ILLINOIS POLLUTION

CONTROL BOARD

August

1,

1994

IN THE

MATFER OF:

)

)

REGULATION OF

PETROLEUM

)

LEAKING

UNDERGROUND STORAGE

TANKS

)

R94-2

35

ILL.

ADM.

CODE

732

)

(Rulemaking)

(Pursuant to P.A.

88-496)

)

INTERIM

OPINION AND

ORDER OF THE

BOARD

(by C.A.

Manning,

J.

Theodore

Meyer,

and

M. McFawn):

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.

Today’s

opinion and

order outlines the rationale and the

rules

which the Board

intends to

submit

to the Joint

Committee

on

Administrative Rules.

However,

given the

technical

complexity

of these

rules,

the Board

will entertain

a

final

public comment

period to end August 8,

1994.

In the event

any

interested person or entity

desires to

provide

comments before formal Board

Second Notice action,

he

or

she

may do so

before the end of business on August

8,

1994.2

1mese

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

5157.14(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.

2This

last,

final comment

period

is necessarily

a short

one

due to the requirement

that

the rules

be

submitted

to

the Joint

Committee on Administrative

Rules

prior

to

the Board’s

September

15,

1994

adoption date.

Because

of

this

compressed time

frame,

the Board will

accept

public comments by

facsimile in

its

Chicago

Office until

5:00 p.m.,

August 8,

1994.

The fas

number

is (312)

814-3669.

---

State regulation of underground storage

tanks

(UST or USTs)

is authorized

by

the

Hazardous

and

Solid

Waste Amendments of

1984

to

Subtitle

1 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

program or its

standards

are

“no

less

stringent”

than

federal

law or regulations promulgated

pursuant thereto.

(RCRA Section

699 1(c)(b)(1)

and

699 1(g).)

RCRA establishes

that if a

state wishes to

administer an

UST program,

the program

will

only

be federally-approvable only if it is in

compliance

with

certain requirements and

standards

(RCRA

Section

6991c(a)(l)-(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.

2

---

LI.

THE NEW

ILLINOIS LUST

LAW:

P.A. 88-496

The

State

Context.

According to

the “Intent

and

Purpose”

Section of

Illinois newLUST 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.

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

Administrative 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.

3

---

A.

ROLE OF THE OFFICE OF THE

STATE FIRE

MARSHAL

(OSFM)3

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

Ill. 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

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

and

57.9.)

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 of payments

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.

3while

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

appeals.

(See

R94-1 I

In

the Matter of Procedural

Rules Revision:

Appeals

from the

Office of the

State

Fire

Marsha! Determinations,

(35

111.

Adm.

Code

)Q7)

(June

30, 1994

First Notice).)

4

---

C.

ROLE OF THE

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.

ffi.

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

Director Mary

Gade dated

March

22,

1994,

(Exh.

#10) USEPA

Region

V

Director Val

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

Illinois 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

5

---

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.5

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

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.”6

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

4TheAgency

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.”)

5The

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(f), 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).

6The 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

---

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

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.7

7USTAC is

statutorily comprised of

one representative

from

each of

the following associations:

Illinois

Manufacturers Association (IMA),

the Illinois Petroleum

Council (IPC),

the Illinois Petroleum

Marketers

Association

(IPMA),

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.

7

---

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

Oi~ki.

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.8

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,

J.

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

appearences

on

the

record:

For

Agency:

Mark

Wight

Counsel

Kimberly Robinson

Counsel

Gary King

Manager,

Division of Remediation

Mgmt.

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

Paralegal

For

USTAC:

Katherine Hedge

Hodge and

Dwyer /

IERG9

8~

accordance with 35

Ill.

Adm.

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.

9IERG:

Illinois Environmental Regulatory Group.

8

---

Neil

Flynn

IPMA1°

Geoffrey

Gilman

Amoco / IPC~

Other

Participants:

J.

Randle Schick

Assistant

Chief Counsel,

IDOT’2

Whitney

W.

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’3

/

IPC

Linda Curran,

P.E.

Amoco

Philip Haffen den

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

Nineteen 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

04/18/94

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.

10IPMA:

Illinois

Petroleum

Marketers Association.

1IPC:

Illinois

Petroleum

Council.

12IDOT:

Illinois

Department of Transportation.

131SG:

Illinois Steel

Group.

9

---

PC#02

04/21/94

Comments

from

Robert L.

Johnson,

P.E.,,

Senior

Environmental

Consultant,

regarding soil

remediation objectives

in

proposed

Appendix

B.

PC#03

04/22/94

Comments

from

Connie Bradway,

Secretary of

State,

Administrative

Code Division,

regarding

corrections

to

comply

with

Cede 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

and 732.403(f);

Section

732.404(g);

Section

732.406;

Section

732.4 10;

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)(l);

Section

732.305(c)

and

(d);

Section

732.306(a),

and

(a)(2)

and

(4);

Section

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

(f),

(f)(l),

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)(l)

and

(f);

Section

732.406(a);

Section

732.407(a)(1)

10

---

and

(a)(3),

(a)(5) and

(c);

Section

732.408(a)(l)

-

(3) and

(d)(3);

Section 732.502(d);

Section

732.503(c); Section

732.504(d); and

Appendix

B.

PC#08

06/14/94

Comments

on behalf of JDOT

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

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)( 1)(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

732.410;

defends

the

Agency’s

use of the TCLP

test for determining whether

contaminated

soils

reach

Appendix

B

standards

and

specifically

addresses Sections

732. 300(b)(1),

732. 300(b)(2), 732.307(g)(4),

732.608(a)(l).

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,

Illinois

State

Geological

Survey,

regarding

the statutory

requirement of using

the

ISGS

Berg

circular

532

(1984) and

other matters.

11

---

PC#13

06/30/94

Comments

on behalf of IERG submitted

by

Kathleen

D.

Hodge,

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

Kathleen

D. Hodge,

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

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.

V.

THE

PETROLEUM

UNDERGROUND STORAGE TANK

REGULATORY

PROPOSAL

A.

HOW

THE

REGULATIONS WORK:

OBTAINING

CORRECTIVE

ACTION

AND

REIMBURSEMENT 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

12

---

Administrative

Code,

entitled

“Petroleum Underground Storage Tanks.”

This

new part

is

further divided into

six

subparts:

Subpart A,

Genera

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?)

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 orUST 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

13

---

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

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

(l4’lzat

Is

“Site

Classification”

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.

14Section 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 Il1inois~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 III

groundwater inventory.

Now, the LPE can

make this

determination on his

own 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 Ill

designations as of yet in

the

State of Illinois.

14

---

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

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

Remediated?)

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.

15

---

(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

the

GMP.

Groundwater analysis results

must be

submitted

to

the Agency within

thirty

days

of the end of the annual sampling

period.’6

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 remetiiated 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/she

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).

The

CAP

must

set

forth

how

the owner/operator intends to remediate

the

soil

and

groundwater

at the

site.

He/she can

propose a

CAP

based

upon

a

site-specific assessment of risk

pursuant

to Section

732.408

or

he/she

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).

1~lf

those

results

indicate a confirmed

exceedence of applicable

indicator contaminant objectives,

the

Agency

may reclassifS’

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 notification of the reclassification.

‘7mis

provision applies only to sites classified as low

priority, since a

no

further action

site requires

no

remediation, and a high priority

site is already

required

to conduct full

remediation.

16

---

(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

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.

~-Ifthe 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:

Agency Review 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.

17

---

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

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

18

---

these rules the

Act’s deferment provisions

were the subject of federal

objection since the

USEPA maintains that

environmental

liability 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

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(f).)

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)(l) and

(c)),

as well as denial

19

---

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(1) and 732.602(h) as

providing

for a’.peal.

(PC #10 at

17.)

However,

to

ensure

that the rules clearly

state

that

those

completeness determinations are appealable

to

the Board, we have added the sentence

“amy

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

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.’5 At ourMay 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

18The Board has in the

past

opened

subdockets in rulemakings in order

to separate issues which are

more specific

or require more

time to resolve.

(See In the Matter of:

Regulation of Steel

and Foundries and Landfill

Amendments

(R90-26(A)

and (B).)

20

---

purpose of developing

risk-based

soil

remediation

cleanup objectives for leaking

underground

storage tank

sites

and

dealing with

select other issues)9

2.

Site Remediation

Objectives In the Rules

As

Proposed

(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”

t9Specifically,

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.

20From 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 writing

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),

21

---

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.

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.22

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#l4

(IPMA), PC#l6

(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

215ee King

Testimony 4/27/94 Tr. at

29

and

37.

The record does not provide a

clear explanation of what the

Agency

means when it uses

the phraseology

~‘default”numbers.

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#10,

no

public

comments

support

Appendix

B.

22

---

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

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 (VOCs),

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.

Appendix

B:

Groundwater Cleanup

Objectives

The Agency

has proposed the

Class

I groundwater quality

standards under

35

Ill. 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

R93-2723,

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

PQL24 of the SW-846

methodologies25.

(Exh.

6

at 8.)

For the

non-carcinogenic

the

Matter of:

Groundwater Protection:

Amendments

to Groundwater Quality

Standards

(35

Ill.

Adm.

Code 620), R93-27, (March

17,

1994

First Notice)

.)

24”Practical Quantitation

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.

25”Test

Methods

for Evaluating

Solid

Wastes,

Physical/Chemical

Methods,”

EPA Publication

No.

SW-846

(Third

Edition,

1986,

as

amended

by

Revision I,

Final Update

1, July

1992), Doc.

No.

PB

89-148076.

23

---

chemicals (PNAs)

having

RfD26

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.

The Board

finds

that the proposed groundwater remediation objectives set

forth

in

Appendix

B provide reasonable levels

for corrective action

at LUST

sites

that

are protective

of human health

and

environment.

Further,

the Board

believes

that the proposed

objectives

are

consistent

with

statutory

and current regulatory

requirements.

However,

the

Board

believes

that

it may not

be appropriate to apply

these remediation objectives to

LUST

sites

impacting

Class II 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.27

The Agency states that if the concentration

of metals in

the TCLP extract

does

not exceed

the groundwater

standard,

then

the residual

metal

26Reference Dose (RfD):

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.

(Exh. 21A

at

22A)

27TCLP is a procedure by

which the contaminants ability to leach

into aqueous phase

is measured.

Solid

sample

is mixed

with

a acidic solution

(pH

of 2

or lower)

and the mixture is shaken

for

24

hours.

The resulting

extract

is analyzed for presence of contaminants.

24

---

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

).

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,

Toluene,

Ethyl

Benzene

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

(K~),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.2~(K~

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.

Therefore,

the

soil

cleanup objectives

would

be

the same as the groundwater cleanup

objectives.

Immobile Organic

Chemicals. (K~

1100):

For this class of chemicals,

the Agency

assumes that

a 20-fold

dilution would

occur as

the chemical

moves through

the

unsaturated

zone as well the saturated

zone to reach the compliance

point.

Following

this

28Under these assumptions

33

out of the listed 65

organic chemicals are

considered

to be mobile

and

the

remaining chemicals are

considered

to be immobile,

I

---

assumption,

the soil cleanup objectives are calculated by

multiplying

the groundwater

standards

by

the factor of

2029.

The Agency did not utilize

any

modeling procedure

in

developing

the

soil

cleanup

objectives.

However, the Agency presented

a brief overview of a two-phased

modeling

exercise undertaken by

the Agency

in

1992

to

support the proposed

objectives.

The

modeling

was performed

to

get an idea of how

contaminants from

LUST

sites behave in

the

environment when

released

and

to

allowes the Agency to

set

soil cleanup

objectives based

upon

“real

life”

situations rather

than conservative assumptions.

(Exh.

6 at

13.)

The

Agency

contends

that the modeling

results support

the conservative assumptions originally

made by

the Agency when

it developed

the proposed cleanup objectives.

(Exh

6.

at 20.)

(d)

Appendix

B:

Board Analysis of Soil Cleanup Objectives

The following comments address

the Agency’s proposal

as

it

relates

to

the development

of

soil

remediation

objectives for organic chemicals proposed

in

Appendix

B.

We

also

attempt

to address USEPA’s general

concerns

regarding

corrective action remediation

objectives.

(i)

Agency’s Classification of Mobile and Immobile Organic

Chemicals.

The

Agency has used

~

as

the criterion

for

classifying organic chemicals as

mobile

and

immobile.

The Board notes that the Agency

has

chosen

ethylbenzene’s K~value

(1100)

as the threshold for

classifying

organic

chemicals as

mobile or immobile30.

The

Agency

contends that the threshold K~

value

is reasonable based

on

its

experience, however,

nothing was

entered

into

the record

to

support

this general

statement.

(Dr.

Hornshaw

Testimony 04/27/94 Tr.

at

138-150.)

The

Agency argues

that the objectives evolved

over a period of years

and

was driven

by

principles of geology,

hydrology,

chemistry

and

toxicology informed by

Agency experience,

confirmatory modeling

exercises

and input

from the regulated community.

(PC#10 at

7.)

The

Agency could not, however,

describe

those principles and did not enter into

the record

sufficient

modeling exercises,

as

discussed below,

to support

its

finding,

in

addition, the

Agency has

used dilution

attenuation factors

that were

unsupported

by

the record

to

calculate

soil remediation

objectives for immobile constituents.

(O’Brien

and

Dr. Johnson Testimony

05/23/94 Tr.

at 61-69.)

The Board

believes that

soil

remediation

objectives

must

be

based

on

sound

scientific principles which take into

account the factors

that affect the subsurface transport

29Forexample,

if a chemical

(Pyrene) has a groundwater standard of

0.21

mg/I,

then

the

soil cleanup

objective

is 0.21

x

20

=

4.2 mg/kg.

30The adsorption

coefficient K~,which is a measure

of extent

to which a chemical

partitions itself between soil

particle and water ranges

from

1

to

10,000,000.

26

---

of chemicals such as chemical properties,

site geological characteristics,

etc.

In this

regard,

the

Board

finds

that the Agency

has not justified

the proposed soil

remediation

objectives for organic chemicals.

(ii)

Agency’s Modeling

Exercise.

No

meaningful

conclusions

can be drawn

from

the

modeling

report

(Exh.

26) submitted

by the Agency.

Models

such as

those used by

the Agency are designed

with numerous

underlying assumptions.

These assumptions

must

be

understood thoroughly to draw any

meaningful conclusion from

the results

produced

by the

model.

Actually,

the Board

has adopted standards for the contaminant

transport

models under

its

landfill regulation at

35

Ill.

Adm.

Code 811.317(c),

which

specifies the

informational requirements

for groundwater contaminant

transport

models.

However, the

voluminous report

submitted

by

the Agency

mostly consists

of the values of the

parameter fed into the

model and

the model’s output.

There

is

no

supporting

discussion

that alludes to

the choice of the

models or the rationale for choosing

one

set of values

over others.

Further,

the modeling

report does

not

include

any

information relating to

model

calibration

and

sensitivity analysis.

(e)

Appendix

B:

Board

Conclusion

The Board

has evaluated the Agency’s proposal

and

the supporting

documents to

determine whether the proposed cleanup objectives

in

Appendix

B

are technically

sufficient.

The evaluation indicates the Agency’s rationale for establishing

groundwater

remediation

objectives is consistent

with

the procedures

adopted by

the Board

under

Part 620.

Further,

the proposed soil

remediation

objectives for toxic

heavy

metals based

on

the TCLP

procedure are appropriate on

an

interim

basis.

However, the procedure used

by

the Agency

to develop the

soil

remediation

objectives

for organic chemicals (such as

BTEX)

which

are

the major concern at petroleum UST sites, is not supported by the

record.

Therefore,

the

Board

does not

adopt the Appendix

B

soil remediation

numbers for

organics

as

proposed.

4.

Alternatives to

Appendix

B

The participants

in

this

rulemaking introduced

into the record a

number of objective risk-

based

soil

remediation

approaches as alternatives

to

the proposed

Appendix

B soil

remediation

numbers.

These

alternatives

included

the regulations of other states such as

Ohio

(submitted

by Marathon

Oil

Company, Exh.

14), Texas (submitted

by

the USEPA,

PC#19) and

Iowa

(submitted by

Amoco

Oil

Company,

Exh.

20), as well as the ASTM

guidelines for risk-based

corrective action

at petroleum UST

sites

(submitted

by

Shell

Oil

Company, Exh.

21), and

a

methodology

developed

by

Michael

Rapps

on

behalf of IPMA

which

incorporates

certain

elements of the ASTM

guidelines

(Exh.

22.)

The USEPA

and

the

participants,

with

the exception of the Agency, strongly urged the Board

to

consider the

approach taken by

other states and/or the ASTM

guidelines

in

developing

a

risk-based

approach.

Furthermore,

both

IPMA

and

the USTAC

supported

consideration

of the IPMA

27

---

proposal.

The following

is

a discussion

of the Board’s technical

review of these

alternatives.31

(a)

The ASTM Guidelines

Dr.

Paul

Johnson of Shell

Oil

Company testified at the May

23,

1994

hearing concerning

the ASTM

approach (Dr.

Johnson

Testimony 05/23/94 Tr.

at 228.)

He explained that

the

ASTM guide is

not a

methodology

for doing a risk

assessment,

rather it is a framework for

making

risk-based

decisions when determining what corrective action

is

appropriate.

(Dr.

Johnson

Testimony 05/23/94 Tr.

at 262.) It

establishes the basic components and

sequence of

steps

to be taken when

making risk-based

decisions.

(Dr. Johnson

Testimony 05/23/94 Tr.

at 266.)

The ASTM guide was developed

to

assist

states

in

customizing corrective action

programs incorporating

risk-based

decision-making.

(Johnson

Testimony

05/23/94 Tr.

at 266

and 278.)

Since it not

intended

to

be used as

a

methodology for performing site assessments,

the models and

equations that are proposed

in

the ASTM

document

are only

intended

to

be

examples of risk-based

calculations,

and

are not

necessarily

intended

to

establish a

specific

method

to be

followed.

(Johnson Testimony 05/23/94 Tr.

at 260.)

Therefore,

while the

ASTM guide

is a

valuable

tool for establishing a

risk-based program,

it cannot by

itself

generate

the specific

values necessary

for an

operational program.

The ASTM

risk-based

corrective action

(RBCA) process

is

implemented

in

a tiered

approach involving

increasingly sophisticated levels of data collection

and

analysis.

The

process includes three tiers

where

conservative assumptions of earlier

tiers are replaced

with

more site-specific data.

Upon completion

of each tier,

the user reviews

the results

and

decides if more site-specific analysis

is

required.

The decision to

go

to

the next tier

is

mainly

based

on

the cost of achieving the goals of the previous

tier.

The following is a brief

description of ASTM

process.

Tier

1:

In general,

Tier

1

involves

the development of Risk

Based Screening Levels

(RBSLs)

based

on

conservative non-site specific

assumptions,

since site-specific

information is not

available.

The Tier

I

RBSLs

would

be

based on

conservative

corrective action

goals,

such

as Maximum

Contaminant

Level

(MCL).

The Tier

1

analysis would

produce a

“lookup

table”

for all

sites.

Such a

“lookup

table”

must

be

updated periodically

to

incorporate

new toxicological data.

Tier

1

RBSLs may be

presented

as a range of values,

corresponding to

a range of risks.

The screening levels to

31Regarding the approaches taken by

Illinois sister

states,

especially

Ohio

and Texas,

the

Board agrees

that

these risk-based

approaches are

quite

worthy of examination in the

subdocket.

The Board finds

that

none of

these approaches

can be adopted

in the

immediate regulations

because a

more detailed review

would

be

necessary to customize them

to Illinois and statutory

framework.

28

---

be

used are then chosen

based

on

a

risk

management

decision.

In

this regard,

the user

may include

a

cost

benefit

analysis

to

determine

the cost of achieving various

risk

levels.

Tier

2:

Tier

2

involves the development of Site Specific

Target

Levels

(SSTLs).

If the

cost of cleanup

to

achieve Tier

1

levels (RBSLs)

is

too

high

compared

to

cost of Tier

2

analysis,

then

user may

choose

to

conduct Tier

2

analysis.

This decision

is

based

on

the

assumption

that

cleanup cost of Tier

1

is

higher than the

total

cost of development of

SSTLs and

cleanup

at SSTLs.

It

should be noted

that

RBSLs

and

SSTLs

should

be

developed

at the same risk

level

such

as one

in a

million.

Additional

site assessment data

may be

required, but

minimal

incremental effort

is

usually required relative to Tier

1.

Tier

3:

Tier 3

gives

the user an

option

to

further evaluate a

site

to

develop appropriate

SSTLs.

The level of analysis

under Tier

3

is

much

more complex

than Tier 2.

The

decision to

conduct Tier 3

analysis is

based on

assumption that a

total

cost of analysis for

Tier

3

and

cleanup at Tier

3

level

is

less

than the

total

cost of analysis of Tier

2 and

cleanup

at Tier

2

level.

The

major difference between Tier

2

and

Tier 3

is

that Tier

3

requires substantial

effort

to

analyze a

site in

great detail

and

conduct site-specific

transport models.

As

noted above,

in

order

to compare

the cost of each

tier,

the analysis

must be

conducted

at the

same risk

level (i.e. one

in

million or

one in

10,000,

etc.)

The participants urged the Board to use ASTM principles to develop more objective site-

based

cleanup objectives. The participants noted that the ASTM

guide provides

a

good

starting

point for developing a

RBCA procedure that

may be

used

in

Illinois.

Because the

ASTM guide is not intended to provide specific standards for cleanup ofLUST sites,

and

because of the statutory

time

constraints in

this

rulemaking,

the public participants,

with

the

exception of IPMA

(which

favors adoption of its

own proposal,

outlined

below), believe that

the development of alternative remediation

objectives based

on

the ASTM guide must

be

considered

in a separate docket.

The Board

believes

that

the ASTM

guide offers a

reasonable

approach

for calculating

risk-based

cleanup objectives.

However, the ASTM guide is

not

specific

enough

to

be

used

as

a

standard method.

Appropriate assumptions

must

be

established

and

appropriate input

parameters

must

be

selected

before actual values can be generated.

Therefore,

the Board

agrees

with

the participants that

development of such

an

alternative

methodology

would

be

more

suitably

addressed

in

the new

subdocket.

(b)

IPMA’s Proposal

On behalf of IPMA,

Michael

Rapps of Rapps

Engineering and

Applied

Science,

developed

a

site assessment

methodology

incorporating certain components of the ASTM

guidelines.

IPMA

states

that

its

proposal

uses objective procedures to

determine reasonable

cleanup

standards,

which are protective of human

health

and

the environment

(Exh.

#22),

and

at the

same

time

protective of the financial integrity

of the

UST Fund.

The

Board

notes

29

---

that USTAC,

in

its post-hearing comments,

states that

the IPMA proposal

is worthy of Board

consideration as an

alternative to

the Agency’s proposed

Appendix

B.

(PC#

18

at

2.)

The IPMA

proposal

establishes

its own

site classification

system

unrelated

to the ASTM

guidelines.

The proposal

classifies the

sites

under HP

classification

into

three groups based

on

location of water wells

within the vicinity of a

LUST site.

It

then applies ASTM

analytical equations to

establish

cleanup objectives within this

classification system.

The

following section describes the approach taken

in

the IPMA

proposal.

(i)

General Provisions

Site Classification.

The proposal

classifies HP

LUST

sites

into

one of the following

three conditions on

the basis

of location of potable water wells

in

the vicinity of a

LUST:

Condition

1:

Sites

where

a water well exist or

is

likely

to exist within 200

feet of

contaminant source.

The proposal considers

this

class

as the

“worst” case and

suggests that

the Agency’s Appendix

B levels

are appropriate.

Condition

2:

Sites

where

water wells

do

not

exist,

and

are

unlikely

to

exist,

within 200 feet of the

source of contamination, but

where

wells exist or

may exist

in the future at a

distance ranging from

200

to

1000 feet from

the source of

contamination.

This condition

is

considered as

a

“typical”

or

an “average” case,

where

the cleanup

levels would

be

less

stringent

than Condition

1.

Condition

3:

Sites

where

there

is

little or no

risk

to

potable

groundwater because

there are no

water wells

within

1000

feet

of the contaminant

source,

and

where

it

is unlikely

that

water wells

will be

installed in

the

future.

This

class

is

considered

as the “best” case,

where cleanup

standards

would

be

less

stringent

than those

proposed

for Condition

2.

Cleanup Objectives Calculations.

As noted

above, the IPMA

proposal

accepts

the

Agency’s Appendix

B

levels as

the cleanup

objectives for sites

classified

under

Condition

1.

The cleanup objectives for sites

under Condition

2

and

3

are

calculated

in

a

different

manner than

the Agency’s method.

The proposal

states

that

if there are

existing

Class

I

and

Class

II

standards for a chemical

under Part

620,

then the

proposal

would

use those

standards

as

groundwater

objectives.

If Part 620

standards

do

not exist

for any indicator chemicals, the risk-based

screening

levels are

determined

by using

certain equations drawn from

the ASTM

guide.

The proposal

calculates

the soil

remediation

objectives at the source

using

the groundwater

objectives at the compliance

point, and

the ASTM

equations are then used

to account

for steady

state attenuation of the chemical concentration,

and

to

account for the

soil

leaching

factor.

The ASTM

equations are

identified as

“Equation

No.

3 and

“Equation

No.

4”

in

the IPMA

proposal.

(Exh.

#23,

Rapps

Memo at 2.)

30

---

(ii)

Board

Analysis

of IPMA

Proposal

The Board

believes that the IPMA proposal’s

general

approach of determining

remediation objectives

using

an

analytical model

has

merit.

However,

the proposal as

presented contains certain errors and

assumptions which

are

somewhat problematic.

First,

the proposal

as presented by

IPMA

relies on

an incorrect ASTM equation.

Second,

the proposal

establishes groundwater

objectives based

on

unsubstantiated

risk

levels.

These groundwater objective are arguably inconsistent with current regulatory

requirements.

These issues are discussed

in detail below.

Incorrect

ASTM equation.

After

closely examining the

ASTM groundwater

transport

equation used in

the IPMA

proposal,

the

Board

has

discovered a

significant

typographical error

in

the ASTM

analytical

equation

(a missing

“square root”

symbol)

which

causes the equation

as used by IPMA

to generate incorrect results.

This error

exists in

the groundwater transport equation

presented in

the ASTM

guidance

document.

(Exh.

#21A, Table Cl