1
ILLINOIS POLLUTION CONTROL BOARD
February 21, 2002
IN THE MATTER OF:
REGULATION OF PETROLEUM LEAKING UNDERGROUND STORAGE TANKS; AMENDMENTS TO 35 ILL. ADM. CODE 732 |
) ) ) ) ) ) |
R01-26 (Rulemaking – Land) |
Proposed Rule. Second Notice.
OPINION AND ORDER OF THE BOARD (by N.J. Melas, R.C. Flemal, S.T. Lawton):
On December 6, 2000, the Illinois Environmental Protection Agency (Agency) filed a proposal for rulemaking to further amend the Board’s Petroleum Leaking Underground Storage Tank (UST) regulations. The Agency submitted this proposal to the Board in order to clarify and refine Part 732 in accordance with the experience that the Agency has gained in administering the regulations since they were adopted in 1994 and amended in 1997. See Regulation of Petroleum Leaking Underground Storage Tanks 35 Ill. Adm. Code 732 (Pursuant to P.A. 88-496), R94-2(A) (Sept. 15, 1994) (original UST regulations); Regulation of Petroleum Leaking Underground Storage Tanks (35 Ill. Adm. Code 732) , R97-10 (Mar. 6, 1997) (amendments to UST regulations).
By today’s action, the Board proposes for second notice the following amendments pursuant to the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (2000)) for consideration by the Joint Committee on Administrative Rules (JCAR).
PROCEDURAL HISTORY
Two public hearings were held in this matter before Board Hearing Officer Joel Sternstein, Board Members, and Board staff. The first hearing was held on February 27, 2001, in Springfield. The second hearing was held on April 3, 2001, in Chicago.
The Board issued its first notice opinion and order in this matter nearly four months ago. See Amendments to 35 Ill. Adm. Code 732; Regulation of Petroleum Leaking Underground Storage Tanks, R01-26 (Nov. 1, 2001). On November 16, 2001, the proposed amendments were published in the Illinois Register at 25 Ill. Reg. 14648.
The following persons filed public comments during the public comment period after the Board issued its first-notice opinion and order: J. Randle Schick, Assistant Chief Counsel with the Illinois Department of Transportation (IDOT) (PC 11); Ronald B. St. John, President of the Illinois Chapter of the American Institute of Professional Geologists (AIPG) (PC 12); and Judith S. Dyer, Assistant Legal Counsel for the Illinois Environmental Protection Agency (Agency) (PC 13).
The Board also received a public comment from the Illinois Environmental Regulatory Group (IERG), but IERG submitted its public comment three weeks after the public comment deadline had expired. The Board did not admit a public comment which was submitted three weeks after the post-hearing comment deadline. The Board will follow the same practice and will not admit IERG’s public comment either.
DISCUSSION
The Board will first provide a brief summary of its actions at first notice. The Board will then discuss AIPG’s suggestions regarding Licensed Professional Geologists (LPGs). The Board will examine IDOT’s proposal to allow indemnification from the UST Fund after a No Further Remediation (NFR) Letter has been signed pursuant to a Highway Authority Agreement (HAA) and IDOT’s proposal on indemnification applications. The Board then discusses the Agency’s latest proposal on the trigger date for the beginning of the 45-day Early Action/reimbursement period. Finally, the Board briefly discusses minor changes to requirements for federal landholding entities and requirements for laboratory certification.
The Board’s First Notice Proposal
The Board generally supported the Agency’s proposal for first notice. Some of the parties that participated in the hearings or provided public comments for docket R01-26 submitted additional regulatory language or other changes to supplement the Agency’s proposal. The Board noted those submissions and incorporated some of them in the first notice proposal. In addition, the Board made its own revisions to the Agency’s proposal and noted those as well.
Major substantive issues that the Board addressed at first notice included allowing LPGs to practice pursuant to Part 732; off-site access for UST owners and operators including alerting off-site owners about migration of contamination and “best efforts” to obtain off-site access; adding methyl tertiary-butyl ether (MTBE) as an indicator contaminant; a Memorandum of Agreement (MOA) between the Agency and IDOT allowing NFR Letters to be perfected; a Land Use Control Memorandum of Agreement (LUC MOA) between the Agency and federal landholding entities to allow the recording and perfection of NFR Letters at federally-owned sites.
After examining the record, the Board found that the proposed amendments to the UST regulations were both technically feasible and economically reasonable.
For a more detailed discussion of the proposed amendments, please refer to the Board’s first-notice opinion and order in this matter.
Licensed Professional Geologists
AIPG opposes the Board’s proposed amendments allowing LPGs to work under the supervision of Licensed Professional Engineers (LPEs). AIPG claims that the Board’s proposal is unnecessary because anyone may conduct UST-related activities under the supervision of an LPE. AIPG also claims that the General Assembly, in authorizing the regulations and licensing of LPGs, did not require LPGs to practice under LPEs. Specifically AIPG opposes the proposed amendments at subsections 732.307(a) and (b), 732.312(d), and 732.601(b). AIPG also opposes language that the Board has proposed at 35 Ill. Adm. Code 732.307(e) prohibiting LPGs from taking the lead in performing investigations of migration pathways at UST sites. AIPG states that these matters should be addressed by the General Assembly. PC 12 at 1-2.
The Board has not received comments during the first notice period from any other LPGs who have been involved with docket R01-26. Since AIPG is requesting that the Board remove LPGs from the subsections mentioned above and since AIPG is contemplating a legislative fix to their concerns, the Board will comply with AIPG’s public comment. The Board notes that nearly all of the other references to LPGs that the Board included in the first-notice opinion and order directly relate to the subsections that AIPG is discussing. The Board will therefore remove any mention of LPGs throughout this second-notice opinion and order. The Board is also removing all references to LPGs in the second-notice opinion and order for docket R01-27 today. See Site Remediation Program Amendments to 35 Ill. Adm. Code 740, R01-27 (February 21, 2002).
The Board notes that a bill was recently introduced in the Illinois Senate that would expand the scope of practice for Licensed Professional Geologists under the Act. See 92nd Ill. Gen. Assem., Senate Bill 1968, 2002 Sess; 92nd Ill. Gen. Assem., House Bill 5846, 2002 Sess.
Indemnification from the UST Fund – Subsection 732.606(kk)
IDOT generally supports the Board’s proposal. However, IDOT wants the amendment allowing indemnification of costs for MTBE remediation after receipt of an NFR Letter at 35 Ill. Adm. Code 732.606(kk) to be expanded. PC 11 at 1. IDOT claims that the Highway Authority Agreements (HAAs) that it signs with owners or operators of USTs are both an institutional control for purposes of the Tiered Approach to Corrective Action Objectives (TACO) regulations at 35 Ill. Adm. Code 742.1020 and also a settlement agreement pursuant to Section 57.8(c) of the Act (415 ILCS 5/57.8(c) (2000)). PC 11 at 3.
Section 732.606 lists costs that are ineligible for payment from the UST Fund. At first notice the Board proposed allowing MTBE remediation costs to be eligible for payment. IDOT seeks the following change to 732.606(kk) (the Board’s first notice proposal is underlined, and IDOT’s suggested changes are double underlined):
| 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 or indemnification costs incurred pursuant to a court order or settlement agreement (including a highway authority agreement under 35 Ill. Adm. Code 742.1020), between the owner or operator and a third-party meeting the requirements of 415 ILCS 5/57.8(c); | |
IDOT attempted to insert the language that it is proposing for subsection 732.606(kk) into its HAAs back in 1997 but the Agency opposed the language. PC 11 at 1-2.
Procedural Issues
Agency Arguments. The Agency objects to IDOT’s public comment, calling it a new rulemaking proposal as opposed to a comment on the Board’s proposal. PC 13 at 12. The Agency argues that IDOT is attempting to make HAAs into settlement agreements for purposes of indemnification from the UST Fund. PC 13 at 12. The Agency states that it would be happy to work with IDOT on any amendments to Part 732 that IDOT thinks are necessary for possible inclusion in a future regulatory proposal to the Board. PC 13 at 12.
The Agency claims that neither the Board’s procedural regulations nor the Administrative Procedure Act allow IDOT to propose a new amendment at second notice. PC 13 at 12, 13. The Agency points to Section 102.202 of the Board’s procedural regulations which provides that a regulatory proposal must include a statement of reasons in support of the proposal, a synopsis of testimony to be presented by the proponent at hearing, and, for those proposals not submitted by the Agency or Department of Natural Resources, a petition signed by at least 200 persons. IDOT did none of these. PC 13 at 13. The Agency then argues that the Board has not had the opportunity to hear testimony (pro and con) at hearing nor receive post-hearing comments on IDOT’s proposal. PC 13 at 3. The Agency also points out that the IDOT proposal has not yet been published in the Illinois Register and that the public has not yet been able to comment on the proposal, which are violations of the Administrative Procedure Act. See 5 ILCS 100/5-40 (2000).
Board Finding. The Board may make changes to its proposal in the second-notice opinion and order to reflect the comments that it received during the first-notice period. The Administrative Procedure Act dictates that the Board may not make substantive changes to its proposal during the subsequent second notice period, except in response to objections or suggestions from the Joint Committee on Administrative Regulations (JCAR). 5 ILCS 100/5-40(c) (2000). The Agency chooses to classify IDOT’s public comment as a new proposal, while IDOT is requesting that the Board modify the amendments at subsection 732.606(kk).
Although the Board thanks IDOT for submitting its public comment well in advance of the deadline (and therefore allowing the Agency to comment on it), the Board questions why IDOT did not propose its public comment during the hearings or during the post-hearing comment period. The Board would have preferred to address IDOT’s concerns at an earlier stage in the proceedings, thus providing a chance for greater public input and comment. Nevertheless, the Board will address the substantive nature of IDOT’s public comment rather than dismissing it on procedural grounds.
Substantive Issues
IDOT Arguments. Under the Tiered Approach to Corrective Action Objectives (TACO) owners or operators of USTs may leave contaminated soil and groundwater in place under a highway right-of-way (provided access to the contamination is limited) according to “Highway Authority Agreements” (HAAs). See 35 Ill. Adm. Code 742.1020. HAAs provide that owners or operators of leaking USTs will not be required to remediate contamination and will not be eligible for indemnification from the UST fund. PC 11 at 1. IDOT fears that soon it will have to conduct remediation under a highway right-of-way where an HAA is in place, that it will then seek reimbursement from a nearby owner or operator, and that the owner or operator will not qualify for indemnification from the UST Fund. IDOT proposes changing the language at 35 Ill. Adm. Code 732.606(kk) such that these owners or operators would be eligible for indemnification from the UST Fund. PC 11 at 1-2.
IDOT claims that the Agency ceases to see an HAA as a settlement agreement once an NFR Letter is issued. IDOT argues that this makes owners or operators choose one of the following: (1) avoid entering into an HAA and pay to remediate a highway right-of-way in order to seek repayment from the UST Fund or (2) enter into a HAA, obtain an NFR Letter, and then risk that IDOT may remediate the contaminated area in the future and request reimbursement from the owner or operator who will no longer be eligible for indemnification. IDOT claims that it may soon pursue reimbursement from some owners or operators who chose option (2) and that some of these owners or operators will face severe financial hardship as a result. PC 11 at 3-4. IDOT argues that its HAA should entitle owners or operators to indemnification from the UST Fund. PC 11 at 4.
IDOT claims that the Agency’s policy forces most owners or operators toward option (1). PC 11 at 6. IDOT argues that option (1) is not in the interest of the owners or operators since they must spend a great deal of money, wait for indemnification, and then risk being denied part of the indemnification. IDOT then claims that this is against the Agency’s interest as it forces the Agency to spend much more money from the UST Fund than if owners or operators choose option (2). IDOT also claims that IDOT suffers under option (1) because it must shut down roads while remediation takes place. Such remediation is often difficult because it occurs in urban areas where there the owners or operators involved are often gas stations and the remediation technicians must avoid sewers and other utility lines. PC 11 at 7.
IDOT argues that this barring indemnification from the UST Fund in these situations would be contrary to Illinois’ system to remediate brownfields, the indemnification provisions at Section 57.8(c) of the Act, and the overall risk-based approach to cleanup found in the Act. PC 11 at 1, 6.
Agency Arguments. The Agency states that settlement agreements within the UST Program are meant to settle a dispute in lieu of a court judgment or administrative order. When IDOT enters into an HAA, it is not seeking court judgments, final administrative orders, or determinations against owners or operators. PC 13 at 15. The Agency argues that owners and operators enter into HAAs in order to avoid conducting remedial action, not to settle a pending court or administrative action. The Agency urges the Board to reject the IDOT proposal because HAAs are not settlement agreements. The Agency claims that IDOT uses HAAs to make owners or operators pay IDOT’s costs when IDOT has allowed contaminated soil or groundwater to remain below highway rights-of-way. PC 13 at 16.
The Agency argues that any choice that an owner or operator must make between entering into an HAA and paying for remediation is reflected in the way that IDOT has structured the HAA. IDOT’s HAA provision which states that owners or operators must pay for future remediation is not required by either UST or TACO regulations. Neither the UST or TACO regulations require IDOT to perform work in a highway right-of-way after entering an HAA. The Agency issues an NFR Letter based on an HAA when the Agency determines that the HAA adequately protects human health and the environment. The Agency states that any work that IDOT performs in an area covered by an HAA is on IDOT’s initiative and that IDOT should exercise caution in those areas during work periods. The Agency states that IDOT cannot use the UST Fund to recoup such expenses and should look elsewhere for funding if it does not want owners or operators to pay. PC 13 at 17-18.
Board Finding. IDOT’s arguments are intriguing but not necessarily convincing. The Board finds that it is good public policy for owners or operators of USTs to be more inclined to choose option (1) (remediating the UST and seeking indemnification from the Fund) than to choose option (2) (entering into an HAA and receiving an NFR Letter). When choosing option (1), there is a greater benefit to the environment and less potential risk to human health. The Board acknowledges that money from the UST Fund may be used if owners or operators choose option (1), but under IDOT’s proposal UST Fund money may be used under option (2) as well.
The Board also finds that IDOT’s proposal is not in accord with the purpose of an NFR Letter. The significance of an NFR Letter is provided at Section 57.10(c) of the Act:
| (c) | The Agency's issuance of a no further remediation letter shall signify, based on the certification of the Licensed Professional Engineer, that: |
| (1) | all statutory and regulatory corrective action requirements 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. |
The Board finds that, absent special circumstances such as MTBE contamination, the UST Fund should not be used to pay for remediation costs once the Agency issues an NFR Letter. An NFR Letter signifies that no further corrective action is necessary, thus making the use of the UST Fund unnecessary. An Agency-issued NFR Letter within the context of an HAA has the same meaning. IDOT has the right to remediate contamination once the NFR Letter has been issued pursuant to the HAA, but it should make other arrangements for payment of these corrective action costs.
The Board agrees with the Agency that HAAs are not both a settlement agreement and an institutional control. HAA are an institutional control only, as clearly spelled out at Section 742.1020 of the Board’s TACO regulations. The Board therefore rejects IDOT’s proposal.
Clarification of Indemnification Applications
IDOT also advocates developing a regulation to clarify one of the application requirements for indemnification at Section 57.8(a)(6)(B) of the Act. PC 11 at 5-6. IDOT does not provide any suggestions on how to amend the Board’s regulations but instead states that it “would be happy to work with the Agency, Board and others to develop such a rule.” PC 11 at 4-6. In the absence of a proposal, the Board declines to adopt any such amendment at this time.
45-Day Early Action/Reimbursement 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. In the Agency’s original proposal to the Board in this matter, the Agency proposed to change and clarify the trigger for reimbursement of corrective action costs at the start of the 45-day Early Action period. The Agency’s proposal would have switched the trigger for reimbursement from confirmation of a UST release to the initial notification of the Illinois Emergency Management Agency (IEMA). The Agency claimed that the initial notification to IEMA is “clearly documented” as opposed to confirmation of a release. Amendments to 35 Ill. Adm. Code 732; Regulation of Petroleum Leaking Underground Storage Tanks, R01-26 (Nov. 1, 2001), slip op. at 13-14.
The Board declined to adopt the Agency’s proposed change for the trigger date because it was not entirely clear from the Agency’s proposal which of several required notifications to IEMA should be the trigger date. Id.
Agency’s New Proposal
The Agency states that it originally wanted to change the trigger from confirmation of a release to initial notification of a release because the Agency is aware of initial notifications. IEMA issues an incident report, and the Agency receives the notification date from IEMA. The Office of the State Fire Marshal (OSFM) does not track the date of confirmation of a release and does not provide such information to the Agency. PC 13 at 6-7, 9.
At times, the initial notification to IEMA is of a suspected release as opposed to a confirmed release. PC 13 at 9. OSFM regulations require owners or operators to notify IEMA upon confirmation of a release. 41 Ill. Adm. Code 170.600. OSFM regulations also allow seven days to complete steps related to confirmation of a release. 41 Ill. Adm. Code 170.580. The Agency states that, in practice, owners or operators may not comply with the OSFM requirement to confirm a suspected release within seven days of initial notification to IEMA – and that sometimes owners or operators may wait months or years before confirming the release. Under the current requirements, the Agency complains that owners or operators may try to claim that a late confirmation is the trigger date for the 45-day Early Action/reimbursement period. This, the Agency states, defeats the whole purpose of Early Action. PC 13 at 7-8. The Board recognized this dilemma in its recent decision in Ozinga Transportation Services v. IEPA, PCB 00-188 (Dec. 20, 2001), slip op. at 10-11.
The Agency points out another problem. Even if owners or operators timely notify IEMA of a confirmation of a release, the incident report that IEMA sends to the Agency does not reflect if the confirmation relates to a previously suspected release. PC 13 at 9.
In order to address these concerns, the Agency proposes the following language for subsection 732.202(g) (single underlines and strikeouts):
For purposes of reimbursement, the activities set forth in subsection (f) of the Section shall be performed within 45 days after confirmation initial notification to IEMA of a release plus 7 days, unless special circumstances, approved by the Agency in writing, warrant continuing such activities beyond 45 days plus 7 days. The owner or operator shall notify the Agency in writing of such circumstances within 45 days of confirmation initial notification to IEMA of a release plus 7 days of such circumstances. Costs incurred beyond 45 days plus 7 days shall be eligible if the Agency determines that they are consistent with early action. PC 13 at 10-11.
For consistency’s sake the Board has added the phrase “plus 7 days” in two places (italics).
The Agency claims that the proposed language above would “create a presumption” that initial notification to IEMA is of a suspected release. The Agency claims that owners or operators who report a suspected release are not deprived of a portion of the 45-day Early Action/reimbursement period once the release is confirmed. PC 13 at 9.
The Agency admits that those owners or operators who initially report a confirmed release will receive an extra seven days (52 in all) for Early Action/reimbursement activities. However, the Agency claims that this is a small price to pay to ensure that the intent of the Early Action portion of the UST program is not frustrated. PC 13 at 10.
The Agency uses the “plus 7 days” phrase rather than “52 days” for two reasons. The first is to preserve the concept of the 45-day timeframe for Early Action/reimbursement. The second is to reflect the rationale for making the change. The Agency states that it would not object to the phrase “52 days” as an alternate to its proposal. PC 13 At 11.
Board Finding
The Board is pleased with the Agency’s new proposal and agrees with the reasons that the Agency provides to support the new proposal. The Board believes that the Agency’s new proposal should solve the problem that the Board addressed in Ozinga and other similar cases with respect to initial notification of suspected releases, confirmation of releases, and the trigger date for the 45-day Early Action/reimbursement period. The Board prefers the “plus 7 days” phrase over the “52 days” phrase for the reasons that the Agency discussed. The Board proposes the Agency’s new proposal for second notice. The Board is also adding a Board note to explain the rationale behind the “plus 7 days” phrase.
Federal Landholding Entities –
Subsections 732.300(b)(1), 732.309(a), 732.312(i), and 732.409(b)
The Agency proposes several technical changes to language proposed at first notice located at subsections 732.300(b)(1), 732.309(a), 732.312(i), and 732.409(b) of the UST regulations. The changes exempt federal landholding entities (such as the military) from the requirement to sign forms addressing ownership of sites in the UST Program. PC 13 at 18-20. The Board accepts the changes and will include them in the second notice proposal.
Date for Laboratory Certification – Section 732.106
In its proposal to the Board, the Agency stated that soil and groundwater sampling for UST investigations should be performed in accredited laboratories pursuant to 35 Ill. Adm. Code 186. The Agency proposed that July 1, 2002 should be the effective date for the regulation, but at first notice the Board proposed July 1, 2003 as the effective date of the regulation in order to give Illinois laboratories sufficient time to achieve accreditation. Amendments to 35 Ill. Adm. Code 732; Regulation of Petroleum Leaking Underground Storage Tanks, R01-26 (Nov. 1, 2001), slip op. at 13.
In its public comment, the Agency proposes changing the effective date of the laboratory certification to January 1, 2003. The Agency does not foresee a problem in completing the laboratory accreditation process by January 1, 2003 “if applications are submitted in a timely manner.” PC 13 at 1. The Agency also wants the effective date in R01-26 to match the effective date for laboratory certification in the the Site Remediation Program amendments that are being proposed for second notice today in docket R01-27.
The Board agrees with the Agency. Given that the Agency has no problems completing the laboratory accreditation process on time and for the sake of consistency with the SRP amendments, the Board will change the effective date to January 1, 2003.
CONCLUSION
The Board will remove all references to LPGs in this docket as AIPG is contemplating a legislative proposal to address its concerns. The Board declines to propose IDOT’s suggestions to allow indemnification from the UST Fund after an NFR Letter has been signed pursuant to HAAs. The Board also is not proposing IDOT’s suggestion on indemnification applications. However, the Board will propose the Agency’s suggestion of “plus 7 days” on the trigger date for the beginning of the 45-day Early Action/reimbursement period. Finally, the Board proposes the minor changes to requirements for federal landholding entities and requirements for laboratory certification.
The Board is also including dozens of nonsubstantive changes that the Joint Committee on Administrative Rules recommended during the first-notice period.
ORDER
Within the text of the order, deletions proposed at first-notice are shown via strikeouts, and additions are underlined. Deletions at second-notice are shown via strikeouts and double underlines, while additions pursuant to second-notice are shown via double underlines.
The Board proposes for second-notice the following amendments to 35 Ill. Adm. Code 732. The Clerk of the Board is directed to file these proposed amendments with JCAR.
| 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 | ||||||||||||
| 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 | |||||||||||||
| 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 | |
| 732.APPENDIX C | Backfill Volumes and Weights | |
| 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) |
| 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 | |
| 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 that | |
| 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 | |
| “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 | |
| “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 | |
| “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 | |
| “Confirmed Exceedence” means laboratory verification of an exceedence of the applicable groundwater quality standards or objectives. | |
| “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 | |
| “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 simple 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 | |
| “Free Product” means a contaminant that is present as a non-aqueous phase liquid for chemicals whose melting point is less than 30° | |
| “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 |
| “GIS” means Geographic Information System. | |
“GPS” means Global Positioning System.
| “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 | |
| “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 | |
| “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 | |
| “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 | |
| “Line Item Estimate” means an estimate of the costs associated with each line item (including, but not necessarily limited to, personnel, equipment, travel, etc.) that | |
| “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 | |
| “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. (Derived from 42 | |
| 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. (Derived from 42 | |
| “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 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 | |
| “Petroleum” means petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60°F | |
| “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
| |
| “Potable” means generally fit for human consumption in accordance with accepted water supply principles and practices | |
| “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 | |
| “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 | |
| “Regulated Substance” means any substance defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 | |
| “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 | |
| “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 | |
| “Site” means any single location, place, tract of land or parcel of property including contiguous property not separated by a public right-of-way | |
| “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; | |
| Pipeline facility (including gathering lines) regulated under the Natural Gas Pipeline Safety Act of 1968 (49 | |
| 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 | |
| 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 | |
| “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, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA, 19428-2959 (610) 832-9585 | |
| 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 | |
| ASTM D 2216-92, Standard Test Method for Laboratory Determination of Water (Moisture) Content of Soil and Rock, approved June 15, 1992. | |
| 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 ( | |
| “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 | |
| “Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods,” EPA Publication No. SW-846, Third Edition (September | |
| 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 (2000 |
| 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 January | |
| (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: | |
| 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 | |
| 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, 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. 41 ILCS 160, 170, 180, 200. 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 | |
| g) | For purposes of reimbursement, the activities set forth in subsection (f) of the Section shall be performed within 45 days after | |
| BOARD NOTE: Owners or operators seeking reimbursement are to first notify IEMA of a suspected release and then confirm the release within seven days to IEMA pursuant to regulations promulgated by the OSFM. See 41 Ill. Adm. Code 170.560, 170.580, 170.600. The Board is setting the beginning of the reimbursement period at subsection 732.202(g) to correspond to the notification and confirmation to IEMA. |
| 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 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: | |
| 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; | ||
| Use abatement of free product migration as a minimum objective for the design of the free product removal system; | ||
| Handle any flammable products in a safe and competent manner to prevent fires or explosions; and | ||
| 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 forms | ||
| The name of the persons responsible for implementing the free product removal measures; | ||
| The estimated quantity, type and thickness of free product observed or measured in wells, boreholes and excavations; | ||
| The type of free product recovery system used; | ||
| Whether any discharge will take place on-site or off-site during the recovery operation and where this discharge will be located; | ||
| The type of treatment applied to, and the effluent quality expected from, any discharge; | ||
| The steps that have been or are being taken to obtain necessary permits for any discharge; and | ||
| 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 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 | |
| 1) | ||
| 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 |
| 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 | |
| B) | If | |
| C) | If |
| 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) |
| i) | The site is located in an area designated D, E, F or G on the Illinois State Geological Survey Circular (1984) entitled | |
| ii) | The site's actual physical soil conditions are verified as consistent with those designated D, E, F or G on the Illinois State Geological Survey Circular (1984) entitled | |
| 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 | |
| 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 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 | |
| 2) | A site classification budget plan, that | |
| 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 | |
| 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. | |
| b) | As a part of each site evaluation, the Licensed Professional Engineer | |
| 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 determine if the subsurface strata are as generally mapped in the Illinois State Geological Survey Circular (1984) entitled |
| 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 | |
| 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) | |
| i) | The techniques provide equivalent, or superior, information as required by this Section; | |
| 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 |
| A) | A soil particle analysis using the test methods specified in ASTM (American Society for Testing and Materials) | |
| B) | A soil moisture content analysis using the test methods specified in ASTM | |
| C) | A soil classification using the test methods specified in ASTM | |
| 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 accordance with ASTM Standard Test Method D 1587-83, incorporated by reference in Section 732.104 of this Part, or other Agency approved method. The boring from which the thin-walled tubes are collected must be logged in accordance with the requirements of | |
| 3) | Hydraulic Conductivity | |
| A) | If a water bearing unit is encountered while performing soil boring(s) for the physical soil classification, an in | |
| i) | Wells used for hydraulic conductivity testing shall be constructed in a manner that ensures the most accurate results. |
| ii) | The screen must be contained within the saturated zone. | |
| 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 | |
| ii) | Granular soils that are | |
| iii) | A hydraulic conductivity analysis of bedrock using the test method specified in ASTM | |
| 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 Standard Test Method D 1587-83, incorporated by reference in Section 732.104 of this Part, or other Agency approved method. The boring from which the thin-walled tubes are collected must be logged in accordance with the requirements of | |
| 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 | |
| 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 that |
| 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-specific field investigation, an analytical solution may be used to estimate well yield. The Licensed Professional Engineer | |
| 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 Standard Test Method D 1587-83, incorporated by reference in Section 732.104 of this Part, or other Agency approved method. The boring from which the thin-walled tubes are collected must be logged in accordance with the requirements of | |
| 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 | |
| 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 | |
| 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 area | |
| f) | Survey of Water Supply Wells | |
| 1) | The Licensed Professional Engineer | |
| 2) | The Licensed Professional Engineer | |
| 3) | The Licensed Professional Engineer | |
| 4) | The Licensed Professional Engineer | |
| 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: | |
| 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. | |
| 4 | 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, that are 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. | |
| 5 | 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 | |
| i) | The Licensed Professional Engineer | |
| 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 this Part | |
| 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 (j), 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 this part | |
| 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; | |
| D) | Annular space above the well screen section shall be sealed with a relatively impermeable, expandable material such as cement/bentonite grout, that | |
| 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. | |
| 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 | |
| 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 | |
| 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 | |
| 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 ________________________) |
| 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 | |
| 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 | |
| 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 | |
| b) | For gasoline, including but not limited to leaded, unleaded, premium and gasohol, the indicator contaminants shall be benzene, ethylbenzene, toluene, | |
| 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 | |
| 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 | |
| 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, | |
| 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 | |
| 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. | |
| 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 | |
| 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 | |
| d) | A Licensed Professional Engineer (or, where appropriate, persons working under the direction of a Licensed Professional Engineer) shall conduct the site evaluation. | |
| e) | As a part of each site evaluation, the Licensed Professional Engineer | |
| 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, that | |
| 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 | |
| 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 | |
| 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 | |
| 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 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. | |
| (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 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) | |
| 3) | Groundwater monitoring wells shall satisfy the requirements at | |
| 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 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 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 | |
| (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 |
| A) | ||
| B) | ||
| 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 742 | |
| D) | ||
| E) |
| 2) | For sites that have submitted | |
| 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 subsection (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. | |
| 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 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. | ||
| 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. | ||
| 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. | ||
| 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. | ||
| 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 | |
| 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), | |
| 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, reject or require modifications of the amended plan in accordance with the procedures contained in Subpart E of this Part. | |
| 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 (f) 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 |
| 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 of approved budget plans and shall provide notice to owners or operators of the availability of funds in accordance with | |
| 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 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 | |
| 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. | |
| 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 | |
| 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. | |
| 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 | |
| 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 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; |
| 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 | |
| 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 | |
| b) | For purposes of this Part | |
| 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 | |
| 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; | |
| 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 | |
| (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 | |
| 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 ( | |
| 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 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) | 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) | 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) | 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) | 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 is 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 | |
| g) | Notification of Selection for Full Review | |
| 1) | Owners or operators submitting plans shall be notified by the Agency within 60 days | |
| 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, 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) | 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 | |
| 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 have | |
| 3) | A copy of the OSFM or Agency eligibility and deductibility determination; | |
| 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; | |
| 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. | |
| 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. | ||
| Applications for partial or final payment may be submitted no more frequently than once every 90 days. | ||
| 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. | ||
| In no case shall the Agency authorize payment to an owner or operator in | ||
| 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 | |
| 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 | |
| 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. | |
| 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 | |
| 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 | |
| a) | Within 60 days after notification | |
| 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. | |
| 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 | ||
| 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 priority for payment in accordance with subsection | |
| 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 | |
| (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 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; | |
| 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 | |
| (Source: Amended at ___ Ill. Reg. ________, effective ________________________) |
| Section 732.606 | Ineligible Costs | |
| 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 | |
| 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 | |
| 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; | |
| l) | Costs associated with the installation of new USTs, |
| 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 (415 ILCS 5/1 et seq.) and regulations; | |
| z) | Costs incurred after completion of early action activities in accordance with Subpart B by owners or operators choosing, pursuant to | |
| aa) | Costs incurred after completion of site classification activities in accordance with Subpart C by owners or operators choosing, pursuant to | |
| 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; | |
| 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 |
| 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 (Section 57.8(g) of the Act): |
SUBCONTRACT ELIGIBLE HANDLING CHARGES
| OR FIELD | 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 | |
| $100,001 - $1,000,000 | $6,900 PLUS 2% OF AMOUNT OVER $100,000 | |
| (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 | |
| (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. |
| b) | The Agency shall have 120 days |
| 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; |
| 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. |
| e) | The prohibition under Section 732.703(e) |
| 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) |
| 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: AddedAmended 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, | |
| b) | Except as provided in subsections (c) and (d) 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 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 732.703(c) 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 ( |
| 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 | |
| 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 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. | |
| e | 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. | |
| (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 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) | ||
| 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 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 | |
| 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 | |
| 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 | |
| B) | If the Agency's action is not upheld on appeal, the Notice of | |
| 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 |
Methyl tertiary butyl ether (MTBE) |
|
|
MIDDLE DISTILLATE AND HEAVY ENDS |
|
aviation turbine fuels(1) jet fuels |
|
diesel fuels |
|
gas turbine fuel oils |
|
heating fuel oils |
|
illuminating oils |
|
|
|
|
|
liquid asphalt and dust laying oils |
|
cable oils |
|
crude oil, crude oil fractions |
|
petroleum feedstocks |
|
petroleum fractions |
|
heavy oils |
|
transformer oils(2) |
|
hydraulic fluids(3) |
|
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) |
| (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 subsection 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 |
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. |
|
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 |
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 |
Maximum amount of backfill material to be replaced in:
cubic yards |
<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 |
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/cm3 for sand and a moisture content of 10 percent which equals 1.98 g/cm3. The Board has rounded the removed backfill density to 2.0 g/cm3. The weight of backfill material to be replaced is based on a dry bulk density value of 2.0 g/cm3 for gravel.
| (Source: | |
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted the above opinion and order on February 21, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board