ILLINOIS POLLUTION CONTROL

BOARD

August

11,

1994

IN THE MATTER

OF:

)

)

REGULATION

OF PETROLEUM

)

LEAKING UNDERGROUND

STORAGE TANKS

)

R94-2

(A)

35

ILL.

ADM. CODE

732

)

(Rulemaking)

(Pursuant to

P.A.

88-496)

)

PROPOSED

RULE.

SECOND

NOTICE.

OPINION

AND

ORDER

OF THE BOARD

(by C.A. Manning, J.

Theodore Meyer,

and M.

I.

INTRODUCTION

This

opinion and order sets

forth

and

explains

the

regulatory

requirements of Illinois’

Underground Storage

Tank Program

as

the Illinois Pollution

Control

Board (Board) intends

to

promulgate

them pursuant to

the

Second

Notice

provisions of

the

Illinois Administrative

Procedure

Act,

5

ILCS

100/5-40.

These rules were

initially published

in the illinois

Register, pursuant to

a “Nonsubstantive First Notice Opinion and Order,”

which this Board

adopted

on

March

17,

1994,

two days after the illinois Environmental Protection

Agency

(Agency)

timely

submitted

its

regulatory proposal.

The

rules were

filed

pursuant

to Title

XVI of the

illinois

Environmental Protection Act

(Act),

which

is

entitled

the Leaking

Underground Storage Tank

Program

and is

hereinafter referred

to

as the Illinois LUST Law.’

State

regulation of underground

storage tanks

(UST or USTs)

is

authorized by

the

Hazardous

and

Solid Waste

Amendments of 1984 to Subtitle I of the

federal

Resource

Conservation

and Recovery Act (RCRA).

(42 U.S.C.

Section

6991-6991i.)

Under RCRA,

rather

than

mandatory

administration

by

the

United

States

Environmental Protection Agency

(USEPA)

on a

national basis,

states

may adopt

their own UST

programs

as

long as the

rogram

or

its

standards

are

“no

less

stringentt’

than

federal

law

or regulations

promulgated

ursuant

thereto.

(RCRA

Section

699 l(c)(b)(1)

and

6991(g).)

RCRA

establishes

that if a

state wishes

to administer

an

UST program,

the program

will

)nly

be federaily-approvable

only if it is in compliance with

certain

requirements

and

‘These rules were

filed

by the

Agency to

satisfy

its

statutory directive

to

create

rules in

order to

implement

Illinois’ new

LUST program.

The new

LUST

Law was

signed

by Governor Edgar on September

13,

1993

as

P.A.

88-496.

Among

the

law’s

many

directives

was

the

requirement that

the Agency

propose,

within

six

months

of the

law’s

effective date,

regulations implementing procedures

and

standards

for the Agency’s

administration of

its

duties under

the

new

UST program.

(415

ILCS

5/57.14(b).)

In

turn,

the legislature gave

the

Board

an

equally

rigorous

six month adoption deadline

to

complete

the

rulemaking

and

promulgate

regulations consistent with

the

new

LUST

Law.

Our

adoption

deadline

is

September

15,

1994.

---

standards

(RCRA

Section

6991c(a)(1)-(8)).

One of these is to

demonstrate that the State

has

a system in

place

to ensure UST owners and operators are

“financially

responsible”

for

performing corrective action.

(RCRA Section

699 lc(a)(6).)

A

state’s corrective action and

compensation program, such as Illinois’ LUST Law,

can be

sufficient to

satisfy this financial

responsibility requirement,

as can

be a record-keeping system

showing owners and operators

have guarantors,

private or self-insurance.

(RCRA Section 6991c(c).)

Beginning

in

1986, the Illinois legislature

has promulgated various state underground

storage tank

laws and programs to

implement a state-managed UST program.

Throughout

the program’s complex eight-year history, the largest and most recurring problems the state

has

sought to

address have concerned the cost and funding aspects of the program.

Additionally,

the state has continued to

struggle with issues of remediation

(“How

Clean

is

Clean?”) and what to

do

about abandoned tanks where there is no clear

“owner”

(the

“orphan

tank”

problem).

When

representatives of industry

sat down with

representatives of

government

last

year, their goals were

clearly

directed toward

a comprehensive overhaul of

the state’s

underground storage tank program.

In particular,

they

sought

to

reduce the

cleanup

costs through implementation of a risk-based

assessment program; spell out the

criteria for determining

“how clean is clean;”

optimize the use of the

UST Fund;

boost the

UST Fund in

order to

pay off long

overdue reimbursements;

facilitate

the review of cleanup

actions;

and limit the liability of a tank owner once a cleanup

action was

completed.

While some of these goals will

continue to

be

legislatively and regulatorily addressed,

the Illinois legislature substantially addressed

most of the problems associated with

the old

underground storage tank statutory

provisions when

it

adopted the new Illinois LUST Law

last year.

Through the instant rulemaking,

we hope

to

facilitate the parties’

attempts to

further

resolve those problems that have plagued

the prior programs

and further implement

the legislature’s goals.

Moreover,

we

hope

to provide rules

that are both

environmentally

sound and protective of the fund so that monies will be available for

sites which

are causing

significant environmental damage

and so that fund monies will

not be unwisely spent.

II.

THE NEW ILLINOIS

LUST

LAW: P.A. 88-496

The State Context

According

to the “Intent and Purpose”

Section of Illinois new LUST Law,

its

promulgation was

“in accordance with

the requirements of the Hazardous

and Solid Waste

Amendments of

1984 of the Resource

Conservation and Recovery

Act of

1976,

and

in

accordance

with the State’s interest in

the protection of illinois land and water resources.”

(Illinois

LUST Law,

Section 57,

Intent and Purpose.)

More

specifically,

the legislature

identified five purposes

underlying the new law:

1.

Adopt procedures for

the remediation

of underground storage tank

sites

due

to

the

release of petroleum

and other substances regulated

under this Title from

certain

underground

storage

tanks or related

tank

systems

(Adopt Remediation

Procedures);

2

---

2.

Establish

and provide procedures

for a Leaking Underground

Storage Tank Program

which

will

oversee and

review

any remediation

required

for

leaking

underground

storage tanks and administer the Underground

Storage Tank Fund (Adopt

Programmatic

and

AdminLctrative Procedures);

3.

Establish

an

Underground

Storage Tank Fund intended to

be a State fund by which

persons who

qualify for access

to the Underground

Storage Tank Fund may

satisfy

the financial

responsibility requirements under applicable State

law and regulations

(Establish Fund);

4.

Establish

requirements for eligible owners and operators of underground

storage tanks

to

seek payment for any

costs

associated

with physical

soil classification,

groundwater

investigation,

site classification and corrective action from

the Underground

Storage

Tank Fund (Establish Reimbursement Requirements);

and

5.

Review or audit and approve corrective action efforts performed

by

Licensed

Professional Engineers (LPE)

(Audit LPE’s Corrective

Action Plans).

The most

significant change

from Illinois former UST program

is the legislation’s

infusion of “risk-based”

decision-making

into

UST

site classification and remediation.

•Instead of requiring excavation of all UST sites until sampling reaches the cleanup

objectives

of the Agency’s guidance document

(the LUST Cleanup

Manual),

the legislature enacted a

statutory priority

scheme based

upon

soil type,

groundwater locality,

migratory

pathways

and

a variety of other factors.

Using

these factors, the owner/operator

and the Agency can,

together,

determine the level of cleanup necessary at

any given

site.

A.

ROLE OF

THE OFFICE OF THE

STATE FIRE

MARSHAL

(OSFM)2

Beginning

with

leak detection,

the LUST Law

gives the OSFM direct responsibility for

oversight of activities such as

tank removal,

abandonment and repair.

The

OSFM’s duties

and the requirements for

conducting tank removal

still

key off of RCRA,

and its

corresponding

federal

(42 U.S.C.

Section

6991-6991i)

and state identical-in-substance

regulations (35

ifi. Adm.

Code Part 731

and 41111.

Adm.

Code Part 170).

However, the

OSFM now

has a much greater role in

the present UST program

than

in

the previous ones.

In particular,

the OSFM

must provide on-site

assistance to

the owner/operator for leak

2While

OSFM is one of the

three

major

governmental

players

under

the

new LUST Law,

substantive regulatory

rules concerning

its

functions as delineated

in

the new

law

are not the subject of

Board

review

and

therefore

are

not a subject of

this

rulemaking.

Since

OFSM decisions

are

appealable

to

the

Board,

however,

the

Board is

in

the process of working with the

OFSM

and

affected

parties

in

the development of procedural

rules which

are

intended to facilitate

the

processing

and

adjudication of

those

appeais. (See R94-l

I

In

the

Matter of Procedural

Rules Revision:

Appeals

from

the

Office of the

State Fire Marshal

Determinations,

(35

Iii.

Adm.

Code

107)

(June 30,

1994

First

Notice).)

3

---

confirmation,

evaluation and eligibility information.

The

OSFM is also the state entity

responsible

for

making

eligibility and deductibility determinations (access

to

the fund issues).

Further,

the OSFM

has

the responsibility

to issue,

where appropriate,

“Certificates of

removal,

repair or abandonment” which

have the same statutory effect as an

Agency “No

Further

Remediation Letter.”

(415

ILCS

5/57.5

B.

ROLE OF THE ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

After an

eligibility determination

is

made by

the

OSFM,

or if an owner/operator

moves

straight into

remediation,

bypassing the reimbursement

portion

of the UST program,

the

Agency is

vested

with

the

responsibility

under

the LUST Law

to oversee

the

corrective

action

activities

at

the UST

site.

More

specifically,

the

Agency

is responsible

for overseeing

all aspects of cleanup

and

appropriate reimbursement

for appropriate cleanup.

The Agency’s

responsibilities

include oversight of the early

action activities,

site classification

and

remediation,

authorization ofpayments

from

the

UST Fund and enforcement of the

requirements

relative to LUST releases.

(415

ILCS

5/57.6-57.8,

57.12.)

Much of the

Agency’s

supervisory

role is to review,

audit

and

approve

the

corrective actions

plans

and

cleanup

objectives presented

by

the owner/operator, usually

through

the

owner/operator’s

LPE.

C.

ROLE OF

TIlE

ILLINOIS POLLUTION

CONTROL BOARD

In addition to the statute’s

mandate that the Board promulgate rules implementing

Illinois

new LUST Law,

the legislation calls upon

us

to perform an

adjudicatory

role whenever a

final determination

of the OFSM or

the Agency

is appropriately

appealed

to

us,

by the

owner/operator,

pursuant

to relevant provisions of the Act.

Under prior laws,

we only heard

two types

of

appeals

from

the

Agency’s

final decisions:

those relating

to

ineligibility

to

access

the UST Fund and those

relating

to Agency’s

final decision

determining the

reimbursability

of corrective

action

costs.

We did not

hear appeals from

decisions of the

OSFM.

Under

the new law,

OSFM’s eligibility and deductibility decisions are directly

appealable

to

the

Board.

Moreover,

the

LUST Law

creates various

new

statutory

“appeal

points”

where

an

owner/operator

may contest Agency decisions related

to

classification,

remediation, and reimbursement.

ifi.

REGULATION

OF

UNDERGROUND

STORAGE

TANKS

The Federal Context

Because

the driving

force

behind

all

state

UST

cleanup is the

federal

RCRA,

the

USEPA

is in

the position of delegating authority over UST cleanup to

the individual states.

Therefore,

USEPA

Region

V takes a great interest

in

whether states in

its

region

are meeting

federal

standards and,

accordingly,

has

taken

a great interest in

this rulemaking.

Through its

Associate Director

Norman R.

Niedergang, Office of RCRA,

USEPA has

offered

comments

and

constructive criticism

throughout

this proceeding.

Moreover,

in

a letter

to Agency

4

---

Director

Mary

Gade dated

March 22,

1994,

(Exh.

#10)

USEPA Region

V

Director Va!

Adamkus

urged

several

changes

to

Illinois new LUST Law

and

stated:

“(T)he

adoption of these changes

would provide

a

statute that

is broad in

scope yet

consistent with

federal

requirements.

However,

it is

equally

important that the

subsequent rulemaking process

result

in rules

that are likewise

consistent with

federal

requirements.

I

would appreciate

your support to ensure

that

both

the

statutory

and

regulatory

elements of

this

process

proceed

quickly

and with

a

clear

focus.”

In

this

rulemaking,

we

attempt to

provide

a clear focus

to the

statutory intents and

purposes

in

their regulatory

context.

However,

we cannot

in

this

regulatory proceeding

change the underlying statute.

Therefore,

to

the extent the

USEPA

has

concerns

about the

fllinois

LUST

program

which derive

solely

from

the statutory

language which

cannot be

addressed

by regulation,

we will

simply set

forth

those concerns

for consideration

by

the

parties in

the more appropriate

forum,

the state legislature, at a later time.

Regarding

the

USEPA’s regulatory

concerns

that are of a technical nature, we

attempt,

in

a later section

of

this

opinion

and

order,

to positively

address

all concerns

where we are not statutorily

restricted

.~

The

USEPA

has two overriding

and major

statutory

concerns

which,

in

our

opinion,

cannot

be dealt with

regulatorily.

The

first deals with

the

“operation of law”

aspect

of the

legislation.

Several

provisions of the

LUST Law

provide

that if the Agency fails

to

act

within a certain

specified time

frame,

the owner/operator

can

consider

its

application

approved.4

These provisions

are indeed problematic in

that they

have the potential

for

allowing

environmental damage to

go

unremediated

as a

result of a

missed

government

deadline.

While

we cannot change

these

provisions

by rule,

we do note that

there

are

other

ways

to help insure

that government

processes

claims

timely and,

to

some extent,

one

such

way is already reflected

in the

statute.

Section 57.9(c)(2) provides

that if the

OSFM

fails

to

make a determination within

60 days,

the action

(actually,

the

lack

thereof) is directly

appealable to the Board.

Presumably,

then,

the Board

would decide the issue

or require that

a decision be

made within

a certain amount of time.

While

we cannot solve

the operation of

law

problem,

we note

that

statutory

solutions are available.

The

second

major USEPA

statutory

concern

involves

the

“deferred

action”

aspect

of

the

legislation.

Section

57.8

of the

Act provides,

essentially,

that

if there

are

no

monies

3The

Agency and

UST Advisory

Committee

(USTAC) also

attempted

to address

the USEPA’s

technical

concerns

through

changes

made

to

their

proposal,

via five

errata sheets,

during

this proceeding.

(See

Section IV

in

this Opinion

entitled

“The Rulemaking Process:

The Public

Context.”)

4The following sections

all

deal in

some

fashion with

the

“operation of law”

issue

and

were

the

subject of

federal

comment:

732.300(b),

732.400,

732.402,

732.403(t), 732.403(g), 732.403(h),

732.404(g), 732.410(d),

732.502(d),

and

732.602(e).

See

also,

Laverne

L.

Logan v.

Zimmerman

Brush

Company,

455

US 422,

71

L.

Ed.

2d

265,

102

S.

Ct.

1148

(1982).

5

---

available

in the

fund,

an

owner/operator can

defer corrective action until such

funds are

available.

The USEPA

is concerned

that this language is inconsistent

with

the federal

financial

assurance requirements and should

not relieve

the owner/operator

from

liability

from remediating

the

site.

First, as to

USEPA’s concern

regarding liability, we are not at

this point convinced

that liability is completely excused

during any time of fund insolvency.

Even though

the statute defers

corrective action until monies are available pursuant

to the

LUST program, third party liability may

still exist pursuant to

more general

provisions of the

Act and

certainly exists pursuant

to

federal law.

Also,

the Agency

has the authority to deny

the request

for deferral of corrective action where it determines

that

“a threat to the human

health or the environment requires immediate action.

“~

Nonetheless,

the USEPA is correct that the statute allows a deferment for

cleanup

until

the funds are available and then provides for fund distribution on an

essentially

first come

first serve basis

when

the monies do become available.

The USEPA considers this to

be

inconsistent

with

the federal scheme since no consideration is given to

priority of site,

based

upon

environmental consequence,

in

how the funds are ultimately distributed once

money is

available.

While these concerns are correctable through the legislature,

they cannot be

resolved

in

a regulatory

context since the statutory

mechanism

is quite

clear and allows the

Board

no room to

address

the deferment issue

regulatorily.

However,

to

the extent that the primary

underlying concern of the USEPA

is one

involving the mutual

protection of the fund and

the environment,

the Board anticipates that

these proposed regulations move positively in

the direction of addressing that concern.

In

this rulemaking,

all

participants are united

in

the belief that the spending of monies from the

fund should be prioritized on

the basis of the environmental damage potential

from the site.

These

rules are an

attempt to inject risk-based

principles within

the legislative parameters.

The

Board understands

the need

to provide predictability to

the process

and the need

to

funnel

cleanup money to

those

sites

that pose the greatest

danger and risk

to

the environment

and the public. The only

way

to meet that concern

is through

the application of risk-based

principles

into the environmental decision-making process of the owners/operators,

their

engineers,

and the Agency.

IV.

THE RULEMAKING

PROCESS

The Public Context

As proposed

in First Notice,

the

rules

were developed by the

Agency in consultation with

the Underground Storage Tank

Advisory

Committee (USTAC) as

required by

the

LUST

Law.

As

stated

by the

Agency in

its

Statement of Reasons,

“(T)he proposed

regulations

are

the

product of six

months of intensive

efforts

under difficult circumstances.”

(Agency

Statement of Reasons

at

4.)

During

the

course of the rulemaking,

the

Agency

filed

five

5The following

sections

all deal

in

some

fashion

with the

“deferred action”

issue

and

were

the

subject of

federal

comment:

732.306(a)(4), 732.306(c), 732.406(c),

732.503(h),

and

732.603(c).

6

---

errata

sheets

amending

the proposal.

These

errata sheets

were

filed

on

April

27,

1994, June

1,

1994, June

7,

1994,

June 17,

1994

and July

11,

1994.

For the most

part,

the errata sheet

changes

were

the

product of continued negotiations

between the Agency and

the USTAC.6

Upon the Agency’s timely

filing

of these rules

with

the

Board

on

March

15,

1994,

the

Board

issued the proposed

rules

in

its

March

17,

1994

First Notice.

Opinion

and Order.

Pursuant to

Section

57.14(b)

of the Act,

the Board must adopt UST rules by

September

15,

1994.

Due

to

the rigid adoption

schedule, we immediately accepted

the

petition for hearing,

held pre-hearing conferences

pursuant to Section

27(d)

of the Act and held three

sets of

formal public hearings pursuant to

Section

27

of

the Act on April 27,

1994;

May 23 and 24,

1994;

and June.7 and

8,

1994.

Notice of these

hearings

was

sent to all

persons on the

Board’s

“Notice List”

which list constituted

approximately

200 interested individuals,

associations and companies.7

The three

sets

of hearings

were held

in

Springfield and

Chicago before

Hearing Officer

Musette H.

Vogel.

Present

on behalf of the Board were Board Chairman

Claire A.

Manning,

and Board Members

Marili McFawn,

3.

Theodore Meyer,

and

Dr.

Ronald C.

Flemal.

Also present for the Board were

Board attorneys Elizabeth

Harvey, Kevin

Desharnais,

Charles Feinen,

and

Deborah Frank, Board law clerk Suzanne

Yokley and the

Board’s

technical staff,

Anand Rao and Hiten Soni.

Several members of the public were

present.

The

following people entered

appearances on

the record:

For Agency:

Mark Wight

Counsel

Kimberly

Robinson

Counsel

Gary King

Manager,

Division of Remediation Mgmt.

6USTAC is

statutorily comprised

of one

representative

from

each

of the following

associations:

Illinois

Manufacturers Association (IMA), the

Illinois Petroleum

Council (PC),

the

illinois

Petroleum

Marketers

Association (TPMA),

the Illinois

State

Chamber

of Commerce (ISCC)

and

the

Consulting

Engineers Council

of

illinois (CECI).

Prior to the Agency’s filing of the

proposed rules,

the Agency met

repeatedly with these

members,

formally

and

informally

(Agency

Statement

of

Reasons

at 4).

As

a

whole,

the

group

achieved

a

great

deal

of consensus

concerning

the

majority

of the

regulatory

proposal.

Once

the

rules

were filed

with

the

Board,

USTAC

continued to take

a

very active role in

rulemaking,

as did

its

individual

members

representing

their

associations,

presenting

testimony

mainly

on the

concept of “risk” as

the

integral and

inseparable

foundation of

this

proceeding.

At

the

conclusion of the

Board proceedings,

only three

issues

remained

in

dispute between

the

Agency

and

USTAC:

(1) the use of Appendix

B as Soil

Remediation

Objectives; (2)

Interpretation

of

Section

732.608 as

amended

in

Errata

Sheet

#2 (Apportionment);

and

(3) Agency modification of High

Priority

Sites

pursuant to

Section

732.404 (“Low Priority”

Site).

Each

of

these

issues is

discussed

in

the

body

of

this

opinion

and

order.

71n

accordance

with 35

111. Mm.

Code

102.162(b)

and

102.221

the notice list

consists

of

the

proponent

and

all

people

who have

given the

Clerk of the

Board

or

the

Hearing

Officer their names

and

addresses.

7

---

Harry

Chappel,

P.E.

Manager, LUST Section

James

Patrick

O’Brien

Manager,

Office of Chemical Safety

Dr.

Thomas Hornshaw

Unit

Manager,

Office

of Chemical

Safety

Kendra

Brockamp

Project

Manager,

LUST Section

Douglas

Oakley

Manager,

LUST

Section

Kevin

Connolly

Project Manager,

LUST Section

G.

Todd Rowe

Manager, LUST Section

Vicky

VonLanken

For USTAC:

Katherine Hedge

Hedge

and

Dwyer

I

IERG5

Neil Flynn

IPMA9

Geoffrey

Gilman

Amoco /

IPC1°

Other

Participants:

3.

Randle Schick

Assistant

Chief Counsel,

IDOT’1

Whitney

Wager

Rosen

Legal Counsel,

IERG

Elizabeth

Steinhour

Project

Director,

IERG

David

Sykuta

Executive Director,

IPC

Michael

Rapps,

P.E.

Consultant, IPMA

Jon Ellis

Counsel,

IPMA

David

Rieser

Counsel,

ISG’2

I

1PC

Linda Curran,

P.E.

Amoco

Philip Haffenden

Counsel,

Marathon

Daniel Moenter

Marathon

G.D.

Sheely,

P.E.

Marathon

P.D.

Gates

Environmental Field

Engineer,

Mobil

Dr.

Paul Johnson

Sr.

Research

Engineer,

Shell

Robert Ettinger

Engineer,

Shell

Harry

Walton

Dir. of

Land

Poll.

Control,

Ill.

Power

Co.

James

Frycek,

P.E.,

S.E.

Inland

Consultants Inc.

Raymond

Reott

Jenner and

Block

8IERG:

illinois Environmental Regulatory

9IPMA:

Illinois Petroleum Marketers Association.

101PC:

illinois

Petroleum

Council.

illinois Department of

Transportation.

~ISG:

illinois

Steel

Group.

8

---

Twenty-five public comments and

thirty

exhibits were

filed in

this rulemaking

proceeding.

Eighteen

of the exhibits offered

at

hearing were prefiled

testimony

and

the

majority of the other twelve exhibits were lengthy

technical documents relating

to the

Appendix

B

cleanup

objectives.

A complete list of the public

comments

follows.

The

Board

has

reviewed and considered

all of the testimony, exhibits,

and comments

in

making its

decision.

Public

Comments:

PC#0l

04118/94

Comments from Linda Brand,

Manager of Regulatory Flexibility

Unit,

Illinois Department of Commerce and Community

Affair,

regarding

the impact of the proposed

rules

on small businesses.

PC#02

04/21/94

Comments from Robert L. Johnson, PE.,

Senior Environmental

Consultant,

regarding soil remediation

objectives

in

proposed

Appendix

B.

PC#03

04/22/94

Comments

from

Connie Bradway,

Secretary of State,

Administrative

Cede Division,

regarding corrections

to comply

with

Code Unit

requirements.

PC#04

05/12/94

Comments

of

Browning-Ferris Industries

submitted

by

William

R. Uffelman,

Divisional

Vice-President, Government Affairs,

regarding the

need for

the rules

to allow

for

land

disposal of

contaminated soils.

PC#05

05/16/94

Comments of Mobil

Oil Corporation by B.A.

Underkoffler,

Field

Engineer

Manager,

regarding

Appendix B

and

Sections 732.300(b),

732.406, 732.104, 732.201(f),

732.305,

732.306, 732.307(a)(1),

732.307(a)(2), 732.307(e), 732.307(h), 732.403(a)(1), 732.408(c),

732.502,

732.605, 732.606,

and

Dr.

Hornshaw’s

comments on

proposed

Appendix B.

PC#06

05/25/94

Comments of Weaver Boos Consultants

by

David O’Dea and John

Weaver,

regarding the technical provisions dealing

with

site

classification and evaluation and with establishing cleanup levels.

PC#07

06/08/94

Comments

on behalf of USEPA

by

Norman

R.

Niedergang,

Associate Division Director

for

RCRA, Waste Management

Division; USEPA

made

legal

comments

regarding the following

sections:

Section

732.100(a) and (b); Section

732.103

(“Confirmed

release,”

“Conventional technology,”

and “OCCURRENCE”);

Section

732.202;

Section

732.300(b);

Section

732.306;

Section

732.307(g)(3);

Section

732.400; Section

732.402;

Section 732.403

9

---

and 732.403(f); Section

732.404(g);

Section

732.406;

Section

732.410;

Section 732.500;

Section

732.502(d); Section

732.503;

Section

732.505(b);

Section

732.602(e);

Section

732.603(c);

Section

732.604(d);

Section

732.606(n),

(o),

(z), (aa) and (bb).

USEPA

made

technical

comments regarding the following

sections:

Section

732.101(a);

Section

732.103

(“Class

I

Groundwater”

and

“Completion”); Section

732.302(a);

Section 732.303(a)(1);

Section

732.304(a)(1); Section

732.305(c) and (d);

Section

732.306(a),

and

(a)(2)

and

(4); Section

732307(c)(1),

(c)(1)(D),(E) and (G),

(f),

(f)(1), and (j)(5)(A)and(C);

Section 732.308(a);

Section

732.400(b);

Section

732.402; Section

732.403 and

732.403(d)(2); Section

732.404

(b)(1) and (f);

Section

732.406(a);

Section 732.407(a)(1)

and (a)(3), (a)(5) and

(c);

Section

732.408(a)(1)

-

(3)

and (d)(3);

Section

732.502(d);

Section

732.503(c);

Section

732.504(d);

and

Appendix

B.

PC#08

06/14/94

Continents

on

behalf of IDOT by J. Randle Schick,

regarding the

number of USTs IDOT has been

involved with

in

the highway

right-of-way.

PC#09

06/28/94

Comments

of Marathon Oil

Company

by

Daniel H. Moenter,

Manager,

Government Affairs,

regarding

the• use of risk-based

corrective action objectives to

establish

remediation

goals.

Marathon also commented

on

the USEPA’s comments generally and

specifically on

USEPA’s comments on

Sections 732.408,

732.604(d), 732.103,

and 732.400(b).

PC#10

06/29/94

Comments

on

behalf of Agency

submitted

by

Mark Wight,

Assistant Counsel

and

Kimberly A.

Robinson,

Assistant Counsel,

supporting the proposal

as

environmentally protective,

economically

reasonable,

technically

feasible,

and protective of human

health.

The comment also discusses proposed

Appendix

B.

The comment

also answers Board questions

5

and

7 from

the May 23,

1994,

hearing,

regarding recharge zones and appeal points.

In its

comments, the Agency responds

to USEPA’s comments

on

Sections

732.103, 732.307(g)(3), 732.307(c)(1), 732.307(c)(1)(D),

732.307(c)(l)(E),

732.307(c)(1 )(G), 732.307(d)(2),

732.307(j)(5)(A),

732.400(b), 732.403(d)(2), 732.404(b)(1),

732 .407(a)( 1),

732.407(a)(3), 732.407(a) (5), 732.407(c), 732.408.

Additionally,

this comment discusses the

use of form

letters

in

Section

732.4 10; defends the Agency’s use of the TCLP test for

determining whether contaminated

soils reach

Appendix

B standards

10

---

and specifically addresses Sections

732.300(b)(1), 732.300(b)(2),

732.307(g)(4), 732.608(a)(1).

PC#1 1

06/29/94

Comments

of Brown

& Bryant

submitted

by

Ann P. Messer,

regarding the inclusion of a Board

Note

in

Section

732.103

pertaining to

orphan

tanks and

A.K.A.

Land

v.

Agency

(March

14,

1991)

PCB 90-177.).

PC#12

06/29/94

Comments

from Dr.

Richard C. Berg,

Senior Geologist, Head,

Geological

Mapping Section,

fllinois State Geological

Survey,

regarding the statutory

requirement of using

the ISGS

Berg

circular

532

(1984) and other matters.

PC#13

06/30/94

Comments

on behalf of

IERG submitted by Katherine D. Hedge,

regarding the separation of Appendix

B

into

a

separate

subdocket

and the issue of the use of the term

“property damage.”

PC#14

06/30/94

Comments on behalf of

IPMA by

William Fleischli,

Executive

Vice President, regarding the use of risk-based

remediation

objectives instead of Appendix

B,

the adequacy of the proposed

language for

evaluating a site

specific plan

found

in Section

732.408(a), the apportionment issue

contained

in

Section

732.608,

and the inclusion of a Board Note in

Section

732.103

pertaining to

the

A.K.A. Land decision.

Additionally, these comments

include a

memo from

Michael W.

Rapps describing a cleanup matrix.

PC#15

06/30/94

Comments from Raymond

T. Reott,

regarding

the use of the

TCLP

test

for

setting

soil cleanup

objectives.

PC#16

06/30/94

Comments

on behalf of

ISG,

submitted

by David

L.

Rieser,

regarding

a risk-based

alternative to

Appendix

B,

coordination of

Appendix

B with

35

III.

Adm.

Code

620 (groundwater standards),

and the economic reasonableness of Appendix B.

PC#17

06/30/94

Comments

on

behalf of IPC,

submitted

by David

L.

Rieser,

regarding

a separate subdocket

to

handle Appendix

B issues,

and

IDOT’s proposal.

PC#18

07/01/94

Comments on behalf of USTAC

submitted

by Katherine

D.

Hedge,

regarding the separation of Appendix

B into a subdocket.

PC#19

07/01/94

Amendments

to PC#7

on behalf of USEPA

by

Norman

R.

Niedergang,

Associate Division Director

for RCRA,

Waste

Management Division,

regarding

supporting documentation for

11

---

PC#7.

This is a copy of the Risked-Based Corrective Action

for

LUST Sites

guidance document issued

by

the Texas Natural

Resource

Conservation

Commission.

PC#20

08/08/94’s

Final

Comments on behalf of IPMA,

by

William Fleischli,

Executive Vice President,

in

response

to

the

Board’s August

1,

1994

Interim

Opinion and Order.

Recommends amendments

regarding the “operator” definition, allowing

investigation of

migratory

pathways

without a

pre-approved budget

and the

apportionment

provision

of the

rule.

PC#21

08/08/94

Final Comments

on behalf of the

City of Chicago,

by

William A.

Chamberlain, Assistant

Corporation

Counsel in

response to

the

Board’s

August

1,

1994

Interim

Opinion and

Order.

Recommends

amendments regarding

the

definition

section,

and various

other

provisions of the rule,

such

as

the addition of QA/QC procedures.

PC#22

08/08/94

Final Comments

on behalf of ISG,

submitted

by

David

L.

Rieser

in

response

to

the Board’s

August

1,

1994

Interim

Opinion

and

Order.

Recommends reframing

the Board’s

final

Second Notice

Opinion and Order

to

clarify that

Class

I

groundwater

standards of

35

111.

Adm.

Code Part 620,

which are used as

the groundwater

objectives in

these rules have not been proven

to be economically

reasonable

or

technically

feasible, but are “adequate”

as an

interim

measure.

Suggests a rule clarification

that non-Class I

groundwater

and the surrounding soil,

need

not be cleaned up to

Class I

groundwater

standards.

PC#23 08/08/94

Final Comments on behalf of IPC,

submitted

by

David

L.

Rieser

in response

to

the

Board’s August

1,

1994 Interim

Opinion

and

l3Prior

to the

issuance of today’s Second

Notice

Opinion

and

Order,

the

Board

adopted an

Interim

Opinion and

Order on August

1,

1994.

Given

the technical complexity of these

rules,

the

Board entertained

a last,

final

comment period

for

seven

days,

or

until August 8,

1994.

During this

final comment

period

we received

several helpful typographical and

clarification

suggestions

from the

Agency

and

from

five public

participants

(IPMA,

City of

Chicago, ISG,

IPC,

and IERG).

We also received

many

technical

and

non-technical

recommendations

and

revisions for the

final

rule and

for

the language of the Second Notice

Opinion

and

Order.

Where we incorporated

the suggested

rule

revisions,

we

have

shown

those changes

in

Section

VIII,

“Section-by-Section Analysis of the Board’s

Changes

from

First to

Second Notice,”

and,

of course,

in

the rule itself.

Where we

accepted

recommendations to redraft

certain

sections

of our proposed

opinion,

any

new language we

have

added is

simply

incorporated

herein.

12

---

Order.

Similar to

the comments in PC#22, the comments

recommend reframing

the opinion to reflect the interim nature and

limited use of the Class I groundwater standards of 35

111.

Adm.

Code Part 620.

Also recommends

various

rule changes regarding

section referencing

,

incorrect

use of the

term

alternative

technology,

verification of Class

III groundwater sources for the

site

classification plan, allowance of off-site sampling,

and the use of

units

of measurement

in the

formulae.

PC#24 08/08/94

Final Comments on behalf of

IERG,

submitted

by

Katherine D.

Hedge and Whitney

Wagner Rosen

in response

to

the Board’s

August 1,

1994

Interim Opinion and Order.

Recommends the

deletion

of an

inappropriate

reference

to property

damage consistent

with

recently-enacted

legislation.

Further

recommends a

clarification in

the Board’s opinion discussing

corrective action

plans

so that it

is clear that

soil remediation is not necessarily

required at

all HP sites.

PC#25 08/08/94

Final

Comments

on behalf of Agency,

submitted

by

Mark Wight,

Assistant Counsel and Kimberly

A. Robinson, Assistant

Counsel,

in

response

to

the

Board’s

August 1,

1994

Interim

Opinion and

Order.

Offers typographical corrections,

clarification for non-technical

matters

such as

the A.K.A.

Land

issue,

“completeness” of

submittals to the Agency,

and investigation of migratory

pathways.

Also suggests

a number of changes to

the technical

rules for

greater

specificity and clarification.

V.

ThE

PETROLEUM UNDERGROUND STORAGE

TANK

REGULATORY PROPOSAL

A.

HOW

THE

REGULATIONS

WORK:

OBTAINING CORRECTIVE

ACTION

AND

REIMIBIJRSEMENT

APPROVAL

FROM THE

AGENCY

The

Petroleum Underground

Storage

Tank

regulations,

which

we

are proposing

for

second

notice,

mirror the

statutory

scheme

set

forth in new

Illinois

LUST Law.

As

submitted by the Agency,

the regulations

create

a

new

Part

732

in Section

35 of the

illinois

Administrative Cede,

entitled

“Petroleum Underground

Storage

Tanks.”

This

new

part is

further

divided into

six

subparts:

Subpart

A,

General

Rules;

Subpart

B,

Early

Action

Requirements;

Subpart C, Site

Evaluation and

Classification;

Subpart D,

Corrective

Action;

Subpart E,

Agency

Review of Plans

and Reports;

and Subpart F,

Reimbursement.

1.

Subpart

A:

General Rules

(To

Whom

and to

Which

UST

Sites Do

These

ReguLations Apply?)

13

---

Proposed Part 732,

“Petroleum Underground

Storage Tanks,” contains

procedures for

responding to

releases of petroleum products,

and

for seeking reimbursement from

the UST

Fund.

The

regulations apply to

owners and operators of USTs or UST

systems

used to

store

petroleum,

which have experienced

confirmed releases

reportable

to the Illinois Emergency

Management Agency

(IEMA).

Proposed Part 732 generally

applies to

releases

occurring

after the effective date of the new LUST Law;

however, pursuant to

Section 57.13 of the

new LUST Law,

those owner/operators

who

have been proceeding under the old law,

may

permanently

“elect-in”

by submitting written notice to

the Agency.

Likewise,

owner/operators of USTs

used exclusively

to

store heating oil for consumptive use

on

the

premises where stored,

and which serve other than a farm or residence,

may also choose

to

proceed under these rules if they provide the Agency with

written notice.

Finally,

owner/operators

who

have received

a corrective action order

from

the OSFM

for an

UST or

UST system

taken

out of operation before January 2,

1974, or of any UST system used

exclusively to

store heating oil, serving

other than a farm or residence,

must

also conduct

corrective action pursuant

to

these rules.

These

rules do not apply to

owners and operators of sites who experience releases

in

an

amount

insufficient to

be reportable to

IEMA, or for which OSFM

has issued or will

issue a

certificate of removal or abandonment.

In most

cases, the rules

do

not apply to owners or

operators of farm or residential

tanks, since the definition of UST excludes

farm and

residential

tanks of 1,100 gallons or less.

2.

Subpart B: Early

Action

(What

is

“Early

Action” and

When

Is It

Required?)

Directly from

the new LUST Law,

“early action” requires

an owner/operator

upon

confirmation of a release by

the OSFM,

to

perform

initial

response

actions within 24 hours

of the release.

Those initial

response

actions include reporting

the release to

IEMA,

taking

immediate action to prevent further

release of the regulated

substance, and identifying

and

mitigating

fire,

explosion,

and vapor hazards.

The

owner/operator must

then perform

initial

abatement

measures,

including

removal of petroleum from

the UST system

to prevent

further

release

into

the environment, visual

inspection of releases

and prevention of further migration

into

surrounding soils and groundwater, investigation of migratory pathways

and

investigation and removal of possible free product.

Within 20 days after confirmation of the

release, the owner/operator

shall submit a report

summarizing its

initial abatement

steps

and

any resulting

information

(the

“20 day report”).

The

owner/operators

must

then continue to

assemble information

about the site

and the nature of the release,

and

submit that information

to

the Agency Within

45

days of confirmation of a release

(the

“45

day report”).

At

sites

where “free product”

is present, the owner/operator

must also submit a free product removal

report

within 45

days of the confirmation of the release.

Prior

to the

submission of any

plans

to

the Agency,

the owner/operator

may remove the tank

system, or repair or abandon

the UST in

place.

The

owner/operator

may also remove contaminated

fill

material (within

an

area of four

feet

from

the outside dimensions of the tank) and

any

groundwater

in

the

excavation which exhibits a sheen.

An application for reimbursement for early

action costs

14

---

can

be

submitted after the early action activities.

Alternatively, an

owner/operator

can

include

its request for

reimbursement for early action costs when

submitting its

corrective

action

budget

plan to

the

Agency.

3.

Subpart C:

Site Evaluation

and

Classification

(What Is

“Site Clasy~fication”

and

How is it

Performed?)

After completion

of

early

action activities,

the owner/operator proceeds

to evaluation

and

classification of the site.

The owner/operator’s

classification of the site

must be

certified

by

a

licensed professional

engineer

(LPE),

and submitted

to

the Agency,

who

retains the

authority to

decide

the

proper classification.

Sites

fall

into

one of

three classifications:

no

further action (NFA),

low

priority

(LP),

or high priority

(HP).

The

classification

decision is based

upon

specific statutory

criteria:

•

soil type (based

on

Berg

geological

map and circular);’4

•

groundwater

quality

standard

(GQS) exceedence

(at

the property

boundary

or

200 feet

from

the excavation,

whichever is less);

•

proximity to potable

water

supply well

or regulated recharge

area;

•

migratory

threat

to

human health;

•

presence of Class III Groundwater

within

200

feet;’5

•

presence of visible

sheen

or

free

product layer on

surface water body.

An owner/operator

should

first submit

to the Agency a

Site Classification Plan

(SCP)

which

is designed

to

collect data sufficient to determine site

classification.

In addition, if the

owner/operator

intends to

seek

payment from

the UST Fund, the owner/operator

must submit

a

Site

Classification

Budget

(SCB).

The Agency then

reviews

the plan, and may

approve,

reject,

or require modification of the plan.

However,

an owner/operator

may proceed

with

site evaluation activities before submitting a site classification

plan.

If he or she does so,

however, the Agency retains the authority to find that some costs

and activities were

unnecessary (and

thus not reimbursable)

when

the owner/operator

submits the final budget

t4Section

57.7

(b)

of

the Act

requires

that

sites shall be classified pursuant to illinois State Geological

Survey

(ISGS)

circular

532

entitled

Potential for

Contamination

of

Shallow Aquifers in Illinois~published in

1984

and

authored

by Dr.

Richard

Berg (~TheBerg Circular~). Dr.

Berg filed

a

public

comment in this proceeding

(PC#12)

indicating

that

the

mapping and

the circular were not

intended

to be

used

to

evaluate specific

sites;

instead

the

map

was designed

for

regional evaluations.

Dr.

Berg

emphasizes

that

it

is

unacceptable

to

enlarge

the

map because it will

decrease

the

accuracy

due

to

scaled distortions.

However, Dr.

Berg

does

believe

that

verification

of site conditions as

required

in

Section

57.2 of the Act

and

proposed

Section 732.302

will

resolve

many

of

these problems.

15The Agency amended

its

original

proposal

at Section

732.307(h)

to

eliminate

the requirement

that

the

LPE

contact

the

Board

to

ascertain whether there

is

a

Class

HI groundwater inventory.

Now,

the

LPE

can

make this

determination

on

his

~

which will be

a

part of the

general certification regarding

site evaluation.

(King

Testimony 5/23/94 Tr.

at

35.)

Previously,

the

Board had

issued

a

standard letter explaining there

were no

Class

ifi designations as of yet in

the

State

of Illinois.

15

---

for

payment

or

reimbursement.

The rules also provide for

submission of amended

SCPs

and

SCBs

and

for Agency

review of those

amended

plans

and budgets,

if an

owner/operator

determines

that

revised procedures

or cost estimates

are necessary.

After

approval of the

SCP

and

SCB,

the owner/operator performs an

actual

site

evaluation

in

order to

determine

the proper classification of the site.

The owner/operator

must hire an

LPE,

or

persons working

under

the

direction of an LPE,

to

conduct the

evaluation.

The

rules set

forth detailed

requirements for performance

of the

site

evaluation.

For

example,

physical soil classification can

be

done

pursuant to

two alternative methods:

(1) confirmation

of consistency

with

the

“Berg

Circular,”

which the LUST

Law

establishes

as a

criterion

for

determining soil and geological classification;

or

(2)

procedures

from

the

Board’s

groundwater rules

(35

111.

Adm.

Code

620.210)

for identifying

the

geological

conditions

associated with

Class

I groundwater.

The site

evaluation also requires

investigation of migration pathways, a survey of water supply wells, a determination of

whether there is Class

III groundwater within

200

feet

of the

UST

system,

and inspection of

all

surface bodies of water within

100

feet of the site.

Additionally, if the site

does not

satisfy the requirements for an

NFA

site,

the LPE

must

then perform a groundwater

investigation.

After

completing

the required evaluation as

explained

above,

the

LPE is to determine,

based upon

specific statutory and

regulatory

criteria,

whether

a

site

is properly

classified

as

NFA,

LP

or

HP. Within

30 days of the LPE’s completion of the site

evaluation, the

owner/operator

must

submit to

the Agency a

Site Classification

Completion

Report (SCCR).

In this report, the LPE

must certify the site’s

classification. The

rules establish

other

general

requirements for

the

SCCR.

The Agency

then

reviews

and approves,

rejects, or requires

modifications

of the

SCCR.

4.

Subpart D:

Corrective Action

(What

is

“Corrective Action

“:

When

Should

It

Be

Performed:

How

Does

the Owner/Operator

Know

When the

UST

Site Is Fully

Rem

ediated?)

Once

the

Agency has approved the

LPE’s

site

evaluation

and classification, and unless

the

site

is an

NFA

site, the owner/operator must proceed

to

perform corrective action.

Corrective action is a correction

of

the environmental problem at

the site to

the extent

determined

necessary

to protect the public health and environment.

For an HP site,

the

site

must be

remediated;

for a LP

site, the groundwater

must be monitored.

(a)

Low Priority (LP) Sites

For an

LP

site, the owner/operator

must

submit a

Groundwater Monitoring Plan

(GMP)

to the Agency and,

if intending

to

seek payment from the UST Fund,

a

Groundwater

Monitoring Budget

(GMB).

The

rules

include

specific requirements for

the

GMP,

including

a requirement

that

monitoring be conducted

for

three years.

The

Agency may

approve,

reject,

or modify the plan and budget.

Upon approval,

the owner/operator

must

implement

16

---

the

GMP.

Groundwater analysis results

must be submitted

to the Agency within

thirty

days

of the end of the

annual

sampling

period.16

Upon completion of the

GMP,

the

owner/operator must

submit

a

Completion

Report

(CR)

to the Agency.

If there have been

no

confirmed

exceedences of the indicator

contaminant objectives, the report shall contain a

certification to

that effect

by

an

LPE.

The

Agency then

reviews

the

completion

report,

and

upon

approval

will

issue

a

“No

Further Remediation”

(NFR)

letter.

Like

the

site

evaluation process,

an

owner/operator of

a LP

site can

bypass

the plan and

budget

process and perform full

remediation.’7

This

provision

is

necessary

for owners

and

operators

who

may prefer that

their sites

be

thoroughly

remediated

regardless of which

classification

applies to that

site.

If

this option

is chosen,

however, the owner/operator

must

file a report

at

the completion of work

(CR)

which

demonstrates

that

the

site

meets

the

remediation

objectives for high

priority

sites.

Further,

an owner/operator who

chooses

this

option should

be aware

that

he

is not

entitled

to

reimbursement

for

any activities exceeding

the

minimum requirements of the

Act.

(b)

High

Priority

(HP)

Sites

For

an HP

site, the owner/operator

must

submit a

Corrective Action

Plan

(CAP)

and,

if

reimbursement is sought, a

Corrective

Action

Budget

(CAB).

While

soil remediation

may

not be

necessary

at every HP site,

the

CAP

must

set

forth whether the owner/operator

intends

to

remediate

soil to

satisfy

the criteria of Section

732.404(b), and

how

he

will

remediate any groundwater

at

the site.

He can

propose a

CAP

based

upon

a

site-specific

assessment of risk

pursuant

to Section 732.408

or he

can

choose the groundwater cleanup

objectives and soil cleanup methodology in

Appendix

B. The

plan

may also propose the use

of alternative technologies to

respond

to

the release.

Upon approval of the

CAP,

the

owner/operator

must implement the

CAP.

Within

30 days

of the plan’s completion,

the

owner/operator

must submit to the

Agency a

Corrective Action Completion

Report

(CACR).

(c)

No Further Remediation

Letters

After the Agency receives the owner/operator’s

CACR,

the Agency

will

approve the

CR

and

issue

a “No Further Remediation”

(NFR)

letter.

A

NFR

letter is

described

in Section

57.10 of the

Act,

and

referenced

in

the proposed rules.

It

serves as a legally rebuttable

presumption

that:

1)

all

statutory

and regulatory

corrective action

requirements applicable to

the

occurrence

have been

met;

2)

corrective action concerning

the remediation of the

~If

those

results

indicate a confirmed

exceedence

of applicable indicator

contaminant objectives,

the Agency

may

reclassify

the

site

as

a high

priority

site.

If

reclassified,

the

owner/operator

must

develop

a high

priority

corrective action plan and

budget

within

120 days of notificationof the

reclassification.

t7This

provision applies

only

to sites classified as ~owpriority, since

a

no

further

action

site

requires no

remediation,

and

a

high priority site

requires full

remediation.

17

---

occurrence has

been

completed; and 3)

no

further corrective action is necessary for the

protection

of human

health,

safety,

and the environment.

The

Agency

has

120 days from the receipt of a NFA

site

classification report, a LP

groundwater monitoring completion

report,

or a HP corrective action completion

report

to

issue a

NFR

letter.

The

Agency may

issue

the

NFR

letter

when

it notifies the

owner/operator

that the

report

has been approved, or the Agency may decline to

issue

a NFA

letter.

If the

Agency requires

further

remediation at an UST

site,

it will notify the

owner/operator

when

the

report

is either

rejected or

approved with

modifications.

The

Agency’s refusal to issue

a

NFR

letter

is

appealable to

the

Board within

35 days.

5.

Subpart E:

A~encvReview

of Plans and Reports

(How

Extensive Is the

Agency’s Review of

Plans and Reports?)

The proposed rules

also describe

the selection criteria and

standards of review

for

all

plans and reports

required

by Part 732.

The Agency may conduct a completeness

review

on

plans in order

to determine whether

all

required information and documentation have been

included.

This

review

will not be

used

to determine the technical sufficiency of a particular

plan.

The completeness

review

must be finished within

45

days of receipt of the plan.

If the

plan

is

found

to be complete,

the. Agency must

notify

the owner/operator

in

writing and

proceed

to

substantive

approval,

rejection,

or

modification of the plan.

If the

Agency

finds

the plan

incomplete,

it must notify

the owner/operator in writing, and include an

explanation

of the missing information.

Reports are not subject to the completeness

review;

instead,

failure to

submit a complete report is a basis

for rejection of the report.

The proposed rules

also establish a selection process

for full

review

of plans and reports,

although a full

review

will

not be performed

on

all

plans and

reports.

The

Agency may

approve,

reject, or require modifications of any plan or report

that has

received

a full

review.

The

Agency must

notify the owner/operator of its

final action on

a plan or report

within

120 days of receipt of a complete plan or report, or the owner/operator

may deem

the

plan

or

report approved.

If the Agency rejects a plan or report or requires modifications,

the

written notification must

include an

explanation

for that decision.

Final decisions

by

the

Agency may

be appealed

to the Board within

35

days.

6.

Subpart .F: Reimbursement

(How

Does an

Owner/Operator

Obtain

Reimbursement?)

The process for

obtaining

reimbursement or payment from

the UST Fund begins with

the

owner/operator

submitting an

application for payment,

either for partial or final payment,

to

the Agency.

Applications

for payment may

be

submitted

no

more often than once every 90

days.

Except for applications for

payment of costs of early action,

an

application for

payment must

have an approved budget

on file.

Every

application for

payment

will

be

reviewed

to

determine if the application

is complete,

and whether the

requested payment

amount is equal

to

or

less

than. the amount

approved in

the corresponding budget.

If the

18

---

amount

sought is equal

to

or less

than

the amount approved

in

the budget, the

Agency’s

review

is complete

and payment is approved

unless one of following circumstances is

present:

1) if the Agency has reason to

believe that the

application is fraudulent;

or 2)

the

application includes costs

for early action and those costs

have

not

been

previously

approved

in

a budget.

In those cases, the Agency may conduct a full

review of the application for

payment.

Subsequent to

the full

review, the Agency may

authorize

or

deny reimbursement

in

whole or

in

part,

depending

on

the

results of that review.

When

payment is

authorized,

the

Agency

must submit the payment voucher to the Office of the State Comptroller

within

60

days.

The

proposed rules also contain provisions governing limitations on

total payments,

establishing the types of costs which

are

eligible

and ineligible for

payment from

the UST

Fund, and setting forth the amount of handling

charges that are eligible for

payment.

Payment may

be

made for

costs to

the owner/operator of indemnification

resulting

from

an

eligible release of petroleum.

The proposed

rules

prohibit owner/operators

from

receiving

payment

from

the UST Fund if the costs have been covered

by

insurance,

agreement, or

court order.

The rules

also provide a procedure for determining and collecting

excess

payments.

If there is insufficient money

in

the UST Fund

when

the owner/operator

submits the site

classification budget, as the law

(and

therefore these rules)

currently read, an

owner/operator

is allowed

to defer site

evaluation

and classification or corrective action.

When approving

the

SCP

or

SCB,

the Agency

is required to

notify the owner/operator,

whether sufficient

funds are available in

order

to

immediately

begin site

evaluation.

Upon notification that

there

are not sufficient

monies available, the owner/operator

may choose

to defer

site

evaluation

and classification by notifying the Agency

in

writing within

30 days of receipt of

Agency

SCP

or

SCB

approval.

The

rules

also establish a priority

list for notification to

owner/operators when

sufficient funds become available.

Upon

such notification,

the

owner/operator

must begin

site classification

activities.

However, if the Agency or the

owner/operator determines

that there is a threat to

human health or the environment which

requires immediate action,

site

evaluation

and classification cannot be deferred.

The Agency

must notify

the owner/operator by

certified

mail

that

such a situation exists.

This

decision

is

not appealable.

According

to

the current law,

corrective action,

as

explained below,

may

also be deferred during the UST Fund insolvency.

(Note to the

reader:

At

the time

of

these

rules

the Act’s deferment

provisions

were the subject of federal

objection since the

USEPA

maintains

that environmental liabifity

cannot

be

deferred.)

B.

APPEALING

THE

AGENCY’S FINAL DETERMINATIONS

TO

THE

BOARD

The LUST

Law provides that most of the final decisions

made by

the Agency in

its

administration

of the

LUST

program

are appealable

to the

Board.

While there are thirteen

actual

statutory

“appeal

points”

in

the

rules

and

statute,

not

all appeal

points

are

applicable

to

every site.

In each case where an

appeal is allowed,

an

owner/operator

must appeal the

Agency’s decision

to

the Board,

by a proper filing

with

the Office of the

Clerk

in

the

19

---

Board’s

Chicago office,

within

35 days of the Agency’s decision.

A

hearing will be held,

and

a Board decision

will

generally be rendered

in

120

days.

The

issues on

review

in

any

appeal to

the Board will

be

framed by the Agency’s written decision.

(See. e.g. Centralia

Environmental

Services. Inc. v.

Illinois Environmental Protection

Agency

(May

10,

1990),

PCB

89-170.)

The rules

include

specific items

that must be

included in

the Agency’s written

decision.

(Sections 732.502(b), 732.503(b), and 732.602(e).)

These

appeal points fall

into four

specific categories.

First,

any action by the Agency

to

reject or require modifications of any plan

(including budget plans) or report

may be

appealed

to

the Board pursuant to

Section 40 of the Act.

(Section 732.503(0.)

This

provision

includes appeals of Agency final determinations on physical

soil classification and

groundwater investigation plans and budgets (Section 732.305),

site classification completion

reports

(Section 732.309), groundwater

monitoring plans and budgets (Section 732.403), and

corrective action plans and budgets (Section

732.405).

The

Board has added

language to

Section

732.503(f) to

indicate that the decision is appealable within 35

days of the Agency’s

final determination.

Second, an

owner/operator

may appeal an Agency decision

to reclassify a site from

low

to high

priority.

(Section 732.403.)

The Agency’s comments state that this determination is

appealable to the Board;

however,

the rules did not contain

any language to

that effect.

(PC

#10 at 17.)

Thus,

the Board has added

the sentence

“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 of the Agency’s final action

in

the manner provided

for the review of permit decisions

in

Section

40 of the Act”

as the last

sentence of Section

732.403(g).

Third, a refusal by

the Agency to issue

an

NFR

letter is appealable to the Board.

(Section 732.410(d).)

This

provision includes

final determinations on

NFR

letters for no

further action sites

(Section 732.402), low priority sites

(Section 732.403(f)), and high

priority

sites

(Section 732.404(g)).

The Board has added

language to

Section 732.410(d)

to

indicate that the decision is appealable within

35

days of the Agency’s final action.

Fourth,

an owner/operator

may appeal an

Agency final determination

denying payment

from the UST Fund, in

whole or in part.

(Section 732.602(h).)

This allows appeal for a

denial or partial

denial of early action costs

(Section 732.305(b)(1) and (c)),

as well as denial

or partial

denial of classification and corrective action costs.

Again,

the Board has added

language to

Section

732.602(h) to

indicate that the decision is appealable within

35

days of

the Agency’s final decision.

The proposed

rules

also include two

additional appeal points not

specifically established

in

the LUST Law

(PC

#10

at

17.)

The

rules

establish procedures

for

the Agency

to perform

completeness

review

for plans

(Section 732.502) and for

applications for payment

(Section

732.602(a)).

The

Agency states that both of these Agency determinations based upon such

reviews are appealable to the Board,

and cites Sections 732.503(f) and 732.602(h) as

providing for

appeal.

(PC #10 at

17.)

However,

to ensure

that the

rules

clearly

state that

20

---

those completeness

determinations are appealable to

the Board,

we have

added

the sentence

“any

action by

the Agency pursuant to

this Section

shall be

subject to appeal to

the Board

within

35

days of the

Agency’s final

action in the

manner provided for

the review of permit

decisions

in

Section 40 of the Act” as

the

last sentence of Section 732.502(d).

We have

added

an identical sentence

to Section

732.602(a),

except

that the

reference to action

pursuant to

“this

Section” is changed

to

“this subsection.”

VI.

ISSUES TO BE RESOLVED

A.

SOIL REMEDIATION:

APPENDIX

B

OR

ALTERNATIVE:

“HOW

CLEAN IS

CLEAN?”

1.

Motion to

Sever Docket

Well

over three quarters of the record

in

this proceeding concerned

the

issue of “How

Clean

Is

Clean?”

with

the end-result being a motion, joined by virtually

all

the participants

but the proponing

Agency,

which requests the Board

to

reserve immediate ruling on

the issue

and to open a subdocket

in

this proceeding.18

At

our May 23,

1994

hearing USTAC

advised

that it

would be

filing

a formal

“Motion to

Sever

the Docket”

and did so

with the Board’s

Clerk’s

Office on June 1,

1994.

In that motion,

the participants

seek

more time in

this

rulemaking to

allow for the development of objective,

risk-based

soil remediation numbers

and/or matrix.

The Agency opposes the motion and filed a response

on June 7,

1994.

For

the reasons stated

below,

the motion is granted.

A

subdocket will be opened in this

rulemaking,

for

a period of approximately

six

months. The rulemaking will

be for

the

purpose of developing risk-based

soil rernediation cleanup objectives for

leaking underground

storage tank sites

and dealing

with

select other issues.’9

18The

Board has in the past opened subdockets in

Memakings

in order to

separate issues

which

are

more

specific or require more time to resolve.

(See In the

Matter of: Re2ulation of

Steel

and

Foundries and

Landfill

Amendments (R90-26(A) and (B).)

l9Specifically,

the

Board will

entertain issues

of

further site

specific classification

and risk

analysis

based

on

groundwater and its

potential use.

We will also entertain

issues relating to the standard

NFR

letter

and IDOT’s

concern regarding the placement of monitoring wells.

(See our discussion in Section VI(C) of this opinion.)

The

specific

time and issue

parameters will

be

set forth in a separate order creating

a subdocket.

21

---

2.

Site Remediation Objectives In the Rules As

(a)

Site-Specific Assessment—Section 732.408

Where

site remediation is relevant

(essentially,

for HP

sites),

the

Agency

has

proposed

remediation

objectives at

Section 732.408.

The most recent

revised version of the

Agency’s

proposal

specifies

that owners or

operators

may propose

remediation objectives for applicable

indicator

contaminants based

on site-specific risk assessment.2°In

support of site-specific

objectives,

the owner/operator must demonstrate to

the Agency

that the proposed

objectives

will be protective of human

health and

the

environment.

For

those

indicator contaminants

that have a groundwater

quality

standard

promulgated pursuant to

Part

620,

site-specific

groundwater objectives may be proposed

using

the procedures

of

Part

620.

The

revised

Section

732.408

addresses

USEPA’s

concern

that decisions be made on

a

site-specific

risk

basis.

(b)

Appendix

B

However, if an

owner/operator of a high priority

site

does not elect

to go through the

costly

process of proposing

site-specific remediation

objectives which

would be acceptable to

the

Agency,

the owner/operator’s

only

regulatory

choice in

the rules

as

proposed

is

to

use

the

admittedly

conservative remediation

objectives

specified in

Part

732,

Appendix

B.

In

recognition

that

soil remediation

numbers

would be

necessary

in

some instances

(e.g.,

where

an

owner/operator wants

to clean

up

quickly

without having

to go through plan review

with

the Agency),

the Agency

attached

Appendix

B to the proposed

rules.

The

Agency argues

that the remediation

numbers contained therein,

while “conservative,” are protective of the

environment and have often been used by

the Agency under prior

UST programs as “default”

numbers.2’

Essentially,

the Appendix B numbers,

which are proposed

for both

soil and

groundwater remediation, are based

on

the Class

I groundwater

quality standards

(GQS)

found

in

Part 620.

2OFroin

the

beginning

of

this

rulemaking all of the

participants

were committed to

a risk-based process.

However,

it

was

not until the

May 23,

1994

hearing

that

risk-based

assessment

was reduced

to wiiting in Errata

Sheet #2

and

incorporated in

the

rules

as

Section 732.408.

For

a discussion of how

this

section

will

work in

practice,

see

Harry

Walton’s

testimony

of June 7,

1994.

(Walton Testimony 06/07/94 Tr. at

125-144).

2lSee

King

Testimony

4127/94 Tr.

at 29

and

37.

The record

does

not provide

a clear

explanation of what the

Agency

means

when

it uses

the

phraseology “defaults

numbers.

22

---

3.

Economic/Technical Merit of Appendix

B

As

stated

previously,

the

proposed soil remediation

objectives

listed

in

Appendix

B

were

also

the

main

focus

of discussion

at the

merit

hearings held

in this

matter,

and were the

subject of

much

public comment.~ The

participants

questioned

the scientific basis of the

Agency’s

proposal and urged that the Board reject the proposed

remediation objectives.

Even

the USEPA

argued that

the Appendix

B

numbers

were much

too conservative, and

were not

protective

of the

fund

because

monies would likely be

spent on

high priority

sites

that

did

not

need

to be

cleaned

to

the

strict numbers

set forth

in

that Appendix.

(PC# 7

at

6).

It

believes

that

the Agency’s

use

of these

numbers,

which

were derived

from

Groundwater Protection Act

and

our

Part

620 groundwater

regulations, does not

take

into

consideration

the actual

“risk”

relevant to

underground

storage

tank

removal and

cleanup

in

this state.

(PC#

7 at 6).

All parties agreed

that within the

high priority

classification itself,

sites can

be

further

prioritized

by environmental risk.

Many

argued

that Appendix

B

is

inconsistent

with

the

new

LUST

Law’s

attempt to

inject risk-based

principles into

site

remediation

because of the fear

that owner/operators

(in

part

due to pressure

from

the banking

industry)

will

voluntarily

cleanup to

the

numbers

set forth

in

the

Appendix,

regardless of whether it is environmentally

necessary

or

sound

to do

so.

(See

generally PC#14

(IPMA),

PC#16

(ISG), and Reott

Testimony 06/08/94 Tr.

at 272.)

Additionally,

there are significant questions as to

whether

someone

who decides to

clean a high priority

site to the Appendix

B numbers will get

reimbursed for

that cleanup or whether the plan

will

be even approved.

The

Agency believes that it has

provided

sufficient technical justification for

the use of

Appendix B objectives, and that Appendix

B

serves to

make

the rule

complete, viable,

environmentally

protective, economically reasonable and technically

feasible.

It argues that

it is unnecessary to

expend the resources of the Agency, the Board,

or the participants to

further engage

in

the creation of regulations (Agency Response,

6/07/94 at

2.)

The Board

disagrees.

From a state resources

perspective,

the regulatory

development of

environmentally

sound,

objective, risk-based

soil cleanup standards

such as those developed

by

our sister states

will,

in the long-term,

save

the Agency, the regulated community and this

Board endless

litigation.

In the

following subsections of the opinion the Board discusses the

substantive

merits of the proposed Appendix

B remediation objectives.

(a)

Appendix

B:

List of Remediation Contaminants

As proposed, Appendix

B is a list of 72

remediation

contaminants,

derived from

Appendix

A Indicator Contaminants,

for which

cleanup objectives

for both

soil and

22The

following

public

comments

object

to Appendix

B:

PC#5,

PC#6,

PC#7,

PC#9,

PC#13, PC#14, PC#16,

PC#17, PC#18,

and

PC#19.

Other

than

the Agency’s PC#1O, no public comments

support

Appendix B.

23

---

groundwater are given.

The

Agency

states that the list was

developed

from

two

sources,

the

indicator chemicals appearing in

the Act and selected chemicals from

the Agency publication

entitled

“LUST

Sampling and Cleanup Requirements

for Used

Oil USTs.”

(Exh.

#9

at

3.)

Specifically,

the

list includes

24 volatile

organic chemicals (VOC5),

9

base/neutrals,

16

polynuclear aromatic hydrocarbons (PNAs), 7 metals,

3

acids,

12

pesticides

and

PCBs.

The

Board finds

that the Agency’s rationale

for including

the

72

chemicals in

Appendix

B is

justified.

In this regard,

the Board notes that none of the participants

expressed

any concern

regarding the proposed list of remediation contaminants.

The concerns

were

mainly related

to

the proposed remediation

objectives for those contaminants.

(b)

Appendix

B:

Groundwater Cleanup Objectives

The

Agency

has

proposed the Class

I groundwater quality

standards under

35

III.

Adm.

Code 620.140 as the groundwater objectives for those indicator

contaminants

for which

there

is a Class

I

groundwater quality

standard

(GQS) under Part 620 and those standards

which

are a part of Appendix

B.

Similarly for

those indicator contaminants

for which Class

I

GQS

are proposed

in

Docket R93-27,~the Agency

has

proposed the R93-27 standards as the

groundwater objectives.

For the remaining indicator contaminants for which there are

no

Part 620 standards, the Agency

has proposed

the health advisory concentrations

as

groundwater objectives.

The Agency determined

the health advisory concentration

on

the

basis of whether an

indicator contaminant is a carcinogen

or a non-carcinogen.

For indicator

contaminants

that

are known

carcinogens, the health advisory concentrations are

set at

the

lowest PQL~’

of the SW-846 methodologies.~(Exh.

#6 at

8.)

For the non-carcinogenic

chemicals (PNAs)

having

RID26 values

in

the USEPA’s

Integrated

Risk Information System

(IRIS), the health advisory concentrations were calculated

using

RfDs.

The

Agency notes

that RID values are not currently available for three noncarcinogenic PNAs.

Therefore, the

groundwater objective of Pyrene

was

used as a conservative surrogate (indicator parameter)

for a cleanup objective for

the sum of those three PNAs.

23(In

the

Matter

of:

Groundwater Protection:

Amendments

to

Groundwater Ouality

Standards

(35

III.

Adm.

Code

620),

R93-27, (March

17,

1994

First Notice).)

24~Practica1Quantitation Level~

or

PQL~means

the lowest concentration or level that can

be reliably

measured within specified limits of precision and accuracy during routine laboratory operating conditions.

25Test

Methods

for

Evaluating

Solid

Wastes,

Physical/Chemical

Methods,~

EPA Publication No.

SW-846

(Third Edition,

1986,

as amended by Revision I, Final

Update

I, July

1992),

Doc.

No.

PB

89-148076.

26Reference Dose (RtD): A reference

dose is an

estimate

(with

an uncertainty

typically

an order of magnitude)

of a daily exposure (mg/kg/day) to the general human population

(including sensitive subgroups)

that is likely to

be without an appreciable risk of deleterious effects

during a lifetime of exposure.

(Exhs.

#21A and

#22A)

24

---

The Board

finds that the proposed

groundwater remediation

objectives

as

set forth

in

Appendix

B are acceptable

in

the interim, as

an

alternative to

sophisticated and expensive

site

specific risk assessments

for determining clean

up levels

at LUST sites.

However,

the

Board

believes

that

it

may

not be appropriate

to apply these remediation objectives

to LUST

sites impacting

Class II groundwater, or where there is no

Class

I groundwater,

unless the

Class

II groundwater is hydraulically connected to

Class

I

groundwater.

In this regard,

the

Board

notes

that

it is not proposing

groundwater objectives applicable to

Class II

groundwaters or special

risk-based

groundwater standards at this time,

since adequate

information to

do

so is not available in

the record.

However, the Board welcomes the

Agency and participants to address this issue

in

the subdocket.

(c)

Appendix B:

Soil Cleanup Objectives

The

Agency

states that the derivation

of soil cleanup objectives was not as

straightforward

as groundwater cleanup objectives,

since there are

no

state or national soil

cleanup

standards other than USEPA’s cleanup policy for

PCBs spills.

(Exh.

#6 at

8.)

For

PCBs, the Agency chose the USEPA

policy value as the cleanup objective.

For the

remaining indicator

contaminants, the Agency

states

that it used its

long-standing approaches

and procedures

to

derive the soil cleanup objectives.

(Hornshaw Testimony 04/27/94 Tr. at

138-150.)

The basis

for

the proposed soil cleanup objectives, as stated

by

the Agency,

is

the protection of groundwater at the GQS.

The Agency used the following procedures

to

derive the soil remediation

objectives for

the indicator contaminants listed

in

Appendix B.

(i)

Toxic heavy

metals.

For these contaminants,

which are found

in

leaded

gasoline and hydraulic

fluids,

the Agency relied on TCLP extract

to indicate potential

contamination of the groundwater.~The Agency states that if the concentration of metals in

the TCLP extract does not exceed

the groundwater standard,

then the residual

metal

concentration in

soil should not cause exceedence of the groundwater standard

in

groundwater underlying the site.

(Exh.

6 at 9.)

In effect,

the soil cleanup objectives for

metals are identical to

groundwater cleanup objectives.

The

Agency’s rationale for

utilizing

TCLP procedure to

establish

soil remediation

objectives is very

conservative, since this

approach does not consider

factors such as dispersion

and adsorption

which affect subsurface

transport of metals in aqueous phase.

The issues

concerning soil objectives for metals were

generally not a subject of discussion

in this rulemaking

and the record

does not contain any

feasible alternative methodologies

for calculating

soil objectives for

metals.

Mr.

Reott

offered in

his testimony that USEPA

Method

1312,

which establishes a partition

coefficient

for indicator contaminants,

could be

used as an

alternative to

the TCLP procedure

to

determine soil

remediation

objectives.

(Reott Testimony 06/07/94 Tr. at 170-175).

27TCLP is a

procedure by which a

contaminant’s

ability

to

leach

into the

aqueous phase

is measured.

A

soil

sample

is

mixed

with

an extraction fluid

(pH

of 2.88

+1- 0.05)

and

the

mixture

is

shaken for 24 hours.

The

resulting

extract

is

analyzed

for the

presence of

contaminants.

25

---

However,

we

find that this

method

can not be

utilized

as presented because it lacks

supporting migration models.

Therefore,

the Board accepts

the proposed

soil remediation

objectives for

toxic

heavy

metals to

be appropriate

on an

interim basis.

However,

the

participants may address in

more detail the procedures

for determining soil remediation

for

toxic

heavy

metals in

the subdocket.

(ii)

Organic chemicals.

The

Agency

has

established cleanup objectives for

organic chemicals,

such as Benzene,

Ethyl

Benzene, Toluene and Xylene

(BETX), based on

the

mobility

of the

chemicals in

soil,

and certain conservative assumptions.

To

determine the

mobility of a chemical

the Agency

has relied on the organic carbon

partition coefficient

(KJ,

which is a measure of the chemical’s

propensity to

stay bound

to

the organic matter in

soil versus

its ability

to

move with

infiltrating precipitation.

(Exh.# 6 at

10.)

The Agency,

based

on

its experience, has determined the K(,~,value of 1100

to

be

the

threshold value

for

determining mobility of an indicator

contaminant in soil.

The Agency considers

all

chemicals with K~

value above

1100

to be

immobile in

soil,

and K~

value below

1100

to

be

mobile in

soil.

Based

on

this threshold

K(,~,the Agency

has

established soil remediation

objectives as follows:

Mobile Organic Chemicals.28 (l~

1100):

For this class of chemicals, the Agency

assumes

that

no

dilution or attenuation

would occur as the chemical moves through the

unsaturated zone as well

as the saturated zone

to reach

the compliance point.