requirements | ||
| APPENDIX A | General | |
| ILLUSTRATION A | Developing Soil Remediation Objectives Under the Tiered Approach |
| ILLUSTRATION B | Developing Groundwater Remediation Objectives Under the Tiered Approach |
| TABLE A | Soil Saturation Limits (Csat) for Chemicals Whose Melting Point is Less than 30° C |
| TABLE B | Tolerance Factor (K) |
| TABLE C | Coefficients {AN-I+1} for W Test of Normality, for N=2(1)50 |
| TABLE D | Percentage Points of the W Test for N=3(1)50 |
| TABLE E | Similar-Acting Noncarcinogenic Chemicals |
| TABLE F | Similar-Acting Carcinogenic Chemicals |
| TABLE G | Concentrations of Inorganic Chemicals in Background Soils |
| TABLE H | Chemicals Whose Tier 1 Class I Groundwater Remediation Objective Exceeds the 1 in 1,000,000 Cancer Risk Concentration |
| APPENDIX B | Tier 1 Tables and Illustrations | |
| ILLUSTRATION A | Tier 1 Evaluation | ||||
| TABLE A | Tier 1 Soil Remediation Objectives for Residential Properties |
| TABLE B | Tier 1 Soil Remediation Objectives for Industrial/Commercial Properties |
| TABLE C | pH Specific Soil Remediation Objectives for Inorganics and Ionizing Organics for the Soil Component of the Groundwater Ingestion Route (Class I Groundwater) |
| TABLE D | pH Specific Soil Remediation Objectives for Inorganics and Ionizing Organics for the Soil Component of the Groundwater Ingestion Route (Class II Groundwater) |
| TABLE E | Tier 1 Groundwater Remediation Objectives for the Groundwater Component of the Groundwater Ingestion Route |
| TABLE F | Values Used to Calculate the Tier 1 Soil Remediation Objectives for the Soil Component of the Groundwater Ingestion Route |
| APPENDIX C | Tier 2 Tables and Illustrations | |
| ILLUSTRATION A | Tier 2 Evaluation for Soil |
| ILLUSTRATION B | Tier 2 Evaluation for Groundwater |
| ILLUSTRATION C | US Department of Agriculture Soil Texture Classification |
| TABLE A | SSL Equations |
| TABLE B | SSL Parameters |
| TABLE C | RBCA Equations |
| TABLE D | RBCA Parameters |
| TABLE E | Default Physical and Chemical Parameters |
| TABLE F | Methods for Determining Physical Soil Parameters |
| TABLE G | Error Function (erf) |
| TABLE H | Q/C Values By Source Area |
| TABLE I | Koc Values for Ionizing Organics as a Function of pH (cm3/g or L/kg) |
| TABLE J | Values to be Substituted for ks when Evaluating Inorganics as a Function of pH (cm3water/gsoil) |
| TABLE K | Parameter Estimates for Calculating Water-Filled Soil Porosity (q w) | ||
AUTHORITY: Implementing Sections 22.4, 22.12, Title XVI, Title XVII, and Public Act 91-0909, and authorized by Sections 27, 57.14, and 58.5 of the Environmental Protection Act [415 ILCS 5/22.4, 22.12, 27, 57.14 and 58.5 and Title XVI and Title XVII].
SOURCE: Adopted in R97-12(A) at 21 Ill. Reg. 7942, effective July 1, 1997; amended in R97-12(B) at 21 Ill. Reg. 16391, effective December 8, 1997; amended in R97-12(C) at 22 Ill. Reg. 10847, effective June 8, 1998; amended in R00-19(A) at 24 Ill. Reg. _______, effective ____________________.
NOTE: Capitalization indicates statutory language.
SUBPART B: GENERAL
| Section 742.200 | Definitions | ||||||||||||
Except as stated in this Section, or unless a different meaning of a word or term is clear from the context, the definition of words or terms in this Part shall be the same as that applied to the same words or terms in the Act.
| "Act" means the Illinois Environmental Protection Act [415 ILCS 5] . | |
| "ADL" means Acceptable Detection Limit, which is the detectable concentration of a substance | |
| "Agency" means the Illinois Environmental Protection Agency. | |
| "Agricultural Property" means any real property for which its present or post-remediation use is for growing agricultural crops for food or feed either as harvested crops, cover crops or as pasture. This definition includes, but is not limited to, properties used for confinement or grazing of livestock or poultry and for silviculture operations. Excluded from this definition are farm residences, farm outbuildings and agrichemical facilities. | |
| "Area Background" means | |
| "ASTM" means the American Society for Testing and Materials. | |
| "Board" means the Illinois Pollution Control Board. | |
| "Cancer Risk" means a unitless probability of an individual developing cancer from a defined exposure rate and frequency. | |
| "Cap" means a barrier designed to prevent the infiltration of precipitation or other surface water, or impede the ingestion or inhalation of contaminants. | |
| "Carcinogen" means | |
| "Class I Groundwater" means groundwater that meets the Class I: Potable Resource Groundwater criteria set forth in 35 Ill. Adm. Code 620. | |
| "Class II Groundwater" means groundwater that meets the Class II: General Resource Groundwater criteria set forth in 35 Ill. Adm. Code 620. | |
| "Conservation Property" means any real property for which present or post-remediation use is primarily for wildlife habitat. | |
| "Construction Worker" means a person engaged on a temporary basis to perform work involving invasive construction activities including, but not limited to, personnel performing demolition, earth-moving, building, and routine and emergency utility installation or repair activities. | |
| "Contaminant of Concern" or "Regulated Substance of Concern" means | |
| "Engineered Barrier" means a barrier designed or verified using engineering practices that limits exposure to or controls migration of the contaminants of concern. | |
| "Environmental Land Use Control" means an instrument that meets the requirements of these regulations and is placed in the chain of title to real property that limits or places requirements upon the use of the property for the purpose of protecting human health or the environment, is binding upon the property owner, heirs, successors, assigns, and lessees, and runs in perpetuity or until the Agency approves, in writing, removal of the limitation or requirement from the chain of title. | |
| "Exposure Route" means the transport mechanism by which a contaminant of concern reaches a receptor. | |
| “Federally Owned Property” means real property owned in fee by the United States of America on which institutional controls are sought to be placed in accordance with this Subpart. | |
| “Federal Landholding Entity” means that federal department, agency, or instrumentality with the authority to occupy and control the day-to-day use, operation and management of Federally Owned Property. | |
| "Free Product" means a contaminant that is present as a non-aqueous phase liquid for chemicals whose melting point is less than 30 ° C (e.g., liquid not dissolved in water). | |
| “GIS” means Geographic Information System. | |
| “GPS” means Global Positioning System. | |
| "Groundwater Quality Standards" means the standards for groundwater as set forth in 35 Ill. Adm. Code 620. | |
| "Hazard Quotient" means the ratio of a single substance exposure level during a specified time period to a reference dose for that substance derived from a similar exposure period. | |
| "Highway" | |
| "Highway Authority" means | |
| "Human Exposure Pathway" means a physical condition which may allow for a risk to human health based on the presence of all of the following: contaminants of concern; an exposure route; and a receptor activity at the point of exposure that could result in contaminant of concern intake. | |
| "Industrial/Commercial Property" means any real property that does not meet the definition of residential property, conservation property or agricultural property. | |
| "Infiltration" means the amount of water entering into the ground as a result of precipitation. | |
| "Institutional Control" means a legal mechanism for imposing a restriction on land use, as described in Subpart J. | |
| “Land Use Control Memorandums of Agreement” mean agreements entered into between one or more agencies of the United States and the Illinois Environmental Protection Agency that limit or place requirements upon the use of Federally Owned Property for the purpose of protecting human health or the environment. | |
| "Man-Made Pathways" means | |
| "Natural Pathways" means | |
| "Person" means an | |
| "Point of Human Exposure" means the point(s) at which human exposure to a contaminant of concern may reasonably be expected to occur. The point of human exposure is at the source, unless an institutional control limiting human exposure for the applicable exposure route has been or will be in place, in which case the point of human exposure will be the boundary of the institutional control. Point of human exposure may be at a different location than the point of compliance. | |
| "PQL" means practical quantitation limit or estimated quantitation limit, which is the lowest concentration that can be reliably measured within specified limits of precision and accuracy for a specific laboratory analytical method during routine laboratory operating conditions in accordance with "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods", EPA Publication No. SW-846, incorporated by reference in Section 742.210. When applied to filtered water samples, PQL includes the method detection limit or estimated detection limit in accordance with the applicable method revision in: "Methods for the Determination of Organic Compounds in Drinking Water”, Supplement II", EPA Publication No. EPA/600/4-88/039; "Methods for the Determination of Organic Compounds in Drinking Water, Supplement III", EPA Publication No. EPA/600/R-95/131, all of which are incorporated by reference in Section 742.210. | |
| "RBCA" means Risk Based Corrective Action as defined in ASTM E-1739-95, as incorporated by reference in Section 742.210. | |
| "RCRA" means the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6921). | |
| "Reference Concentration (RfC)" means an estimate of a daily exposure, in units of milligrams of chemical per cubic meter of air (mg/m(3)), to the human population (including sensitive subgroups) that is likely to be without appreciable risk of deleterious effects during a portion of a lifetime (up to approximately seven years, subchronic) or for a lifetime (chronic). | |
| "Reference Dose (RfD)" means an estimate of a daily exposure, in units of milligrams of chemical per kilogram of body weight per day (mg/kg/d), to the human population (including sensitive subgroups) that is likely to be without appreciable risk of deleterious effects during a portion of a lifetime (up to approximately seven years, subchronic) or for a lifetime (chronic). | |
| "Regulated Substance" means | |
| "Residential Property" | |
| "Right of Way" means | |
| "Similar-Acting Chemicals" are chemical substances that have toxic or harmful effect on the same specific organ or organ system (see Appendix A.Tables E and F for a list of similar-acting chemicals with noncarcinogenic and carcinogenic effects). | |
| "Site" means | |
| "Slurry Wall" means a man-made barrier made of geologic material which is constructed to prevent or impede the movement of contamination into a certain area. | |
| "Soil Saturation Limit (C[sat]" means the contaminant concentration at which soil pore air and pore water are saturated with the chemical and the adsorptive limits of the soil particles have been reached. | |
| "Solubility" means a chemical specific maximum amount of solute that can dissolve in a specific amount of solvent (groundwater) at a specific temperature. | |
| "SPLP" means Synthetic Precipitation Leaching Procedure (Method 1312) as published in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as incorporated by reference in Section 742.210. | |
| "SSL" means Soil Screening Levels as defined in USEPA's Soil Screening Guidance: User's Guide and Technical Background Document, as incorporated by reference in Section 742.210. | |
| "Stratigraphic Unit" means a site-specific geologic unit of native deposited material and/or bedrock of varying thickness (e.g., sand, gravel, silt, clay, bedrock, etc.). A change in stratigraphic unit is recognized by a clearly distinct contrast in geologic material or a change in physical features within a zone of gradation. For the purposes of this Part, a change in stratigraphic unit is identified by one or a combination of differences in physical features such as texture, cementation, fabric, composition, density, and/or permeability of the native material and/or bedrock. | |
| "TCLP" means Toxicity Characteristic Leaching Procedure (Method 1311) as published in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as incorporated by reference in Section 742.210. | |
| "Total Petroleum Hydrocarbon (TPH)" means the additive total of all petroleum hydrocarbons found in an analytical sample. | |
| "Volatile Organic Compounds (VOCs)" means organic chemical analytes identified as volatiles as published in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846 (incorporated by reference in Section 742.210), method numbers 8010, 8011, 8015, 8020, 8021, 8030, 8031, 8240, 8260, 8315, and 8316. For analytes not listed in any category in those methods, those analytes which have a boiling point less than 200oC and a vapor pressure greater than 0.1 Torr (mm Hg) at 20 ° C. |
(Source: Amended in R00-19(A) at 24 Ill. Reg. _____ , effective _______________)
SUBPART J: INSTITUTIONAL CONTROLS
| Section 742.1000 | Institutional Controls | ||||||||||||
| a) | Institutional controls in accordance with this Subpart must be placed on the property when remediation objectives are based on any of the following assumptions: |
| 1) | Industrial/Commercial property use; |
| 2) | Target cancer risk greater than 1 in 1,000,000; |
| 3) | Target hazard quotient greater than 1; |
| 4) | Engineered barrier(s); |
| 5) | The point of human exposure is located at a place other than at the source; |
| 6) | Exclusion of exposure routes |
| 7) | Any combination of the above. |
| b) | The Agency shall not approve any remediation objective under this Part that is based on the use of institutional controls unless the person has proposed institutional controls meeting the requirements of this Subpart and the requirements of the specific program under which the institutional control is proposed. A proposal for approval of institutional controls shall provide identification of the selected institutional controls from among the types recognized in this Subpart. |
| c) | The following instruments may be institutional controls subject to the requirements of this Subpart J and the requirements of the specific program under which the institutional control is proposed: |
| 1) | No Further Remediation Letters; |
| 3) | Land Use Control Memorandums of Agreement; | |
| Ordinances adopted and administered by a unit of local government; and | |
| 5 | Agreements between a property owner and a highway authority with respect to any contamination remaining under highways. |
| d) |
(Source: Amended in R00-19(A) at 24 Ill. Reg. _______, effective ___________________)
| Section 742.1010 | ||||||||||||
| a) | An Environmental Land Use Control (“ELUC”) | |
| 1) | When No Further Remediation Letters are not available, including but not limited to when contamination has migrated off-site or outside the remediation site; or | |
| 2) | When No Further Remediation Letters are not issued under the program for which a person is undergoing remediaton. | |
| b) | Recording requirements: |
| 1) | An ELUC approved by the Agency pursuant to this Section must be recorded in the Office of the Recorder or Registrar of Titles for the county in which the property that is the subject of the ELUC is located. A copy of the ELUC demonstrating that it has been recorded must be submitted to the Agency before the Agency will issue a no further remediation determination. |
| 2) | An ELUC approved under this Section will not become effective until officially recorded in the chain of title for the property that is the subject of the ELUC in accordance with subsection (b)(1) of this Section. |
| 4) | The requirements of this Section do not apply to Federally Owned Property for which the Federal Landholding Entity does not have the authority under federal law to record land use limitations on the chain of title. | |
| 5) | The requirements of this Section apply only to those sites for which a request for a no further remediation determination has not yet been made to the Agency at the time of adoption of these rules. | |
c) Duration
| 1) | Except as provided in this subsection (c), an ELUC shall remain in effect in perpetuity. |
| 2) | At no time shall any site for which an ELUC has been imposed as a result of remediation activities under this Part be used in a manner inconsistent with the land use limitation unless |
| A) | For a Leaking Underground Storage Tank (LUST) site under 35 Ill. Adm. Code 731 or 732 or a Site Remediation Program site under 35 Ill. Adm. Code 740, an ELUC may be |
| B) | For a RCRA site under 35 Ill. Adm. Code 721 – 730, an ELUC may be |
| 3) | In addition to any other remedies that may be available, a failure to comply with the limitation(s) or requirement(s) of an ELUC may result in voidance of an Agency no further remediation determination in accordance with the program under which the determination was made. The failure to comply with the limitation(s) or requirement(s) of an ELUC may also be grounds for an enforcement action pursuant to Title VIII of the Act. |
| d) | An ELUC must contain the following elements: |
| 1) | Name of property owner(s) and declaration of property ownership; |
| 2) | Identification of the property to which the ELUC applies by common address, legal description, and Real Estate Tax Index/Parcel Index Number; |
| 3) | A reference to the Bureau of Land LPC number(s) or 10-digit identification number(s) under which the remediation was conducted; |
| 4) | A statement of the reason for the land use limitation or requirement |
| 5) | |
| 6) | A statement that the limitation(s) or requirement(s) apply to the current owner(s), occupants, and all heirs, successors, assigns, and lessees; |
| 7) | A statement that the limitation(s) or requirement(s) apply in perpetuity or until | |
| A) | The Agency issues a new no further remediation determination approving modification or removal of the limitation(s) or requirement(s); and | |
| B) | A release or modification of the land use limitation is filed on the chain of title for the property that is the subject of the ELUC; | |
| 8) | Scaled site maps showing: |
| A) | The legal boundary of the property to which the ELUC applies; |
| B) | The horizontal and vertical extent of contaminants of concern above applicable |
| C) | Any physical features to which an ELUC applies (e.g., engineered barriers, monitoring wells, caps); and |
| D) | The nature, location of the source, and direction of movement of the contaminants of concern; |
| 9) | A statement that any information regarding the remediation performed on the property for which the ELUC is necessary may be obtained from the Agency through a request under the Freedom of Information Act (5 ILCS 140) and rules promulgated thereunder; and |
| 10) | The dated, notarized signature(s) of the property owner(s) or authorized agent. | |
(Source: Amended in R00-19(A) at 24 Ill. Reg. _______, effective ____________________)
| Section 742.1012 | Federally Owned Property: Land Use Control Memorandums of Agreement | |||||||||||
| a) | A Land Use Control Memorandum of Agreement (“LUC MOA”) between one or more agencies of the federal government and the Illinois Environmental Protection Agency is an institutional control that may be used under this Part to impose land use limitations or restrictions related to environmental contamination on Federally Owned Property. A LUC MOA may be used only for Federally Owned Property. Each LUC MOA, at a minimum, must require that the Federal Landholding Entities responsible for the Federally Owned Property do the following: |
| 1) | Provide adequate identification of the location on the Federally Owned Property of each site with land use limitations or requirements. Such identification shall be by means of common address, notations in any available facility master land use plan, site specific GIS or GPS coordinates, plat maps, or any other means which identifies the site in question with particularity; | |
| 2) | Implement periodic site inspection procedures to ensure adequate oversight by the Federal Landholding Entities of such land use limitation or requirement; | |
| 3) | Implement procedures for the Federal Landholding Entities to periodically advise the Agency of continued compliance with the maintenance of the land use control and site inspection requirements included in the LUC MOA; | |
| 4) | Implement procedures for the Federal Landholding Entities to notify the Agency of any planned or emergency changes in land use that may adversely impact any site with land use limitations or requirements; and | |
| 5) | Notify the Agency at least 60 days in advance of a conveyance by deed or fee simple title, by the Federal Landholding Entities, of a site(s) with land use limitations or requirements, to any entity that will not remain or become a Federal Landholding Entity, and provide the Agency with information about how the Federal Landholding Entities will ensure that the requirements of Section 742.1010(b)(1) through (b)(3) are to be satisfied upon conveyance of that site(s). | |
| b) | Any LUC MOA entered into pursuant to this Section remains effective only so long as title to the affected property is retained by the United States. | |
(Source: Amended in R00-19(A) at 24 Ill. Reg. _______, effective ____________________)
| Section 742.APPENDIX A: General | ||||||||||||||
| Section 742.TABLE G: Concentrations of Inorganic Chemicals in Background Soils | ||||||||||||||
Chemical Name |
Counties Within Metropolitan Statistical Areasa (mg/kg) |
Counties Outside Metropolitan Statistical Areas (mg/kg) |
Aluminum |
9,500 |
9,200 |
Antimony |
4.0 |
3.3 |
Arsenic |
|
|
Barium |
110` |
122 |
Beryllium |
0.59 |
0.56 |
Cadmium |
0.6 |
0.50 |
Calcium |
9,300 |
5,525 |
Chromium |
16.2 |
13.0 |
Cobalt |
8.9 |
8.9 |
Copper |
19.6 |
12.0 |
Cyanide |
0.51 |
0.50 |
Iron |
15,900 |
15,000 |
Lead |
36.0 |
20.9 |
Magnesium |
4,820 |
2,700 |
Manganese |
636 |
630 |
Mercury |
0.06 |
0.05 |
|
Chemical Name |
Counties Within Metropolitan Statistical Areasa (mg/kg) |
Counties Outside Metropolitan Statistical Areas (mg/kg) |
Nickel |
18.0 |
13.0 |
Potassium |
1,268 |
1,100 |
Selenium |
0.48 |
0.37 |
Silver |
0.55 |
0.50 |
Sodium |
130 |
130.0 |
Sulfate |
85.5 |
110 |
Sulfide |
3.1 |
2.9 |
Thallium |
0.32 |
0.42 |
Vanadium |
25.2 |
25.0 |
Zinc |
95.0 |
60.2 |
(Source: Amended at 24 Ill. Reg. ____, effective_______)
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above opinion and order was adopted on the 16th day of November 2000 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
