9

not allow LPGs to practice in those areas specifically reserved for LPEs in the Act, nor will it

allow LPGs to practice in violation of the Engineer Act or the Geologist Act.

Off-Site Access – Sections 732.404 and 732.411

The second area of significant public comment and testimony in this rulemaking involved

off-site access. For High Priority sites, the Agency proposed that it have the discretion to issue

an NFR letter to a UST owner or operator that cannot access off-site properties to investigate

contamination. The owner or operator must use “best efforts” to prove to the Agency that it

attempted to gain off-site access according to proposed criteria at Section 732.411. Denial of

off-site access must be noted in the NFR letter. The Agency also stated that an NFR letter does

not necessarily relieve the owner or operator of liability for off-site contamination. Additionally,

under the Agency’s proposal, the UST owner or operator must send a certified letter to the off-

site property owner describing legal and environmental aspects of the release. These proposed

amendments reflect federal regulations at 40 CFR 264.100(e) and 264.101(c).

See also

52 Fed.

Reg. 45788, 45790-45791. Exh. 1 at 7-9; Exh. 17; PC 5 at 2-3, 6-8; Stat. of Reas. at 10-11.

Mr. Clay stated that, in the past, the Agency would not issue NFR letters to owners and

operators that had not resolved off-site issues. He also testified that the primary reason for these

proposed amendments is to protect human health and the environment. Tr.1 at 39-40;Tr.2 at 84-

85, 87-90, 100.

Certified Letter to Off-Site Property Owners

Under questioning, Mr. Clay testified that the proposed certified letter would serve as a

method to advise the adjacent property owner of “what is going on and why access is necessary”.

The letter is not intended to serve as admission from the property owner or as some sort of

commitment from the property owner beyond what is required to access the site. Tr.1 at 40-41.

Arguments.

Weaver, Boos & Gordon (WBG) had several criticisms of the proposed

certified letter. It stated that the proposed letter implies that remediation and monetary damages

will be necessary in every off-site access situation. WBG also claimed the letter implies that

there will be a threat to human health and the environment if there is no remediation. WBG

argued that the contents of the letter are contrary to the state’s risk-based remediation program,

considering that, for example, engineered controls are acceptable in a risk-based approach.

WBG stated that the requirements would discourage UST owners and operators from doing off-

site work because they will see the Agency’s proposal as increasing their liability. PC 9 at 2, 4.

The Agency responded that the certified letter as required by their proposal need not be

the initial means of communication with the off-site owner, and, in fact, encouraged owners and

operators of USTs to pursue less intimidating means of initial contact. The certified letter should

only be required in instances where the off-site property owner is uncooperative after other

attempts at off-site access have failed. PC 5 at 3.

The Illinois Petroleum Council (IPC) stated that the Agency had few “pragmatic reasons”

for its proposal and suggested several changes to the Agency’s proposed language on off-site

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access. PC 7 at 3. The IPC proposed changing the requirements for the contents of the certified

letter. The IPC stated that the Agency’s requirements were too specific and may not apply to

every off-site access situation. For example, the part of the proposed letter which states that the

UST owner or operator will “return the property to its original condition” may be inaccurate if

access is needed only to install an engineered barrier. The IPC, like WBG, argues that other

requirements for the letter contain legal admissions that are not necessary and that some

requirements may unnecessarily “scare” adjacent property owners if the threat of contamination

is not severe. The IPC proposed a more general and flexible letter that addresses different site-

specific situations and omits, according to the IPC, unnecessary legal admissions. The Chemical

Industry Council of Illinois (CICI) and WBG agree with several of the IPC’s suggestions. Tr.2

at 62-64, 67-69; Exh. 17 at 3-5; PC 7 at 3; PC 8 at 2; PC 9 at 3.

The Agency agreed with some of the IPC’s changes to Subsections 732.404(c) and

732.411(b), although most are either nonsubstantive or for clarification. Those have been

included in the Board’s first notice proposal. The Agency agreed with the IPC’s suggestions for

Subsection 732.411(b)(3) that provide the owner or operator will try to minimize disruption to

the off-site owner’s property in performing an investigation. On the other hand, the Agency

objected to many of the IPC’s substantive proposed changes such as deleting the requirement

that the off-site owner be informed that the UST owner or operator is responsible for remediation

costs. The Agency also requested that the Board retain the provision which states that the

certified letter must state that failure to remediate the contamination may result in diminished

property values and threats to the environment. PC 5 at 5-6.

Board Findings.

The Board agrees with the Agency that the certified letter need not be

the initial means of contacting the off-site property owner. However, the Board insists that off-

site property owners be fully aware of nearby USTs and the potential problems that such USTs

may cause if contamination migrates. If the UST owner or operator has made preliminary

attempts to contact the off-site property owner, then the requirements of the certified letter will

likely not alarm or surprise the off-site owner. The Board proposes the Agency’s requirements

for the certified letter along with those IPC modifications that the Agency agreed to.

“Best Efforts”

In making a determination regarding the UST owner or operator’s “best efforts” to obtain

off-site access, the Agency proposed that it be allowed to examine a set list of criteria at

Subsection 732.411(d). These criteria include levels of and the physical and chemical

characteristics of the indicator contaminants at the property line, hydrogeological characteristics

of the area, potential effects to nearby waters, and others. The Agency’s decision on these

factors ultimately determines if the Agency issues an NFR letter.

Arguments.

The IPC claimed that the proposed criteria to determine “best efforts” have

nothing to do with obtaining off-site access but instead are general factors based on possible

exposure scenarios. The IPC proposed replacing the Agency’s language with language dictating

the standard that the Agency should use in issuing an NFR letter – namely that the contamination

remaining off-site does not pose “an imminent threat of harm to human health or the

environment”. The IPC proposed objective criteria related to threats that will assist the Agency

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11

in determining whether a threat exists. These threats are the presence of free product on the off-

site property; the presence of fire, explosion and vapor hazards via natural or manmade

pathways; or the presence of potable water wells, surface water, setback zones, or regulated

recharge areas. The CICI supports the IPC’s “best efforts” proposal. Tr.2 at 65-66; Exh. 17 at 4-

6; PC 7 at 3-4; PC 8 at 2-3.

WBG supports including a general requirement for notifying off-site owners of possible

contamination. However, WBG argued that the proposed “best efforts” factors should be factors

that the Agency considers in approving a remedial action plan. WBG stated that “best efforts”

factors should focus on the type and level of communications with off-site owners, the response

to the communications (or lack thereof), and any follow-up by the UST owner or operator. PC 9

at 3-4.

The Agency objected to the IPC’s argument limiting the Agency to only considering

“imminent” threats to human health in determining off-site contamination. The Agency claimed

that this language would create a less stringent standard than called for in the Act. PC 5 at 7-8.

In defense of its proposal, the Agency argued that it must be able to decide “best efforts”

on a case-by-case basis. The Agency must be able to determine if areas off-site have been

contaminated, and, if so, the threat of possible harm to human health and the environment,

including harm to parties other than the off-site owner. The Agency claimed that its criteria

encompass all of the IPC’s proposed criteria (free product, presence of fire, explosion, etc.). The

Agency also stated that there would be no additional cost to the UST owner or operator since he

or she has already submitted information that the Agency considers during the UST remediation

process and in issuing an NFR letter. PC 5 at 3-4, 6.

Board Findings.

The Board finds that the factors in IPC’s proposed “best efforts” are

insufficient. The Board agrees with the IPC that the Agency must be able to consider factors

directly tied to an imminent threat to human health and the environment. However, the Agency

must be able to consider a wider variety of factors as well, especially factors that point to less

immediate threats such as suspected migration routes and the geology of the area. The Board

finds that the Agency’s “best efforts” factors will better enable the Agency to make

determinations on a case-by-case basis. The Board proposes the Agency’s proposed “best

efforts” factors at Subsection 732.411(d) for first notice.

Zimmerman Comment.

Dea Zimmerman of Northbrook submitted a public comment

in which she expressed concern about the Agency’s proposed criteria for determining “best

efforts” at Subsections 732.411 (c) and especially 732.411 (d). Her property was adjacent to a

gas station that had a High Priority UST incident. She drafted an access agreement similar to the

Agency’s and sent it to the gas station owner who refused to sign it because, she claimed, the

agreement would have forced the owner to indemnify Ms. Zimmerman for diminution in her

property value. She then learned that the gas station owner would still receive an NFR letter.

Ms. Zimmerman wants to require the Agency to contact off-site property owners to determine

“best efforts” in order to get their input. This way, she claims, the Agency should be able to

determine if the UST owner or operator is telling the truth. Ms. Zimmerman argues that the

Agency’s proposal is lopsided in favor of the UST owner or operator. PC 6.

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The Board notes that an NFR letter does not absolve a UST owner or operator from

liability for cleaning up off-site releases, even where an NFR letter has been issued.

See

Board

proposal at Subsection 732.411(f). Although the UST owner or operator must warn the off-site

owner about a possible lower property value if contamination is not remediated, nothing in the

UST regulations provides indemnification for diminution of property value. The Board

appreciates Ms. Zimmerman’s public comment but chooses not to alter the Agency’s “best

efforts” proposal to include mandatory Agency contacts with the off-site owner.

Electronic Filing – Section 732.101 and Other Sections

The Agency proposed language to eventually require electronic filing of documents

submitted for the UST program. Mr. King said that the Agency receives seven feet of material

per week for the UST program. The Agency wants to reduce the amount of paper it must store in

order to comply with the State Records Act.

See

5 ILCS 160/1

et seq.

(2000). However, the

State Records Commission has not yet set specific criteria for electronic filing, and, at the first

hearing, Agency representatives were not sure of the State Records Commission’s current status.

The Agency is conducting a pilot electronic reporting project for the SRP to evaluate the

effectiveness of electronic reporting. Tr.1 at 31-32, 57, 59; Tr.2 at 80; Exh. 1 at 2; Stat. of Reas.

at 2-3.

SW-486 and Laboratory Certification – Sections 732.104 and 732.106

Currently, UST owners and operators are required to submit soil and groundwater

samples as part of various testing requirements under the UST regulations. The Agency

proposed that quantitative analyses of samples only be performed in accredited laboratories

pursuant to 35 Ill. Adm. Code 186. The Part 186 regulations establish standards for laboratory

quality that comply with U.S. EPA’s National Environmental Laboratory Accreditation Program

(NELAP). The Illinois Environmental Laboratory Accreditation Program must recognize

NELAP accreditation in other approved states. The Agency claimed that this requirement is

necessary in order to ensure the “integrity” of the samples collected during UST fieldwork. The

Agency’s laboratories are already accredited, but it proposed July 1, 2002 as the effective date of

the requirement in order to allow other laboratories in Illinois to become accredited. Tr.1 at 24-

26, 68; Exh. 3; Stat .of Reas. at 4. As this effective date is only eight months away, the Board

proposes July 1, 2003 as the effective date

On a related note, the Agency updated the reference to the United States Environmental

Protection Agency’s analytical method SW-846 in the incorporations by reference. SW-486

describes test methods for evaluating solid wastes. As of the date of the first hearing, 17

laboratories had received SW-486 certification from the Agency’s Division of Laboratories, and

approximately 250 labs were accredited across the United States. The Agency will also

recognize SW-486 certification by other NELAP-approved states or federal agencies, provided

that the certified laboratory pays it the appropriate fees. The Agency uses the fees for the

administration of the program and to pay staff necessary to review applications. Tr.1 at 26-27,

59, 68; Exh. 3; Stat. of Reas. at 4. The Board proposes a more recent update to the SW-486

analytical method than the one that the Agency proposed.

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13

The Board notes that the new laboratory accreditation requirement and update to

analytical method SW-486 are also found in the SRP amendments being proposed for first notice

today.

45-Day Early Action Period – Subsection 732.202(g)

UST owners or operators must commence Early Action activities as soon as there has

been a confirmed petroleum release from a UST. The Agency proposed to change and clarify

the trigger for reimbursement of corrective action costs during the 45-day Early Action period.

The Agency’s proposal would switch the trigger for reimbursement from confirmation of a

release to the initial notification of the Illinois Emergency Management Agency (IEMA). The

Agency claims that the initial notification to IEMA is “clearly documented” as opposed to the

initial confirmation date. Tr.1 at 16; Exh. 2 at 1; Stat. of Reas. at 4-5.

The Board declines to adopt the Agency’s proposed change for the trigger date for

reimbursement. There are several reasons why. First and foremost, it is not entirely clear from

the Agency’s proposal which of several required notifications to IEMA should be the trigger

date. If the proposed trigger date is the notification to IEMA required by Subsection 732.202(a)

of the Board’s regulations, then the Board finds that this proposed change is unnecessary.

According to Subsection 732.202(a), an owner or operator of a UST must report a release of

petroleum to the IEMA within 24 hours of confirmation of that release. The Agency’s proposed

language for Subsection 732.202(g) would simply give the owner or operator a maximum of

another 24 hours to perform reimbursement activities during the Early Action period.

The Board notes that the other requirements in Section 732.202 are all tied to the

confirmation of a release as opposed to notification of the IEMA. The Board chooses to keep the

requirements in Section 732.202 consistent.

The Board also notes that there are other notifications to the IEMA during the UST

remediation process which are required by the Office of the State Fire Marshal’s (OSFM)

regulations. The Board is not sure if the Agency’s proposed change in the trigger date might

have referred to one of the OSFM-required notifications. For example, the owner or operator of

the UST is required to notify the IEMA of a suspected release from a UST. The owner or

operator is also required to notify the IEMA of spills or overfills from an UST. And, the OSFM

has a requirement similar to the Board’s regarding notification to the IEMA after confirmation of

a release from a UST.

See

41 Ill. Adm. Code 170.560, 170.590, and 170.600.

Finally, the Board also notes that the issue of the trigger for the reimbursement date is

somewhat controversial.

See, e.g.

Broderick Teaming Company v. IEPA

, PCB 00-187

(December 7, 2000 and April 5, 2001). The Board invites the Agency to submit comments or an

amended proposal during the first notice period to address these matters.

Early Action - Sampling - Subsection 732.202(h)

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Under the Agency’s proposal, the owner or operator of the UST must determine whether

areas of soil contamination exposed via Early Action excavation meet the Tier 1 remediation

objectives pursuant to the Tiered Approach to Cleanup Objectives (TACO) regulations at 35 Ill.

Adm. Code 742. Requirements include sampling of excavated backfill returned to the site,

sampling each of the sides and the bottom on the excavation, and sampling of excavated piping

runs. Although not stated in the regulations, the Agency requires sampling every 20 feet of an

excavated piping run. The Agency claimed that the sampling assists the owner or operator of the

UST in choosing the correct method of remediation. Such sampling does not relieve the owner

or operator from other remedial sampling requirements if applicable to the site in question and

under the chosen remedial plan. Tr.1 at 16-17, 32-3, 53, 61-62; Exh. 2 at 1-3; Stat.of Reas. at 5.

Early Action - Free Product Removal – Section 732.203

The Agency proposed procedures and reimbursement measures for free product removal

within 45 days after the initial confirmation of the presence of free product. Exh. 5 at 14; Exh. 7

at 2.

Reimbursement of Early Action Activities – Sections 732.204 and 732.305(b)(1) and (b)(2)

The Agency proposed deleting the option to allow the owner or operator to submit line

item estimates of activities and costs for the Site Classification budget plan. Instead, an owner or

operator will submit a reimbursement request for Early Action activities. The Agency claimed

that UST owners or operators rarely submit estimates as part of the site classification budget.

Tr.1 at 17; Exh. 2 at 3; Stat.of Reas. at 5.

Permission of Property Owner – Subsections 732.300(b)(1), 732.309(a), 732.312(i),

732.409(b)

Under this part of the Agency’s proposal, UST owners or operators who are not owners

of the associated property must document that the property owner accepts the Corrective Action

Completion Report and does not object to the recording of an NFR letter on the chain of title.

There is parallel language for Corrective Action Completion Reports with respect to groundwater

monitoring, for Site Classification Completion Reports, and for Site Classification Completion

Reports with respect to classification by exposure pathway exclusion. The Agency stated that

these amendments will codify its current procedure and are similar to requirements in the SRP.

The Agency wanted to ensure that “the property owner is comfortable with the conditions of the

NFR letter” when it is recorded. Tr.1 at 13, 35-36; Exh. 1 at 3; Stat. of Reas. at 6, 8, 10.

Budget Plan Not Required – Subsections 732.305(d), 732.312(k), 732.405(d)

The Agency proposed allowing UST owners and operators who have performed a Site

Classification without first submitting a budget plan to submit an application for payment after

the work is completed. (The Agency proposed similar language for High Priority corrective

action activities and Low Priority groundwater monitoring plans.) In other words, a payment

application could be submitted instead of a budget plan.

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The Agency usually identifies eligible and ineligible reimbursement costs after it has

been able to review a budget plan. The Agency acknowledged that some costs might be

ineligible if the owner or operator proceeds without first submitting a budget plan. Tr.1 at 17-18,

62-63; Exh. 2 at 5; Stat. of Reas. at 7.

Well Screens – Subsection 732.307(c)(3)(A)

The Agency proposed deleting the requirement that the well screen be fully in the

saturated zone for in-situ hydraulic conductivity testing. If the screen is fully in the saturated

zone, the well may not be used for groundwater sample analysis since wells for contaminant

sampling must straddle the water table between saturated and unsaturated zones. The Agency

claimed that the cost to drill the extra well exclusively for the hydraulic conductivity test is not

worth the benefit of having more accurate data. Ms. Brockamp noted that data obtained from a

well that straddles the water table results in a higher hydraulic conductivity value. The higher

value would lead the Agency to “require more protection of the aquifer than may be necessary”

but at a lower cost than installing another well. Exh. 5 at 17; Exh. 6 at 1-2; Tr.1 at 19, 49, 63-64.

Investigation of Migration Pathways – Subsections 732.307(g) and 732.307(j)

Investigation of migration pathways is part of a leaking UST Site Evaluation. The

Agency proposed amendments to clarify its expectations regarding the investigation of natural

and man-made migration pathways. The owner or operator must perform sampling along

pathways to prove that contamination is not migrating toward a man-made pathway. The

Agency indicated at hearing that it might be amenable to evaluate such migration based on a

method that does not involve sampling – although sampling is clearly the Agency’s preferred

method. The proposed amendments also provide that a groundwater investigation is required for

a site where such an investigation is required pursuant to Subsection 732.302(b) and at any site

that does not meet the No Further Action classification. Tr.1 at 18, 37-38; Exh. 2 at 2-3; Stat. of

Reas. at 7-8.

MTBE as an Indicator Contaminant – Sections 732.310, 732.606(kk), and Appendix A

The presence of indicator contaminants plays a role in determining site classification.

Much of the testing and sampling that is required after confirmation of a petroleum release from

a UST involves determining the presence of indicator contaminants. The Agency proposed

adding methyl tertiary butyl-ether (MTBE) as an indicator contaminant in gasoline. MTBE is a

volatile organic chemical that has been used since the 1970s to promote more complete burning

of gasoline, thereby reducing carbon monoxide and ozone levels. MTBE is able to quickly

spread once released into groundwater (from a leaking UST, for example) and it is very difficult

to remediate. Many states and the federal government have either set standards or are studying

standards for MTBE in groundwater. Tr.1 at 13; Exh. 1 at 5-7, 10, att. 2; Exh. 19; Exh. 20; Stat.

of Reas. at 9-10, 14-15. For more information on Illinois’ proposed standards, the harmful

health effects of MTBE, and detections of MTBE in community water supplies throughout

Illinois, please refer to Proposed MTBE and Compliance Determination Amendments to

Groundwater Quality Standards: 35 Ill. Adm. Code 620, R01-14 (Sept. 6, 2001) and Proposed

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Amendments to Tiered Approach to Corrective Action Objectives (TACO)(MTBE), R00-19(C)

(Sept. 6, 2001).

Under the Agency’s proposal, MTBE is also to be included on releases reported to IEMA

on or after the effective date of these UST amendments. An owner or operator may elect to

include MTBE as an indicator contaminant if the Agency has not issued an NFR letter by the

date of these amendments. In addition, after the NFR letter is issued, an owner or operator may

opt back into the UST program if the release has caused off-site contamination exceeding the

MTBE standards in the Board’s TACO regulations at Part 742. The Agency also proposed

allowing reimbursement of off-site MTBE remediation costs after receipt of an NFR letter for an

on-site release. The Agency proposed allowing off-site reimbursement in this case, as opposed

to on-site reimbursement, in order to protect private and community water supply wells. Tr.1 at

21, 66; Exh. 1 at 4; Exh. 2 at 2; Stat. of Reas. at 9, 14-15, 18.

Corrective Action Plan and Indicator Contaminants – Subsection 732.404(b)(1)

For High Priority Sites, the Agency proposed to clarify that a corrective action plan must

address indicator contaminants so that they are not present in groundwater in amounts exceeding

the remediation objectives at Section 732.408 – which are the same remediation objectives for

the Board’s TACO regulations at Part 742. Exh. 1 at 7-8; Stat. of Reas. at 10, 11.

Revised Corrective Action Plan – Subsections 732.405(f) and 732.606(oo)

A UST owner or operator with a High Priority site must develop a corrective action plan

to address contamination from the leaking UST. The Agency proposed that the UST owner or

operator submit a revised corrective action plan if the original corrective action plan has not

achieved its objectives in a reasonable timeframe. Costs associated with the original corrective

action plan incurred after the Agency requests a new plan will not be reimbursable, but costs

associated with the revised plan may be reimbursable. Tr.1 at 65-66; Exh. 5 at 33, 38; Exh. 7 at

2.

The Agency has already ordered revised corrective action plans in certain situations and

wanted to clarify that it has the authority to do so. For example, if an original plan has not

achieved the stated objectives in four to six years when it was projected to have taken two years,

the Agency would have the authority to require a revised plan. Tr.1 at 51-52.

At the first hearing, Mr. Rieser asked if an Agency decision to reject the original

corrective action plan could be appealed to the Board. At the second hearing, the Agency

proposed language allowing an appeal of an Agency decision to require a revised corrective

action plan. The appeal would follow the procedure for an appeal of an Agency permit decision

under Section 40 of the Act.

See

415 ILCS 5/40 (2000). Tr.1 at 68-69; Exh. 21, att. 2.

UST Fund Payment Procedures – Sections 732.601, 732.602, 732.603, 732.605, and 732.606

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If UST owners or operators qualify, they may receive reimbursement from the State’s

UST Fund. The Agency proposed clarifying the application for payment and payment

procedures related to the UST Fund. One of the proposed changes makes the regulations

consistent with the Act – specifically, if the Agency fails to notify the owner or operator of its

final action on an application for payment within 120 days after receipt, the application is

approved (as opposed to rejected) by operation of law. Tr.1 at 20-22; Exh. 2 at 8-12; Exh. 6 at 3;

Stat. of Reas. at 12-14. (On a related note, the Agency also proposed clarifying language for

circumstances by which a Site Classification completion report is rejected by operation of law.

Exh. 1 at 7; Stat. of Reas. at 10.) The Agency also proposed clarifying that it will not reimburse

UST removal or disposal costs for tanks deemed ineligible by the Office of the State Fire

Marshal. Stat. of Reas. at 14.

NFR Letters – Sections 732.701 and 732.703

The Agency proposed having the discretion to make non-substantive corrections to NFR

letters in order to ensure that recorded NFR letters are accurate. Tr. 1 at 70-71; Stat. of Reas. at

15-16.

The Agency also proposed several amendments for the recording and voiding of NFR

letters. An owner or operator must submit a copy of necessary institutional controls when

recording an NFR letter. An NFR letter is perfected, rather than effective, upon recording.

See

definition of “perfected” at proposed Section 732.200. An unperfected NFR letter would still be

effective, but only between the Agency and the operator. There would be a 30-day limit for an

owner or operator to submit a recorded NFR letter and attachment to the Agency. Tr.1 at 13;

Exh. 1 at 9; Stat. of Reas. at 16.

IDOT MOA – Subsections 732.703(c) and 732.704(a)(7)

Previously, NFR letters could not be perfected on Illinois Department of Transportation

(IDOT) right-of-ways because there is no title on these right-of-ways. To address this problem,

an Agency-IDOT Memorandum of Agreement (IDOT MOA) has been signed for USTs on

IDOT right-of-ways. The IDOT MOA will cover institutional controls for leaking UST incidents

on IDOT property provided that the incidents are listed at Appendix B of the MOA. Land use

limitations may be revised only by recording a new NFR letter or by an amendment to the

Agency-IDOT MOA. Failure to comply with the Agency-IDOT MOA may result in the Agency

voiding an NFR letter. Tr.1 at 13-14; 69-70, 80-81; Tr.2 at 77-78; Exh. 1 at 9; Exh. 7 at 3; Exh.

18; Stat. of Reas. at 17.

LUC MOA – Subsections 732.703(d), 732.704(a)(8), and 732.705

The U.S. General Services Administration (GSA) has the authority to manage

“nonexcess” federal land and the authority to dispose of “excess” or “surplus” federal land.

Under the Base Closure and Realignment (BRAC) statutes passed by Congress, the Department

of Defense (DOD) has the authority to manage or dispose of military property. However, the

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18

management and disposal authority that the GSA and the DOD have is limited. The DOD, for

example, does not have the authority to record land use restrictions on federal property. Tr.2 at

12, 24-30; Exh. 10; Exh. 14. In January 2001 the DOD drafted a nationwide policy on land use

controls associated with environmental remediation at both active military installations and

installations that are closing under the BRAC. Tr.2 at 20-22; Exh. 13.

Taking these considerations into account, the Department of the Navy (Navy) met with

the Agency to request an alternate approach to recording NFR letters. The Navy proposed a

three-party, installation-specific “land use control memorandum of agreement” (LUC MOA)

between the federal landholding entity, U.S. EPA Region V, and the Agency.

See

Exh. 11. Mr.

Butterworth of the GSA reviewed the LUC MOA. He testified that he is confident that the LUC

MOA will address concerns regarding the military’s inability (and other federal landholding

entities that have similar limitations) to perfect NFR letters while ensuring that the military

maintains proper oversight of USTs and related land use controls. The Navy has executed these

MOAs in other U.S. EPA Regions, and the Board recently approved the use of such MOAs

pursuant to the TACO regulations.

See

35 Ill. Adm. Code 742.1010. In addition, the Agency is

proposing a similar LUC MOA scheme for the SRP amendments being proposed for first notice

today. Tr.2 at 13-16, 20, 31, 35; Exh. 10; Exh. 14 at 5.

The Agency has proposed definitions and regulations to establish the LUC MOA at Part

732. The Agency has also proposed special regulations for recording NFR letters at federal sites

where the federal landholder does not have authority to record institutional controls on the chain

of title. In order to perfect an NFR letter, the landholder must enter a LUC MOA with the

Agency. The LUC MOA would allow the federal landholding entity to describe property using

Geographic Information System or Global Positioning System coordinates because federal

property sometimes is not identified by common addresses, legal descriptions, or real estate

numbers. The LUC MOA would also mandate that the federal landowning entity conduct

periodic site inspections, confer with the Agency on a periodic basis, and notify the Agency of

changes in land use or ownership if the site is transferred to a non-federal landowner. An NFR

letter must be recorded within 45 days of transferring the property to a non-federal entity or the

NFR letter will be void. Failure to comply with the LUC MOA or failure to timely record the

NFR letter may result in the Agency’s voiding the NFR letter. Exh. 1 at 14; Exh. 5 at 7, 42-43,

45; Exh. 7 at 1, 2; Exh. 10.

At the second hearing, the DOD submitted an exhibit in which it suggested certain

changes to the Agency’s proposed LUC MOA language, including additional definitions. The

Agency did not provide any opinion on these suggested revisions in its final comments. Exh. 12.

The Board finds that LUC MOAs are necessary to protect human health and the

environment for federal landholding entities without the authority to record deed restrictions.

The Board also approves of the mechanism for recording NFR letters once the federal property is

transferred to a non-federal landholding entity. The Board will propose the Agency’s language

in addition to most of DOD’s suggested revisions for first notice.

Revisions of Land Use Restrictions – Subsection 732.703(e)

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19

The Agency proposed that revisions of land use restrictions may be addressed only by

perfecting a new NFR letter pursuant to the SRP. The MOA must be amended for revised land

use restrictions at IDOT or federally-owned sites. Exh. 1 at 10; Exh. 5 at 43.

For example, this amendment would cover a new engineered barrier (or lack of an

engineered barrier) that may not address site contamination in the same way that the original

barrier did. Replacing an asphalt engineered barrier with concrete may not require a new NFR

letter pursuant to the SRP; instead it may require an amended completion report. At hearing,

Mr. King called this “a pretty simple process”. Tr.1 at 45-49, 56.

Voiding NFR Letters – Subsection 732.704(a)

The Agency proposed several new ways that it can void an NFR letter including failure to

perfect within 45 days of issuance, failure to comply with the IDOT right-of-way requirements,

and failure to comply with notice or confirmation requirements if using an ordinance as an

institutional control. Tr.1 at 14; Exh. 1 at 10; Stat. of Reas. at 17-18.

Addition of PCBs as an “Additional Parameter” – Appendix B

The “additional parameters” at Appendix B are a subset of indicator contaminants. The

Agency proposed addition of polychlorinated biphenyls (PCBs) to the “additional parameter” list

in Appendix B to correct an oversight from the 1997 amendments to Part 732. Tr.1 at 22; Exh. 2

at 2; Stat. of Reas. at 18.

Backfill Volume and Weight – Appendix C

Backfill refers to the soil, gravel or other material that is removed and/or replaced during

the process of removing an UST. The Agency proposed describing the maximum amount of

backfill material to be removed and replaced in tons; it is already listed in cubic yards. The

addition should allow for easier reimbursement from the UST fund. Tr.1 at 22; Exh. 2 at 13;

Stat. of Reas. at 18.

Mr. Carson submitted a public comment in which he claimed that the Agency’s proposed

tonnages are not representative of field conditions and are inconsistent with the default soil bulk

densities listed in the Board’s TACO regulations (35 Ill. Adm. Code 742, App. C, Tables B and

D). Carson also argued that the weight of backfill material should account for typical moisture

content for material excavated from UST sites to reflect the field conditions. PC 2.

The Board agrees that including the weight of backfill material would be helpful to both

the Agency and the regulated community for reimbursement purposes. The Board agrees with

Carson that the weight of backfill material should be based on material densities that are

representative of field conditions and that are consistent with the default values set forth in the

TACO regulations.

The Board notes that Appendix C, Table B of Part 742 lists the dry bulk density of sand

as 1.8 g/cm

3

and gravel as 2.0 g/cm

3

. If the typical moisture content of sand excavated from a

---

20

UST site is assumed to be 10 percent, as suggested by Carson, the bulk density of sand would

increase to 1.98 g/cm

3

or approximately 2.0 g/cm

3

. For replacement backfill, the Board finds

that the dry bulk density of gravel of 2.0 g/cm

3

specified in the TACO regulations may be used

to determine weight since the moisture content of clean gravel would be very low.

The Board finds that, at some sites, it will be more appropriate to determine the backfill

weight based on site-specific information. The density of fill material and moisture content may

vary significantly from the default values due to variations in water table elevations, soil

conditions, and composition of fill material.

TECHNICAL FEASIBILITY/ECONOMIC REASONABLENESS

The Agency claimed that its amendments do not raise technical feasibility issues. Stat. of

Reas. at 18.

The Agency stated that there could be an increase in obtaining laboratory results due to

the requirement that owners and operators use accredited labs. Costs per lab for accreditation

include a $350 initial cost and $350-$900 annually, but the Agency believed these are

reasonable. Stat. of Reas. at 18-19.

The inclusion of MTBE as an indicator contaminant could have an economic impact to

the regulated community, but the Agency believed it would be reasonable. Likewise, the

Agency predicted that the requirement to investigate and remediate off-site contamination will

have an economic impact, but it would be reasonable. Stat. of Reas. at 19.

The Agency provided cost estimates for the sampling requirements proposed for

Subsection 732.202(h). For example, analyzing the six samples required for BETX (a common

unleaded gasoline constituent) is $510. The Agency also argued that testing samples at the time

of excavation is much cheaper than drilling soil borings and collecting samples at a later date.

Exh. 2 at 3.

At the second hearing, the Board reserved time for testimony on the decision of the

Department of Commerce and Community Affairs (DCCA) not to perform an Economic Impact

Statement for docket R01-26. There was no testimony and none of the parties addressed

DCCA’s decision either in their exhibits or public comments. Tr.2 at 11.

After examining the record, the Board finds that the proposed amendments to the UST

regulations are both technically feasible and economically reasonable.

CONCLUSION

The Board proposes much of the Agency’s proposal for first notice with some revisions.

Those revisions include stylistic revisions to comport with the requirements of the Joint

Committee on Administrative Review. The Board is also including some minor revisions

suggested by the IPC regarding off-site access at Sections 732.404(c) and 732.411 of the Board’s

regulations. See Exh. 17. The Agency stated that it had no objections to these provisions. PC 5

---

21

at 4-6. In addition, the Board is including some of the clarifications suggested by Mr. Dye of

the AIPG at Section 732.307(c)(3) and some of the clarifications suggested by the DOD for

Sections 732.103, 732.702, and 732.703.

3

The Agency did not address the clarifications from

Mr. Dye or DOD. Tr.1 at 78-80; Exh. 8 at 3-4; Exh. 12. The Board has also revised some of the

Agency’s language allowing LPGs to practice under Part 732, included a new effective date for

lab certifications, and updated the reference to analytical method SW-486. The Board chooses

not to change the trigger for reimbursement of Early Action period corrective action activities.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

The Board directs the Clerk to cause the filing of the following amendments with the

Secretary of State for first-notice publication in the

Illinois Register

.

3

The Board will not add Mr. Dye’s suggestion for a Board Note following Subsection

732.307(c)(3)(B)(iii). Mr. Dye proposed that the tester have the discretion to use the method in

ASTM D 4525-90 depending on the type of rock at issue. ASTM D 4525-90 applies to all types

of rock. The Board notes that the tester may use an alternate method if the Agency approves.

See

Exh. 8.

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22

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER d: UNDERGROUND INJECTION CONTROL AND UNDERGROUND

STORAGE TANK PROGRAMS

PART 732

PETROLEUM UNDERGROUND STORAGE TANKS

SUBPART A: GENERAL

Section

732.100

Applicability

732.101

Election to Proceed under Part 732

732.102

Severability

732.103

Definitions

732.104

Incorporations by Reference

732.105

Agency Authority to Initiate Investigative, Preventive or Corrective Action

732.106

Laboratory Certification

SUBPART B: EARLY ACTION

Section

732.200

General

732.201

Agency Authority to Initiate

732.202

Early Action

732.203

Free Product Removal

732.204

Application for Payment

SUBPART C: SITE EVALUATION AND CLASSIFICATION

Section

732.300

General

732.301

Agency Authority to Initiate

732.302

No Further Action Sites

732.303

Low Priority Sites

732.304

High Priority Sites

732.305

Plan Submittal and Review

732.306

Deferred Site Classification; Priority List for Payment

732.307

Site Evaluation

732.308

Boring Logs and Sealing of Soil Borings and Groundwater Monitoring Wells

732.309

Site Classification Completion Report

732.310

Indicator Contaminants

732.311

Indicator Contaminant Groundwater Objectives

732.312

Classification by Exposure Pathway Exclusion

---

23

SUBPART D: CORRECTIVE ACTION

Section

732.400

General

732.401

Agency Authority to Initiate

732.402

No Further Action Site

732.403

Low Priority Site

732.404

High Priority Site

732.405

Plan Submittal and Review

732.406

Deferred Corrective Action; Priority List for Payment

732.407

Alternative Technologies

732.408

Remediation Objectives

732.409

Groundwater Monitoring and Corrective Action Completion Reports

732.410

“No Further Remediation” Letter (Repealed)

732.411

Off-site Access

SUBPART E: SELECTION AND REVIEW PROCEDURES FOR PLANS AND REPORTS

Section

732.500

General

732.501

Submittal of Plans or Reports

732.502

Completeness Review

732.503

Full Review of Plans or Reports

732.504

Selection of Plans or Reports for Full Review

732.505

Standards for Review of Plans or Reports

SUBPART F: PAYMENT OR REIMBURSEMENT

Section

732.600

General

732.601

Applications for Payment

732.602

Review of Applications for Payment

732.603

Authorization for Payment; Priority List

732.604

Limitations on Total Payments

732.605

Eligible Costs

732.606

Ineligible Costs

732.607

Payment for Handling Charges

732.608

Apportionment of Costs

732.609

Subrogation of Rights

732.610

Indemnification

732.611

Costs Covered by Insurance, Agreement or Court Order

732.612

Determination and Collection of Excess Payments

SUBPART G: NO FURTHER REMEDIATION LETTERS AND RECORDING

REQUIREMENTS

---

24

Section

732.700

General

732.701

Issuance of a No Further Remediation Letter

732.702

Contents of a No Further Remediation Letter

732.703

Duty to Record a No Further Remediation Letter

732.704

Voidance of a No Further Remediation Letter

732.APPENDIX A

Indicator Contaminants

732.APPENDIX B

Additional Parameters

TABLE A Groundwater and Soil Remediation Objectives (Repealed)

TABLE B Soil remediation Methodology: Model Parameter Values (Repealed)

TABLE C Soil remediation Methodology: Chemical Specific Parameters (Repealed)

TABLE D Soil remediation Methodology: Objectives (Repealed)

ILLUSTRATION A

Equation for Groundwater Transport (Repealed)

ILLUSTRATION B

Equation for Soil-Groundwater Relationship (Repealed)

ILLUSTRATION C

Equation for Calculating Groundwater Objectives at the Source

(Repealed)

ILLUSTRATION D

Equation for Calculating Soil Objectives at the Source (Repealed)

732.APPENDIX C

Backfill Volumes

AUTHORITY: Implementing Sections 22.12 and 57 -57.17 and authorized by Section 57.14 of

the Environmental Protection Act [415 ILCS 5/22.12, 57 -57.17 and 57.14].

SOURCE: Adopted in R94-2 at 18 Ill. Reg. 15008, effective September 23, 1994; amended in

R97-10 at 21 Ill. Reg. 3617, effective July 1, 1997; amended in R01-26 at ___ Ill. Reg.

________, effective ________________________.

NOTE: Italics denotes statutory language.

SUBPART A: GENERAL

Section 732.101

Election to Proceed under Part 732

a)

Owners or operators of any underground storage tank system used to contain

petroleum and for which a release was reported to the proper State authority on or

before September 12, 1993, may elect to proceed in accordance with this Part by

submitting to the Agency a written statement of such election signed by the owner

or operator. Such election shall be submitted on forms prescribed and provided

by the Agency and, if specified by the Agency by written notice, in an electronic

format. Corrective action shall then follow the requirements of this Part. The

election shall be effective upon receipt by the Agency and shall not be withdrawn

once made.

b)

Except as provided in Section 732.100(b) of this Part, owners or operators of

underground storage tanks (USTs) used exclusively to store heating oil for

consumptive use on the premises where stored and thatwhich serve other than a

farm or residential unit may elect to proceed in accordance with this Part by

---

25

submitting to the Agency a written statement of such election signed by the owner

or operator. Such election shall be submitted on forms prescribed and provided

by the Agency and, if specified by the Agency by written notice, in an electronic

format. Corrective action shall then follow the requirements of this Part. The

election shall be effective upon receipt by the Agency and shall not be withdrawn

once made.

c)

If the owner or operator elects to proceed pursuant to this Part, corrective action

costs incurred in connection with the release and prior to the notification of

election shall be payable or reimbursable in the same manner as was allowable

under the then existing law. Corrective action costs incurred after the notification

of election shall be payable or reimbursable in accordance with Subparts E and F

of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.103

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 Environmental Protection Act [415 ILCS 5].

“Act” means the Environmental Protection Act [415 ILCS 5].

“Agency” means the Illinois Environmental Protection Agency.

“Alternative Technology” means a process or technique, other than conventional

technology, used to perform a corrective action with respect to soils contaminated

by releases of petroleum from an underground storage tank.

“Board” means the Illinois Pollution Control Board.

“Bodily Injury” means bodily injury, sickness, or disease sustained by a person,

including death at any time, resulting from a release of petroleum from an

underground storage tank

.

.

[415 ILCS 5/57.2](Section 57.2 of the Act) .

“Class I groundwater” means groundwater that meets the Class I: potable

resource groundwater criteria set forth in the board regulations adopted pursuant

to the Illinois Groundwater Protection Act

.

.

[415 ILCS 5/57.2](Section 57.2 of

the Act) .

“Class III groundwater” means groundwater that meets the Class III: special

resource groundwater criteria set forth in the board regulations adopted pursuant

to the Illinois Groundwater Protection Act

.

.

[415 ILCS 5/57.2](Section 57.2 of

the Act) .

“Confirmed Exceedence” means laboratory verification of an exceedence of the

applicable groundwater quality standards or objectives.

---

26

“Confirmed Release” means a release of petroleum that has been confirmed in

accordance with regulations promulgated by the Office of the State Fire Marshal

at 41 Ill. Adm. Code 170.

“Conventional Technology” means a process or technique to perform a corrective

action by removal, transportation and disposal of soils contaminated by a release

of petroleum from an underground storage tank in accordance with applicable

laws and regulations, but without processing to remove petroleum from the soils.

“Corrective action” means activities associated with compliance with the

provisions of Sections 57.6 and 57.7

of the Act.

[415 ILCS 5/57.2](Section 57.2

of the Act) .

“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.

“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.

“Federally Owned Property” means real property owned in fee by the United

States on which an institutional control is or institutional controls are sought to be

placed in accordance with this Part.

“Fill material” means non-native or disturbed materials used to bed and backfill

around an underground storage tank

.

.

[415 ILCS 5/57.2](Section 57.2 of the

Act) .

“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).

“Full Accounting” means a compilation of documentation to establish,

substantiate and justify the nature and extent of the corrective action costs

incurred by an owner or operator.

“Fund” means the underground storage tank fund

.

.

[415 ILCS 5/57.2](Section

57.2 of the Act) .

“GIS” means Geographic Information System.

“GPS” means Global Positioning System.

---

27

“Groundwater” means underground water which occurs within the saturated

zone and geologic materials where the fluid pressure in the pore space is equal to

or greater than atmospheric pressure

.

.

[415 ILCS 5/3.64](Section 3.64 of the

Act) .

“Handling Charges” means administrative, insurance, and interest costs and a

reasonable profit for procurement, oversight, and payment of subcontracts and

field purchases.

“Heating oil” means petroleum that is No. 1, No. 2, No. 4 -light, No. 4 -heavy,

No. 5 -light, No. 5 -heavy or No. 6 technical grades of fuel oil; and other residual

fuel oils including navy special fuel oil and bunker c

.

.

[415 ILCS 5/57.2](Section

57.2 of the Act) .

“IEMA” means the Illinois Emergency Management Agency.

“Indemnification” means indemnification of an owner or operator for the amount

of judgment entered against the owner or operator in a court of law, for the

amount of any final order or determination made against the owner or operator

by any agency of State government or any subdivision thereof, or for the amount

of any settlement entered into by the owner or operator, if the judgment, order,

determination, or settlement arises out of bodily injury or property damage

suffered as a result of a release of petroleum from an underground storage tank

owned or operated by the owner or operator

. [415 ILCS 5/57.2](Section 57.2 of

the Act) .

“Institutional Control” means a legal mechanism for imposing a restriction on

land use as described in 35 Ill. Adm. Code 742 Subpart J.

“Land Use Control Memorandum of Agreement” means an agreement entered

into between one or more agencies of the United States and the Illinois

Environmental Protection Agency that limits or places requirements upon the use

of Federally Owned Property for the purpose of protecting human health or the

environment, or that is used to perfect a No Further Remediation Letter that

contains land use restrictions.

“Licensed professional engineer” means a person, corporation or partnership

licensed under the laws of the State of Illinois to practice professional

engineering

.

[415 ILCS 5/57.2](Section 57.2 of the Act) .

“Licensed Professional Geologist”

means

an individual who is licensed under

the

Professional Geologist Licensing Act

to engage in the practice of professional

geology in Illinois

.

.

[225 ILCS 745/15] .

“Line Item Estimate” means an estimate of the costs associated with each line

item (including, but not necessarily limited to, personnel, equipment, travel, etc.)

---

28

thatwhich an owner or operator anticipates will be incurred for the development,

implementation and completion of a plan or report.

“Man-made Pathway” means constructed routes that may allow for the transport

of mobile petroleum free-liquid or petroleum-based vapors including, but not

limited to, sewers, utility lines, utility vaults, building foundations, basements,

crawl spaces, drainage ditches or previously excavated and filled areas.

“Monitoring Well” means a water well intended for the purpose of determining

groundwater quality or quantity.

“Natural Pathway” means natural routes for the transport of mobile petroleum

free-liquid or petroleum-based vapors including, but not limited to soil,

groundwater, sand seams and lenses and gravel seams and lenses.

“Occurrence” means an accident, including continuous or repeated exposure to

conditions, that results in a sudden or nonsudden release from an underground

storage tank

.

.

[415 ILCS 5/57.2](Section 57.2 of the Act) .

“OSFM” means the Office of the State Fire Marshal.

“Operator” means any person in control of, or having responsibility for, the daily

operation of the underground storage tank. (42 U.S.C. USC § 6991)

BOARD NOTE: A person who voluntarily undertakes action to remove an

underground storage tank system from the ground shall not be deemed an

“operator” merely by the undertaking of such action.

“Owner” means:

In the case of an underground storage tank in use on November 8, 1984, or

brought into use after that date, any person who owns an underground

storage tank used for the storage, use or dispensing of regulated

substances;

In the case of any underground storage tank in use before November 8,

1984, but no longer in use on that date, any person who owned such

underground storage tank immediately before the discontinuation of its

use. (42 U.S.C.

USC § 6991)

“Perfect” or “Perfected” means recorded or filed for record so as to place the

public on notice, or as otherwise provided in subsections 732.703(c) and (d) of

this Part.

“Person” means, for the purposes of interpreting the definitions of the terms

“owner” or “operator,” an individual, trust, firm, joint stock company, joint

venture, consortium, commercial entity, corporation (including a government

corporation), partnership, association, State, municipality, commission, political

---

29

subdivision of a State, or any interstate body and shall include the United States

Government and each department, agency, and instrumentality of the United

States. (Derived from 42 U.S.C. USC § 6991)

“Petroleum” means petroleum, including crude oil or any fraction thereof which is

liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit

and 14.7 pounds per square inch absolute). (42 U.S.C. USC § 6991)

“Physical soil classification” means verification

of geological conditions

consistent with regulations for identifying and protecting potable resource

groundwater or verification

that subsurface strata are as generally mapped in the

publication Illinois Geological Survey Circular (1984) entitled “Potential For

Contamination Of Shallow Aquifers In Illinois,” by Berg, Richard C., et al. Such

classification may include review of soil borings, well logs, physical soil analysis,

regional geologic maps, or other scientific publications

.

.

[415 ILCS

5/57.2](Section 57.2 of the Act) .

“Potable” means generally fit for human consumption in accordance with

accepted water supply principles and practices

.

.

[415 ILCS 5/3.65](Section 3.65

of the Act) .

“Property damage” means physical injury to, destruction of, or contamination of

tangible property

owned by a person other than an owner or operator of the UST

from which a release of petroleum has occurred and which tangible property is

located off the site where the release occurred. Property damage includes

all

resulting loss of use of that property; or loss of use of tangible property that is not

physically injured, destroyed or contaminated, but has been evacuated,

withdrawn from use, or rendered inaccessible because of a release of petroleum

from an underground storage tank

.

.

[415 ILCS 5/57.2](Derived from Section

57.2 of the Act) .

“Registration” means registration of an underground storage tank with the OSFM

in accordance with Section 4 of the Gasoline Storage Act [430 ILCS 15/4]

“Regulated recharge area” means a compact geographic area, as determined by

the Board, the geology of which renders a potable resource groundwater

particularly susceptible to contamination

.

.

[415 ILCS 5/3.67](Section 3.67 of the

Act) .

“Regulated Substance” means any substance defined in Section 101(14) of the

Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (42 U.S.C.

USC § 9601(14)) (but not including any substance regulated as a

hazardous waste under subtitle C of the Resource Conservation and Recovery Act

(42 U.S.C. USC §§ 6921 et seq.)), and Petroleum. (42 U.S.C. USC § 6991)

“Release” means any spilling, leaking, emitting, discharging, escaping, leaching,

or disposing of petroleum from an underground storage tank into groundwater,

surface water or subsurface soils

.

.

[415 ILCS 5/57.2](Section 57.2 of the Act) .

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30

“Residential Tank” means an underground storage tank located on property used

primarily for dwelling purposes.

“Residential Unit” means a structure used primarily for dwelling purposes

including multi-unit dwellings such as apartment buildings, condominiums,

cooperatives or dormitories.

“Setback zone” means a geographic area, designated pursuant to the Act or

regulations, containing a potable water supply well or a potential source or

potential route, having a continuous boundary, and within which certain

prohibitions or regulations are applicable in order to protect groundwater

.

.

[415

ILCS 5/3.61](Section 3.61 of the Act) .

“Site” means any single location, place, tract of land or parcel of property

including contiguous property not separated by a public right-of-way

.

.

[415

ILCS 5/57.2](Section 57.2 of the Act) .

“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.

“Surface Body of Water” or “Surface Water Body” means a natural or man-made

body of water on the ground surface including, but not limited to, lakes, ponds,

reservoirs, retention ponds, rivers, streams, creeks and drainage ditches. Surface

body of water does not include puddles or other accumulations of precipitation,

run-off or groundwater in UST excavations.

“Tank Field” means all underground storage tanks at a site that reside within a

circle with a 100 foot radius.

“Underground Storage Tank” or “UST” means any one or combination of tanks

(including underground pipes connected thereto) which is used to contain an

accumulation of regulated substances, and the volume of which (including the

volume of underground pipes connected thereto) is 10 per centum or more

beneath the surface of the ground. Such term does not include any of the

following or any pipes connected thereto:

Farm or residential tank of 1,100 gallons or less capacity used for storing

motor fuel for noncommercial purposes;

Septic tank;

---

31

Pipeline facility (including gathering lines) regulated under the Natural

Gas Pipeline Safety Act of 1968 (49 U.S.C. USC App. 1671 et seq.), or

the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. USC App.

2001 et seq.), or which is an intrastate pipeline facility regulated under

State laws as provided in either of these provisions of law, and thatwhich

is determined by the Secretary of Energy to be connected to a pipeline or

to be operated or intended to be capable of operating at pipeline pressure

or as an integral part of a pipeline;

Surface impoundment, pit, pond, or lagoon;

Storm water or waste water collection system;

Flow-through process tank;

Liquid trap or associated gathering lines directly related to oil or gas

production and gathering operations; or

Storage tank situated in an underground area (such as a basement, cellar,

mineworking, drift, shaft, or tunnel) if the storage tank is situated on or

above the surface of the floor. (Derived from 42 U.S.C. USC § 6991)

The term “underground storage tank” shall also mean an underground storage

tank used exclusively to store heating oil for consumptive use on the premises

where stored and which serves other than a farm or residential unit

.

.

[415 ILCS

5/57.2](Section 57.2 of the Act) .

“UST system” or “tank system” means an underground storage tank, connected

underground piping, underground ancillary equipment, and containment system,

if any.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.104

Incorporations by Reference

a)

The Board incorporates the following material by reference:

ASTM. American Society for Testing and Materials, 1916 Race Street,

Philadelphia, PA 19103 (215) 299-5400

ASTM D 422-63, Standard Test Method for Particle-Size Analysis of

Soils, approved November 21, 1963 (reapproved 1990).

ASTM D 1140-92, Standard Test Method for Amount of Material in Soils

Finer than the No. 200 (75 um) Sieve, approved November 15, 1992.

ASTM D 2216-92, Standard Test Method for Laboratory Determination of

Water (Moisture) Content of Soil and Rock, approved June 15, 1992.

---

32

ASTM D 4643-93, Standard Test Method for Determination of Water

(Moisture) Content of Soil by the Microwave Oven Method, approved

July 15, 1993.

ASTM D 2487-93, Standard Test Method for Classification of Soils for

Engineering Purposes, approved September 15, 1993.

ASTM D 2488-93, Standard Practice for Description and Identification of

Soils (Visual-Manual Procedure), approved September 15, 1993.

ASTM D 5084-90, Standard Test Method for Measurement of Hydraulic

Conductivity of Saturated Porous Materials Using a Flexible Wall

Permeameter, approved June 22, 1990.

ASTM D 4525-90, Standard Test Method for Permeability of Rocks by

Flowing Air, approved May 25, 1990.

ASTM D 1587-83, Standard Practice for Thin-Walled Tube Sampling of

Soils, approved August 17,1983.

ISGS. Illinois State Geological Survey, 615 E. Peabody Drive, Champaign, IL

61820-6964 (217) 333-4747

Richard C. Berg, John P. Kempton, Keros Cartwright, “Potential for

Contamination of Shallow Aquifers in Illinois” (1984), Circular No. 532.

NTIS. National Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161 (703) 487-4600

“Methods for Chemical Analysis of Water and Wastes,” EPA Publication

No. EPA-600/4-79-020 (March 1983), Doc. No. PB 84-128677.

“Methods for the Determination of Organic Compounds in Drinking

Water,” EPA, EMSL, EPA-600/4-88/039 (Dec. 1988), Doc. No. PB 89-

220461.

“Practical Guide for Ground-Water Sampling,” EPA Publication No.

EPA-600/2-85/104 (September 1985), Doc. No. PB 86-137304.

“Rapid Assessment of Exposure to Particulate Emissions from Surface

Contamination Sites,” EPA Publication No. EPA/600/8-85/002 (February

1985), Doc. No. PB 85-192219.

“Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods,”

EPA Publication No. SW-846, Third Edition (September, 1986), as

amended by Update I Updates I, IIA, III, and IIIA (July 1992Final Update

IIIA dated April 1998), Doc. No. 955-001-00000-1.

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33

USGS. United States Geological Survey, 1961 Stout Street, Denver, CO 80294

(303) 844-4169

“Techniques of Water Resources Investigations of the United States

Geological Survey, Guidelines for Collection and Field Analysis of

Ground-Water Samples for Selected Unstable Constituents,” Book I,

Chapter D2 (1981).

b)

CFR (Code of Federal Regulations). Available from the Superintendent of

Documents, U.S. Government Printing Office, Washington, D.C. 20402 (202)

783-3238

40 CFR 261, Appendix II (1992).

40 CFR 761.120 (1993).

c)

This Section incorporates no later editions or amendments.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.106

Laboratory Certification

All quantitative analyses of samples collected on or after July 1, 2003, and utilizing any of the

approved test methods identified in 35 Ill. Adm. Code 186.180, shall be completed by an

accredited laboratory in accordance with the requirements of 35 Ill. Adm. Code 186.

Quantitative analyses not utilizing an accredited laboratory in accordance with Part 186 shall be

deemed invalid.

(Source: Added at _____ Ill. Reg. ______, effective ______________________)

SUBPART B: EARLY ACTION

Section 732.202

Early Action

a)

Upon confirmation of a release of petroleum from an UST system in accordance

with regulations promulgated by the OSFM, the owner or operator, or both, shall

perform the following initial response actions within 24 hours after the release:

1)

Report the release to IEMA (e.g., by telephone or electronic mail);

2)

Take immediate action to prevent any further release of the regulated

substance to the environment; and

3)

Identify and mitigate fire, explosion and vapor hazards.

b)

Within 20 days after confirmation of a release of petroleum from a UST system in

accordance with regulations promulgated by the OSFM, the owner or operator

shall perform the following initial abatement measures:

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34

1)

Remove as much of the petroleum from the UST system as is necessary to

prevent further release into the environment;

2)

Visually inspect any aboveground releases or exposed below ground

releases and prevent further migration of the released substance into

surrounding soils and groundwater;

3)

Continue to monitor and mitigate any additional fire and safety hazards

posed by vapors or free product that have migrated from the UST

excavation zone and entered into subsurface structures (such as sewers or

basements);

4)

Remedy hazards posed by contaminated soils that are excavated or

exposed as a result of release confirmation, site investigation, abatement

or corrective action activities. If these remedies include treatment or

disposal of soils, the owner or operator shall comply with 35 Ill. Adm.

Code 722, 724, 725, and 807 through 815;

5)

Measure for the presence of a release where contamination is most likely

to be present at the UST site, unless the presence and source of the release

have been confirmed in accordance with regulations promulgated by the

OSFM. In selecting sample types, sample locations, and measurement

methods, the owner or operator shall consider the nature of the stored

substance, the type of backfill, depth to groundwater and other factors as

appropriate for identifying the presence and source of the release; and

6)

Investigate to determine the possible presence of free product, and begin

free product removal as soon as practicable and in accordance with

Section 732.203 below.

c)

Within 20 days after confirmation of a release of petroleum from a UST system in

accordance with regulations promulgated by the OSFM, owners or operators shall

submit a report to the Agency summarizing the initial abatement steps taken under

subsection (b) of this Section and any resulting information or data. The report

shall be submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format.

d)

Within 45 days after confirmation of a release, owners or operators shall assemble

information about the site and the nature of the release, including information

gained while confirming the release or completing the initial abatement measures

in subsections (a) and (b) of this Section. This information shall include, but is

not limited to, the following:

1)

Data on the nature and estimated quantity of release;

2)

Data from available sources or site investigations concerning the

following factors: surrounding populations, water quality, use and

approximate locations of wells potentially affected by the release,

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35

subsurface soil conditions, locations of subsurface sewers, climatological

conditions and land use;

3)

Results of the site check required at subsection (b)(5) of this Section;

4)

Results of the free product investigations required at subsection (b)(6) of

this Section, to be used by owners or operators to determine whether free

product must be recovered under Section 732.203.

e)

Within 45 days after confirmation of a release of petroleum from a UST system in

accordance with regulations promulgated by the OSFM, owners or operators shall

submit to the Agency the information collected in compliance with subsection (d)

of this Section in a manner that demonstrates its applicability and technical

adequacy. The information shall be submitted on forms prescribed and provided

by the Agency and, if specified by the Agency by written notice, in an electronic

format.

f)

Notwithstanding any other corrective action taken, an owner or operator may, at

a minimum, and prior to submission of any plans to the Agency, remove the tank

system, or abandon the underground storage tank in place, in accordance with

the regulations promulgated by the Office of the State Fire Marshal. The owner

may remove visibly contaminated fill material and any groundwater in the

excavation which exhibits a sheen

. Early action may also include disposal in

accordance with applicable regulations or ex-situ treatment of contaminated fill

material in accordance with Section 57.7(a)(1)(B) of the Act. [415 ILCS

5/57.6(b)](Section 57.6(b) of the Act).

g)

For purposes of reimbursement, the activities set forth in subsection (f) of this

Section shall be performed within 45 days after confirmation of a release, unless

special circumstances, approved by the Agency in writing, warrant continuing

such activities beyond 45 days. The owner or operator shall notify the Agency in

writing within 45 days of a release of such circumstances. Costs incurred beyond

45 days shall be eligible if the Agency determines that they are consistent with

early action.

h)

The owner or operator shall determine whether the areas or locations of soil

contamination exposed as a result of early action excavation (e.g. excavation

boundaries, piping runs) meet the applicable Tier 1 remediation objectives

pursuant to 35 Ill. Adm. Code 742, Subpart E. Six samples shall be collected, one

on each sidewall and two at the bottom of the excavation. If contaminated

backfill is returned to the excavation, 2 representative samples must be collected

and analyzed for the applicable indicator contaminants. Additional samples may

be required for a multiple tank excavation.

1)

If the remediation objectives have been met, and if there is no evidence

that contaminated soils may be or may have been in contact with

groundwater, the owner or operator shall submit a corrective action

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36

completion report demonstrating compliance with those remediation

objectives.

2)

If the remediation objectives have not been met, or if there is evidence that

contaminated soils may be or may have been in contact with groundwater,

the owner or operator shall continue evaluation in accordance with

Subpart C of this Part.

BOARD NOTE: Section 57.7(a)(1)(B) of the Act limits payment or

reimbursement from the Fund for removal of contaminated fill material during

early action activities. Owners or operators proceeding with activities set forth in

subsection (f) of this Section are advised that they may not be entitled to full

payment or reimbursement. See Subpart F of this Part

.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.203

Free Product Removal

a)

Under any circumstance in which conditions at a site indicate the presence of free

product, owners or operators shall remove free product to the maximum extent

practicable while initiating or continuing any actions required pursuant to this Part

or other applicable laws or regulations. In meeting the requirements of this

Section, owners or operators shall:

a)1)

Conduct free product removal in a manner that minimizes the spread of

contamination into previously uncontaminated zones by using recovery

and disposal techniques appropriate to the hydrogeologic conditions at the

site and that properly treats, discharges or disposes of recovery byproducts

in compliance with applicable local, State and federal regulations;

b)2)

Use abatement of free product migration as a minimum objective for the

design of the free product removal system;

c)3)

Handle any flammable products in a safe and competent manner to

prevent fires or explosions; and

d)4)

Within 45 days after the confirmation of presence of free product from a

UST, prepare and submit to the Agency a free product removal report on a

form prescribed and provided by the Agency and, if specified by the

Agency, by written notice, in an electronic format. The report shall, at a

minimum, provide the following:

1)A)

The name of the persons responsible for implementing the free

product removal measures;

2)B) The estimated quantity, type and thickness of free product

observed or measured in wells, boreholes and excavations;

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37

3)C) The type of free product recovery system used;

4)D) Whether any discharge will take place on-site or off-site during the

recovery operation and where this discharge will be located;

5)E)

The type of treatment applied to, and the effluent quality expected

from, any discharge;

6)F)

The steps that have been or are being taken to obtain necessary

permits for any discharge; and

7)G) The disposition of the recovered free product.\

5)

If free product removal activities are conducted more than 45 days after

the confirmation of the presence of free product, submit free product

removal reports in accordance with a schedule established by the Agency.

b)

For purposes of reimbursement, owners or operators are not required to obtain

Agency approval pursuant to Section 732.202(g) for free product removal

activities conducted more than 45 days after initial notification to IEMA of a

release.

(Source: Amended at ______ Ill. Reg. ________, effective ________________________)

Section 732.204

Application for Payment

Owners or operators intending to seek payment or reimbursement for early action activities are

not required to submit a corresponding budget plan to the Agency prior to the application for

payment. The application for payment may be submitted to the Agency upon completion of the

early action activities in accordance with the requirements at Subpart F of this Part. In the

alternative, the owner or operator may submit line item estimates of the activities and costs as

part of a site classification budget plan submitted pursuant to Section 732.305 for prior review

and approval in accordance with Subpart E of this Part. If the alternative of submitting a line

item estimate of the activities and costs is selected, a subsequent application for payment

satisfying the requirements of Subpart F will be required before payment can be approved and

such application for payment must be submitted with an application for payment for site

classification activities.

(Source: Amended at ______ Ill. Reg. ___________, effective ________________________)

SUBPART C: SITE EVALUATION AND CLASSIFICATION

Section 732.300

General

a)

Except as provided in subsection (b) of this Section, the owner or operator of any

site subject to this Part shall evaluate and classify the site in accordance with the

requirements of this Subpart C. All such sites shall be classified as No Further

Action, Low Priority or High Priority. Site classifications shall be based on the

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38

results of the site evaluation, including, but not limited to, the physical soil

classification and the groundwater investigation, if applicable.

b)

An owner or operator may choose to conduct remediation sufficient to satisfy the

remediation objectives in Section 732.408 of this Part as an alternative to Owners

or operators subject to this Part 732 may proceed without conducting site

classification activities pursuant to this Subpart C under the following

circumstances provided that:

1)

If the owner or operator chooses to conduct remediation sufficient to

satisfy the remediation objectives in Section 732.408 of this Part. Upon

completion of the remediation, the owner or operator shall submit a

corrective action completion report, demonstrating compliance with the

required levels. The owner or operator must sign and submit, with the

corrective action completion report, a form prescribed and provided by the

Agency addressing ownership of the site. Where the owner or operator

owns the site, the owner or operator must so indicate on the form. Where

the owner or operator either does not own or does not solely own the site,

the owner or operator must provide, on the form, a certification by original

signature of the title holder(s) of record for the remediation site or each

portion thereof, or the agent(s) of such person(s), stating as follows:

I hereby certify that I have reviewed the attached report and that I accept

the terms and conditions set forth therein, including any land use

limitations, that apply to property I own. I further certify that I have no

objection to the recording of a No Further Remediation Letter containing

the terms and conditions identified in the Corrective Action Completion

ReportA groundwater investigation shall be required if any of the

following conditions exist, unless an evaluation through 35 Ill. Adm. Code

742 determines that no groundwater investigation is necessary:; and

2)

Unless an evaluation pursuant to 35 Ill. Adm. Code 742

demonstrates that no groundwater investigation is necessary, the owner or

operator must complete a groundwater investigation under the following

circumstances:

A)

If

Tthere is evidence that groundwater wells have been impacted

by the release above the Tier 1 residential numbers set forth in 35

Ill. Adm. Code 742.Appendix B (e.g., as found during release

confirmation or previous corrective action measures);

B)

If

Ffree product that may impact groundwater is found to need

recovery in compliance with Section 732.203 of this Part

; or

C)

If Tthere is evidence that contaminated soils may be or may have

been in contact with groundwater, except that, if the owner or

operator pumps the excavation or tank cavity dry, properly

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39

disposes of all contaminated water, and demonstrates to the

Agency that no recharge is evident during the 24 hours following

pumping, the owner or operator does not have to complete a

groundwater investigation, unless the Agency’s review reveals that

further groundwater investigation is necessary. as a result of:

i)

Groundwater infiltrating the tank excavation; or

ii)

Groundwater occurring at or above the invert elevation of

the UST.

2)

If, upon completion of early action requirements pursuant to Subpart B of

this Part, the owner or operator can demonstrate compliance with the

remediation objectives required in Section 732.408 of this Part. Upon

completion of the early action requirements, the owner or operator shall

submit a corrective action completion report demonstrating compliance

with the required levels.

BOARD NOTE: Owners or operators proceeding under subsection (b) of this

Section are advised that they may not be entitled to full payment or

reimbursement. See Subpart F of this Part.

c)

For corrective action completion reports submitted pursuant to subsection (b) of

this Section, the Agency shall issue a No Further Remediation Letter upon

approval of the report by the Agency in accordance with Subpart E.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.302

No Further Action Sites

a)

Unless an owner or operator elects to classify a site under Section 732.312, sites

shall be classified as No Further Action if all of the following criteria are

satisfied:

1)

The physical soil classification procedure completed in accordance with

Section 732.307 confirms either of the following:

A)

“Berg Circular”

i)

The site is located in an area designated D, E, F or G on the

Illinois State Geological Survey Circular (1984) entitled,

“Potential for Contamination of Shallow Aquifers in

Illinois,” incorporated by reference at Section 732.104 of

this Part; and

ii)

The site's actual physical soil conditions are verified as

consistent with those designated D, E, F or G on the Illinois

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40

State Geological Survey Circular (1984) entitled, “Potential

for Contamination of Shallow Aquifers in Illinois”; or

B)

The site soil characteristics satisfy the criteria of Section

732.307(d)(3) of this Part;

2)

The UST system is not within the minimum or maximum setback zone of

a potable water supply well or regulated recharge area of a potable water

supply well;

3)

After completingcompletion

of early action measures in accordance with

Subpart B of this Part, there is no evidence that, through natural pathways

or man-made pathways, migration of petroleum or vapors threaten

threatens human health or human safety or may cause explosions in

basements, crawl spaces, utility conduits, storm or sanitary sewers, vaults

or other confined spaces;

4)

There is no designated Class III special resource groundwater within 200

feet of the UST system; and

5)

After completing early action measures in accordance with Subpart B of

this Part, no surface bodies of water are adversely affected by the presence

of a visible sheen or free product layer as a result of a release of

petroleum.

b)

Groundwater investigation shall be required to confirm that a site meets the

criteria of a No Further Action site if the Agency has received information

indicating that the groundwater is contaminated at levels in excess of applicable

groundwater objectives specified in 35 Ill. Adm. Code 742 at the property

boundary line or 200 feet from the UST system, whichever is less. In such cases,

a groundwater investigation that meets the requirements of Section 732.307(j)

shall be performed. If the investigation confirms there is an exceedence of

applicable Tier 1 residential indicator contaminant objectives (set forth in 35 Ill.

Adm. Code 742.Appendix B), the Agency may reclassify the site as High Priority.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.305

Plan Submittal and Review

a)

Unless an owner or operator elects to classify a site under Section 732.312, prior

to conducting any site evaluation activities, the owner or operator shall submit to

the Agency a site classification plan, including but not limited to a physical soil

classification and groundwater investigation plan, satisfying the minimum

requirements for site evaluation activities as set forth in Section 732.307. The

plans shall be designed to collect data sufficient to determine the site

classification in accordance with Section 732.302, 732.303 or 732.304 of this

Part. Site classification plans shall be submitted on forms prescribed and

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41

provided by the Agency and, if specified by the Agency by written notice, in an

electronic format.

b)

In addition to the plan required in subsection (a) of this Section and prior to

conducting any site evaluation activities, any owner or operator intending to seek

payment from the Fund shall submit to the Agency:

1)

An application for payment of costs associated with eligible early action

costs incurred pursuant to Subpart B of this Part, except as provided in

subsection (b)(2) of this Section; and

2)

A site classification budget plan, thatwhich

shall include, but not be

limited to, a copy of the eligibility and deductibility determination of the

OSFM and a line item estimate of all costs associated with the

development, implementation and completion of the site evaluation

activities required in Section 732.307. In accordance with Section

732.204 of this Part, the owner or operator may submit a site classification

budget plan that includes a line item estimate of the activities and costs of

early action for review and approval prior to the submittal of an

application for payment. Formulation of budget plans should be

consistent with the eligible and ineligible costs listed at Sections 732.605

and 732.606 of this Part. Site classification budget plans shall be

submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format.

c)

The Agency shall have the authority to review and approve, reject or require

modification of any plan submitted pursuant to this Section in accordance with the

procedures contained in Subpart E of this Part.

d)

Notwithstanding subsections (a) and (b) of this Section, an owner or operator may

proceed to conduct site evaluation activities in accordance with this Subpart C

prior to the submittal or approval or

of an otherwise required site classification

plan (including physical soil classification and groundwater investigation plans,

costs associated with activities to date and anticipated further costs and associated

budget plans). However, any such plan shall be submitted to the Agency for

review and approval, rejection or modification in accordance with the procedures

contained in Subpart E of this Part prior to payment or reimbursement for any

related costs or the issuance of a No Further Remediation Letter. If the owner or

operator has obtained Agency approval of a Site Classification Work Plan and

Site Classification Completion Report without submittal of a budget plan pursuant

to subsection (b) of this Section, the owner or operator may, as an alternative to

submitting a budget plan, submit, on a form provided by the Agency and attached

to the application for payment, the actual costs incurred in performing site

evaluation activities.

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42

BOARD NOTE: Owners or operators proceeding under subsection (d) of this

Section are advised that they may not be entitled to full payment or

reimbursement. See Subpart F of this Part.

e)

If, following the approval of any site classification plan, an owner or operator

determines that revised procedures or cost estimates are necessary in order to

comply with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended site classification plan or associated

budget plan for review by the Agency. The Agency shall have the authority to

review and approve, reject or require modifications of the amended plan in

accordance with the procedures contained in Subpart E of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.307

Site Evaluation

a)

Except as provided in Section 732.300(b), or unless an owner or operator elects to

classify a site under Section 732.312, the owner or operator of any site for which

a release of petroleum has been confirmed in accordance with regulations

promulgated by the OSFM and reported to IEMA shall arrange for site evaluation

and classification in accordance with the requirements of this Section. A

Licensed Professional Engineer (or, where appropriate, persons working under the

direction of a Licensed Professional Engineer) shall conduct the site evaluation.

A Licensed Professional Geologist, to the extent authorized by the Professional

Geologist Licensing Act [225 ILCS 745], may practice under the direction of a

Licensed Professional Engineer on the site evaluation. The results of the site

evaluation shall provide the basis for determining the site classification. The site

classification shall be certified by the supervising Licensed Professional Engineer.

b)

As a part of each site evaluation, the Licensed Professional Engineer or Licensed

Professional Geologist under the direction of a Licensed Professional Engineer

shall conduct a physical soil classification in accordance with the procedures at

subsection (c) or (d) of this Section. Except as provided in subsection (e) of this

Section, all elements of the chosen method of physical soil classification must be

completed for each site. In addition to the requirement for a physical soil

classification, the Licensed Professional Engineer or Licensed Professional

Geologist shall, at a minimum, complete the requirements at subsections (f)

through (j) of this Section before a Licensed Professional Engineer

classifiesclassifying a site as High Priority or Low Priority and subsection (f)

through (i) of this Section before a Licensed Professional Engineer

classifiesclassifying a site as No Further Action.

c)

Method One for Physical Soil Classification:

1)

Soil Borings

A)

Prior to conducting field activities, a review of scientific

publications and regional geologic maps shall be conducted to

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43

determine if the subsurface strata are as generally mapped in the

Illinois State Geological Survey Circular (1984) entitled, “Potential

for Contamination of Shallow Aquifers in Illinois,” incorporated

by reference in Section 732.104 of this Part. A list of the

publications reviewed and any preliminary conclusions concerning

the site geology shall be included in the site classification

completion report.

B)

A minimum of one soil boring to a depth that includes 50 feet of

native soil or to bedrock shall be performed for each tank field

with a release of petroleum.

C)

If, during boring, bedrock is encountered or if auger refusal occurs

because of the density of a geologic material, a sample of the

bedrock or other material shall be collected to determine

permeability or an in situ test shall be performed to determine

hydraulic conductivity in accordance with subsections (c)(3)(A)

and (c)(3)(B) of this Section. If bedrock is encountered or auger

refusal occurs, the Licensed Professional Engineer or Licensed

Professional Geologist shall verify that the conditions that

prevented the full boring are expected to be continuous through the

remaining required depth.

D)

Borings shall be performed within 200 feet of the outer edge of the

tank field or at the property boundary, whichever is less. If more

than one boring is required per site, borings shall be spaced to

provide reasonable representation of site characteristics. The

actual spacing of the borings shall be based on the regional

hydrogeologic information collected in accordance with subsection

(c)(1)(A) of this Section. Location shall be chosen to limit to the

greatest extent possible the vertical migration of contamination.

E)

Soil borings shall be continuously sampled to ensure that no gaps

appear in the sample column.

F)

If anomalies are encountered, additional soil borings may be

necessary to verify the consistency of the site geology.

G)

Any water bearing units encountered shall be protected as

necessary to prevent cross-contamination of water bearing units

during drilling.

H)

The owner or operator may utilize techniques other than those

specified in this

subsection (c)(1) of this Section for soil

classification provided that:

i)

The techniques provide equivalent, or superior, information

as required by this Section;

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44

ii)

The techniques have been successfully utilized in

applications similar to the proposed application;

iii)

Methods for quality control can be implemented; and

iv)

The owner or operator has received written approval from

the Agency prior to the start of the investigation.

2)

Soil Properties

The following tests shall be performed on a representative sample of each of the

stratigraphic units encountered in the native soil boring that has been determined

most conducive to transporting contaminants from the source based on site

factors, including but not limited to visual and tactile observations, the

classification of the soil, any prior evaluation of the site stratigraphy, the volume

of the release, the thickness or extent of the stratigraphic unitsize or extent of the

unit, and the requirements of ASTM D 2488-93, Standard Practice for Description

and Identification of Soils (Visual-Manual Procedure), approved September 15,

1993:

A)

A soil particle analysis using the test methods specified in ASTM

(American Society for Testing and Materials) Standards D 422-63 or D

1140-92, “Standard Test Method for Particle-Size Analysis of Soils,” or

“Standard Test Method for Amount of Material in Soils Finer than the No.

200 (75 um) Sieve,” incorporated by reference in Section 732.104 of this

Part, or other Agency approved method;

B)

A soil moisture content analysis using the test methods specified in ASTM

Standards D 2216-92 or D 4643-93, “Standard Test Method for

Laboratory Determination of Water (Moisture) Content of Soil and Rock,”

or “Standard Test Method for Determination of Water (Moisture) Content

of Soil by the Microwave Oven Method,” incorporated by reference in

Section 732.104 of this Part, or other Agency approved method;

C)

A soil classification using the test methods specified in ASTM Standards

D 2487-93 or D 2488-93, “Standard Test Method for Classification of

Soils for Engineering Purposes” or “Standard Practice for Description and

Identification of Soils (Visual-Manual Procedure),” incorporated by

reference in Section 732.104 of this Part, or other Agency approved

method;

D)

Unconfined compression strength shall be determined in tons per square

foot by using a hand penetrometer; and

E)

If representative samples of each stratigraphic unit are collected for soil

property testing by the use of thin-walled tube sampling, an additional soil

boring must be performed for this sampling within 5 feet of the site

classification boring. Thin-walled tube sampling must be conducted in

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45

accordance with ASTM Method D 1587-83, or other Agency approved

method. The boring from which the thin-walled tubes are collected must

be logged in accordance with the requirements of 35 Ill. Adm. Code

Section

732.308(a) of this Part.

3)

Hydraulic Conductivity

A)

If a water bearing unit is encountered while performing soil boring(s) for

the physical soil classification, an in-situ hydraulic conductivity test shall

be performed in the first fully saturated layer below the water table. If

multiple water bearing units are encountered, an in-situ hydraulic

conductivity test shall be performed on each such unit. Wells used for

hydraulic conductivity testing shall be constructed in a manner that

ensures the most accurate results.

B)

If no water bearing unit is encountered in the required soil boring(s), then

the following laboratory analyses shall be conducted, as applicable, on a

representative sample from each stratigraphic unit:

i)

A hydraulic conductivity analysis of undisturbed or laboratory

compacted granular soils (i.e., clay, silt, sand or gravel) using the

test method specified in ASTM (American Society for Testing and

Materials) Standard D 5084-90, “Standard Test Method for

Measurement of Hydraulic Conductivity of Saturated Porous

Materials Using a Flexible Wall Permeameter,” incorporated by

reference in Section 732.104 of this Part, or other Agency

approved method.

ii)

Granular soils that are

having estimated to have hydraulic

conductivity of greater than 1 x 10

-3

cm/s will fail the minimum

geologic conditions for “No Further Action”: i.e., rating of D, E, F,

or G as described in the Berg Circularhydraulic conductivity

requirements within the Berg Circular for No Further Action

geology, and therefore, no physical tests need to be run on the

soils.

iii)

A hydraulic conductivity analysis of bedrock using the test method

specified in ASTM (American Society for Testing and Materials)

Standard D 4525-90, “Standard Test Method for Permeability of

Rocks by Flowing Air,” incorporated by reference in Section

732.104 of this Part, or other Agency approved method.

iv)

If representative samples of each stratigraphic unit are collected for

soil property testing by the use of thin-walled tube sampling, an

additional soil boring must be performed for this sampling within 5

feet of the site classification boring. Thin-walled tube sampling

must be conducted in accordance with ASTM Method D 1587-83,

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46

or other Agency approved method. The boring from which the

thin-walled tubes are collected must be logged in accordance with

the requirements of 35 Ill. Adm. Code Section 732.308(a) of this

Part.

4)

If the results of the physical soil classification or groundwater

investigation reveal that the actual site geologic characteristics are

different from those generally mapped by the Illinois State Geological

Survey Circular (1984) entitled, “Potential for Contamination of Shallow

Aquifers in Illinois,” incorporated by reference at Section 732.104 of this

Part, the site classification shall be determined using the actual site

geologic characteristics.

d)

Method Two for Physical Soil Classification:

1)

Soil Borings

A)

A minimum of one soil boring to a depth that includes native

material from the invert elevation of the most shallow UST to 15

feet below the invert elevation of the deepest UST for each tank

field with a release of petroleum.

B)

This boring shall meet the requirements of subsections (c)(1)(C)

through (c)(1)(G) of this Section.

2)

Soil Properties

The following tests shall be performed on a representative sample of each

of the stratigraphic units encountered in the native soil boring thatwhich

has been determined most conducive to transporting contaminants from

the source based on site factors including but not limited to visual and

tactile observations, the classification of the soil, any prior evaluation of

the site stratigraphy, the volume of the release, the size or extent of the

unit, and the requirements of ASTM D 2488-93, Standard Practice for

Description and Identification of Soils (Visual-Manual Procedure),

approved September 15, 1993 and incorporated by reference in Section

732.104 of this Part :

A)

A soil particle analysis satisfying the requirements of subsection

(c)(2)(A) of this Section; and

B)

Either:

i)

A pump test or equivalent to determine the yield of the

geologic material. Methodology, assumptions and any

calculations performed shall be submitted as part of the site

classification completion report. If the aquifer geometry

and transmissivity have been obtained through a site-

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47

specific field investigation, an analytical solution may be

used to estimate well yield. The Licensed Professional

Engineer or Licensed Professional Geologist shall

demonstrate the appropriateness of the analytical solution

to estimate well yield versus an actual field test. Well yield

should be determined for either confined or unconfined

formations. Once the yield has been determined site-

specifically, the hydraulic conductivity shall be calculated;

or

ii)

Hydraulic conductivity shall be determined in accordance

with subsection (c)(3) of this Section. Once the hydraulic

conductivity has been determined site-specifically, the

yield shall be calculated.

C)

If representative samples of each stratigraphic unit are collected for

soil property testing by the use of thin-walled tube sampling, an

additional soil boring must be performed for this sampling within 5

feet of the site classification boring. Thin-walled tube sampling

must be conducted in accordance with ASTM Method D 1587-83,

or other Agency approved method. The boring from which the

thin-walled tubes are collected must be logged in accordance with

the requirements of35 Ill. Adm. Code Section 732.308(a) of this

Part.

3)

The results of the boring(s) and tests described in subsections (d)(1) and

(d)(2) of this Section shall be used to demonstrate whether the native

material from the invert elevation of the most shallow UST to 15 feet

below the invert elevation of the deepest UST meets all of the following

criteria:

A)

Does not contain unconsolidated sand, gravel or sand and gravel

that is 5 feet or more in thickness with 12 percent or less fines (i.e.,

fines that pass through a No. 200 sieve tested according to ASTM

(American Society for Testing and Materials) Standard D 2487-93,

“Standard Test Method for Classification of Soils for Engineering

Purposes,” incorporated by reference at Section 732.104 of this

Part, or other Agency approved method);

B)

Does not contain sandstone that is 10 feet or more in thickness, or

fractured carbonate that is 15 feet or more in thickness;

C)

Is not capable of sustained groundwater yield, from up to a 12 inch

borehole, of 150 gallons per day or more from a thickness of 15

feet or less; and

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48

D)

Is not capable of hydraulic conductivity of 1 x 10

-4

cm/sec or

greater.

e)

If, during the completion of the requirements of subsection (c) or (d) of this

Section, a Licensed Professional Engineer determines that the site geology is not

consistent with areas D, E, F or G of the Illinois State Geological Survey Circular

(1984) entitled, “Potential for Contamination of Shallow Aquifers in Illinois,”

incorporated by reference in Section 732.104 of this Part or that the criteria of

subsection (d)(3) are not satisfied, any remaining steps required by subsection (c)

or (d) may be suspended, provided that the soil investigation has been sufficient to

satisfy the requirements of subsection (g) of this Section. If activities are

suspended under this subsection (e), the Licensed Professional Engineer or

Licensed Professional Geologist shall complete the requirements of subsections

(f) through (j) of this Section in order to determine whether the site is High

Priority or Low Priority, although a Licensed Professional Geologist may not

perform an investigation of migration pathways pursuant to subsection (g) of this

Section. The site conditions upon which the suspension of the requirements of

subsection (c) or (d) of this Section is based shall be documented in the site

classification completion report.

f)

Survey of Water Supply Wells

1)

The Licensed Professional Engineer or Licensed Professional Geologist

shall conduct a survey of water supply wells for the purpose of identifying

and locating all community water supply wells within 2500 feet of the

UST system and all potable water supply wells within 200 feet of the UST

system. The survey shall include, but not be limited to, contacting the

Illinois State Geological Survey and the Illinois State Water Survey. The

local unit of government with authority over the site shall be contacted to

determine if there is a local ordinance or policy regulating the usage of

potable water supply wells.

2)

The Licensed Professional Engineer or Licensed Professional Geologist

shall provide a map to scale showing the locations of all community water

supply wells and all potable water supply wells including the designated

minimum and maximum setback zones of the wells identified pursuant to

subsection (f)(1) of this Section. Radii of 200, 400, 1000, and 2500 feet

from the UST system shall be marked on the map.

3)

The Licensed Professional Engineer or Licensed Professional Geologist

shall provide a table indicating the setback zone for each community water

supply well and potable water supply well identified pursuant to

subsection (f)(1) of this Section and the distance from the UST system to

the well. The locations of each well shall be identified on the map by

numbers corresponding to the information provided in the table.

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49

4)

The Licensed Professional Engineer or Licensed Professional Geologist

shall determine if the UST system is within the regulated recharge area of

any community water supply well or potable water supply well. The

sources consulted in making this determination shall be described in the

site classification completion report.

g)

Investigation of Migration Pathways

1)

The Licensed Professional Engineer shall conduct an investigation either

separately or in conjunction with the physical soil classification to identify

all potential natural and man-made migration pathways that are on the site,

in rights-of-way attached to the site, or in any area surrounding the site

that may be adversely affected as a result of the release of petroleum from

the UST system. Once the migration pathways have been identified, the

areas along all such pathways shall be further investigated in a manner

sufficient to determine whether or not there is evidence that migration of

petroleum or vapors along such pathways:

A)

May potentially threaten human health or human safety; or

B)

May cause explosions in basements, crawl spaces, utility conduits,

storm or sanitary sewers, vaults or other confined spaces.

2)

Natural pathways shall be identified using data obtained from

investigation at the site. This must include, but is not limited to,

identification and location of groundwater if encountered during

excavation activities or soil boring activities, identification of different soil

strata during excavation activities or soil boring activities and inspection

of surface water bodies. Investigation and evaluation of natural migration

pathways shall include, for applicable indicator contaminants along

potential natural migration pathways:

A)

Soil sampling and laboratory analysis of samples; and

B)

When groundwater is encountered or when there is potential for

surface water contamination, groundwater and surface water

sampling and laboratory analysis of samples.

3)

Man-made pathways shall be identified from site plans, a review of

underground utilities as identified by the Joint Utility Location

Information for Excavators and interviews with site owners or personnel.

The Licensed Professional Engineer must determine whether migration of

contaminants of concern along any of these pathways has occurred, using

laboratory analytical data for applicable indicator contaminants obtained

as follows:

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50

A)

From prior sampling, provided that such laboratory

analytical data demonstrates that no contaminant of

concern has migrated to or along any man-made pathways;

B)

From soil samples, and groundwater samples if

groundwater is encountered, taken between man-made

pathways and contaminated soil, provided that such

laboratory analytical data demonstrates that no contaminant

of concern has migrated to or along any man-made

pathways; or

C)

From soil samples, and groundwater samples if

groundwater is encountered, taken along man-made

pathways.

42)

The Licensed Professional Engineer shall provide a map of the site and

any surrounding areas that may be adversely affected by the release of

petroleum from the UST system. At a minimum, the map shall be to

scale, oriented with north at the top, and shall show the location of the

leaking UST system(s) with any associated piping and all potential natural

and man-made pathways that are on the site, in rights-of-way attached to

the site, or that are in areas that may be adversely affected as a result of

the release of petroleum.

53)

Unless the Agency's review reveals objective evidence to the contrary, the

Licensed Professional Engineer shall be presumed correct when certifying

whether or not there is evidence that, through natural or man-made

pathways, migration of petroleum or vapors:

A)

May potentially threaten human health or human safety; or

B)

May cause explosions in basements, crawl spaces, utility conduits,

storm or sanitary sewers, vaults or other confined spaces.

h)

The Licensed Professional Engineer or Licensed Professional Geologist

shall

verify whether Class III groundwater exists within 200 feet of the UST system.

i)

The Licensed Professional Engineer or Licensed Professional Geologist shall

locate all surface bodies of water on site and within 100 feet of the site and

provide a map noting the locations. All such surface bodies of water shall be

inspected to determine whether they have been adversely affected by the presence

of a sheen or free product layer resulting from the release of petroleum from the

UST system.

j)

Groundwater Investigation

1)

For sites failing to meet NFA site classification or for sites where a

groundwater investigation is necessary pursuant to Section 732.302(b) of

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51

this Part at which such investigation is required pursuant to this Part, the

Licensed Professional Engineer or Licensed Professional Geologist shall

perform a groundwater investigation as required under this Part in

accordance with this

subsection (j) of this Section to determine whether an

applicable indicator contaminant groundwater quality standard has been

exceeded at the property boundary or 200 feet from the UST system,

whichever is less, as a result of the UST release of petroleum.

2)

Applicable indicator contaminants and groundwater quality standards shall

be those identified pursuant to Sections 732.310 and 732.311 of this Part.

3)

Except as provided in subsection (j)(6) of this Section

, a minimum of four

groundwater monitoring wells shall be installed at the property boundary

or 200 feet from the UST system, whichever is less. In the event that a

groundwater monitoring well cannot be physically installed at the property

line or 200 feet from the UST system, whichever is closer, in accordance

with this subsection, the owner or operator shall request approval from the

Agency to place the well further out, but at the closest practical point to

the compliance point. The owner or operator may elect to place a

monitoring well in a location that is closer to the UST system than the rule

requires. However, once the election is made the owner or operator may

not withdraw the election at a later time. The Agency may require the

installation of additional monitoring wells to ensure that at least one

monitoring well is located hydraulically upgradient and three monitoring

wells are located hydraulically downgradient of the UST system. The

wells must be installed so that they provide the greatest likelihood of

detecting migration of groundwater contamination. At a minimum,

monitoring well construction shall satisfy the following requirements:

A)

Construction shall be in a manner that will enable the collection of

representative groundwater samples;

B)

All monitoring wells shall be cased in a manner that maintains the

integrity of the borehole. Casing material shall be inert so as not to

affect the water sample. Casing requiring solvent-cement type

couplings shall not be used;

C)

Wells shall be screened to allow sampling only at the desired

interval. Annular space between the borehole wall and well screen

section shall be packed with clean, well-rounded and uniform

material sized to avoid clogging by the material in the zone being

monitored. The slot size of the screen shall be designed to

minimize clogging. Screens shall be fabricated from material that

is inert with respect to the constituents of the groundwater to be

sampled;

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52

D)

Annular space above the well screen section shall be sealed with a

relatively impermeable, expandable material such as

cement/bentonite grout, thatwhich does not react with or in any

way affect the sample, in order to prevent contamination of

groundwater samples and groundwater and avoid interconnections.

The seal shall extend to the highest known seasonal groundwater

level;

E)

The annular space shall be backfilled with expanding cement grout

from an elevation below the frost line and mounded above the

surface and sloped away from the casing so as to divert surface

water away;

F)

All monitoring wells shall be covered with vented caps and

equipped with devices to protect against tampering and damage.

Locations of wells shall be clearly marked and protected against

damage from vehicular traffic or other activities associated with

expected site use; and

G)

All wells shall be developed to allow free entry of water, minimize

turbidity of the sample, and minimize clogging.

4)

Monitoring well construction diagrams prescribed and provided by the

Agency shall be completed for each monitoring well.

5)

Static water elevations shall be measured for each monitoring well.

Groundwater samples shall be taken from each well and analyzed for the

applicable indicator contaminants. The data collected shall be used to

determine the direction of groundwater flow and whether the applicable

groundwater quality standards or clean-up objectives have been exceeded.

Samples shall be collected and analyzed in accordance with the following

procedures:

A)

Samples shall be collected in accordance with the procedures set

forth in the documents “Methods for Chemical Analysis of Water

and Wastes,” “Methods for the Determination of Organic

Compounds in Drinking Water,” “Practical Guide for Ground-

Water Sampling,” “Test Methods for Evaluating Solid Wastes,

Physical/Chemical Methods,” or “Techniques of Water Resources

Investigations of the United States Geological Survey, Guidelines

for Collection and Field Analysis of Ground-Water Samples for

Selected Unstable Constituents,” as appropriate for the applicable

indicator contaminants or groundwater objectives and as

incorporated by reference at Section 732.104 of this Part.

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53

B)

Groundwater elevation in a groundwater monitoring well shall be

determined and recorded to establish the gradient of the

groundwater table.

C)

The analytical methodology used for the analysis of the indicator

contaminants shall be consistent with both of the following:

i)

The methodology shall have a practical quantitation limit

(PQL) at or below the objectives or detection levels set

forth in 35 Ill. Adm. Code 742 or as set for mixtures or

degradation products as provided in Section 732.310 of this

Part; and

ii)

The methodology must be consistent with the

methodologies contained in “Methods for Chemical

Analysis of Water and Wastes,” “Methods for the

Determination of Organic Compounds in Drinking Water,”

“Practical Guide for Ground-Water Sampling,” “Test

Methods for Evaluating Solid Wastes, Physical/Chemical

Methods,” and “Techniques of Water Resources

Investigations of the United States Geological Survey,

Guidelines for Collection and Field Analysis of Ground-

Water Samples for Selected Unstable Constituents,” as

incorporated by reference at Section 732.104, or other

Agency approved methods.

D)

In addition to analytical results, sampling and analytical reports

shall contain the following information:

i)

Sample collection information including but not limited to

the name of sample collector, time and date of sample

collection, method of collection, and monitoring location;

ii)

Sample preservation and shipment information including

but not limited to field quality control;

iii)

Analytical procedures including but not limited to the

method detection limits and the practical quantitation limits

(PQL);

iv)

Chain of custody and control; and

v)

Field and lab blanks.

6)

As an alternative to the installation of monitoring wells under subsection

(j)(3) of this Section

, the Licensed Professional Engineer or Licensed

Professional Geologist may demonstrate to the Agency through a site-

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54

specific evaluation that the groundwater monitoring should not be

required.

A)

The evaluation shall be based on a demonstration of the following

factors:

i)

Whether groundwater is present within the depth of the

boring used to perform physical soil classification under the

selected method (Method One under subsection (c) of this

Section or Method Two under subsection (d) of this

Section);

ii)

Whether groundwater is withdrawn for potable use within

1000 feet of the UST system and at what depths; and

iii)

Whether seasonal fluctuation in groundwater could result in

groundwater contacting contaminated soil (e.g., historical

records).

B)

The presence or absence of a water bearing unit under subsection

(j)(6)(A)(i) of this Section shall be determined on the basis of at

least one soil boring to the depth necessary to perform physical soil

classification under the selected method (Method One under

subsection (c) of this Section

or Method Two under subsection (d)

of this Section), unless auger refusal occurs because of the density

of a geologic material or because bedrock is encountered. If auger

refusal occurs, then the Licensed Professional Engineer or

Licensed Professional Geologist must demonstrate the depth to a

water bearing unit from the available site specific or regional

information.

C)

If the evaluation fails to demonstrate to the Agency that a

groundwater investigation should not be required as part of site

classification activities, then the Licensed Professional Engineer or

Licensed Professional Geologist shall perform a groundwater

investigation in accordance with the remainder of this subsection

(j) of this Section.

D)

If the evaluation demonstrates to the Agency that a groundwater

investigation should not be required, then the site shall be

classified as Low Priority, unless other High Priority criteria are

present. Upon Agency approval of the evaluation to demonstrate

that a groundwater investigation should not be required, then the

site shall be classified as Low Priority and a No Further

Remediation Letter shall be issued to the owner or operator of the

site, unless other High Priority criteria are present.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

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55

Section 732.308

Boring Logs and Sealing of Soil Borings and Groundwater Monitoring

Wells

a)

Soil boring logs shall be kept for all soil borings. The logs shall be submitted

along with the site classification completion report and shall be on forms

prescribed and provided by the Agency and, if specified by the Agency by written

notice, in an electronic format.

1)

Soil boring logs shall contain the following information at a minimum:

A)

Sampling device, sample number and amount of recovery;

B)

Total depth of boring to the nearest 6 inches;

C)

Detailed field observations describing materials encountered in

boring, including soil constituents, consistency, color, density,

moisture, odors, and the nature and extent of sand or gravel lenses

or seams equal to or greater than 1 inch in thickness;

D)

Petroleum hydrocarbon vapor readings (as determined by

continuous screening of borings with field instruments capable of

detecting such vapors);

E)

Locations of sample(s) used for physical or chemical analysis; and

F)

Groundwater levels while boring and at completion.

2)

Boring logs for soil boring(s) completed for physical soil classification

also shall include the following information, as applicable for the

classification method chosen, for each stratigraphic unit encountered at the

site:

A)

Moisture content;

B)

Unconfined compression strength in tons per square foot (TSF)

using a hand penetrometer;

C)

Unified Soil Classification System (USCS) soil classification

group symbol in accordance with ASTM Standard D 2487-93,

“Standard Test Method for Classification of Soils for Engineering

Purposes,” incorporated by reference in Section 732.104 of this

Part, or other Agency approved method; and

D)

The reasoning behind the Licensed Professional Engineer’s or

Licensed Professional Geologist’s decision to perform or not

perform soil testing pursuant to Section 732.307(c)(2) and (d)(2) of

this Part as to each identified stratigraphic unit.

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56

b)

Boreholes and monitoring wells shall be abandoned pursuant to regulations

promulgated by the Illinois Department of Public Health at 77 Ill. Adm. Code

920.120.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.309

Site Classification Completion Report

a)

Within 30 days after the completion of a site evaluation in accordance with

Section 732.307 of this Part, the owner or operator shall submit to the Agency a

site classification completion report addressing all applicable elements of the site

evaluation. The report shall contain all maps, diagrams, and any other

information required by Section 732.307 of this Part, as well as the results or

conclusions of all surveys and investigations and any documentation necessary to

demonstrate those results or conclusions. The report shall be submitted on forms

prescribed and provided by the Agency, shall be signed by the owner or operator,

and shall contain the certification of a Licensed Professional Engineer of the site's

classification as No Further Action, Low Priority or High Priority in accordance

with this Subpart C of this Part. For No Further Action sites, the owner or

operator must sign and submit, with the site classification completion report, a

form prescribed and provided by the Agency addressing ownership of the site.

Where the owner or operator owns the site, the owner or operator must so indicate

on the form. Where the owner or operator either does not own or does not solely

own the site, the owner or operator must provide, on the form, a certification by

original signature of the title holder(s) of record for the remediation site or each

portion thereof, or the agent(s) of such person(s), stating as follows:

I hereby certify that I have reviewed the attached report and that I accept the

terms and conditions set forth therein, including any land use limitations, that

apply to property I own. I further certify that I have no objection to the recording

of a No Further Remediation Letter containing the terms and conditions identified

in the Site Classification Completion Report.

b)

The Agency shall have the authority to review and approve, reject or require

modification of any report submitted pursuant to this Section in accordance with

the procedures contained in Subpart E of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.310

Indicator Contaminants

a)

For purposes of this Part, the term “indicator contaminants” shall mean the

parameters listed

identified in subsections (b) through (gi) of this Section.

b)

For gasoline, including but not limited to leaded, unleaded, premium and gasohol,

the indicator contaminants shall be benzene, ethylbenzene, toluene, and total

xylenes and methyl tertiary butyl ether (MTBE), except as provided in subsection

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57

(h) of this Section. For leaded gasoline, lead shall also be an indicator

contaminant.

c)

For aviation turbine fuels, jet fuels, diesel fuels, gas turbine fuel oils, heating fuel

oils, illuminating oils, kerosene, lubricants, liquid asphalt and dust laying oils,

cable oils, crude oil, crude oil fractions, petroleum feedstocks, petroleum fractions

and heavy oils, the indicator contaminants shall be benzene, ethylbenzene,

toluene, total xylenes, and the polynuclear aromatics listed in Appendix A. For

leaded aviation turbine fuels, lead shall also be an indicator contaminant.

d)

For transformer oils the indicator contaminants shall be benzene, ethylbenzene,

toluene, total xylenes, the polynuclear aromatics listed in Appendix B and the

polychlorinated biphenyl parameters listed in Appendix B.

e)

For hydraulic fluids the indicator contaminants shall be benzene, ethylbenzene,

toluene, total xylenes the polynuclear aromatics listed in Appendix B and barium.

f)

For petroleum spirits, mineral spirits, Stoddard solvents, high-flash aromatic

naphthas, moderately volatile hydrocarbon solvents and petroleum extender oils,

the indicator contaminants shall be the volatile, base/neutral and polynuclear

aromatic parameters listed in Appendix B. The Agency may add degradation

products or mixtures of any of the above pollutants in accordance with 35 Ill.

Adm. Code 620.615.

g)

For used oil the indicator contaminants shall be determined by the results of a

used oil soil sample analysis. Prior to the submission of a site classification plan

the owner or operator shall collect a grab sample from a location representative of

soil that is the most contaminated as a result of the contaminated by a release

from the used oil UST. If an area of contamination cannot be identified, the

sample shall be collected from beneath the used oil UST. The sample shall be

analyzed for:

1)

All volatile, base/neutral, polynuclear aromatic and metal parameters

listed at Appendix B and any other parameters the Licensed Professional

Engineer suspects may be present based on UST usage. The Agency may

add degradation products or mixtures of any of the above pollutants in

accordance with 35 Ill. Adm. Code 620.615.

2)

The used oil indicator contaminants shall be those volatile, base/neutral,

polynuclear aromatic and metal parameters listed at Appendix B or as

otherwise identified at subsection (g)(1) of this Section that exceed their

remediation objective at 35 Ill. Adm. Code 742 in addition to benzene,

ethylbenzene, toluene, total xylenes and PNAs.

3)

If none of the parameters exceed their remediation objective, the used oil

indicator contaminants shall be benzene, ethylbenzene, toluene and total

xylenes,

and the polynuclear aromatics listed in Appendix B.

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58

h)

Unless an owner or operator elects otherwise pursuant to subsection (i) of this

Section, the term “indicator contaminants” shall not include MTBE for any

release reported to the Illinois Emergency Management Agency prior to the

effective date of amendments establishing MTBE as an indicator contaminant.

i)

An owner or operator of a site exempt from having to address MTBE as an

indicator contaminant pursuant to subsection (h) of this Section may elect to

include MTBE as an indicator contaminant under the following circumstances:

1)

If the Agency has not issued a No Further Remediation Letter for the site

by the effective date of the amendments establishing MTBE as an

indicator contaminant; or

2)

If the Agency has issued a No Further Remediation Letter and the release

at the site has caused off-site groundwater contamination exceeding the

remediation objective for MTBE set forth in 35 Ill. Adm. Code 742,

provided that the owner or operator complies with all applicable

requirements of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.312

Classification by Exposure Pathway Exclusion

a)

An owner or operator electing to classify a site by exclusion of human exposure

pathways under 35 Ill. Adm. Code 742, Subpart C or I shall meet the

requirements of this Section.

1)

Such election shall be made in writing by the owner or operator as part of

the submission of the site classification plan under subsection (c) of this

Section. The election may be made at any time until the Agency issues a

No Further Remediation Letter.

2)

An owner or operator who chooses to revoke an election submitted under

subsection (c) of this Section shall do so in writing.

b)

Upon completion of early action requirements pursuant to Subpart B of this Part,

the owner or operator shall determine whether the areas or locations addressed

under early action (e.g., backfill) meet the requirements applicable for a Tier 1

evaluation pursuant to 35 Ill. Adm. Code 742, Subpart E.

1)

If the remediation objectives have been met, the owner or operator shall

submit a corrective action completion report demonstrating compliance

with the required levels.

2)

If the remediation objectives have not been met, evaluation shall continue

in accordance with subsection (c) of this Section.

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59

c)

If, upon completion of early action requirements pursuant to Subpart B of this

Part, the requirements under subsection (b) of this Section have not been met,

then the owner or operator, prior to conducting any site evaluation activities, shall

submit to the Agency a site classification plan including, but not limited to, a

physical soil classification, contaminant identification, and groundwater

investigation plan (if applicable in accordance with Section 732.300(b)(1)),

satisfying the minimum requirements for site evaluation activities as set forth in

this Section. Site classification plans shall be submitted on forms prescribed and

provided by the Agency and, if specified by the Agency by written notice, in an

electronic format. The plans shall be designed to:

1)

Determine the full extent of soil or groundwater contamination exceeding

remediation objectives for Tier 1 sites under 35 Ill. Adm. Code 742,

Subpart E. Such activities may include soil borings with sampling and

analysis, groundwater monitoring wells with sampling and analysis,

groundwater modeling, or a combination of these activities.

2)

Collect data sufficient to determine which, if any, of the applicable

exposure routes under 35 Ill. Adm. Code 742 can be excluded pursuant to

35 Ill. Adm. Code 742, Subpart C or I. The data shall include, but is not

limited to, site-specific data demonstrating the physical characteristics of

soil and groundwater.

d)

A Licensed Professional Engineer (or, where appropriate, persons working under

the direction of a Licensed Professional Engineer) shall conduct the site

evaluation. A Licensed Professional Geologist, to the extent authorized by the

Professional Geologist Licensing Act [225 ILCS 725], may practice under the

direction of a Licensed Professional Engineer on the site evaluation. The results

of the site evaluation shall provide the basis for determining the site classification.

The site classification shall be certified by the supervising Licensed Professional

Engineer.

e)

As a part of each site evaluation, the Licensed Professional Engineer or Licensed

Professional Geologist shall conduct physical soil classification and contaminant

identification in accordance with the procedures at subsection (c) of this Section.

f)

In addition to the plan required in subsection (c) of this Section and prior to

conducting any site evaluation activities, any owner or operator intending to seek

payment from the Fund shall submit to the Agency:

1)

An application for payment of costs associated with eligible early action

costs incurred pursuant to Subpart B of this Part, except as provided in

subsection (f)(2) of this Section; and

2)

A site classification budget plan, thatwhich

shall include, but not be

limited to, a copy of the eligibility and deductibility determination of the

OSFM and a line item estimate of all costs associated with the

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60

development, implementation and completion of the site evaluation

activities required under subsection (c) of this Section.

g)

Sites shall be classified as No Further Action if the Licensed Professional

Engineer determines that all applicable exposure routes can be excluded from

further consideration pursuant to 35 Ill. Adm. Code 742, Subpart C or I

.

h)

Sites shall be classified as High Priority if the Licensed Professional Engineer

determines that any of the applicable exposure routes cannot be excluded from

further consideration pursuant to 35 Ill. Adm. Code 742, Subpart C or I.

i)

Within 30 days after the completion of a site evaluation in accordance with this

Section, the owner or operator shall submit to the Agency a site classification

completion report addressing all applicable elements of the site evaluation. The

report shall contain all maps, diagrams, and any other information required by this

Section, as well as the results or conclusions of all surveys and investigations and

any documentation necessary to demonstrate those results or conclusions. The

report shall be submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format, shall be signed

by the owner or operator, and shall contain the certification of a Licensed

Professional Engineer of the site's classification as No Further Action, or High

Priority in accordance with this Section. For any site classified as High Priority,

the report shall also contain the certification of a Licensed Professional Engineer

as to which exposure routes, if any, have been excluded from further

consideration under 35 Ill. Adm. Code 742, Subpart C. The owner or operator

must sign and submit, with the site classification completion report, a form

prescribed and provided by the Agency addressing ownership of the site. Where

the owner or operator owns the site, the owner or operator must so indicate on the

form. Where the owner or operator either does not own or does not solely own

the site, the owner or operator must provide, on the form, a certification by

original signature of the title holder(s) of record for the remediation site or each

portion thereof, or the agent(s) of such person(s), stating as follows:

I hereby certify that I have reviewed the attached report and that I accept the

terms and conditions set forth therein, including any land use limitations, that

apply to property I own. I further certify that I have no objection to the recording

of a No Further Remediation Letter containing the terms and conditions identified

in the Site Classification Completion Report.

j)

The Agency shall have the authority to review and approve, reject or require

modification of any plan or report submitted pursuant to this Section in

accordance with the procedures contained in Subpart E of this Part.

k)

Notwithstanding subsections (c) and (f) of this Section, an owner or operator may

proceed to conduct site evaluation activities in accordance with this Section prior

to the submittal or approval of any otherwise required site classification plan and

associated budget plans. However, any plan shall be submitted to the Agency for

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61

review and approval in accordance with the procedures contained in Subpart E of

this Part prior to receiving payment or reimbursement for any related costs or the

issuance of a No Further Remediation Letter. If the owner or operator has

obtained Agency approval of a Site Classification Work Plan and Site

Classification Completion Report without submittal of a budget plan pursuant to

subsection (b) of this Section, the owner or operator may, as an alternative to

submitting a budget plan, submit, on a form provided by the Agency and attached

to the application for payment, the actual costs incurred in performing site

evaluation activities.

l)

If, following the approval of any site classification plan, an owner or operator

determines that revised procedures or cost estimates are necessary in order to

comply with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended site classification plan or associated

budget plan for review by the Agency. The Agency shall have the authority to

review and approve, reject or require modification of the amended plan in

accordance with the procedures contained in Subpart E of this Part.

BOARD NOTE: Owners or operators proceeding under subsection (a)(2) or (k)

of this Section are advised that they may not be entitled to full payment or

reimbursement. Furthermore, owners or operators may only be reimbursed for

one method of site classification. See Subpart F of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

SUBPART D: CORRECTIVE ACTION

Section 732.402

No Further Action Site

The owner or operator of a site that has been certified as a No Further Action site by a Licensed

Professional Engineer and approved as such by the Agency shall have no additional remediation

responsibilities beyond those performed pursuant to Subpart B or C of this Part. UnlessIf the

Agency fails takes action to approve, reject or modify the site classification completion report

within 120 days after receipt of the completion report pursuant to Section 732.309 or Section

732.312, the site classification completion report is rejected by operation of law.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.403

Low Priority Site

a)

The owner or operator of a site that has been certified as a Low Priority site by a

Licensed Professional Engineer and approved as such by the Agency shall

develop a groundwater monitoring plan and perform groundwater monitoring in

accordance with the requirements of this Section.

b)

The owner or operator of a site certified as Low Priority by a Licensed

Professional Engineer and approved as such by the Agency shall develop a

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62

groundwater monitoring plan designed to satisfy the following requirements at a

minimum:

1)

Groundwater monitoring shall be conducted for a period of three years

following the Agency's approval of the site classification, unless

subsection (b)(6) or subsection (i) of this Section applies;

2)

Groundwater monitoring wells shall be placed at the property line or 200

feet from the UST system, whichever is closer. The wells shall be placed

in a configuration designed to provide the greatest likelihood of detecting

migration of groundwater contamination. In the event that a groundwater

monitoring well cannot physically be installed at the property line or 200

feet from the UST system, whichever is closer, in accordance with this

subsection (b)(2) of this Section, the owner or operator shall request

approval from the Agency to place the well further out, but at the closest

practical point to the compliance point. The owner or operator may elect

to place a monitoring well in a location that is closer to the UST system

than the rule requires. However, once the election is made the owner or

operator may not withdraw the election at a later time;

3)

Groundwater monitoring wells shall satisfy the requirements at Section

subsections 732.307(j)(3) and (4) of this Part;

4)

During the first year of groundwater monitoring, samples from each well

shall be collected and analyzed on a quarterly basis. During the second

year of groundwater monitoring, samples from each well shall be collected

and analyzed during the second and fourth quarters. During the third and

final year of groundwater monitoring, at a minimum, samples from each

well shall be collected and analyzed in the fourth quarter;

5)

To determine whether groundwater quality standards or Agency approved

objectives have been exceeded, samples for groundwater monitoring shall

be collected and analyzed in accordance with the procedures set forth in

Section 732.307(j)(5) of this Part for the applicable indicator contaminants

determined pursuant to Section 732.310 of this Part;

6)

The owner or operator may use groundwater monitoring data that has been

collected up to 3 years prior to the site being certified as Low Priority, if

the data meets the requirements of subsections (b)(2) through (b)(5) of this

Section. This data may be used to satisfy all or part of the three year

period of groundwater monitoring required under this Section.

c)

Prior to the implementation of groundwater monitoring, except as provided under

subsection (b)(6) of this Section, the owner or operator shall submit the

groundwater monitoring plan to the Agency for review in accordance with

Section 732.405. If the owner or operator intends to seek payment from the Fund,

a groundwater monitoring budget plan also shall be submitted to the Agency for

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63

review. The groundwater monitoring budget plan shall include a line item

estimate of all costs associated with the implementation and completion of the

groundwater monitoring plan. Groundwater monitoring plans and budgets shall

be submitted on forms prescribed and provided by the Agency and, if specified by

the Agency by written notice, in an electronic format.

d)

Groundwater analysis results obtained pursuant to subsection (b) of this Section

shall be submitted to the Agency within 30 days after the end of each annual

sampling period on forms prescribed and provided by the Agency, except as

provided under subsection (b)(6) of this Section. Groundwater analysis data

being used pursuant to subsection (b)(6) shall be submitted to the Agency as part

of a Low Priority groundwater monitoring plan or the Low Priority groundwater

monitoring completion report.

1)

The information to be collected shall include but not be limited to the

information set forth in Section 732.307(j)(5) of this Part.

2)

If at any time the groundwater analysis results indicate a confirmed

exceedence of the applicable indicator contaminant groundwater quality

standards or Agency approved objectives as a result of the underground

storage tank release of petroleum, the owner or operator shall notify the

Agency of the exceedence within 30 days and provide supporting

documentation of the nature and extent of the exceedence.

3)

Indicator contaminant groundwater quality standards shall be determined

in accordance with Section 732.311 of this Part.

e)

Within 30 days after the completion of the Low Priority groundwater monitoring

plan, the owner or operator shall submit to the Agency a groundwater monitoring

completion report in accordance with Section 732.409 of this Part. If there is no

confirmed exceedence of applicable indicator contaminant objectives during the

three year groundwater monitoring period, the report shall contain a certification

to that effect by a Licensed Professional Engineer.

f)

The Agency shall review the groundwater monitoring completion report in

accordance with the procedures set forth in Subpart E of this Part and shall issue a

No Further Remediation Letter to the owner or operator in accordance with

Subpart G of this Part upon approval of the report by the Agency. If the owner or

operator elects to appeal an Agency action to disapprove, modify, or reject by

operation of law a Low Priority groundwater monitoring completion report, the

Agency shall indicate to the Board in conjunction with such appeal whether it

intends to reclassify the site as High Priority.

g)

If at any time groundwater analysis results indicate a confirmed exceedence of

applicable indicator contaminant objectives, the Agency may reclassify the site as

a High Priority site any time before the Agency's final approval of a Low Priority

groundwater monitoring completion report. The Agency shall notify the owner or

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64

operator in writing if a site is reclassified. Notice of reclassification shall be by

registered or certified mail, post marked with a date stamp and with return receipt

requested. Final action shall be deemed to have taken place on the post marked

date that such notice is mailed. Any action by the Agency to reclassify the site as

a High Priority site shall be subject to appeal to the Board within 35 days after the

Agency's final action in the manner provided for in the review of permit decisions

in Section 40 of the Act.

h)

The owner or operator of a Low Priority site reclassified to High Priority pursuant

to subsection (g) of this Section shall develop and submit for Agency approval a

High Priority corrective action plan satisfying the requirements of Section

732.404 of this Part within 120 days after receiving the notice of reclassification.

If the owner or operator intends to seek reimbursement from the Fund, a

corrective action plan budget also shall be submitted within 120 days after

receiving the notice of reclassification.

i)

As a result of the demonstration under Section 732.307(j)(6), the owner or

operator of a site classified as Low Priority by a Licensed Professional Engineer.

1)

Shall prepare a report in accordance with Section 732.409 of this Part,

thatwhich supports the issuance of a No Further Remediation Letter or

reclassification of the site as a High Priority site.

2)

In the event the site is reclassified as a High Priority site, the owner or

operator shall develop and submit for Agency approval a High Priority

corrective action plan in accordance with Section 732.403(h) of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.404

High Priority Site

a)

The owner or operator of a site that has been certified by a Licensed Professional

Engineer as a High Priority site and approved as such by the Agency shall

develop a corrective action plan and perform corrective action in accordance with

the requirements of this Section. The purpose of the corrective action plan shall

be to remediate or eliminate each of the criteria set forth in subsection (b) of this

Section that caused the site to be classified as High Priority.

b)

The owner or operator of a site certified as High Priority by a Licensed

Professional Engineer and approved as such by the Agency or reclassified as High

Priority by the Agency pursuant to Section 732.403(g) shall develop a corrective

action plan based on site conditions and designed to achieve the following as

applicable to the site:

1)

For sites that have submitted

submitting a site classification report under

Section 732.309, provide that:

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65

A)

Provide that,aAfter complete performance of the corrective action

plan, applicable indicator contaminants, identified in the

groundwater investigation, are not present in groundwater, as a

result of the underground storage tank release, in concentrations

exceeding the remediation objectives referenced in Section

732.408 of this Part applicable indicator contaminant objectives

are not exceeded at the property boundary line or 200 feet from the

UST system, whichever is less., as a result of the underground

storage tank release for any indicator contaminant identified in the

groundwater investigation. If off-site sampling is included within

an approved corrective action plan and if an adjoining property

owner will not allow the owner or operator access to his or her

property so as to ascertain information sufficient to satisfy this

requirement or if the owner cannot be located, adequate

documentation of the owner or operators' efforts to gain access to

the property shall satisfy this subsection (b)(1)(A);

B)

Provide that, aAfter complete performance of the corrective action

plan, Class III special resource groundwater quality standards for

Class III special resource groundwater within 200 feet of the UST

system are not exceeded as a result of the underground storage

tank release for any indicator contaminant identified in the

groundwater investigation;

C)

After complete performance of the corrective action plan,

remediation of contamination in natural or man-made exposure

pathways as a result of the underground storage tank release has

been conducted in accordance with 35 Ill. Adm. Code

742Remediate threats due to the presence or migration, through

natural or manmade pathways, of petroleum in concentrations

sufficient to harm human health or human safety or to cause

explosions in basements, crawl spaces, utility conduits, storm or

sanitary sewers, vaults or other confined spaces;

D)

Remediate threatsThreats

to potable water supplies are remediated;

and

E)

Remediate threatsThreats

to bodies of surface water are

remediated.

2)

For sites that have submitted submitting a site classification completion

report under Section 732.312, provide that, after complete performance of

the corrective action plan, the concentrations of applicable indicator

contaminants meet the remediation objectives developed under Section

732.408 for any applicable exposure route not excluded from

consideration under Section 732.312.

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66

3)

Where there has been no reliance on an engineered barrier to achieve

compliance with remediation objectives developed under Section 732.408,

compliance with remediation objectives shall be demonstrated as follows:

A)

For groundwater remediation objectives:

i)

Except as provided in subsection (ii) of this Section, or

Section 732.307(j)(3) where there is a separate sampling

point agreed to by the Agency, sampling points shall be

located at the property boundary line or 200 feet from the

UST system, whichever is less.

ii)

If an institutional control prohibiting the use of

groundwater as a potable supply is obtained under 35 Ill.

Adm. Code 742.Subpart J, sampling points shall be located

at the property boundary line.

iii)

Compliance with groundwater remediation objectives at

applicable sampling points shall be determined in

accordance with 35 Ill. Adm. Code 742.225.

B)

For soil remediation objectives:

i)

Following site classification under this Part, sampling

points shall be located on the site in areas where

concentrations of indicator contaminants exceeded

remediation objectives.

ii)

Compliance with soil remediation objectives at applicable

sampling points shall be determined in accordance with 35

Ill. Adm. Code 742.225.

4)

Where an engineered barrier has been relied upon to achieve

compliance

with remediation objectives developed under Section 732.408, compliance

shall be determined based on approval by the Agency of the sufficiency of

the engineered barrier.

c)

The owner or operator is not required to perform corrective action on an adjoining

or off-site property to meet the requirements of this Section, even where complete

performance of the corrective action plan under (b)(1) or (b)(2) of this Section

would otherwise require such off-site action, if the Agency determines that the

owner or operator is unable to obtain access to the property despite the use of best

efforts in accordance with the requirements of Section 732.411 of this Part.

cd)

In developing the corrective action plan, if the Licensed Professional Engineer

selects soil or groundwater remediation, or both, to satisfy any of the criteria set

forth in subsection (b) of this Section, remediation objectives shall be determined

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67

in accordance with Section 732.408 of this Part. Groundwater monitoring wells

shall satisfy the requirements of Section 732.307(j)(3) and (4) of this Part.

de)

Except where provided otherwise pursuant to Section 732.312 of this Part, in

developing the corrective action plan, additional investigation activities beyond

those required for the site evaluation and classification may be necessary to

determine the full extent of soil or groundwater contamination and of threats to

human health or the environment. Such activities may include, but are not limited

to, additional soil borings with sampling and analysis or additional groundwater

monitoring wells with sampling and analysis. Such activities as are technically

necessary and consistent with generally accepted engineering practices may be

performed without submitting a work plan or receiving prior approval from the

Agency, and associated costs may be included in a High Priority corrective action

budget plan. A description of these activities and the results shall be included as a

part of the corrective action plan.

ef)

The owner or operator shall submit the corrective action plan to the Agency for

review in accordance with Section 732.405 of this Part. If the owner or operator

intends to seek payment from the Fund, a corrective action plan budget also shall

be submitted to the Agency for review. The corrective action plan budget shall

include a line item estimate of all costs associated with the implementation and

completion of the corrective action plan. The corrective action plan and

corrective action plan budget shall be submitted on forms prescribed and provided

by the Agency and, if specified by the Agency by written notice, in an electronic

format.

fg)

Within 30 days after completing the performance of the High Priority corrective

action plan, the owner or operator shall submit to the Agency a corrective action

completion report in accordance with Section 732.409 of this Part.

gh)

Within 120 days, the Agency shall review the corrective action completion report

in accordance with the procedures set forth in Subpart E of this Part and shall

issue a No Further Remediation Letter to the owner or operator in accordance

with Subpart G of this Part

upon approval by the Agency.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.405

Plan Submittal and Review

a)

Prior to conducting any corrective action activities pursuant to this

Subpart D of

this Part, the owner or operator shall submit to the Agency a Low Priority

groundwater monitoring plan or a High Priority corrective action plan satisfying

the minimum requirements for such activities as set forth in Section 732.403 or

732.404 of this Part, as applicable. Groundwater monitoring and corrective action

plans shall be submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format.

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b)

In addition to the plans required in subsections (a) , (e) and (f) of this Section and

prior to conducting any groundwater monitoring or corrective action activities,

any owner or operator intending to seek payment from the Fund shall submit to

the Agency a groundwater monitoring or corrective action budget plan. Such

budget plans shall include, but not be limited to, a copy of the eligibility and

deductibility determination of the OSFM and a line item estimate of all costs

associated with the development, implementation and completion of the

applicable activities. Formulation of budget plans should be consistent with the

eligible and ineligible costs listed at Sections 732.605 and 732.606 of this Part.

Groundwater monitoring and corrective action budget plans shall be submitted on

forms prescribed and provided by the Agency and, if specified by the Agency by

written notice, in an electronic format.

c)

The Agency shall have the authority to review and approve, reject or require

modification of any plan submitted pursuant to this Section in accordance with the

procedures contained in Subpart E of this Part.

d)

Notwithstanding subsections (a), and (b), (e), and (f) of this Section and except as

provided at Section 732.407 of this Part, an owner or operator may proceed to

conduct Low Priority groundwater monitoring or High Priority corrective action

activities in accordance with this Subpart D of this Part prior to the submittal or

approval of an otherwise required groundwater monitoring plan or budget or

corrective action plan or budget. However, any such plan shall be submitted to

the Agency for review and approval, rejection or modification in accordance with

the procedures contained in Subpart E of this Part prior to payment or

reimbursement for any related costs or the issuance of a No Further Remediation

Letter. If the owner or operator has obtained Agency approval of a Low Priority

groundwater monitoring plan and a Low Priority groundwater monitoring

completion report, or has obtained Agency approval of a High Priority corrective

action plan and a High Priority corrective action completion report, without the

submittal of a budget plan pursuant to subsection (b) of this Section, the owner or

operator may, as an alternative to submitting a budget plan, submit, on a form

provided by the Agency and attached to the application for payment, the actual

costs incurred in performing the applicable activities required, for a Low Priority

site, in Section 732.403 of this Part or, for a High Priority site, in Section 732.404

of this Part.

BOARD NOTE: Owners or operators proceeding under subsection (d) of this

Section are advised that they may not be entitled to full payment or

reimbursement. See Subpart F of this Part.

e)

If, following approval of any groundwater monitoring plan, corrective action plan

or associated budget plan, an owner or operator determines that revised

procedures or cost estimates are necessary in order to comply with the minimum

required activities for the site, the owner or operator shall submit, as applicable,

an amended groundwater monitoring plan, corrective action plan or associated

budget plan for review by the Agency. The Agency shall review and approve,

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69

reject or require modifications of the amended plan in accordance with the

procedures contained in Subpart E of this Part.

(f)

If the Agency determines any approved corrective action plan has not achieved

applicable remediation objectives within a reasonable time, based upon the

method of remediation and site specific circumstances, the Agency may require

the owner or operator to submit a revised corrective action plan. Any action by

the Agency to require a revised corrective action plan pursuant to this subsection

shall be subject to appeal to the Board within 35 days after the Agency’s final

action in the manner provided for the review of permit decisions in Section 40 of

the Act.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.406

Deferred Corrective Action; Priority List for Payment

a)

An

owner or operator who has received approval for any budget plan submitted

pursuant to this Part and who is eligible for payment from the underground

storage tank fund may elect to defer site classification, low priority groundwater

monitoring, or remediation activities until funds are available in an amount equal

to the amount approved in the budget plan

if the requirements of subsection (b) of

this Section are met. (Section 57.8(b) of the Act) [415 ILCS 5/57.8(b)]

1)

Approvals of budget plans shall be pursuant to Agency review in

accordance with Subpart E of this Part.

2)

The Agency shall monitor the availability of funds to determine whether

sufficient resources exist to provide payment approved budget plans and

shall provide notice to owners or operators of the availability of funds in

accordance with Sectionsubsection 732.503(h)(g) of this Part. Funds shall

not be deemed available for owners or operators electing to defer

corrective action so long as there are owners or operators on the priority

list established pursuant to Sectionsubsection

732.603(d) of this Part

awaiting forwarding of vouchers to the Office of the State Comptroller.

3)

Upon receiving written notification that an owner or operator elects to

defer corrective action until funds are available, the Agency shall place the

site on a priority list for payment and notification of availability of

sufficient funds. Sites shall enter the priority list for payment and move

up based solely on the date the Agency receives the written election of

deferral, with the earliest dates having the highest priority. The Agency's

record of the date of receipt shall be deemed conclusive, unless a contrary

date is proven by a dated, signed receipt from registered or certified mail.

4)

As funds become available, the Agency shall encumber funds for each site

in the order of priority in an amount equal to the total of the approved

budget plan for which deferral was sought. The Agency shall then notify

owners or operators that sufficient funds have been allocated for the

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70

owner's or operator's site. After such notification the owner or operator

shall commence corrective action.

5)

Authorization of payment of encumbered funds for deferred corrective

action activities shall be approved in accordance with the requirements of

Subpart F of this Part.

6)

The priority list for payment and notification of availability of sufficient

funds shall be the same as that used for deferred site classification

pursuant to Section 732.306 of this Part with both types of deferrals

entering the list and moving up solely on the basis of the date the Agency

receives written notice of the deferral.

b)

An owner or operator who elects to defer site classification, low priority

groundwater monitoring, or remediation activities under subsection (a) of this

Section shall submit a report certified by a Licensed Professional Engineer

demonstrating the following:

1)

The early action requirements of Subpart B of this Part have been met; and

2)

The release does not pose a threat to human health or the environment

through migratory pathways following the investigation of migration

pathways requirements of Sectionsubsection 732.307(g) of this Part.

c)

An owner or operator may withdraw the election to commence corrective action

upon the availability of funds at any time. The Agency shall be notified in writing

of the withdrawal. Upon such withdrawal, the owner or operator shall proceed

with corrective action in accordance with the requirements of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.409

Groundwater Monitoring and Corrective Action Completion Reports

a)

Within 30 days after completing the performance of a Low Priority groundwater

monitoring plan or High Priority corrective plan, the owner or operator shall

submit to the Agency a groundwater monitoring completion report or a corrective

action completion report.

1)

The Low Priority groundwater monitoring completion report shall include,

but not be limited to, a narrative describing the implementation and

completion of all elements of the groundwater monitoring plan and the

procedures used for collection and analysis of samples, analytical results

in tabular form, actual analytical results, laboratory certification and any

other information or documentation relied upon by the Licensed

Professional Engineer in reaching the conclusion that the requirements of

the Act and regulations have been satisfied and that no further remediation

is required at the site.

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71

2)

The High Priority corrective action completion report shall include, but

not be limited to, a narrative and timetable describing the implementation

and completion of all elements of the corrective action plan and the

procedures used for the collection and analysis of samples, soil boring

logs, actual analytical results, laboratory certification, site maps, well logs

and any other information or documentation relied upon by the Licensed

Professional Engineer in reaching the conclusion that the requirements of

the Act and regulations have been satisfied and that no further remediation

is required at the site. A High Priority corrective action completion report

shall demonstrate the following:

A)

For sites submitting a site classification report under Section

732.309 of this Part:

i)

Applicable indicator contaminant groundwater objectives

are not exceeded at the property boundary line or 200 feet

from the UST system, whichever is less, as a result of the

release of petroleum for any indicator contaminant

identified during the groundwater investigation;

ii)

Class III resource groundwater quality standards, for Class

III special use resource groundwater within 200 feet of the

UST system are not exceeded as a result of the release of

petroleum for any indicator contaminant identified during

the groundwater investigation;

iii)

The release of petroleum does not threaten human health or

human safety due to the presence or migration, through

natural or manmade pathways, of petroleum in

concentration sufficient to harm human health or human

safety or to cause explosions in basements, crawl spaces,

utility conduits, storm or sanitary sewers, vaults or other

confined spaces;

iv)

The release of petroleum does not threaten any surface

water body; and

v)

The release of petroleum does not threaten any potable

water supply.

B)

For sites submitting a site classification completion report under

Section 732.312 of this Part

, the concentrations of applicable

indicator contaminants meet the remediation objectives developed

under Section 732.408 of this Part for any applicable exposure

route not excluded from further consideration under Section

732.312 of this Part.

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72

b)

The applicable report shall be submitted on forms prescribed and provided by the

Agency, and, if specified by the Agency by written notice, in an electronic format,

shall be signed by the owner or operator, and shall be accompanied by a

certification from a Licensed Professional Engineer, in accordance with

subsection (a) of this Section, that the information presented in the applicable

report is accurate and complete, that groundwater monitoring or corrective action

have been completed in accordance with the requirements of the Act and this

Subpart D of this Part, and that no further remediation is required at the site. The

owner or operator must sign and submit, with the corrective action completion

report, a form prescribed and provided by the Agency addressing ownership of

the site. Where the owner or operator owns the site, the owner or operator must

so indicate on the form. Where the owner or operator either does not own or does

not solely own the site, the owner or operator must provide, on the form, a

certification by original signature of the title holder(s) of record for the

remediation site or each portion thereof, or the agent(s) of such person(s), stating

as follows:

I hereby certify that I have reviewed the attached report and that I accept the

terms and conditions set forth therein, including any land use limitations, that

apply to property I own. I further certify that I have no objection to the recording

of a No Further Remediation Letter containing the terms and conditions identified

in the Corrective Action Completion Report.

c)

The Agency shall have the authority to review and approve, reject or require

modification of any report submitted pursuant to this Section in accordance with

the procedures contained in Subpart E of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.411

Off-site Access

a)

An owner or operator seeking to comply with the best efforts requirements of

subsection 732.404(c) of this Part must demonstrate compliance with the

requirements of this Section.

b)

In conducting best efforts to obtain off-site access, an owner or operator must, at a

minimum, send a letter by certified mail to the owner of any off-site property to

which access is required, stating:

1)

Citation to Section 57 of the Act stating the legal responsibility of the

owner or operator to remediate the contamination caused by the release;

2)

That, if the property owner denies access to the owner or operator, the

owner or operator may seek to gain entry by a court order pursuant to

Section 22.2(c) of the Act;

3)

That, in performing the requested investigation, the owner or operator will

work so as to minimize any disruption on the property, will maintain, or

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73

its consultant will maintain, appropriate insurance and will repair any

damage caused by the investigation;

4)

If contamination results from a release by the owner or operator, the

owner or operator will conduct all associated remediation at its own

expense;

5)

That threats to human health and the environment and diminished property

value may result from failure to remediate contamination from the release

and;

6)

A reasonable time to respond to the letter, not less than 30 days.

c)

An owner or operator, in demonstrating that the requirements of this Section have

been met, must provide to the Agency, as part of the Corrective Action

Completion Report, the following documentation:

1)

A sworn affidavit, signed by the owner or operator, identifying the

specific off-site property involved by address, the measures proposed in

the corrective action plan that require off-site access, and the efforts taken

to obtain access, and stating that the owner or operator has been unable to

obtain access despite the use of best efforts; and

2)

A copy of the certified letter sent to the owner of the off-site property

pursuant to subsection (b) of this Section.

d)

In determining whether the efforts an owner or operator has made constitute best

efforts to obtain access, the Agency must consider the following factors:

1)

The physical and chemical characteristics, including toxicity, persistence

and potential for migration, of applicable indicator contaminants at the

property boundary line;

2)

The hydrogeological characteristics of the site and the surrounding area,

including the attenuation capacity and saturation limits of the soil at the

property boundary line;

3)

The nature and extent of known contamination at the site, including the

levels of applicable indicator contaminants at the property boundary line;

4)

The potential effects of residual contamination on nearby surface water

and groundwater;

5)

The proximity, quality and current and future uses of nearby surface water

and groundwater, including setback zones and regulated recharge areas of

potable water supply wells;

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74

6)

Any known or suspected natural or man-made migration pathways

existing in or near the suspected area of off-site contamination;

7)

The nature and use of the part of the off-site property that is the suspected

area of contamination;

8)

Any existing on-site engineered barriers or institutional controls that might

have an impact on the area of suspected off-site contamination, and the

nature and extent of such impact; and

9)

Any other applicable information assembled in compliance with this Part.

e)

The Agency shall issue a No Further Remediation letter to an owner or operator

subject to this Section and otherwise entitled to such issuance only if the owner or

operator has, in accordance with this Section, either completed any requisite off-

site corrective action or demonstrated to the Agency’s satisfaction an inability to

obtain off-site access despite best efforts.

f)

The owner or operator is not relieved of responsibility to clean up a release that

has migrated beyond the property boundary even where off-site access is denied.

(Source: Added at ___ Ill. Reg. ________, effective ________________________)

SUBPART E: SELECTION AND REVIEW PROCEDURES FOR PLANS AND REPORTS

Section 732.500

General

a)

The Agency shall have the authority to review any plan or report, including any

amended plan or report, submitted pursuant to this Part. All such reviews shall be

subject to the procedures set forth in the Act and this Subpart E of this Part.

b)

For purposes of this Part 732

, “plan” shall mean:

1)

Any physical soil classification or groundwater investigation plan or

associated budget plan submitted pursuant to Subpart C of this Part;

2)

Any groundwater monitoring plan or associated budget plan submitted

pursuant to Subpart D of this Part; or

3)

Any site-specific corrective action plan or associated budget plan

submitted pursuant to Subpart D of this Part.

c)

For purposes of this Part 732, “report” shall mean:

1)

Any early action report or free product removal report submitted pursuant

to Subpart B of this Part;

2)

Any site classification completion report submitted pursuant to Subpart C

of this Part;

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75

3)

Any annual groundwater monitoring report submitted pursuant to Subpart

D of this Part;

4)

Any groundwater monitoring completion report submitted pursuant to

Subpart D of this Part; or

5)

Any corrective action completion report submitted pursuant to Subpart D

of this Part or Sections 732.300(b) or 732.400(b) or of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.501

Submittal of Plans or Reports

All plans or reports shall be made on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format. Plans or reports shall be

mailed or delivered to the address designated by the Agency. The Agency's record of the date of

receipt shall be deemed conclusive unless a contrary date is proven by a dated, signed receipt

from certified or registered mail.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.503

Full Review of Plans or Reports

a)

In addition to the completeness review for plans conducted pursuant to Section

732.502 of this Part, the Agency may conduct a full review of plans or reports

selected in accordance with the requirements of Section 732.504 of this Part. A

full review may include any or all technical or financial information, or both,

relied upon by the owner or operator or Licensed Professional Engineer or

Licensed Professional Geologist in developing the plan or report selected for

review. The full review also may include the review of any other plans or reports

submitted in conjunction with the site.

b)

The Agency shall have the authority to approve, reject or require modification of

any plan or report that has been given a full review. The Agency shall notify the

owner or operator in writing of its final action on any such plan or report, except

in the case of 20 day, 45 day or free product reports, in which case no notification

is necessary. Except as provided in subsections (cd) and (de) of this Section, if

the Agency fails to notify the owner or operator of its final action on a plan or

report within 120 days after the receipt of a plan or report, the owner or operator

may deem the plan or report rejected by operation of law, except in the case of 20

day, 45 day or free product reports, in which case no notification is necessary. If

the Agency rejects a plan or report or requires modifications, the written

notification shall contain the following information, as applicable:

1)

An explanation of the specific type of information, if any, that the Agency

needs to complete the full review;

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76

2)

An explanation of the Sections of the Act or regulations that may be

violated if the plan or report is approved; and

3)

A statement of specific reasons why the cited Sections of the Act or

regulations may be violated if the plan or report is approved.

c) d) For High Priority corrective action plans submitted by owners or operators not

seeking reimbursement from the Fund, the Agency may delay final action on such

plans until 120 days after it receives the corrective action completion report

required pursuant to Section 732.409 of this Part.

d)

e) An owner or operator may waive the right to a final decision within 120 days after

the submittal of a complete plan or report by submitting written notice to the

Agency prior to the applicable deadline. Any waiver shall be for a minimum of

60 days.

e)

f)

The Agency shall mail notices of final action on plans or reports by registered or

certified mail, post marked with a date stamp and with return receipt requested.

Final action shall be deemed to have taken place on the post marked date that

such notice is mailed.

f) g)

Any action by the Agency to reject or require modification, or rejection by failure

to act, of a plan or report shall be subject to appeal to the Board within 35 days

after the Agency's final action in the manner provided for the review of permit

decisions in Section 40 of the Act. If the owner or operator elects to incorporate

modifications required by the Agency rather than appeal, a revised plan or report

shall be submitted to the Agency within 35 days after the receipt of the Agency's

written notification. If no revised plan or report is submitted to the Agency or no

appeal to the Board filed within the specified time frames, the plan or report shall

be deemed approved as modified by the Agency. If any plan or report is rejected

by operation of law, in lieu of an immediate appeal to the Board the owner or

operator may either resubmit the plan or report to the Agency or file a joint

request for a 90 day extension in the manner provided for extensions of permit

decision in Section 40 of the Act.

g)

h) Notification of Selection for Full Review

1)

Owners or operators submitting plans shall be notified by the Agency

within 60 days fromafter

the date the plan is deemed complete if the plan

has not been selected for full review in accordance with Section 732.504

of this Part. Failure of the Agency to so notify the owner or operator shall

mean that the plan has been selected for full review. Notification by the

Agency that the plan has not been selected for full review shall constitute

approval of the plan.

2)

Owners or operators submitting reports shall be notified by the Agency

within 60 days after the receipt of the report if the report has not been

selected for full review in accordance with Section 732.504 of this Part,

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77

except in the case of 20 day, 45 day or free product reports, in which case

no notification of selection is necessary. Failure of the Agency to so

notify the owner or operator shall mean that the report has been selected

for full review. Notification by the Agency that the report has not been

selected for full review shall constitute approval of the report.

3)

Notice shall be sent and the date of notification shall be computed in

accordance with subsection (e) of this Section.

h) i)

In accordance with Sections 732.306 and 732.406 of this Part, upon the approval

of any budget plan by the Agency, the Agency shall include as part of the final

notice to the owner or operator a statement of whether or not the Fund contains

sufficient resources in order to immediately commence the approved measures.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

SUBPART F: PAYMENT OR REIMBURSEMENT

Section 732.601

Applications for Payment

a)

An owner or operator seeking payment from the Fund shall submit to the Agency

an application for payment on forms prescribed and provided by the Agency and,

if specified by the Agency by written notice, in an electronic format. The owner

or operator may submit an application for partial payment or final payment for

materials, activities or services contained in an approved budget plan. An

application for payment also may be submitted for materials, activities or services

for early action conducted pursuant to Subpart B of this Part and for which no

budget plan is required.

b)

A complete application for payment shall consist of the following elements:

1)

A certification from a Licensed Professional Engineer acknowledged by

the owner or operator that the work performed by the Licensed

Professional Engineer or Licensed Professional Geologist or under his or

her supervision has been in accordance with a technical plan approved by

the Agency or, for early action activities, in accordance with Subpart B of

this Part;

2)

A statement of the amounts approved in the corresponding budget plan

and the amounts actually sought for payment along with a certified

statement by the owner or operator that the amounts

so sought havehas

been expended in conformance with the elements of a budget plan

approved by the Agency;

3)

A copy of the OSFM or Agency eligibility and deductibility

determination;

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78

4)

Proof that approval of the payment requested will not exceed the

limitations set forth in the Act and Section 732.604 of this Part;

5)

A federal taxpayer identification number and legal status disclosure

certification;

6)

A Private Insurance Coverage form; and

7)

A Minority/Women's Business Usage form; and

8)

designation of the address to which payment and notice of final action on

the application for payment are to be sent.

c)

The address designated on the application for payment may be changed only by

subsequent notification to the Agency, on a form provided by the Agency, of a

change in address.

cd)

Applications for payment and change of address forms shall be mailed or

delivered to the address designated by the Agency. The Agency's record of the

date of receipt shall be deemed conclusive unless a contrary date is proven by a

dated, signed receipt from certified or registered mail.

de)

Applications for partial or final payment may be submitted no more frequently

than once every 90 days.

ef)

Except for applications for payment for costs of early action conducted pursuant

to Subpart B of this Part or applications for payment/budget plans submitted

pursuant to Sections 732.305(e), 732.312(l), 732.405(e), and 732.405(f) of this

Part, in no case shall the Agency review an application for payment unless there is

an approved budget plan on file corresponding to the application for payment.

fg)

In no case shall the Agency authorize payment to an owner or operator in an

amountamounts

greater than the amountamounts approved by the Agency in a

corresponding budget plan. Revised cost estimates or increased costs resulting

from revised procedures must be submitted to the Agency for review in

accordance with Subpart E of this Part using amended budget plans in accordance

with Sections 732.305(e) or 732.405(e) of this Part.

gh)

Applications for payment of costs associated with site classification may not be

submitted prior to approval or modification of the site classification completion

report.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.602

Review of Applications for Payment

a)

The Agency shall conduct a review of any application for payment submitted

pursuant to this Part 732

. Each application for payment shall be reviewed to

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79

determine whether the application contains all of the elements and supporting

documentation required by Section 732.601(b) of this Part and whether the

amounts sought for payment have been certified in accordance with Section

732.601(b)(2) of this Part as equal to or less than the amounts approved in the

corresponding budget plan. Any action by the Agency pursuant to this subsection

shall be subject to appeal to the Board within 35 days after the Agency's final

action in the manner provided for the review of permit decisions in Section 40 of

the Act.

b)

The Agency may conduct a full review of any application for payment:

1)

If the amounts sought for payment exceed the amounts approved in the

corresponding budget plan;

2)

If the Agency has reason to believe that the application for payment is

fraudulent; or

3)

If the application for payment includes costs for early action activities

conducted pursuant to Subpart B of this Part and either of the following

circumstances exist:

A)

The application for payment is solely for early action costs that

have not been approved as part of a prior budget plan; or

B)

The application for payment includes early action costs that have

not been approved as part of a prior budget plan, except that only

the portion of the application for the unapproved early action costs

may be given a full review.

c)

When conducting a full review of any application for payment, the Agency may

require the owner or operator to submit a full accounting supporting all claims as

provided in subsection (d) of this Section.

d)

A full review of an application for payment shall be sufficient to determine which

line items contained in the application for payment have caused the application

for payment to exceed the corresponding approved budget plan pursuant to

subsection (b)(1) of this Section, which line items, if any, are ineligible for

payment pursuant to subsection (b)(2) or (b)(3) of this Section, and whether there

is sufficient documentation to demonstrate that line items have been completed in

accordance with a plan approved by the Agency . A full review may include

review of any or all elements and supporting documentation relied upon by the

owner or operator in developing the application for payment, including but not

limited to a review of invoices or receipts supporting all claims. The full review

also may include the review of any plans or reports previously submitted for the

site to ensure that the application for payment is consistent with work proposed

and actually performed in conjunction with the site.

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e)

Following a review, the Agency shall have the authority to approve, deny or

require modification of applications for payment or portions thereof. The Agency

shall notify the owner or operator in writing of its final action on any such

application for payment. Except as provided in subsection (f) of this Section, if

the Agency fails to notify the owner or operator of its final action on an

application for payment within 120 days after the receipt of a complete

application for payment, the owner or operator may deem the application for

payment rejected approved by operation of law. If the Agency denies payment

for an application for payment or for a portion thereof or requires modification,

the written notification shall contain the following information, as applicable:

1)

An explanation of the specific type of information, if any, that the Agency

needs to complete the full review;

2)

An explanation of the Sections of the Act or regulations that may be

violated if the application for payment is approved; and

3)

A statement of specific reasons why the cited Sections of the Act or

regulations may be violated if the application for payment is approved.

f)

An owner or operator may waive the right to a final decision within 120 days after

the submittal of a complete application for payment by submitting written notice

to the Agency prior to the applicable deadline. Any waiver shall be for a

minimum of 30 days.

g)

The Agency shall mail notices of final action on applications for payment by

registered or certified mail, post marked with a date stamp and with return receipt

requested. Final action shall be deemed to have taken place on the post marked

date that such notice is mailed. The Agency shall mail notices of final action on

applications for payment, and direct the Comptroller to mail payments to the

owner or operator, at the address designated for receipt of payment in the

application for payment or on a change of address form, provided by the Agency,

submitted subsequent to submittal of the application for payment.

h)

Any action by the Agency to deny payment for an application for payment or

portion thereof or to require modification shall be subject to appeal to the Board

within 35 days after the Agency's final action in the manner provided for the

review of permit decisions in Section 40 of the Act. If the owner or operator

elects to incorporate modifications required by the Agency rather than appeal, a

revised application for payment shall be submitted to the Agency within 35 days

after the receipt of the Agency's written notification. If no revised application for

payment is submitted to the Agency or no appeal to the Board is filed within the

specified time frames, the application for payment shall be deemed approved as

modified by the Agency and payment shall be authorized in the amount approved.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.603

Authorization for Payment; Priority List

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a)

Within 60 days after notification of to an owner or operator that the application

for payment or a portion thereof has been approved by the Agency or by operation

of law, the Agency shall forward to the Office of the State Comptroller in

accordance with subsection (cd)

or (de) of this Section a voucher in the amount

approved. If the owner or operator has filed an appeal with the Board of the

Agency's final decision on an application for payment, the Agency shall have 60

days fromafter

the final resolution of the appeal to forward to the Office of the

State Comptroller a voucher in the amount ordered as a result of the appeal.

Notwithstanding the time limits imposed by this Section, the Agency shall not

forward vouchers to the Office of the State Comptroller until sufficient funds are

available to issue payment.

b)

The following rules shall apply regarding deductibles:

1)

Any deductible, as determined by the OSFM or the Agency, shall be

subtracted from any amount approved for payment by the Agency or by

operation of law.;

2)

Only one deductible shall apply per occurrence;

3)

If multiple incident numbers are issued for a single site in the same

calendar year, only one deductible shall apply for those incidents, even if

the incidents relate to more than one occurrence; and

4)

Where more than one deductible determination is made, the higher

deductible shall apply.

c)

The Agency shall instruct the Office of the State Comptroller to issue payment to

the owner or operator at the address designated in accordance with subsection

732.601(b)(8) of this Part. In no case shall the Agency authorize the Office of the

State Comptroller to issue payment to an agent, designee, or entity who has

conducted corrective action activities for the owner or operator.

c)d)

For owners or operators who have deferred site classification or corrective action

in accordance with Section 732.306 or 732.406 of this Part, payment shall be

authorized from funds encumbered pursuant to Sectionsubsection

732.306(a)(4)

or 732.406(a)(4) of this Part upon approval of the application for payment by the

Agency or by operation of law.

d)e)

For owners or operators not electing to defer site classification or corrective

action in accordance with Section 732.306 or 732.406 of this Part, the Agency

shall form a priority list for payment for the issuance of vouchers pursuant to

subsection (a) of this Section.

1)

All such applications for payment shall be assigned a date that is the date

upon which the complete application for partial or final payment was

received by the Agency. This date shall determine the owner or operator's

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82

priority for payment in accordance with subsection (d)(2) of this Section,

with the earliest dates receiving the highest priority.

2)

Once payment is approved by the Agency or by operation of law or

ordered by the Board or courts, the application for payment shall be

assigned priority in accordance with subsection (d)(1) of this Section. The

assigned date shall be the only factor determining the priority for payment

for those applications approved for payment.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.605

Eligible Costs

a)

Types of costs that may be eligible for payment from the Fund include those for

corrective action activities and for materials or services provided or performed in

conjunction with corrective action activities. Such activities and services may

include but are not limited to:

1)

Early action activities conducted pursuant to Subpart B of this Part;

2)

Engineering and geology oversight services;

3)

Remedial investigation and design;

4)

Feasibility studies;

5)

Laboratory services necessary to determine site classification and whether

the established corrective action objectives have been met;

6)

Installation and operation of groundwater investigation and groundwater

monitoring wells;

7)

The removal, treatment, transportation and disposal of soil contaminated

by petroleum at levels in excess of the established corrective action

objectives;

8)

The removal, treatment, transportation and disposal of water contaminated

by petroleum at levels in excess of the established corrective action

objectives;

9)

The placement of clean backfill to grade to replace excavated soil

contaminated by petroleum at levels in excess of the established corrective

action objectives;

10)

Groundwater corrective action systems;

11)

Alternative technology;

12)

Recovery of free phase petroleum from groundwater;

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83

13)

The removal and disposal of any UST if a release of petroleum from the

UST was identified and IEMA was notified prior to its removal, with the

exception of any UST deemed ineligible by the Office of State Fire

Marshal,;

14)

Costs incurred as a result of a release of petroleum because of vandalism,

theft or fraudulent activity by a party other than an owner, operator or

agent of an owner or operator;

15)

Engineering costs associated with seeking payment or reimbursement

from the Fund including, but not limited to, completion of an application

for partial or final payment;

16)

Costs associated with obtaining an Eligibility and Deductibility

Determination from the OSFM or the Agency;

17)

Costs for destruction and replacement of concrete, asphalt and paving to

the extent necessary to conduct corrective action and if the destruction and

replacement has been certified as necessary to the performance of

corrective action by a Licensed Professional Engineer;

18)

The destruction or dismantling and reassembly of above grade structures

in response to a release of petroleum if such activity has been certified as

necessary to the performance of corrective action by a Licensed

Professional Engineer. For purposes of this subsection, destruction,

dismantling or reassembly of above grade structures does not include costs

associated with replacement of pumps, pump islands, buildings, wiring,

lighting, bumpers, posts or canopies; and

19)

Preparation of site classification plans (including physical soil

classification and groundwater investigation plans) and associated budget

plans, site classification reports, groundwater monitoring plans and

associated budget plans, groundwater monitoring completion reports, High

Priority corrective action plans and associated budget plans, and High

Priority corrective action completion reports.

b)

An owner or operator may submit a budget plan or application for partial or final

payment that includes an itemized accounting of costs associated with activities,

materials or services not identified in subsection (a) of this Section if the owner or

operator submits detailed information demonstrating that the activities, materials

or services not identified in subsection (a) of this Section are essential to the

completion of the minimum corrective action requirements of the Act and this

Part 732.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.606

Ineligible Costs

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84

Costs ineligible for payment from the Fund include but are not limited to:

a)

Costs for the removal, treatment, transportation, and disposal of more than four

feet of fill material from the outside dimensions of the UST, as set forth in

Appendix C of this Part, during early action activities conducted pursuant to

Section 732.202(f), and costs for the replacement of contaminated fill materials

with clean fill materials in excess of the amounts set forth in Appendix C of this

Part during early action activities conducted pursuant to Section 732.202(f) of this

Part;

b)

Costs or losses resulting from business interruption;

c)

Costs incurred as a result of vandalism, theft or fraudulent activity by the owner

or operator or agent of an owner or operator including the creation of spills, leaks

or releases;

d)

Costs associated with the replacement of above grade structures such as pumps,

pump islands, buildings, wiring, lighting, bumpers, posts or canopies, including

but not limited to those structures destroyed or damaged during corrective action

activities;

e)

Costs of corrective action or indemnification incurred by an owner or operator

prior to July 28, 1989

(Section 57.8(j) of the Act) [415 ILCS 5/57.8(j)];

f)

Costs associated with the procurement of a generator identification number;

g)

Legal defense costs

including

legal costs for seeking payment under

these

regulations

unless the owner or operator prevails before the Board

and the Board

authorizes payment of legal fees (Section 57.8(l) of the Act) [415 ILCS 5/57.8(l)];

h)

Purchase costs of non-expendable materials, supplies, equipment or tools, except

that a reasonable rate may be charged for the usage of such materials, supplies,

equipment or tools;

i)

Costs associated with activities that violate any provision of the Act or Board,

OSFM or Agency regulations;

j)

Costs associated with investigative action, preventive action, corrective action, or

enforcement action taken by the State of Illinois if the owner or operator failed,

without sufficient cause, to respond to a release or substantial threat of a release

upon, or in accordance with, a notice issued by the Agency pursuant to Section

732.105 of this Part and Section 57.12 of the Act;

k)

Costs for removal, disposal or abandonment of UST if the tank was removed or

abandoned, or permitted for removal or abandonment, by the OSFM before the

owner or operator provided notice to IEMA of a release of petroleum;

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85

l)

Costs associated with the installation of new USTs, and the repair of existing

USTs and removal and disposal of USTs determined to be ineligible by the Office

of State Fire Marshall.

m)

Costs exceeding those contained in a budget plan or amended budget plan

approved by the Agency;

n)

Costs of corrective action or indemnification incurred before providing

notification of the release of petroleum to IEMA in accordance with Section

732.202 of this Part;

o)

Costs for corrective action activities and associated materials or services

exceeding the minimum requirements necessary to comply with the Act;

p)

Costs associated with improperly installed sampling or monitoring wells;

q)

Costs associated with improperly collected, transported or analyzed laboratory

samples;

r)

Costs associated with the analysis of laboratory samples for constituents other

than applicable indicator contaminants or groundwater objectives;

s)

Costs for any corrective activities, services or materials unless accompanied by a

letter from OSFM or the Agency confirming eligibility and deductibility in

accordance with Section 57.9 of the Act;

t)

Interest or finance costs charged as direct costs;

u)

Insurance costs charged as direct costs;

v)

Indirect corrective action costs for personnel, materials, service or equipment

charged as direct costs;

w)

Costs associated with the compaction and density testing of backfill material;

x)

Costs associated with sites that have not reported a release to IEMA or are not

required to report a release to IEMA;

y)

Costs related to activities, materials or services not necessary to stop, minimize,

eliminate, or clean up a release of petroleum or its effects in accordance with the

minimum requirements of the Act and regulations;

z)

Costs incurred after completion of early action activities in accordance with

Subpart B by owners or operators choosing, pursuant to Section

subsection

732.300(b) of this Part, to conduct remediation sufficient to satisfy the

remediation objectives;

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86

aa)

Costs incurred after completion of site classification activities in accordance with

Subpart C by owners or operators choosing, pursuant to Section subsection

732.400(b) or (c) of this Part, to conduct remediation sufficient to satisfy the

remediation objectives;

bb)

Costs of alternative technology that exceed the costs of conventional technology;

cc)

Costs for investigative activities and related services or materials for developing a

High Priority corrective action plan that are unnecessary or inconsistent with

generally accepted engineering practices or unreasonable costs for justifiable

activities, materials or services;

dd)

Costs to prepare site classification plans and associated budget plans under

Section 732.305 of this Part, to perform site classification under Section 732.307

of this Part, or to prepare site classification completion reports under Section

732.309 of this Part, for sites where owners or operators have elected to classify

under Section 732.312 of this Part;

ee)

Costs to prepare site classification plans and associated budget plans under

Section 732.312 of this Part, to perform site classification under Section 732.312

of this Part, or to prepare site classification completion reports under Section

732.312 of this Part, for sites where owners or operators have performed

classification activities under Sections 732.305, 732.307, or 732.309 of this Part;

ff)

Costs requested that are based on mathematical errors;

gg)

Costs that lack supporting documentation;

hh)

Costs proposed as part of a budget plan that are unreasonable;

ii)

Costs incurred during early action that are unreasonable;

jj)

Costs incurred at a site that has entered the Site Remediation Program under Title

XVII and 35 Ill. Adm. Code 740; and

kk)

Costs incurred for additional remediation after receipt of a No Further

Remediation Letter for the occurrence for which the No Further Remediation

Letter was received, except costs incurred for MTBE remediation pursuant to

subsection 732.310(i)(2) of this Part;

ll)

Handling charges for subcontractors costs that have been billed directly to the

owner or operator;

mm) Handling charges for subcontractor’s costs when the contractor has not paid the

subcontractor;.

nn)

Costs associated with standby and demurrage; and

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87

oo)

Costs associated with a corrective action plan incurred after the Agency notifies

the owner or operator, pursuant to Section 732.405(f), that a revised corrective

action plan is required; provided however, that costs associated with any

subsequently approved corrective action plan will be eligible for reimbursement if

they meet the requirements of this Part.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.607

Payment for Handling Charges

Handling charges are eligible for payment only if they are equal to or less than the amount

determined by the following table

:

SUBCONTRACT

ELIGIBLE HANDLING CHARGES

OR FIELD A

AS A PERCENTAGE OF COST:

PURCHASE COST:

$0 -$5,000

12%

$5,001 -$15,000

$600 PLUS 10% OF AMOUNT OVER $5,000

$15,001 -$50,000

$1,600 PLUS 8% OF AMOUNT OVER $15,000

$50,001 -$100,000

$4,400 PLUS 5% OF AMOUNTOVER $50,000

$100,000 - $1,000,000

$6,900 PLUS 2% OF AMOUNT OVER $100,000

(Section 57.8(g)

of the Act) [415 ILCS 5/57.8 (f)]:

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.609

Subrogation of Rights

Payment of any amount from the fund for corrective action or indemnification

shall be subject to

the State acquiring by subrogation the rights of any owner, operator, or other person to recover

the costs of corrective action or indemnifictionindemnification for which the fund has

compensated such owner, operator, or person from the person responsible or liable for the

release. (Section 57.8(h) of the Act)

[415 ILCS 5/57.8(h)].

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

SUBPART G: NO FURTHER REMEDIATION LETTERS AND RECORDING

REQUIREMENTS

Section 732.701

Issuance of a No Further Remediation Letter

a)

Upon approval by the Agency of a No Further Action site classification report, a

Low Priority groundwater monitoring completion report, or a High Priority

corrective action completion report, the Agency shall issue to the owner or

operator a No Further Remediation Letter. The No Further Remediation Letter

shall have the legal effect prescribed in Section 57.10 of the Act. The No Further

Remediation Letter shall be denied if the Agency rejects or requires modification

of the applicable report.

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88

b)

The Agency shall have 120 days fromafter the date of receipt of a complete report

to issue a No Further Remediation Letter and may include the No Further

Remediation Letter as part of the notification of approval of the applicable report

in accordance with Subpart E of this Part. If the Agency fails to send the No

Further Remediation Letter within 120 days, it shall be deemed denied by

operation of law.

c)

The notice of denial of a No Further Remediation Letter by the Agency may be

included with the notification of rejection or modification of the applicable report.

The reasons for the denial shall be stated in the notification. The denial shall be

considered a final determination appealable to the Board within 35 days after the

Agency's final action in the manner provided for the review of permit decisions in

Section 40 of the Act. If any request for a No Further Remediation Letter is

denied by operation of law, in lieu of an immediate repeal to the Board the owner

or operator may either resubmit the request and applicable report to the Agency or

file a joint request for a 90 day extension in the manner provided for extensions of

permit decision in Section 40 of the Act.

d)

The Agency shall mail the No Further Remediation Letter by registered or

certified mail, postmarked with a date stamp and with return receipt requested.

Final action shall be deemed to have taken place on the postmarked date that the

letter is mailed.

e)

The Agency at any time may correct errors in No Further Remediation Letters

that arise from oversight, omission or clerical mistake. Upon correction of the No

Further Remediation Letter, the Agency shall mail the corrected letter to the

owner or operator as set forth in subsection (c) of this Section. The corrected

letter shall be perfected by recording in accordance with the requirements of

Section 732.703.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.702

Contents of a No Further Remediation Letter

A No Further Remediation Letter issued pursuant to this Part shall include all of the following:

a)

An acknowledgment that the requirements of the applicable report were satisfied;

b)

A description of the location of the affected property by adequate legal

description or by reference to a plat showing its boundaries, or, for purposes of

subsection 732.703(d) of this Part, other means sufficient to identify site location

with particularity;

c)

The remediation objectives determined in accordance with 35 Ill. Adm. Code 742

and any land use limitation, as applicable, required by 35 Ill. Adm. Code 742 as a

condition of the remediation objectives;

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89

d)

A statement that the Agency's issuance of the No Further Remediation Letter

signifies that:

1)

All corrective action requirements

under Title XVI and Part 732

applicable to the occurrence have been complied with;

2)

All corrective action concerning the remediation of the occurrence has

been completed; and

3)

No further corrective action concerning the occurrence is necessary for

the protection of human health, safety and the environment.

(Section

57.10(c) of the Act) [415 ILCS 5/57.10(c)]

e)

The prohibition under Section 732.703(e) (c)of this Part against the use of any site

in a manner inconsistent with any applicable land use limitation, without

additional appropriate remedial activities;

f)

A description of any approved preventive, engineering, and institutional controls

identified in the plan or report and notification that failure to manage the controls

in full compliance with the terms of the plan or report may result in voidance of

the No Further Remediation Letter;

g)

The recording obligations pursuant to Section 732.703 of this Part;

h)

The opportunity to request a change in the recorded land use pursuant to Section

732.704(e)(c) of this Part;

i)

Notification that further information regarding the site can be obtained from the

Agency through a request under the Freedom of Information Act [5 ILCS 140];

and

j)

Any other provisions agreed to by the Agency and the owner or operator.

(Source: Added at 21 Ill. Reg. 3617, effective July 1, 1997)

Section 732.703

Duty to Record a No Further Remediation Letter

a)

Except as provided in subsections (c) and (d) of this Section, Aan owner or

operator receiving a No Further Remediation Letter from the Agency pursuant to

this Subpart G shall submit the letter, with a copy of any applicable institutional

controls (as set forth in 35 Ill. Adm. Code 742, Subpart J) proposed as part of a

Corrective Action Completion Report, to the Office of the Recorder or the

Registrar of Titles of the county in which the site is located within 45 days after

receipt of the letter. The letter shall be filed in accordance with Illinois law so

that it forms a permanent part of the chain of title.

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90

b)

Except as provided in subsections (c) and (d) of this Section, A a No Further

Remediation Letter shall not become effective be perfected upon the date of the

official recording of such letter until officially recorded in accordance with

subsection (a) of this Section. The owner or operator shall obtain and submit to

the Agency, within 30 days after the official recording date,

a certified, or

otherwise accurate and official copy of the letter and any attachments as recorded.

An unperfected No Further Remediation Letter is effective only as between the

Agency and the owner or operator. The Agency may, pursuant to Section

732.704(a)(5) of this Part, void a No Further Remediation Letter for failure to

perfect in a timely manner in accordance with subsection (a) of this Section.

c)

For sites located in an Illinois Department of Transportation (IDOT) right of way,

the following requirements shall apply:

1)

In order for the No Further Remediation Letter to be perfected, IDOT

must enter into a Memorandum of Agreement (MOA) with the Agency.

The MOA must include, but is not limited to:

A)

The name of the site, if any, and any IDOT or Agency identifiers

(e.g. incident number, Illinois inventory identification number);

B)

The address of the site (or other description sufficient to identify

the location of the site with certainty);

C)

A copy of the No Further Remediation Letter for each site subject

to the MOA;

D)

Procedures for tracking sites subject to the MOA so that all IDOT

bureaus whose responsibilities (e.g. land acquisition, maintenance,

construction, utility permits) may affect land use limitations will

have notice of any environmental concerns and land use limitations

applicable to a site;

E)

Provisions addressing future conveyances (including title or any

lesser form of interest) or jurisdictional transfers of the site to any

other agency, private person or entity and the steps that will be

taken to ensure the long-term integrity of any land use limitations

including, but not limited to, the following:

i)

Upon creation of a deed, the recording of the No Further

Remediation Letter and any other land use limitations

requiring recording under 35 Ill. Adm. Code 742, with

copies of the recorded instruments sent to the Agency

within 30 days after recording;

ii)

Any other arrangements necessary to ensure that property

that is conveyed or transferred remains subject to any land

use limitations approved and implemented as part of the

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91

corrective action plan and the No Further Remediation

Letter; and

iii)

Notice to the Agency at least 60 days prior to any such

intended conveyance or transfer indicating the

mechanism(s) to be used to ensure that any land use

limitations will be operated or maintained as required in the

corrective action plan and No Further Remediation Letter;

and

F)

Provisions for notifying the Agency if any actions taken by IDOT

or its permittees at the site result in the failure or inability to

restore the site to meet the requirements of the corrective action

plan and the No Further Remediation Letter.

2)

Failure to comply with the requirements of this subsection may result in

voidance of the No Further Remediation Letter pursuant to Section

732.704 of this Part as well as any other penalties that may be available.

d)

For sites located on Federally Owned Property for which the Federal Landholding

Entity does not have the authority under federal law to record institutional

controls on the chain of title, the following requirements shall apply:

1)

To perfect a No Further Remediation Letter containing any restriction on

future land use(s), the Federal Landholding Entity or Entities responsible

for the site must enter into a Land Use Control Memorandum of

Agreement (“LUC MOA”) with the Agency that requires the Federal

Landholding Entity to do, at a minimum, the following:

A)

Identify the location on the Federally Owned Property of the site

subject to the No Further Remediation Letter. 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 that identifies the site in question

with particularity;

B)

Implement periodic site inspection procedures that ensure

oversight by the Federal Landholding Entities of any land use

limitations or restrictions imposed pursuant to the No Further

Remediation Letter;

C)

Implement procedures for the Federal Landholding Entities to

periodically advise the Agency of continued compliance with all

maintenance and inspection requirements set forth in the LUC

MOA;

D)

Implement procedures for the Federal Landholding Entities to

notify the Agency of any planned or emergency changes in land

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92

use that may adversely impact land use limitations or restrictions

imposed pursuant to the No Further Remediation Letter;

E)

Notify the Agency at least 60 days in advance of a conveyance by

deed or fee simple title, by the Federal Landholding Entities, of the

site or sites subject to the No Further Remediation Letter, 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 the No Further

Remediation Letter is recorded on the chain of title upon transfer

of the property; and

F)

Attach to the LUC MOA a copy of the No Further Remediation

Letter for each site subject to the LUC MOA.

2)

To perfect a No Further Remediation letter containing no restriction(s) on

future land use, the Federal Landholding Entity shall submit the letter to

the Office of the Recorder or the Registrar of Titles of the county in which

the site is located within 45 days after receipt of the letter. The letter shall

be filed in accordance with Illinois law so it forms a permanent part of the

chain of title. The Federal Landholding Entity shall obtain and submit to

the Agency, within 30 days after recording, a copy of the letter

demonstrating that the recording requirements have been satisfied.

3)

Failure to comply with the requirements of this subsection and the LUC

MOA may result in voidance of the No Further Remediation Letter as well

as any other penalties that may be available.

ed)

At no time shall any site for which a land use limitation has been imposed as a

result of corrective action under this Part be used in a manner inconsistent with

the land use limitation set forth in the No Further Remediation Letter.unless

further investigation or remedial action has been conducted that documents the

attainment of objectives appropriate for the new land use and a new letter is

obtained and recorded in accordance with this Part. The land use limitation

specified in the No Further Remediation Letter may be revised only by the

perfecting of a subsequent No Further Remediation Letter, issued pursuant to

Title XVII of the Act and regulations thereunder, following further investigation

or remediation that demonstrates the attainment of objectives appropriate for the

new land use.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.704

Voidance of a No Further Remediation Letter

a)

The No Further Remediation Letter shall be voidable if site activities are not

carried out in full compliance with the provisions of this Part, and 35 Ill. Adm.

Code 742 where applicable, or the remediation objectives upon which the

issuance of the No Further Remediation Letter was based. Specific acts or

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93

omissions that may result in voidance of the No Further Remediation Letter

include, but shall not be limited to:

1)

Any violations of institutional controls or land use restrictions, if

applicable;

2)

The failure of the owner or operator or any subsequent transferee to

operate and maintain preventive, engineering and institutional controls or

comply with a groundwater monitoring plan, if applicable;

3)

Obtaining the No Further Remediation Letter by fraud or

misrepresentation;

4)

Subsequent discovery of indicator contaminants related to the occurrence

upon which the No Further Remediation Letter was based which:

A)

were not identified as part of the investigative or remedial

activities upon which the issuance of the No Further Remediation

Letter was based;

B)

results in the following:

i)

the site no longer satisfying the criteria of a No Further

Action site classification.

ii)

the site no longer satisfying the criteria of a Low Priority

site classification.

iii)

failing to meet the remedial objectives established for a

High Priority site; and

C)

pose a threat to human health or the environment;

5)

Failure to record the No Further Remediation Letter in accordance with

Section 732.703 Upon lapse of the 45 day period for perfection of the No

Further Remediation Letter for recording, the failure to perfect the No

Further Remediation Letter; or

5)6)

Disturbance or removal of contamination left in place under an approved

plan;

7)

The failure to comply with the requirements of Section 732.703(c) and the

Memorandum of Agreement entered in accordance with Section

732.703(c) for a site located in an IDOT right of way;

8)

The failure to comply with the requirements of Section 732.703(d) and the

LUC MOA entered in accordance with Section 732.703(d) for a site

located on Federally Owned Property for which the Federal Landholding

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94

Entity does not have the authority under federal law to record institutional

controls on the chain of title;

9)

The failure to comply with the requirements of Section 732.703(d) of this

Part or the failure to record a No Further Remediation Letter perfected in

accordance with Section 732.703(d) within 45 days following the transfer

of the Federally Owned Property subject to the No Further Remediation

Letter to any entity that will not remain or become a Federal Landholding

Entity; or

10)

The failure to comply with the notice or confirmation requirements of 35

Ill. Adm. Code 742.1015(b)(5) and 35 Ill. Adm. Code 742.1015(c).

b)

If the Agency seeks to void a No Further Remediation Letter, it shall provide

notice to the current title holder of the site and the owner or operator at his or her

last known address.

1)

The notice shall specify the cause for the voidance and describe the facts

in support of the cause.

2)

The Agency shall mail Notices of Voidance by registered or certified mail,

date stamped with return receipt requested.

c)

Within 35 days after receipt of the Notice of Voidance, the current title holder and

owner or operator of the site at the time the No Further Remediation Letter was

issued may appeal the Agency's decision to the Board in the manner provided for

the review of permits in Section 40 of the Act.

d)

If the Board fails to take final action within 120 days, unless such time period is

waived by the petitioner, the petition shall be deemed denied and the petitioner

shall be entitled to an appellate court order pursuant to subsection (d) of Section

41 of the Act. The Agency shall have the burden of proof in such action.

1)

If the Agency's action is appealed, the action shall not become effective

until the appeal process has been exhausted and a final decision is reached

by the Board or courts.

A)

Upon receiving a notice of appeal, the Agency shall file a Notice

of Lis Pendens with the Office of the Recorder or the Registrar of

Titles for the county in which the site is located. The notice shall

be filed in accordance with Illinois law so that it becomes a part of

the chain of title for the site.

B)

If the Agency's action is not upheld on appeal, the Notice of Lis

Pendens shall be removed in accordance with Illinois law within

45 days after receipt of the final decision of the Board or the

courts.

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95

2)

If the Agency's action is not appealed or is upheld on appeal, the Agency

shall submit the Notice of Voidance to the Office of the Recorder or the

Registrar of Titles for the county in which the site is located. The Notice

shall be filed in accordance with Illinois law so that it forms a permanent

part of the chain of title for the site.

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.APPENDIX A Indicator Contaminants

TANK CONTENTS

INDICATOR CONTAMINANTS

GASOLINE

leaded(1), unleaded, premium and gasohol

Benzene

Ethylbenzene

Toluene

Xylene

Methyl tertiary butyl ether (MTBE)

MIDDLE DISTILLATE AND HEAVY ENDS

aviation turbine fuels(1)

Benzene

jet fuels

ethylbenzene

toluene

xylene

diesel fuels

acenaphthene

gas turbine fuel oils

anthracene

heating fuel oils

benzo(a)anthracene

illuminating oils

benzo(a)pyrene

Kerosene

benzo(b)fluoranthene

Lubricants

benzo(k)fluoranthene

liquid asphalt and dust laying oils

chrysene

cable oils

dibenxo(a,h)anthrancene

crude oil, crude oil fractions

fluoranthene

petroleum feedstocks

fluorene

petroleum fractions

indeno(1,2,3-c,d)pyrene

heavy oils

napthalene

transformer oils(2)

pyrene

hydraulic fluids(3)

other non-carc.PNAs(total)(6)

petroleum spirits(4)

mineral spirits(4), Stoddard solvents(4)

high-flash aromatic naphthas(4)

VM&P naphthas(4)

moderately volatile hydrocarbon solvents(4)

petroleum extender oils(4)

USED OIL

screening sample(5)

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96

(1)

lead is also an indicator contaminant

(2)

the polychlorinated biphenyl parameters listed in Appendix B are also indicator

contaminants

(3)

barium is also an indicator contaminant

(4)

the volatile, base/neutral and polynuclear aromatic parameters listed in Appendix B are

also indicator contaminants

(5)

used oil indicator contaminants shall be based on the results of a used oil soil sample

analysis -refer to 732.310(g)

(6)

acenaphthylene, benzo(g,h,i)perylene and phenanthrene

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.Appendix B

Additional Parameters

Volatiles

1.

Benzene

2.

Bromoform

3.

Carbon tetrachloride

4.

Chlorobenzene

5.

Chloroform

6.

Dichlorobromomethane

7.

1,2-Dichloroethane

8.

1,1-Dichloroethene

9.

cis-1,2-Dichloroethylene

10.

trans-1,2-Dichloroethylene

11.

Dichloromethane (Methylene chloride)

12.

1,2-Dichloropropane

13.

1,3-Dichloropropylene (cis + trans)

14.

Ethylbenzene

15.

Styrene

16.

Tetrachloroethylene

17.

Toluene

18.

1,1,1-Trichloroethane

19.

1,1,2-Trichloroethane

20.

Trichloroethylene

21.

Vinyl chloride

22.

Xylenes (total)

Base/Neutrals

1.

Bis(2-chloroethyl)ether

2.

Bis(2-ethylhexyl)phthalate

3.

1,2-Dichlorobenzene

4.

1,4-Dichlorobenzene

5.

Hexachlorobenzene

6.

Hexachlorocyclopentadiene

7.

n

-Nitrosodi-

n

-propylamine

8.

n

-Nitrosodiphenylamine

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97

9.

1,2,4-Trichlorobenzene

Polynuclear Aromatics

1.

Acenaphthene

2.

Anthracene

3.

Benzo(a)anthracene

4.

Benzo(a)pyrene

5.

Benzo(b)fluoranthene

6.

Benzo(k)fluoranthene

7.

Chrysene

8.

Dibenzo(a,h)anthracene

9.

Fluoranthene

10.

Fluorene

11.

Indeno(1,2,3-c,d)pyrene

12.

Naphthalene

13.

Pyrenep

Other Non-Carcinogenic PNAs (total)

14.

Acenaphthylene

15.

Benzo(g,h,i)perylene

16.

Phenanthrene

Metals (total inorganic and organic forms)

1.

Arsenic

2.

Barium

3.

Cadmium

4.

Chromium (total)

5.

Lead

6.

Mercury

7.

Selenium

Acids

1.

Pentachlorophenol

2.

Phenol (total)

3.

2,4,6-Trichlorophenol

Pesticides

1.

Aldrin

2.

alpha-BHC

3.

Chlordane

4.

4,4'-DDD

5.

4,4'-DDE

6.

4,4-DDT

7.

Dieldrin

8.

Endrin

9.

Heptachlor

10.

Heptachlor epoxide

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98

11.

Lindane (gamma-BHC)

12.

Toxaphene

Polychlorinated Biphenyls

1.

Polychlorinated Biphenyls

(as Decachlorobiphenyl)

(Source: Amended at ___ Ill. Reg. ________, effective ________________________)

Section 732.Appendix C

Backfill Volumes and Weights

Volume of Tank in Gallons

Maximum amount of backfill

material to be removed in:

cubic yards in place tons

Maximum amount of backfill

material to be replaced in:

cubic yardsin place

tons

<285

285 to 299

300 to 559

560 to 999

1000 to 1049

1050 to 1149

1150 to 1999

2000 to 2499

2500 to 2999

3000 to 3999

4000 to 4999

5000 to 5999

6000 to 7499

7500 to 8299

8300 to 9999

10,000 to 11,999

12,000

to 14,999

>15,000

to 19999

54

55

56

67

81

89

94

112

128

143

175

189

198

206

219

252

286

345

91

92

94

113

136

150

158

188

215

240

294

318

333

346

368

423

480

580

56

57

58

70

87

96

101

124

143

161

198

219

235

250

268

312

357

420

94

96

97

118

146

161

170

208

240

270

333

368

395

420

450

524

600

706

Site specific information may be used to determine the weight of backfill material if site

conditions such as backfill material, soil moisture content, and soil conditions differ significantly

from the default values.

BOARD NOTE; The weight of backfill material is calculated by using the default bulk density

values listed in the TACO regulations at 35 Ill. Adm. Code 742, Appendix C, Table B. The

weight of backfill material to be removed is based on a dry bulk density value of 1.8 g/cm

3

for

sand and a moisture content of 10 percent which equals 1.98 g/cm

3

. The Board has rounded the

removed backfill density to 2.0 g/cm

3

. The weight of backfill material to be replaced is based on

a dry bulk density value of 2.0 g/cm

3

for gravel.

(Source: Added at ___ Ill. Reg. ________, effective ________________________)

IT IS SO ORDERED.

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99

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on November 1, 2001, by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board