ILLINOIS POLLUTION CONTROL BOARD

ORDER

July 27, 2000

IN THE MATTER OF:

PROPOSED AMENDMENTS TO TIERED APPROACH TO CORRECTIVE ACTION OBJECTIVES (TACO) (35 ILL. ADM. CODE 742)

)

R00-19(A)

(Rulemaking – Land)

Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis, M. McFawn, N.J. Melas):

On May 15, 2000, the Illinois Environmental Protection Agency (Agency) filed a proposal to amend 35 Ill. Adm. Code 742 of the Board’s land regulations, which are commonly referred to as the TACO rules. The TACO rules were originally adopted by the Board on June 5, 1997, in In re Tiered Approach to Corrective Action Objectives (TACO): 35 Ill. Adm. Code 742, R97-12(A). Part 742 contains procedures for developing remediation objectives based on risks to human health and the environment posed by environmental conditions at sites undergoing remediation in the Site Remediation Program, the Leaking Underground Storage Tank Program, and pursuant to Resource Conservation and Recovery Act Part B permits and closures.

The Board accepted this matter for hearing on May 18, 2000. The Agency submitted these proposed amendments to address several aspects of TACO that, with the benefit of time and practical experience, it believes are in need of clarification and correction. Statement of Reasons at 2. The Agency also proposes the adoption of a new legal instrument called the “Environmental Land Use Control” (ELUC). The adoption by the Board of these amendments is authorized pursuant to Sections 27 and 28 of the Environmental Protection Act (Act) (415 ILCS 5/27, 28 (1998)). Today the Board sends this regulatory proposal to first notice under the Administrative Procedures Act without commenting on the merits of the proposed rules.

5 ILCS 100/1-1 et seq. (1998).

To facilitate expedited rulemaking, the Board is also creating two subdockets. The proposed amendments have been separated into two subdockets, subdocket A and B, based upon subject matter. The amendments proposed in this subdocket A which pertain to ELUCs are subject to a statutory adoption deadline. They must be adopted as final rules no later than January 6, 2001. See Pub. Act 91-0909. None of the remaining amendments (those in subdocket B) are subject to that adoption deadline. For this reason, the Board is separating this rulemaking into two subdockets. In the event that it becomes necessary to move forward more expeditiously with the subdocket A amendments, the framework will already be in place for that to be accomplished.

Both subdockets will proceed at this time to first notice and public hearing simultaneously. To further expedite this rulemaking, the public hearings have already been scheduled pursuant to a hearing officer order issued on July 21, 2000. The first hearing is scheduled for August 25, 2000, in Chicago and the second is set for September 11 and 12, 2000, in Springfield. If necessary, a third hearing will be held in Chicago on September 22, 2000.

SUBDOCKET (A)

This subdocket A contains the Agency’s proposed amendments to Subpart J and elsewhere in Part 742 which pertain to ELUCs and institutional controls. Specifically, the Agency proposes to replace use of the “deed restriction” as an institutional control, with the new ELUC.

On July 7, 2000, Governor George H. Ryan, signed into law Public Act 91-0909, which provides for the creation of the ELUC in new Section 58.17 of the Act. Public Act 91-0909 gives the Agency two months from the date of enactment to propose regulations to the Board; and gives the Board six months after receipt of an Agency proposal to enact regulations. Despite the fact that the Agency submitted its proposal prior to the effective date of this legislation, it is clear from the language of the statute that the legislature intended to give the Board a full six months in which to examine the ELUC issue. Accordingly, the Board is required to complete the ELUC portion of this rulemaking by January 6, 2001.

Additional details about the hearings and other matters will be addressed in future hearing officer orders as needed.

ORDER

The Board directs the Clerk to cause the filing of the following with the Secretary of State for first-notice publication in the Illinois Register.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER f: RISK BASED CLEANUP OBJECTIVES

PART 742
TIERED APPROACH TO CORRECTIVE ACTION OBJECTIVES

SUBPART A: INTRODUCTION

Section

742.930 Intent and Purpose

742.105

Applicability

742.110	Overview of Tiered Approach
742.115	Key Elements
742.120	Site Characterization

SUBPART B: GENERAL

Section

742.930 Definitions
742 Severability
742 Incorporations by Reference
742 Determination of Soil Attenuation Capacity

742.220 Determination of Soil Saturation Limit

742.225 Demonstration of Compliance with Remediation Objectives

742.230 Agency Review and Approval

SUBPART C: EXPOSURE ROUTE EVALUATIONS

Section

742.300 Exclusion of Exposure Route

742.305 Contaminant Source and Free Product Determination

742.310 Inhalation Exposure Route

742.315 Soil Ingestion Exposure Route

742.320 Groundwater Ingestion Exposure Route

SUBPART D: DETERMINING AREA BACKGROUND

Section

742.930 Area Background

742.405 Determination of Area Background for Soil

742.410 Determination of Area Background for Groundwater

742.415 Use of Area Background Concentrations

SUBPART E: TIER 1 EVALUATION

Section

742.930 Tier 1 Evaluation Overview

742.505 Tier 1 Soil and Groundwater Remediation Objectives

742.510 Tier 1 Remediation Objectives Tables

SUBPART F: TIER 2 GENERAL EVALUATION

Section

742.930 Tier 2 Evaluation Overview
742 Land Use
742 Chemical and Site Properties

SUBPART G: TIER 2 SOIL EVALUATION

Section

742.930 Tier 2 Soil Evaluation Overview
742 Parameters for Soil Remediation Objective Equations
742 SSL Soil Equations
742 RBCA Soil Equations
742.930 Chemicals with Cumulative Noncarcinogenic Effects

SUBPART H: TIER 2 GROUNDWATER EVALUATION

Section

742.930 Tier 2 Groundwater Evaluation Overview
742.930 Tier 2 Groundwater Remediation Objectives

742.810 Calculations to Predict Impacts from Remaining Groundwater Contamination

SUBPART I: TIER 3 EVALUATION

Section

742.930 Tier 3 Evaluation Overview
742 Modifications of Parameters
742.930 Alternative Models
742.930 Formal Risk Assessments
742.930 Impractical Remediation
742 Exposure Routes
742 Derivation of Toxicological Data

SUBPART J: INSTITUTIONAL CONTROLS

Section

742.1000 Institutional Controls

742.1005 No Further Remediation Letters

742.1010

~~Restrictive Covenants, Deed Restrictions and Negative Easements~~Environmental Land Use Controls

742.1015 Ordinances

742.1020 Highway Authority Agreements

SUBPART K: ENGINEERED BARRIERS

Section
742.1100			Engineered Barriers
742.1105			Engineered Barrier Requirements

APPENDIX A

General

ILLUSTRATION A	Developing Soil Remediation Objectives Under the Tiered Approach
ILLUSTRATION B	Developing Groundwater Remediation Objectives Under the Tiered Approach

TABLE A	Soil Saturation Limits (C_sat) for Chemicals Whose Melting Point is Less than 30° C
TABLE B	Tolerance Factor (K)
TABLE C	Coefficients {A_N-I+1} for W Test of Normality, for N=2(1)50
TABLE D	Percentage Points of the W Test for N=3(1)50
TABLE E	Similar-Acting Noncarcinogenic Chemicals
TABLE F	Similar-Acting Carcinogenic Chemicals
TABLE G	Concentrations of Inorganic Chemicals in Background Soils
TABLE H	Chemicals Whose Tier 1 Class I Groundwater Remediation Objective Exceeds the 1 in 1,000,000 Cancer Risk Concentration

APPENDIX B

Tier 1 Tables and Illustrations

ILLUSTRATION A

Tier 1 Evaluation

TABLE A	Tier 1 Soil Remediation Objectives for Residential Properties
TABLE B	Tier 1 Soil Remediation Objectives for Industrial/Commercial Properties
TABLE C	pH Specific Soil Remediation Objectives for Inorganics and Ionizing Organics for the Soil Component of the Groundwater Ingestion Route (Class I Groundwater)
TABLE D	pH Specific Soil Remediation Objectives for Inorganics and Ionizing Organics for the Soil Component of the Groundwater Ingestion Route (Class II Groundwater)
TABLE E	Tier 1 Groundwater Remediation Objectives for the Groundwater Component of the Groundwater Ingestion Route
TABLE F	Values Used to Calculate the Tier 1 Soil Remediation Objectives for the Soil Component of the Groundwater Ingestion Route

APPENDIX C

Tier 2 Tables and Illustrations

ILLUSTRATION A	Tier 2 Evaluation for Soil
ILLUSTRATION B	Tier 2 Evaluation for Groundwater
ILLUSTRATION C	US Department of Agriculture Soil Texture Classification

TABLE A	SSL Equations
TABLE B	SSL Parameters
TABLE C	RBCA Equations
TABLE D	RBCA Parameters
TABLE E	Default Physical and Chemical Parameters
TABLE F	Methods for Determining Physical Soil Parameters
TABLE G	Error Function (erf)
TABLE H	Q/C Values By Source Area
TABLE I	K_oc Values for Ionizing Organics as a Function of pH (cm³/g or L/kg)
TABLE J	Values to be Substituted for k_s when Evaluating Inorganics as a Function of pH (cm³water/g_soil])

TABLE K		Parameter Estimates for Calculating Water-Filled Soil Porosity (q _w)

AUTHORITY: Implementing Sections 22.4, 22.12, Title XVI, Title XVII, and Public Act 91-0909, and authorized by Sections 27, 57.14, and 58.5 of the Environmental Protection Act [415 ILCS 5/22.4, 22.12, 27, 57.14 and 58.5 and Title XVI and Title XVII].

SOURCE: Adopted in R97-12(A) at 21 Ill. Reg. 7942, effective July 1, 1997; amended in R97-12(B) at 21 Ill. Reg. 16391, effective December 8, 1997; amended in R97-12(C) at 22 Ill. Reg. 10847, effective June 8, 1998; amended in R00-19(A) at 24 Ill. Reg. _______, effective ____________________.

NOTE: Capitalization indicates statutory language.

SUBPART B: GENERAL

Section 742.200

Definitions

Except as stated in this Section, or unless a different meaning of a word or term is clear from the context, the definition of words or terms in this Part shall be the same as that applied to the same words or terms in the Act.

"Act" means the Illinois Environmental Protection Act [415 ILCS 5] .
"ADL" means Acceptable Detection Limit, which is the detectable concentration of a substance ~~which~~ that is equal to the lowest appropriate Practical Quantitation Limit (PQL) as defined in this Section.
"Agency" means the Illinois Environmental Protection Agency.
"Agricultural Property" means any real property for which its present or post-remediation use is for growing agricultural crops for food or feed either as harvested crops, cover crops or as pasture. This definition includes, but is not limited to, properties used for confinement or grazing of livestock or poultry and for silviculture operations. Excluded from this definition are farm residences, farm outbuildings and agrichemical facilities.
"Area Background" means concentrations of regulated substances that are consistently present in the environment in the vicinity of a site that are the result of natural conditions or human activities, and not the result solely of releases at the site. [415 ILCS 5/58.2]
"ASTM" means the American Society for Testing and Materials.
"Board" means the Illinois Pollution Control Board.
"Cancer Risk" means a unitless probability of an individual developing cancer from a defined exposure rate and frequency.
"Cap" means a barrier designed to prevent the infiltration of precipitation or other surface water, or impede the ingestion or inhalation of contaminants.
"Carcinogen" means a contaminant that is classified as a category A1 or A2 carcinogen by the American Conference of Governmental Industrial Hygienists; a category 1 or 2A/2B carcinogen by the World Health Organization's International Agency for Research on Cancer; a "human carcinogen" or "anticipated human carcinogen" by the United States Department of Health and Human Service National Toxicological Program; or a category A or B1/B2 carcinogen by the United States Environmental Protection Agency in the integrated risk information system or a final rule issued in a Federal Register notice by the USEPA. [415 ILCS 5/58.2]
"Class I Groundwater" means groundwater that meets the Class I: Potable Resource Groundwater criteria set forth in 35 Ill. Adm. Code 620.
"Class II Groundwater" means groundwater that meets the Class II: General Resource Groundwater criteria set forth in 35 Ill. Adm. Code 620.
"Conservation Property" means any real property for which present or post-remediation use is primarily for wildlife habitat.
"Construction Worker" means a person engaged on a temporary basis to perform work involving invasive construction activities including, but not limited to, personnel performing demolition, earth-moving, building, and routine and emergency utility installation or repair activities.
"Contaminant of Concern" or "Regulated Substance of Concern" means any contaminant that is expected to be present at the site based upon past and current land uses and associated releases that are known to the person conducting a remediation based upon reasonable inquiry. [415 ILCS 5/58.2]
"Engineered Barrier" means a barrier designed or verified using engineering practices that limits exposure to or controls migration of the contaminants of concern.
"Environmental Land Use Control" means an instrument placed in the chain of title to real property that limits or places requirements upon the use of the property for the purpose of protecting human health or the environment, is binding upon the property owner, heirs, successors, assigns, and lessees, and runs in perpetuity or until the Agency approves, in writing, removal of the limitation or requirement from the chain of title.
"Exposure Route" means the transport mechanism by which a contaminant of concern reaches a receptor.
"Free Product" means a contaminant that is present as a non-aqueous phase liquid for chemicals whose melting point is less than 30 ° C (e.g., liquid not dissolved in water).
"Groundwater" means underground water which occurs within the saturated zone and geologic materials where the fluid pressure in the pore space is equal to or greater than atmospheric pressure. [415 ILCS 5/3.64]
"Groundwater Quality Standards" means the standards for groundwater as set forth in 35 Ill. Adm. Code 620.
"Hazard Quotient" means the ratio of a single substance exposure level during a specified time period to a reference dose for that substance derived from a similar exposure period.
"Highway" means any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term "highway" includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a "road", while a highway in a municipal area may be called a "street". (Illinois Highway Code) [605 ILCS 5/2-202]
"Highway Authority" means the Department of Transportation with respect to a State highway; the County Board with respect to a county highway or a county unit district road if a discretionary function is involved and the County Superintendent of Highways if a ministerial function is involved; the Highway Commissioner with respect to a township or district road not in a county unit road district; or the corporate authorities of a municipality with respect to a municipal street. (Illinois Highway Code) [605 ILCS 5/2-213]
"Human Exposure Pathway" means a physical condition which may allow for a risk to human health based on the presence of all of the following: contaminants of concern; an exposure route; and a receptor activity at the point of exposure that could result in contaminant of concern intake.
"Industrial/Commercial Property" means any real property that does not meet the definition of residential property, conservation property or agricultural property.
"Infiltration" means the amount of water entering into the ground as a result of precipitation.
"Institutional Control" means a legal mechanism for imposing a restriction on land use, as described in Subpart J.
"Man-Made Pathways" means constructed physical conditions that may allow for the transport of regulated substances including, but not limited to, sewers, utility lines, utility vaults, building foundations, basements, crawl spaces, drainage ditches, or previously excavated and filled areas. [415 ILCS 5/58.2]
"Natural Pathways" means natural physical conditions that may allow for the transport of regulated substances including, but not limited to, soil, groundwater, sand seams and lenses, and gravel seams and lenses. [415 ILCS 5/58.2]
~~"Negative Easement" means a right of the owner of the dominant or benefitted estate or property to restrict the property rights of the owner of the servient or burdened estate or property.~~
"Person" means an individual, trust, firm, joint stock company, joint venture, consortium, commercial entity, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, or any interstate body including the United States government and each department, agency, and instrumentality of the United States. [415 ILCS 5/58.2]"Point of Human Exposure" means the point(s) at which human exposure to a contaminant of concern may reasonably be expected to occur. The point of human exposure is at the source, unless an institutional control limiting human exposure for the applicable exposure route has been or will be in place, in which case the point of human exposure will be the boundary of the institutional control. Point of human exposure may be at a different location than the point of compliance.
"PQL" means practical quantitation limit or estimated quantitation limit, which is the lowest concentration that can be reliably measured within specified limits of precision and accuracy for a specific laboratory analytical method during routine laboratory operating conditions in accordance with "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods", EPA Publication No. SW-846, incorporated by reference in Section 742.210. When applied to filtered water samples, PQL includes the method detection limit or estimated detection limit in accordance with the applicable method revision in: "Methods for the Determination of Organic Compounds in Drinking Water, Supplement II", EPA Publication No. EPA/600/4-88/039; "Methods for the Determination of Organic Compounds in Drinking Water, Supplement III", EPA Publication No. EPA/600/R-95/131, all of which are incorporated by reference in Section 742.210.
"RBCA" means Risk Based Corrective Action as defined in ASTM E-1739-95, as incorporated by reference in Section 742.210.
"RCRA" means the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6921).
"Reference Concentration (RfC)" means an estimate of a daily exposure, in units of milligrams of chemical per cubic meter of air (mg/m(3)), to the human population (including sensitive subgroups) that is likely to be without appreciable risk of deleterious effects during a portion of a lifetime (up to approximately seven years, subchronic) or for a lifetime (chronic).
"Reference Dose (RfD)" means an estimate of a daily exposure, in units of milligrams of chemical per kilogram of body weight per day (mg/kg/d), to the human population (including sensitive subgroups) that is likely to be without appreciable risk of deleterious effects during a portion of a lifetime (up to approximately seven years, subchronic) or for a lifetime (chronic).
"Regulated Substance" means any hazardous substance as defined under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510) and petroleum products including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). [415 ILCS 5/58.2]
"Residential Property" means any real property that is used for habitation by individuals, or where children have the opportunity for exposure to contaminants through soil ingestion or inhalation at educational facilities, health care facilities, child care facilities or outdoor recreational areas. [415 ILCS 5/58.2]
~~"Restrictive Covenant or Deed Restriction" means a provision placed in a deed limiting the use of the property and prohibiting certain uses. (Black's Law Dictionary, 5th Edition)~~
"Right of Way" means the land, or interest therein, acquired for or devoted to a highway. (Illinois Highway Code) [605 ILCS 5/2-217]
"Similar-Acting Chemicals" are chemical substances that have toxic or harmful effect on the same specific organ or organ system (see Appendix A.Tables E and F for a list of similar-acting chemicals with noncarcinogenic and carcinogenic effects).
"Site" means any single location, place, tract of land or parcel of property, or portion thereof, including contiguous property separated by a public right-of-way. [415 ILCS 5/58.2]
"Slurry Wall" means a man-made barrier made of geologic material which is constructed to prevent or impede the movement of contamination into a certain area.
"Soil Saturation Limit (C[sat]" means the contaminant concentration at which soil pore air and pore water are saturated with the chemical and the adsorptive limits of the soil particles have been reached.
"Solubility" means a chemical specific maximum amount of solute that can dissolve in a specific amount of solvent (groundwater) at a specific temperature.
"SPLP" means Synthetic Precipitation Leaching Procedure (Method 1312) as published in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as incorporated by reference in Section 742.210.
"SSL" means Soil Screening Levels as defined in USEPA's Soil Screening Guidance: User's Guide and Technical Background Document, as incorporated by reference in Section 742.210.
"Stratigraphic Unit" means a site-specific geologic unit of native deposited material and/or bedrock of varying thickness (e.g., sand, gravel, silt, clay, bedrock, etc.). A change in stratigraphic unit is recognized by a clearly distinct contrast in geologic material or a change in physical features within a zone of gradation. For the purposes of this Part, a change in stratigraphic unit is identified by one or a combination of differences in physical features such as texture, cementation, fabric, composition, density, and/or permeability of the native material and/or bedrock.
"TCLP" means Toxicity Characteristic Leaching Procedure (Method 1311) as published in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as incorporated by reference in Section 742.210.
"Total Petroleum Hydrocarbon (TPH)" means the additive total of all petroleum hydrocarbons found in an analytical sample.
"Volatile Organic Compounds (VOCs)" means organic chemical analytes identified as volatiles as published in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846 (incorporated by reference in Section 742.210), method numbers 8010, 8011, 8015, 8020, 8021, 8030, 8031, 8240, 8260, 8315, and 8316. For analytes not listed in any category in those methods, those analytes which have a boiling point less than 200^oC and a vapor pressure greater than 0.1 Torr (mm Hg) at 20 ° C.

(Source: Amended in R00-19(A) at 24 Ill. Reg. _______, effective _______________)

SUBPART J: INSTITUTIONAL CONTROLS

Section 742.1000

Institutional Controls

a)	Institutional controls in accordance with this Subpart must be placed on the property when remediation objectives are based on any of the following assumptions:

1)	Industrial/Commercial property use;
2)	Target cancer risk greater than 1 in 1,000,000;
3)	Target hazard quotient greater than 1;
4)	Engineered barrier(s);
5)	The point of human exposure is located at a place other than at the source;
6)	Exclusion of exposure routes ~~under Subpart C~~; or
7)	Any combination of the above.

The Agency shall not approve any remediation objective under this Part that is based on the use of institutional controls unless the person has proposed institutional controls meeting the requirements of this Subpart and the requirements of the specific program under which the institutional control is proposed. A proposal for approval of institutional controls shall provide identification of the selected institutional controls from among the types recognized in this Subpart.

The following instruments may be institutional controls subject to the requirements of this Subpart J and the requirements of the specific program under which the institutional control is proposed:

1)	No Further Remediation Letters;
2)	~~Restrictive covenants and deed restrictions~~ Environmental Land Use Controls;
3)	~~Negative easements;~~
4)3)	Ordinances adopted and administered by a unit of local government; and
4)	Agreements between a property owner and a highway authority with respect to any contamination remaining under highways.

d)	An institutional control ~~is transferred~~ must transfer with the property.

(Source: Amended in R00-19(A) at 24 Ill. Reg. _______, effective _________________)

Section 742.1010

~~Restrictive Covenants, Deed Restrictions and Negative Easements~~ Environmental Land Use Controls

a)	A restrictive covenant, deed restriction or negative easement may be used as an institutional control under this Part if the requirements of this Section are met and the Agency has determined that no further remediation is required as to the property(ies) to which the institutional control is to apply.
b)	~~A request for approval of a restrictive covenant, deed restriction or negative easement as an acceptable institutional control shall provide the following:~~

1)	A copy of the restrictive covenant, deed restriction, or negative easement in the form it will be recorded with the Office of the Recorder or Registrar of Titles in the county where the site is located;
2)	~~A scaled map showing the horizontal extent of contamination above the applicable remediation objectives;~~
3)	~~Information showing the concentration of contaminants of concern in which the applicable remediation objectives are exceeded;~~
4)	A scaled map showing the legal boundaries of all properties under which contamination is located that exceeds the applicable remediation objectives and which are subject to the restrictive covenant, deed restriction, or negative;
5)	~~Information identifying the current owner(s) of each property identified in subsection (b)(4) of this Section; and~~
6)	Authorization by the current owner(s), or person authorized by law to act on behalf of the owner, of each property identified in subsection (b)(5) of this Section to record the restrictive covenant or deed restriction.

c)	Any restrictive covenant, deed restriction, or negative easement approved by the Agency pursuant to this Section shall be recorded in the Office of the Recorder or Registrar of Titles of the county in which the site is located together with the instrument memorializing the Agency's no further remediation determination pursuant to the specific program with 45 days after receipt of the Agency's no further remediation determination.
d)	An institutional control approved under this Section shall not become effective until officially recorded in accordance with subsection (c) of this Section. The person receiving the approval shall obtain and submit to the Agency within 30 days after recording a copy of the institutional control demonstrating that it has been recorded.
e)	At no time shall any site for which land use has been restricted under an institutional control approved under this Section be used in a manner inconsistent with such land use limitation unless further investigation or remedial action has been conducted that documents the attainment of remediation objectives appropriate for such land use and a new institutional control, if necessary, is approved and recorded in accordance with subsection (c) of this Section.
f)	Violation of the terms of an institutional control approved under this Section shall be grounds for voidance of the institutional control and the instrument memorializing the Agency's no further remediation determination.
a)	An Environmental Land Use Control (“ELUC”) may be used as an institutional control under this Part if the requirements of this Section are met. An ELUC may be used to impose land use limitations or requirements related to environmental contamination. Activities or uses that may be limited or required include, but are not limited to, prohibition of use of groundwater for potable purposes, restriction to industrial/commercial uses, operation or maintenance of engineered barriers, or worker safety plans.
b)	Recording requirements:

1)	An ELUC approved by the Agency pursuant to this Section must be recorded in the Office of the Recorder or Registrar of Titles for the county in which the property that is the subject of the ELUC is located. A copy of the ELUC demonstrating that it has been recorded must be submitted to the Agency before the Agency will issue a no further remediation determination.
2)	An ELUC approved under this Section will not become effective until officially recorded in the chain of title for the property that is the subject of the ELUC in accordance with subsection (b)(1) of this Section.
3)	A copy of the ELUC as recorded must be attached to the instrument memorializing the Agency’s no further remediation determination. Recording of the no further remediation determination and confirmation of recording must be in accordance with the requirements of the program under which the determination was issued.

c) Duration

Except as provided in this subsection (c), an ELUC shall remain in effect in perpetuity.

At no time shall any site for which an ELUC has been imposed as a result of remediation activities under this Part be used in a manner inconsistent with the land use limitation unless further investigation or remedial action has been conducted that documents the attainment of objectives appropriate for the new land use and a new determination has been obtained and recorded in accordance with the program under which the ELUC was first imposed or the Site Remediation Program (35 Ill. Adm. Code 740). [415 ILCS 5/58.8(c)]

A)	For a Leaking Underground Storage Tank site under 35 Ill. Adm. Code 731 or 732 or a Site Remediation Program site under 35 Ill. Adm. Code 740, an ELUC may be superseded only if the NFR Letter is modified under the Site Remediation Program to reflect the change;
B)	For a RCRA site under 35 Ill. Adm. Code 721 – 730, an ELUC may be superseded only by an amended certification of closure or a permit modification.

In addition to any other remedies that may be available, a failure to comply with the limitation(s) or requirement(s) of an ELUC may result in voidance of an Agency no further remediation determination in accordance with the program under which the determination was made. The failure to comply with the limitation(s) or requirement(s) of an ELUC may also be grounds for an enforcement action pursuant to Title VIII of the Act.

d)	An ELUC must contain the following elements:

1)	Name of property owner(s) and declaration of property ownership;
2)	Identification of the property to which the ELUC applies by common address, legal description, and Real Estate Tax Index/Parcel Index Number;
3)	A reference to the Bureau of Land LPC number(s) or 10-digit identification number(s) under which the remediation was conducted;
4)	A statement of the reason for the land use limitation or requirement relative to protection from soil contamination, groundwater contamination, or both;
5)	A statement of the type of each land use limitation or requirement imposed by the ELUC and the language incorporating such land use limitation(s) or requirement(s);
6)	A statement that the limitation(s) or requirement(s) apply to the current owner(s), occupants, and all heirs, successors, assigns, and lessees;
7)	A statement that the limitation(s) or requirement(s) apply in perpetuity or until issuance by the Agency of a new no further remediation determination approving modification or removal of the limitation(s) or requirement(s);
8)	Scaled site maps showing:

A)	The legal boundary of the property to which the ELUC applies;
B)	The horizontal and vertical extent of contaminants of concern above applicable Tier 1 residential remediation objectives for soil and groundwater to which the ELUC applies;
C)	Any physical features to which an ELUC applies (e.g., engineered barriers, monitoring wells, caps); and
D)	The nature, location of the source, and direction of movement of the contaminants of concern;

9)	A statement that any information regarding the remediation performed on the property for which the ELUC is necessary may be obtained from the Agency through a request under the Freedom of Information Act (5 ILCS 140) and rules promulgated thereunder; and
10)	The dated, notarized signature(s) of the property owner(s) or authorized agent.

(Source: Amended in R00-19(A) at 24 Ill. Reg. _______, effective _______________)

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above opinion and order was adopted on the ____ day of _____ 2000 by a vote of __.

___________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board