MOTION FOR ACCEPTANCE
PART 740SITE REMEDIATION PROGRAM
Section 740.100 Purpose
Section 740.120 Definitions
IV. Agency Witnesses and Synopsis of Testimony
V. Conclusion
THIS FILING IS SUBMITTED ON RECYCLED PAPER
THIS FILING IS SUBMITTED ON RECYCLED PAPER

IN THE MATTER OF:

AMENDMENTS TO 35

 ILL.

ADM. CODE 740; SITE

REMEDIATION PROGRAM

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

R03-

(Rulemaking)

CLER~”S

(~‘“~

FEB

2003

STATE

OF 1LLII~UJS

Pollution

Control Board

NOTICE

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 W. Randolph,

 Ste.

 11-500

Chicago,

 Illinois

60601

Attorney General’s Office

Environmental Bureau

188

 W. Randolph,

20th

 Floor

Chicago,

 Illinoi~60601

Robert T. Lawley

Dept. Of Natural Resources

One Natural Resources Way

Springfield,

 Illinois 62702

PLEASE TAKE NOTICE that I have today filed with the Office of

the Clerk of the Pollution Control Board

 the Motion for Acceptance

of the Illinois Environmental Protection Agency,

 a copy of which is

herewith served upon you.

ENVIRONMENTAL PROTECTION AGENCY

OF THE STATE OF ILLINOIS

By:

(‘1~J7Z

£:i~)Jk1A

S. Dyer

Assistant Counse’~

DATE:

 February 14,

2003

Agency File #:

Illinois Environmental

 Protection Agency

1021 North Grand Ave. East

P.O. Box 19276

Springfield,

 IL 62794-9276

THIS FILING IS SUBMITTED

ON

 RECYCLED PAPER

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD

)

MOTION FOR ACCEPTANCE

THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (“Agency”), pursuant to

Ill. Adm. Code

102.12 1, moves that the Board accept for hearing the Agency’s proposal for

amendment of

Ill. Adm.

Code 740.

This regulatory proposal includes:

1) the proposed

amendments; 2) the Statement ofReasons;

3) a certification oforigination;

and

an Appearance

for the attorney representing the Illinois EPA.

Respectfully submitted,

ILLiNOIS ENVIRONMENTAL PROTECTION

AGENCY

Director

DATED:

I2/lOf(3~

1021

North Grand Avenue East

P.O. Box 19276

Springfield,

IL 62794-9276

(217) 782-3397

IN THE MATTER OF:

Amendments to

Iii. Adm.

Code 740;

Site Remediation

Program

R03-

(Rulemaking)

RECIEJiVED

CLERK’S

FE~1

2003

SlATE

OF 1Lui~uiS

Pollution

Control Board

THIS

FILING IS SUBMITTED ON RECYCLED PAPER.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE G:

WASTE DISPOSAL

CHAPTER I:

POLLUTION

CONTROL BOARD

PART 740

SITE REMEDIATION PROGRAM

SUBPART A:

GENERAL

Section

740.100

Purpose

740.105

Applicability

740.110

Permit Waiver

740.115

Agency Authority

740.120

Definitions

740.125

Incorporations by Reference

740.130

Severability

SUBPART B:

APPLICATIONS AND AGREEMENTS FOR

REVIEW AND

EVALUATION SERVICES

Section

740.200

General

740.205

Submittal ofApplication and Agreement

740.2 10

Contents ofApplication and Agreemimt

740.215

Approval or Denial of Application and Agreement

740.220

Acceptance and Modification ofApplication and Agreement

740.225

Termination ofAgreement by the Remediation Applicant (RA)

740.230

Termination ofAgreement by the Agency

740.235

Use of Reviewand Evaluation Licensed Professional Engineer (RELPE)

SUBPART C:

RECORDKEEPING,

BILLING AND PAYMENT

Section

740.300

General

740.305

Recordkeeping for Agency Services

740.310

Request for Payment

740.315

Submittal ofPayment

740.320

Manner ofPayment

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

SUBPART D:

SITE

INVESTIGATIONS, DETERMINATION OF REMEDIATION

OBJECTIVES,

PREPARATION OF PLANS

AND

REPORTS

Section

740.400

General

740.405

Conduct of Site Activities and Preparation ofPlans

and Reports by Licensed

Professional Engineer (LPE)

740.4 10

Form and Delivery ofPlans and Reports, Signatories and Certifications

740.415

Site Investigation

General

740.420

Comprehensive Site Investigation

740.425

Site Investigation Report

Comprehensive Site Investigation

740.430

Focused Site Investigation

740.435

Site Investigation Report

Focused Site Investigation

740.440

Determination ofRemediation Objectives

740.445

Remediation Objectives Report

740.450

Remedial Action Plan

740.455

Remedial Action Completion Report

SUBPART

SUBMITTAL AND

REVIEW

OF PLANS AND REPORTS

Section

740.500

General

740.505

Reviews ofPlans

and Reports

740.510

Standards for Review ofSite Investigation Reports and Related Activities

740.5 15

Standards for Review of Remediation Objectives Reports

740.520

Standards for Review of Remedial Action Plans and Related Activities

740.525

Standards for Review of Remedial Action Completion Reports and Related

Activities

740.530

Establishment ofGroundwater Management Zones

SUBPART

NO FURTHERREMEDIATION LEITERS AND

RECORDING REQUIREMENTS

Section

740.600

General

740.605

Issuance ofNo Further Remediation Letter

740.6 10

Contents ofNo Further Remediation Letter

740.615

Payment ofFees

740.620

Duty to Record No Further Remediation Letter

740.625

Voidance of No Further Remediation Letter

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

SUBPART G:

REVIEW

OF REMEDIATION COSTS

FORENVIRONMENTAL

REMEDIATION

TAX

CREDIT

Section

740.700

General

740.705

Preliminary Review ofEstimated Remediation Costs

740.7 10

Application for Final Review of Remediation Costs

740.715

Agency Review ofApplication for Final Review ofRemediation Costs

740.720

Fees and Manner ofPayment

740.725

Remediation Costs

740.730

Ineligible Costs

SUBPART H: REVIEW OF REMEDIATION COSTS FOR BROWNFIELDS SITE

RESTORATION PROGRAM

(New)

Section

740.800

General

740.801

Pre-application Assessment and Eligibility Determination

740.805

Preliminary Review ofEstimated Remediation Costs

740.8 10

Application for Final Review and Payment ofRemediation Costs

740.811

Application for Final Review and Payment ofRemediation Costs Where the

Remediation Applicant Will Remediate Groundwater For More Than One Year

740.8 15

Agency Review ofApplication for Review and Payment ofRemediation Costs

740.820

Fees and Manner ofPayment

740.825

Remediation Costs

740.830

Ineligible Costs

Appendix A

Target Compound List

Table A

Volatile Organics Analytical Parameters

and Required Quantitation Limits

Table B

Semivolatile Organic Analytical Parameters and Required Quantitation

Limits

Table C

Pesticide and Aroclors Organic Analytical Parameters and Required

Quantitation Limits

Table D

Inorganic Analytical Parameters and Required Quantitation Limits

Appendix B

Review and Evaluation Licensed Professional Engineer Information

AUTHORITY:

Implementing Sections 58 through

58.14~

and authorized by Sections 58.5,

58.6,

58.7,

58.1

an4 58.14 and

58.15

ofthe Environmental Protection Act 415

ILCS

5/58

through

58.145J.

SOURCE:

Adopted in R97-l 1

at 21111.

Reg. 7889, effective July

1997; amended in R98-27

22 Ill. Reg.

19580, effective October 26,

1998;

; amended in R01-27 and R01-29 at 26 Ill. Reg.

ILLINOIS REGISTER

POLLUTION CONTROL

BOARD

NOTICE OF PROPOSED AMENDMENTS

7197, effective April 25, 2002, amended at

_____

Illinois Register.

effective

NOTE:

Italics denotes statutory

language.

In this Part, the abbreviation

j.ig is used to indicate

micrograms.

SUBPART A:

GENERAL

Section 740.100

Purpose

The purpose~

of this Part is

establish

theproceduresfor the investigative and remedial activities at sites

where there is a release; threatenedrelease, or suspectedrelease ofhazardous

substances, pesticides, orpetroleum andfor the review and approval ofthose

activities.

(Section

58.l(a)(l)

ofthe Actj

The purpose ofthis Part is also tIQ establish procedures to be

followed to obtain

Illinois Environmental Protection Agency review and approval ofremediation costs

before applying for the environmental remediation tax credit under Section 20 1(1) of

the Illinois Income Tax Act

ILCS

5/201(1)

and

establish and administer a program for the payment ofremediation costs to be

known as the Brownfields Site Restoration Program whereby the A~-ency,throu~-hthe

program, shallprovide remediation applicants with financial assistance

for the

investization and remediation ofabandoned or underutilizedproperties.

(Section

58.151B)(a)(l)

ofthe Act)

(Source:

Amended at 22 Ill. Reg.

19580, effective October 26,

1998;

amended at

Ill. Reg.

____

effective __________________________

Section 740.120

Definitions

Except as stated in this

Section, or unless a different meaning ofa word or term is clear from the

context, the definition ofwords or terms in this Part shall be the same as that applied to the same

words or terms in the Environmental Protection Act.

“Abandonedproperty” means real property previously usedfor,

or that has the

potential to be used for,

commercialor industrialpurposes that revertedto the

ownership ofthe state,

a county or municipal government, or an agency thereof

through donation, purchase,

tax

delinquency, foreclosure, default,

orsettlement,

including conveyance by deed in lieu offoreclosure; orprivately owned property

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

that has been vacant for a periodofnot less than 3 years from the time an

application is made to the Department ofCommerce and Community Affairs.

(Section

58.15 (B)(b)(2)

ofthe Act)

“Act” means the Environmental Protection Act 415

ILCS

“Agency” means the Illinois Environmental Protection Agency.

“Agency travel costs” means costs

incurredand documented for travel in

accordance with 80 Ill.

Adm. Code 2800 and 3000 by individuals employed by

the Agency.

Such costs include costs for lodging, meals, travel, automobile

mileage, vehicle leasing, tolls, taxi fares, parking and miscellaneous items.

“AGRICHEMICAL FACILITY” MEANS A SITE ON WHICH

AGRICULTURAL PESTICIDES ARE

STORED OR

HANDLED, OR BOTH,

IN PREPARATION

FOR

END USE, OR DISTRIBUTED.

THE TERM DOES

NOT INCLUDE BASIC MANUFACTURING FACILITY SITES.

(Section

58.2

ofthe Act)

“ASTM” MEANS THE AMERICAN SOCIETY FOR TESTING AND

MATERIALS.

(Section 58.2 ofthe Act)

“Authorized agent” means a person who

is authorized by written consent or by

law to act on behalfof an owner, operator, or Remediation Applicant.

“Board” means the Pollution Control Board.

“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

REMEDIATION

APPLICANT BASED UPON REASONABLE iNQUIRY.

(Section 58.2 ofthe

Act)

“Costs” means all

costs incurred by the Agency in providing services pursuant to

a Reviewand Evaluation Services Agreement.

“Groundwater management zone” or “GMZ” means a three dimensional region

containing groundwater being managed to mitigate impairment caused by the

release ofcontaminants of concern at a remediation site.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED

AMENDMENTS

“Indirect costs” means those costs that cannot be attributed directly to a specific

site but are necessaryto

support the site-specific activities, including,

but not

limited to, such expenses as managerial and administrative services, building rent

and maintenance, utilities, telephone and office supplies.

“Laboratory costs” means costs for services and materials associated with

identifying, analyzing, and quantifying

chemical compounds in samples at a

laboratory.

“LICENSED

PROFESSIONAL ENGINEER” or “LPE” MEANS

A PERSON,

CORPORATION OR PARTNERSHIP LICENSED UNDER THE LAWS OF

THIS

STATE TO PRACTICE PROFESSIONAL ENGINEERING.

(Section 58.2

ofthe Act)

“Other contractual costs” means costs for contractual services not otherwise

specifically identified, including,

but not limited to, printing, blueprints,

photography, film processing, computer services and overnight mail.

“PERSON” MEANS

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.

(Section

58.2

ofthe Act)

“Personal services costs” means costs relative to the employment ofindividuals

by the Agency.

Such costs include, but are not limited to, hourly wages and

fringe benefits.

“PESTICIDE” MEANS ANY SUBSTANCE OR MIXTURE OF SUBSTANCES

INTENDED FOR PREVENTING, DESTROYING, REPELLING, OR

MITIGATING ANY PEST OR ANY SUBSTANCE OR MIXTURE OF

SUBSTANCES iNTENDED FOR USE AS A PLANT REGULATOR,

DEFOLIANT OR DESICCANT.

(Illinois Pesticide Act 415

ILCS 60/4)

“Practical quantitation limit” or “PQL” or “Estimated quantitation limit” means

the lowest concentration that can be reliably measured within specified limits of

precisionand 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 at Section 740.125 ofthis Part.

For filtered water

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED

AMENDMENTS

samples, PQL also means the Method Detection Limit or Estimated Detection

Limit in accordance with the applicable method revision in:

“Methods for the

Determination of Metals in Environmental Samples,” EPA PublicationNo.

EPAI600/4-91/0l0; “Methods for the Determination ofOrganic Compounds in

Drinking Water,” EPA Publication No. EPAJ600/4-88/039;

“Methods for the

Determination of Organic Compounds in Drinking Water, Supplement II,” EPA

Publication No. EPAI600/R-92/l29;

or “Methods forthe Determination of

Organic Compounds in Drinking Water, Supplement III,” EPA Publication No.

EPA/600/R-95/l 31, all ofwhich are incorporated by reference at Sectibn 740.125

ofthis Part.

“Reasonably obtainable” means that a copy or reasonable facsimile of the record

must be

obtainable from a private entity or government agency by request and

upon payment of a processing fee, if any.

“Recognized environmental condition” means the presence or likely presence of

any regulated substance or pesticide under conditions that indicate a release,

threatened release or suspected release ofany regulated substance or pesticide at,

on,

to or from a remediation site into structures, surface water, sediments,

groundwater, soil, fill or geologic materials.

The term shall not include de

minimis conditions that do not present a threat to human health or the

environment.

“REGULATED SUBSTANCE” MEANS ANY HAZARDOUS SUBSTANCE

AS DEFINED UNDER SECTION

101(14) OF THE COMPREHENSIVE

ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT

1980 (P.L.

96-5

10) 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).

(Section 58.2 ofthe Act)

“REGULATED SUBSTANCE OF CONCERN” or “contaminant ofconcern”

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 REMEDIATION

APPLICANT BASED UPONREASONABLE

INQUIRY.

(Section 58.2 ofthe

Act)

“RELEASE” MEANS ANY SPILLING, LEAKING, PUMPING, POURING,

EMITTING, EMPTYING, DISCHARGING, INJECTING, ESCAPING,

LEACHING, DUMPING, OR DISPOSING INTO THE ENVIRONMENT, BUT

EXCLUDES ANY RELEASE WHICHRESULTS

IN EXPOSURE TO

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

PERSONS SOLELY WITHiN A WORKPLACE, WITH RESPECT TO A

CLAIM WHICH SUCH PERSONS MAY ASSERT AGAINST THE

EMPLOYER OF SUCH PERSONS; EMISSIONS

FROM THE ENGINE

EXHAUST OF A

MOTOR VEHICLE, ROLLING STOCK,

AIRCRAFT,

VESSEL, OR PIPELINE PUMPING

STATION ENGINE; RELEASE OF

SOURCE, BYPRODUCT, OR SPECIAL NUCLEAR MATERIAL FROM A

NUCLEAR INCIDENT, AS THOSE TERMS ARE DEFINED

IN THE federal

ATOMIC ENERGY ACT OF 1954,

IF SUCH RELEASE IS SUBJECT TO

REQUIREMENTS WITH RESPECT TO FINANCIAL PROTECTION

ESTABLISHED BY THE NUCLEAR REGULATORY COMMISSION UNDER

SECTION 170 OF SUCH ACT; AND THE NORMAL APPLICATION OF

FERTILIZER.

(Section 3.33 of the Act)

“REMEDIAL ACTION” MEANS ACTIVITIES ASSOCIATED WITH

COMPLIANCE WITH THE PROVISIONS

OF SECTIONS 58.6 AND 58.7 of

the Act, including, but not limited to, the conduct ofsite investigations,

preparation of work plans and reports, removal or treatment ofcontaminants,

construction and maintenance ofengineered barriers, and/or implementation of

institutional controls.

(Section 58.2 ofthe Act)

“REMEDIATION APPLICANT” or “RA” MEANS ANY PERSON SEEKING

TO PERFORM OR PERFORMING INVESTIGATIVE OR REMEDIAL

ACTIVITIES UNDER Title XVII ofthe Act, INCLUDING THE OWNER OR

OPERATOR OF THE SITE OR PERSONS AUTHORIZED BY LAW OR

CONSENT TO ACT ON BEHALF OF

OR IN LIEU OF THE OWNER OR

OPERATOR OF THE SITE.

(Section 58.2 ofthe Act)

“REMEDIATION COSTS” MEANS REASONABLE COSTS PAID FOR

INVESTIGATING AND REMEDIATING REGULATED SUBSTANCES OF

CONCERN CONSISTENT WITH THE REMEDY SELECTED FOR the SITE.

FOR PURPOSES OF Subpart G and H of this Part, “REMEDIATION COSTS”

SHALL NOT INCLUDE COSTS INCURRED PRIOR TO JANUARY

1998,

COSTS

INCURRED AFTER THE ISSUANCE OF A NO FURTHER

REMEDIATION LETTER UNDER Subpart F ofthis Part, OR COSTS

INCURRED MORE THAN

12 MONTHS PRIOR TO ACCEPTANCE INTO

THE SITE REMEDIATION PROGRAM under this Part.

(Section 58.2 ofthe

Act)

“Remediation objective” means a goal to be achieved in performing remedial

action, including but not limited

to the concentration ofa contaminant, an

engineered barrier or engineered control, or an institutional control established

under Section

58.5

ofthe Act or Section 740.Subpart D ofthis Part.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

“Remediation site” means the single location, place, tract ofland, or parcel or

portion of any parcel ofproperty, including contiguous property separated by a

public right-of-way, for which review, evaluation, and approval ofany plan or

report has been requested by the Remediation Applicant in its application for

review and evaluation services.

This term also includes, but is not limited to, all

buildings and improvements present at that location, place, ortract of land.

“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.

(Section 58.2 of the Act)

“Review and Evaluation Licensed Professional Engineer” or “RELPE” means the

licensed professional engineer with whom a Remediation Applicant has

contracted to perform review and evaluation services under the direction ofthe

Agency.

“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.

(Section 58.2 ofthe Act)

This term also includes, but is not limited to, all

buildings and improvements present at that location, place or tract ofland.

“Underutilizedproperty” means real property ofwhich less than 35

ofthe

commercially usable space oftheproperty and improvements thereon are used

for their most commercially profitable and economically productive uses.

(Section

58.15(B)(b)(2)

ofthe Act)

(Source:

Amended at 22 Ill. Reg.

19580, effective October 26,

1998; amended at

____

Ill. Reg.

_____

effective ____________________________

SUBPART H: REVIEW

OF REMEDIATION COSTS

FOR BROWNFIELDS SITE

RESTORATION PROGRAM

Section 740.800

General

This Subpart sets forth the procedures an RA must follow to obtain Agency review, a

final determination and payment ofremediation costs under the Brownflelds Site

Restoration Program.

It contains procedures for preliminary reviews ofestimated

remediation costs and fmal reviews ofremediation costs actually incurred,

establishes fees for the Agency’s reviews, provides forappeals ofAgency

determinations, and includes listings ofeligible and ineligible costs.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

For each fiscal year in

which funds are made available to the Agency for payment

under this

Subpart,

theAgency must allocate 20

ofthe funds

to be available to

counties with populations over 2,000.000.

The remaining funds must be made

available to all other counties in the state.

(Section

58.15(B)(a)(2)

of the Act)

The totalpayment to be made to an applicant must not exceed an amount equal to

ofthe capital investment at the site.

(Section

58.15(B)(a)(3)

ofthe Act)

Only those remediationprofects for which a No Further Remediation Letter is issued

by theAgency after December 31, 2001

are eli.gible

to participate in the Brownfields

Site Restoration Pro~g-ram. The proy~ram

does not apply to any sites that have

received a No Further Remediation Letter prior to December

31,

2001

or to

costs

incurred prior

to DCCA approvin~ga site eli~-ible

for the Brown fields Site

Restoration Pro~gram.

(Section 58.1

5(B)(a)(4)

ofthe Act)

Except asprovided in

Section 740.8 11,

an application for review ofremediation

costs must not be submitted until:

a No Further Remediation Letter has been issued by theAgency

orhas issued

by operation of law;

and

the No Further Remediation Letter,

or an affidavit under Section

740.620(a)(2) ofthis Part stating that the No Further Remediation Letter has

issued b~

operation of law,

has been recorded in the chain oftitle for the site

in accordance with

Subpart F ofthis Part.

(Section

58.15(B)(e)

ofthe Act)

The Agency must not approve payment in excess of$ 750, 000

to a Remediation

Applicant for remediation costs incurred at a remediation site.

(Section

58.15(B)(a)(3)

ofthe Act)

Brownfields Site Restoration Program funds shall be subjectto availability of

fundin2 and distributed based on the order ofreceipt ofapplications satisMn~r

all

applicable requirements as set forth in the Act

and this Part.

(Section 58.1

5(B)(a)(5)

ofthe Act)

(Source:

Added at

Ill.

Reg. ____,effective

______________

Section 740.801

Pre-application Assessment and Eligibility Determination

Prior to submitting an application to determine eligibility to the Department of

Commerce and Community Affairs,

a RemediationApplicantshall first submit to the

A.gency its proposed remediation costs.

The A~encv

shall make a pre-application

assessment, which is not to be binding upon the Department of Commerce and

Community Affairs or upon future review ofthe project, relating only to whether the

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF

PROPOSED AMENDMENTS

Agency has adequate funding to reimburse the applicant for the remediation costs if

the applicant is found to be

eligible for reimbursement ofremediation costs.

(Section

58.15(B)(b)

ofthe Act)

Ifthe Agency determines that it is likely to

have adequate fundingto reimburse the

applicant for remediation costs,

the Remediation Applicant may then submit to

the

Department ofCommerce and Community Affairs T”DCCA

“1 an application for

review of eligibility.

(Section

58.15(B)(b)

ofthe Act)

To be eligible for payment, an

RA must have a minimum capital investment in the redevelopment ofthe site.

Procedures for applying for eligibility and for obtaining a determination from DCCA

are set forth fat

14 Ill.

Adm. Code Part 5211.

Once DCCA has determined that an RA is eligible, the RA may submit an

application to the Agency in accordance with Section 740.8 10 or Section 740.8 11

this Part.

The Agency must rely on DCCA’s decision as to eligibility. The maximum amount

ofthe payment to be

made to the RA for remediation costs may not exceed the “net

economic benefit” to the State ofthe remediation project, as determined by

DCCA,

based on factors including,

but not limited to,

the capital investment,

the number of

jobs created, the number ofjobs retained ifit is demonstrated the jobs would

otherwise be lost,

capital improvements,

the number ofconstruction-relatedjobs,

increased sales,

material purchases, other increases in service and operational

expenditures.

(Section

58.15(B)(b)(3)

ofthe Act)

(Source:

Added at

—

Ill. Reg.

____,

effective

______________

Section

740.805

Preliminary Review ofEstimated Remediation Costs

An RA may request apreliminary review ofestimatedremediation costs for the

developmentand implementation ofa Remedial Action Plan,

required under Section

740.450 ofthis Part.

by submitting a budgetplan along with the RemedialAction

Plan.

(Section

58.15(B)(i)(l)

ofthe Act)

The Agency shall not accept a budget plan

unless a Remedial Action Plan satisfying the requirements of Section 740.450

ofthis

Part also has been submitted.

j~)

The budget plan must be set forth on forms prescribed and provided by the Agency

and must include, but is not limited to. the following information:

Identification ofapplicant and remediation site, including:

The full legal name, address and telephone number ofthe RA, aiw

authorized agents acting on behalfofthe RA,

and any contact persons

to whom inquiries and correspondence must be addressed

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

The address, site name, tax parcel identification number(s) and

Illinois inventory identification number for the remediation site and

the date ofacceptance of the site into the Site Remediation Program

and

The Federal Employer Identification Number (FEIN) or Social

Security Number (SSN) ofthe RA.

Line item

estimates ofthe costs that the RA anticipates will be incurred for

the development and implementation of the Remedial Action Plan, including

but not limited to:

Site investigation activities:

Drilling costs

jj)

Physical soil analysis

III)

Monitoringwell installation; and

1!)

Disposal costs.

~.)

Sampling and analysis activities:

Soil analysis costs;

Groundwater analysis costs;

Well purging costs; and

jy)

Water disposal costs.

Remedial activities:

Groundwater remediation costs

jj)

Excavation and disposal costs

III)

Land farming costs

jy)

Above-ground bio-remediation costs;

Land application costs

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

y~)

Low temperature thermal treatment costs

Backfill costs; and

~jji

In-situ soil

remediation costs.

Report preparation costs.

A certification, signed

by the RA or authorized agent and notarized, as follows:

I, Iname ofRA, if individual, or authorized agent ofRA.

hereby certify that neither

“I”

if RA is certifying or name ofRA if authorized agent is certifvingl. nor any

related party (as described in Section 201(1) ofthe Illinois Income TaxAct

ILCS

5/201(1)1), nor any person whose tax attributes “I”

if RA is certifying or name of

RA if authorized agent is certifyingi have has

succeeded to under Section 381 of

the Internal Revenue Code, caused orcontributed in any material respectto the

release or substantial threat of a release ofregulated substance(s) or pesticide(s) that

are identified and addressed in the Remedial Action Plan submitted for the site

identified above.

The original signature ofthe RA or authorized agent acting on behalfofthe RA.

The RA must submit the applicable fee, as provided in Section 740.820 ofthis Subpart, with

the budget plan, except as provided

in subsections (f) and (i)(4) ofthis

Section.

Budget plans must be mailed or delivered to the address designated by the Agency on the

forms.

Requests that are hand-delivered must be delivered during the Agency’s normal

business hours.

Submittal ofa budget

plan

must be deemed an automatic 60-day waiver ofthe Remedial

Action Plan deadlinesset forth in

the Act and Section

740.505

ofthis Part.

(Section

58.15(B)(i)(4)

ofthe Act)

Ifthe RemedialAction Plan is amended by the RemediationApplicant or as

q

resultof

Agency action,

the correspondingbudgetplan must be revised accordingly

and

resubmitted.

(Section

58.

l5(B)(i)(2) ofthe Act)

No additional fee shall be required for this review.

The following rules apply to the Agency’s review period for budget plans:

The Agency’s review period begins on the date ofreceipt ofthe budget plan

by the Agency. TheAgency’s record ofthe date ofreceipt ofa budget plan

shall be deemed conclusive unless a contrary date is proven by a dated,

signed receipt from certified or registered mail.

In reviewing budget plans and the remedial action plans they accompany. the

Agency is subject to the deadlines set forth in Section 740.505 of this Part

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

with an additional 60 days, due to the automatic waiver, in accordance with

subsection (e) ofthis Section.

Submittal ofan amended plan restarts the time for review.

4.)

The RA may waive the time

line for review upon a request from the Agency

or at the RA’s discretion.

The Agency must review the budget plan along with the Remedial Action Plan to

determine whether the estimated costs submittedare remediation costs and whether

the costs estimatedfor the activities are reasonable.

(Section

58.1 5(B)(i)(

1) of the

Upon completion of the review,

the Agency must issue a letter to the Remediation

Applicant approving, disapproving or modifying the estimatedremediation costs

submitted in the budgetplan.

(Section

58.15(B)(i)(4)

ofthe Act)

The following

rules apply regarding Agency determinations:

The Agency’s notification offinal determination shall be by

certified or

registered mail postmarked with a date stamp and with return receipt

requested.

The Agency’s determination shall be deemed to havebeen made

on the postmarked date that the notice is mailed.

The Agency may cOmbine the notification ofits final determination on a

budget plan with the notification ofits final determination on the

corresponding Remedial Action Plan.

Ifa budget plan is disapproved or approved with modification ofestimated

remediation costs, the written notification shall contain the following

information as applicable:

An explanation ofthe specific type ofinformation or documentation,

if any, that the Agency finds the RA did not provide

The reasons for the disapproval or modification of estimated

remediation costs; and

Citations to

statutory or regulatory provisions upon which the

determination is based.

4.)

Ifthe Agency disapproves a Remedial Action Plan or approves a Remedial

Action Plan with conditions, in accordance with Subpart E ofthis Part, the

Agency may return the corresponding budget plan to the RA withoutreview.

Ifthe Remedial Action Plan is amended in response to Agency action, the

ILLiNOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

RA may submit a revised budget plan for review.

No additional fee shall be

required for this review.

Within 35 days after receipt of an agency letter disapproving or modifying a

budgetplan

or expiration ofthe Agency deadline,

the Remediation Applicant

may appeal theAgency ‘s decision

or the Agency’s failure to issue a final

determination

the Board in the mannerprovidedfor the review ofpermits

in Section 40

ofthe

Act.

(Section

58.15(B)(i)(6)

ofthe Act)

(Source:

Added at

Ill.

Reg.

_____,

effective

_______________

Section 740.8 10

Application forFinal Review and Payment of Remediation Costs Following

Perfection ofNo Further Remediation Letter

The RA for any site enrolled in the Site Remediation Program may submit an

application forfinal review and payment ofremediation costs following perfection of

a No Further Remediation Letter.

The application must be

submitted on forms prescribed and provided by the Agency

and must include, at a minimum, the following information:

Identification ofRA and remediation site, including:

The full legal name, address and telephone number ofthe RA, any

authorized agents acting on behalfofthe RA,

and any contact persons

to whom inquiries and correspondence must be addressed

~.)

The address, site name, tax parcel identification number(s) and

Illinois inventory identification number fQr the remediation site

The date ofacceptance ofthe remediation site into the Site

Remediation Program; and

The Federal Employer Identification Number (FEIN) or Social

SecurityNumber (SSN) ofthe RA

‘A true and correct copy ofthe No Further Remediation Letter, or affidavit(s)

under Section 740.620(a)(2) ofthis Part stating that the No Further

•

Remediation Letter has issued by operation oflaw, forthe remediation site,

as recorded in the chain oftitle forthe site and certified by the appropriate

County Recorder or Registrar ofTitles

‘ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

true and correct

copy ofthe Department ofCommerce and Community

Affairs’ letter approving eligibility,

including the net economic benefit ofthe

remediation_project

(Section 58.15 (B)(e)(4) ofthe Act);

Itemization and documentation of remediation activities for which payment is

sought and ofremediation costs

incurred, including invoices, billings

and

dated, legible receipts with canceled checks or other Agency-approved

methods ofproofof payment

A certification, signed by the RA or authorized agent and notarized, as

follows:

name

of RA, if individual, or authorized agent of

RAl. hereby certify that:

The site for which this application for payment is submitted is the site for

which the No Further Remediation Letter was issued;

All the costs included in this apylication were incurred at the site and for the

regulated substance(s) or pesticide(s) for which the No Further Remediation

Letter was issueth

The costs incurred are remediation costs as defined in the Act and rules

adopted thereunder;

The costs submitted were paid by

“me”

if RA is certifying

or name ofRA if authorized agent is certifying

and are accurate to the best

ofmy knowledge and belief;

None ofthe costs were incurred before approval of the site by the Department

ofCommerce and Community Affairs as eligible for the Brownflelds Site

Restoration Program; and

“I”

if RA is certifying or name ofRA if

authorized agent is certifying

did not cause or contribute in any material

respectto the release or substantial~

threat ofa release ofregulated

substance(s) or pesticide(s) for which the No Further Remediation Letter was

issued.

The original signature of the RA or ofthe authorized agent acting on behalf

ofthe RA.

The application for final review shall be accompanied by the applicable fee for

review as provided in Section 740.820 ofthis Subpart.

Applications shall be mailed

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED

AMENDMENTS

or delivered to the address designated by the Agency on the forms.

Requests that are

hand-delivered shall be

delivered during the Agency’s normal business hours.

The Agency’s acceptance ofa certification that the RA did not cause or contribute in

any material respect to the release or substantial threat ofa release for which the

payment is requested shall not bind the Agency orthe

State and shall not be used as a

defense with regard to

any enforcement or cost recovery actions that may be initiated

by the

State or any otherparty.

(Source:

Added at

—

Ill. Reg. _____,effective

_______________

Section 740.8 11

Application for Review and Payment of Remediation Costs Prior to

Perfection ofNo Further Remediation Letter

An application for review ofremediation costs may be submitted to the Agency prior

to the issuance ofa No Further Remediation Letter

(or an affidavit under Section

740.620(a)(2) ofthis Part stating that the No Further Remediation Letter has issued

by operation oflaw)

ifthe Remediation Applicant has a Remedial Action Plan

approved by the Agency

under Section 740.45 0 ofthis Part

under the terms ofwhich

the Remediation Applicant will remediate groundwater for more than one year.

(Section

58.15(B)(f)

ofthe Act)

j~)

The application must be

on forms prescribed and provided by the Agency and must

include, at a minimum, the following information:

Identification ofRA and remediation site, including:

The full legal name, address and telephone number ofthe RA. an.y

authorized agents acting on behalfofthe RA, and any contact perso~

to whom inquiries and correspondence must be addressed

~.)

The address, site name, tax parcel identification number(s) and

Illinois inventory identification number for the remediation site

The date of acceptance ofthe remediation site into the Site

Remediation Program; and

The Federal Employer Identification Number (FEIN) or Social

Security Number (SSN) ofthe RA

A true and correct

copy oftheAgency letter approving the Remedial Action

Plan

(Section

58.15(B)(f)(2)

of the Act)

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

~.)

true and correct

copy ofthe Department ofCommerce and Community

Affairs’ letter approving eligibility,

including the net economic benefit ofthe

remediation project

(Section

58.15

(B)(f)(4) ofthe Act)

Itemization and documentation ofremediation activities for which payment is

sought and of remediation costs incurred, including invoices, billings

and

dated, legible receipts with canceled checks or other Agency-approved

methods ofproofofpayment

A certification, signed by the RA or authorized agent and notarized, as

follows:

name

ofRA, if individual, or authorized agent of

RAl. hereby certify that:

The site for which this application for payment is submitted

is the site for

which the Remedial Action Plan referenced in subsection (a) ofthis Section

was approved;

All the costs included in this application were incurred at the site for which

the Remedial Action Plan referenced in subsection (a) of this Section was

approved;

The costs incurred are remediation costs as defmed in the Act and rules

adopted thereunder;

The costs submitted were paid by

“me”

if RA is certifying

or name of RA if authorized agent is certifying

and are accurate to the best

ofmy knowledge and belief;

None ofthe costs were incurred before approval ofthe site b~

the Department

of Commerce and Community Affairs as eligible for the Brownfields Site

Restoration Program; and

“I”

if RA is certifying or name of RA if

authorized agent is certifying

did not cause or contribute in any material

respect to the release or substantial threat of a release ofregulated

substance(s) or pesticide(s) for which the Remedial Action Plan was

approved.

The original signature ofthe RA or ofthe authorized agent acting on behalf

‘ofthe RA.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Until theAgency issues a No Further Remediation Letter for the site

(oran affidavit

under Section 740.620(a)(2) ofthis Part stating that the No Further Remediation

Letter has issued by operation oflaw),

no more than 75

ofthe allowedpayment

maybe

claimedby the RemediationApplicant.

The remaining 25

may be claimed

following the issuance by theAgency of a No Further Remediation Letter

(or an

affidavit under Section 740.620(a)(2) ofthis Part stating that the No Further

Remediation Letter has issued by operation oflaw)

for the site

(Section

58.l5(B)(g))

ofthe Act).

4.)

The Agency’s acceptance ofa certification that the RA did not cause or contribute in

any material respect to the release or substantial threat ofa release for which the

payment is requested shall not bind the Agency or the State and shall

not be used as a

defense with regard to any enforcement or cost recovery actions that may be initiated

by the

State or any other party.

(Source:

Added at

Ill. Reg. ____,effective

______________

Section 740.815

Agency Review ofApplication forPayment ofRemediation Costs

The Agency mustreview

each

application

submitted pursuant to Section 740.810 or

Section 740.~

determine,

in accordance with Sections 740.825 and 740.83 0 of

this Part,

whether the costs submittedare remediation costs and whether the costs

incurred are reasonable

(Section 58.1 5(B)(e), (f) ofthe Act).

Within 60 days after receipt by theAgency ofan application meeting the

requirements of

Section 740.8 10 or Section 740.8 11,

the Agency must issue a letter

to the

approving,

disapproving,

or mod~fving

the remediation costs submitted in

the application.

(Section

58.1 5(B)(h)(l)

ofthe Act)

The Agency’s review period begins on the date of receipt ofthe application by’the

Agency. The Agency’s record ofthe date ofreceipt ofan application shall be deemed

conclusive unless a contrary date is proven by a dated, signed receipt from certified

or registered mail.

The RA maywaive the time for review.

Submittal ofan amended application restarts the time for review.

The Agency’s notification offmal determination shall be by certified orregistered

mail postmarkedwith a date stamp and with return receipt requested.

The Agency’s

determination shall be deemedto have been made on the postmarked date that the

notice is mailed.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Ifa preliminary review ofa budget plan has been obtained under Section 740.805 of

this Part,

the Remediation Applicant may submit, with the application,

the applicable

fee under Section 740.820 ofthis Part, and supporting documentation under Section

740.8 10 or Section 740.8 11

ofthis

Part, a copy ofthe Agency’s final determination

on the budget plan accompanied by a certification,

signed by the RA or authorized

agent and notarized, stating as follows:

name

of RA, if individual, or name ofauthorized agent

ofRA.

hereby certify that the actual remediation costs incurred at the site for line

items list

line items to which certification applies

and identified in the application

for final review ofremediation costs are equal to or less than the costs approved for

the corresponding line items in the attached budget plan determination.

li)

Ifthe budget plan determination and certification are submitted pursuant to

subsection

(g)

ofthis Section, the Agency may conduct further review ofthe

certified line item costs and may approve such costs as submitted.

The Agency’s

further review shall be limited to

confirmation that costs approved in the Agency’s

budget plan determination were actually incurred by the RA in the development and

implementation ofthe Remedial Action Plan.

Ifthe certification in subsection (g) ofthis

Section does not apply to all

line items as

approved in the budget plan, the Agency shall conduct its review ofthe costs for the

uncertified line items as if no budget plan had been approved.

In its review, the

Agency shall not reconsider the appropriateness ofany activities, materials, labor,

equipment, structures or services already approved b~

the Agency for the

development or implementation ofthe Remedial Action Plan.

Ifan application is disapproved or approved with modification ofremediation costs,

the written notification to the RA must contain the following information as

applicable:

An explanation ofthe specific type ofinformation or documentation, if any,

that the Agency deems the RA did not provide

The reasons for the disapproval or modification ofremediation costs; and

~,)

Citations to statutory or regulatory provisions upon which the determination

is based.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

~ç)

Within 35 days after receipt ofan Agency letter disapproving or modifying an

application for approval of remediation costs,

the RemediationApplicant may

appeal the Agency’s decision to

the Board in the manner provided for the review of

pçp~mits

in Section 40 ofthe Act.

(Section 58.l5(B)(h)(3) ofthe Act)

(Source:

Added at

Ill. Reg.

_____,

effective

_______________

Section 740.820

Fees and Manner ofPayment

The fee for the preliminaryreview of estimated remediation costs conducted under

Section 740.805 ofthis Part shall be $500 fdr each remediation site reviewed.

The fee for the final review of remediation costs under Section 740.8 10 or Section

740.811 ofthis Part shall be $1000 for each remediation site reviewed.

The fee for a review under this Subpart shall be in addition to

any other fees,

payments or assessments under Title XVII ofthe Act and this Part.

All fees shall be

paid by check or money order made payable to “Treasurer

—

State of

Illinois, for deposit in the Brownfields Redevelopment Fund.”

The check or money

order shall include the Illinois inventory identification number and the Federal

Employer Identification Number (FEIN) or social security number (SSN) of the RA.

(Source:

Added at

—

Ill. Reg.

_____,

effective

_______________

Sertion 740.825

Remediation Costs

Activities, materials, labor, equipment, structure and service costs that may be

approved by the Agency as remediation costs for payment under this Subpart

include, but are not limited to, the following:

Preparation ofbid documents and contracts for procurement ofcontractors,

subcontractors, analytical and testing laboratories, labor, services

and

suppliers ofequipment and materials

Engineering services performed in accordance with Section

58.6

of the Act

and implementing regulations at Sections 740.235 and 740.405

ofthis Part;

Site assessment and remedial investigation activities conducted in accordance

with Sections 740.410. 740.415. 740.420

and 740.430 ofthis Part

Report or plan preparation conducted in accordance with Sections 740.425,

740.435, 740.445, 740.450 and 740.455 ofthis Part

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Collection, analysis or measurement ofsite samples in accordance with

Section 740.4

15(d)

ofthis Part

Groundwater monitoring well installation, operation, maintenance and

construction materials

Removal,

excavation, consolidation, preparation, containerization, packaging,

transportation. treatment or off-site disposal ofwastes, environmental media

(e.g., soils, sediments, groundwater, surface water, debris), containers or

equipment contaminated with regulated substances or pesticides at

concentrations exceeding remediation objectives pursuant to an approved

Remediation Objectives Report in accordance with Section 740.445 ofthis

Part. Activities must be

in compliance with all applicable state or federal

statutes and regulations

Cleanbackfill materials in quantities necessaryto replace soils excavated and

disposed off-site that were contaminated with regulated substances or

pesticides at levels exceeding remediation objectives pursuant to an approved

Remediation Objectives Report in accordance with Section 740.445 ofthis

Transportation, preparation and placement ofclean backfill materials

pursuant to an approved Remedial Action Plan in accordance with Section

740.450 ofthis Part

IQ)

Design, testing, permitting, construction, monitoring and maintenance of

on-site treatment systems pursuant to an approved Remedial Action Plan in

accordance with Section 740.450 ofthis Part

fl)

Engineering costs associated with preparation ofa budget plan in accordance

with Section 740.805 ofthis

Subpart or an application for reviewand

payment ofremediation costs in accordance with Section 740.8 10 or Section

740.8 11

ofthis Subpart if prepared before the issuance ofthe No Further

Remediation Letter (by the Agency or by operation oflaw);

Removal orreplacement of concrete, asphalt or paving to the extent

necessary to achieve remediation objectives pursuant to an approved

Remedial Action Plan in accordance with Section 740.450 ofthis Part

Clay, soil, concrete, asphalt or other appropriate materials as a cap, barrier

or coverto the extent necessary to achieve remediation objectives pursuant

to an approved Remedial Action Plan in accordance with Section 740.450

ofthis Part

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

14)

Placement ofclay, soil, concrete, asphalt or other appropriate materials as

a cap, barrier or cover to

the extent necessary to achieve remediation

objectives pursuant to an approved Remedial Action Plan in accordance

with Section 740.450 ofthis Part

•

Destruction or dismantling and reassembly ofabove-grade structures to

the extent necessary to

achieve remediation objectives pursuant to an

approved Remedial Action Plan in accordance with Section 740.450 of

this Part

I~)

Costs associated with obtaining a special waste generator identification

number not to exceed $100.

An RA may submit a request forreview ofremediation costs that includes an

itemized accounting and documentation ofcosts associated with activities,

materials, labor, equipment, structures or services not identified in subsection (a)

ofthis Section if the RA submits detailed information demonstrating-that those

items are necessary for compliance with this Part 740. 35 Ill. Adm. Code 742 and

the approved Remedial Action Plan.

(Source:

Added at

—

Ill.

Reg. ____,effective

______________

Section 740.830

Ineligible Costs

Costs ineligible for payment include, but are not limited to, the following:

Costs not incurred by the RA, including

Costs incurred for activities, materials, laboror services relative to

~remediationat a site other than the site for which the No Further

Remediation Letter was issued

Costs for remediating a release or substantial threat ofa release of

regulated substances or pesticides that was caused orcontributed to in any

material respect by the RA

j~)

Costs incurred before approval ofthe site by the Department ofCommerce and

Community Affairs as eligible for the

Brownfields Site Restoration Program;

Costs associated with material

improvements to the extent that such

improvements are not necessaryto achieve remediation objectives pursuant to an

approved Remedial Action Plan in accordance with

Section 740.450 ofthis Part

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Costs or losses resulting from business interruption;.

Costs incurred as a result ofvandalism, theft, negligence or fraudulent activity by

the RA or the agent ofthe

RA:

Costs incurred as a result ofnegligence in the practice ofprofessional engineering

as defined in Section 4 of the Professional Engineering Practice Act of 1989 225

ILCS

325/41

Costs incurred as a result ofnegligence by any contractor, subcontractor, or other

person providing remediation services at the site;

Costs associated with replacement ofabove-grade structures destroyed or

damaged during remediation activities to

the extent such destruction or damage

and such replacement is not necessary to achieve remediation objectives pursuant

an approved Remedial Action Plan in accordance with Section 740.450 ofthis

Part

Attorney fees

Purchase costs ofnon-consumable materials, supplies, equipment or tools, except

that a reasonable rate may be charged for the usage of such materials, supplies,

equipment or tools

Ic)

Costs forrepairs or replacement ofequipment or tools due to

neglect, improper or

inadequate maintenance, improper use, loss or theft

Costs associated with activities that violate any provision ofthe Act or Board,

Agency or Illinois.Department ofTransportation regulations

i~)

Costs associated with improperly installed or maintained groundwater monitoring

wells;

Costs associated with

unnecessary,

irrelevant or improperly conducted activities,

including, but not limited to,

data collection, testing, measurement, reporting,

analysis, modeling, risk assessment or sample collection, transportation.

measurement, analysis or testing;

Stand-by or demurrage costs

Interest or finance costs charged as direct costs

Insurance

costs charged as direct costs

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD~~V~D

CL~R~-~S

 C~T~F!C~

IN THE MATTER OF:

)

‘

FEB

2003

STATE OF

iLL!iNU~S

Amendments to 35

 Iii.

 Adm.

)

 R03-~

 Pollution

Control Board

Code

 740; Site Remediation

)

 (Rulemaking)

Program

STATEMENT OF REASONS IN SUPPORT OF PROPOSAL

Now comes the Illinois Environmental Protection Agency

(“Agency”)

 and,

 pursuant to

 35 Ill. Adm.

 Code 102.121(b),

 submits

its STATEMENT OF REASONS for the above-captioned proceeding to

the Illinois Pollution Control Board

 (“Board”).

I.

 Facts in Support, Purpose and Effect

A.

 Background

The Agency

is proposing amendments to

35

 Ill. Adm. Code 740,

the body of regulations addressing thestate’s Site Remediation

Program.

 These regulations,

 adopted pu’~suantto Sections 58

through 58.15 of the Environmental Protection Act

 (415 ILCS

5/58), prescribe procedures ‘and standards for the Agency’.s

administration of its duties under the Site Remediation Program

(“SRP”).

 The amendments the Agency is proposing establish

procedures,

 in a new Subpart

H,

 for requesting review and payment

of remediation costs under the newly-amended Brownfields Site

Restoration Program

 (5 ILCS 415/58.1.5).

B.

 Regulatory Development

Prior to submitting this regulatory proposal to the Board,

the Agency distributed the proposal to ‘the Department of Commerce

and Community Affairs

 (“DCCA”)

 and the St.

 Louis Regional Chamber

and Growth Association for comment.

 This was done in an effort

to expedite the rulemaking before the Board.

II.

 The Proposed Amendments

The changes to Part 740 in the regulatory proposal before

the Board are as follows:

1.

 Section 740.100 Purpose

 amendatory language is proposed

setting forth the purpose,

 as provided in the Illinois

Environmental Protection Act

 (“Act”),

 of the Brownfields Site

Restoration Program.

2.

 Section 740.120 Definitions

—

 definitions are proposed for

the terms “abandoned property”, and “underutilized property.”

The

proposed language is verbatim from the Act.

3.

 Subpart H Review of Remediation Costs for Brownfields Site

Restoration Program

—

 this is a new Subpart setting forth rules

and standards for the Agency’s implementation of the statutorily-

prescribed Brownfields Site Restoration Program.

 There are nine

sections in this Subpart.

4.

 Section 740.800 General

—

 this Section comprises

7

subsections.

 Most of this Section is taken directly from the

Act.

 Subsection

 (a) describes the content of Subpart

H.

Subsection

(b)

 sets forth a statutory requirement that 20~of

funding go to counties with populations great than 2 million and

2

the remainder to all other counties in Illinois.

 It further

provides that reimbursements are subject to availability of

funding and distributed based on order of receipt of

applications.

 Subsection

(c)

 sets forth the statutory

requirement that reimbursements cannot exceed 20

 of the capital

investment at

 a site.

 Subsection

(d)

 contains the statutory

limitation of eligibility to sites that have received a No

Further Remediation

 (“NFR”)

 letter after December 31,

 2001.

Subsection

 (e) requires the receipt and filing of an NFR letter

prior to submittal of an application.

 Subsection

(f)

 limits

reimbursement to $750,000 per site.

 Subsection

(g)

 sets forth

that reimbursement

 is subject to availability of funding and

distribution of funds is to be done in order of receipt of

applications.

Section 740.801

 Pre-Application Assessment and Eligibility

Determination

 This Section comprises four subsections,

Subsection

(a)

 requires the Agency to make a non-binding pre-

application assessment

 as to whether there is adequate funding to

reimburse the applicant should the applicant be found eligible by

DCCA.

 Subsection

(b)

 states that an application for review of

eligibility is to be submitted to DCCA.

 Subsection

 (c) provides

that once DCCA’ has found a Remediation Applicant eligible, the PA

may submit an application to the Agency.

 Subsection

(d)

 states

that the Agency must rely on DCCA’s decision as to eligibility

and that reimbursement may not exceed the net economic benefit to

the State of the remediation project,

 as determined by DCCA based

on statutorily-specified factors.

Section 740.805 Preliminary Review of Estimated Remediation Costs

—

 This Section comprises nine subsections.

 Subsection

(a)

provides

 a remediation applicant

 (“RA”)

 the option to submit

a

budget plan with a remedial action plan.

 Subsection

(b)

 sets

forth the information that must be included in a budget plan,

including identification of the PA and remediation site,

 line

item estimates of anticipated costs,. a certification as to not

having contributed to a release or substantial threat of a

release, and the signature of the PA or his agent.

 Subsection

(c)

 requires the RA to submit the applicable fee with the budget

plan.

 Subsection

(d)

 sets forth acceptable means of delivering

budget plans.

 Subsection

(e)

 states that submittal of a budget

plan is deemed an automatic 60 day waiver of the remedial action

plan deadlines.

 Subsection

(f)

 requires that,

 if the remedial

action plan is amended,

 the corresponding budget plan also be

revised.

 Subsection

(g)

 addresses the Agency’s review period for

budget plans.

 Subsection

(h)

 requires the Agency to review the

budget plan.

 Subsection

 (1) provides procedures the Agency must

follow in notifying the PA of its determination regarding

a

budget plan.

 This

subsection

 also provides appeal procedures.

Section 740.810

 Application for Final Review and Payment of

Remediation Costs Following Perfection of No Further Remediation

Letter

—

 This Section comprises four subsections.

 Subsection

(a)

allows an PA to submit an application for reimbursement following

perfection of a No Further Remediation letter.

 Subsection

(b)

sets forth the information that must be provided in an

application for reimbursement,

 including identification of the PA

and remediation site,

 a copy of the No Further Remediation

Letter,

 a copy of DCCA’s letter approving eligibility,

itemization and documentation of the activities for which

reimbursement is sought,

 a certification regarding the site,

the

costs incurred and the release,

 and the signature of the PA or

his agent.

 Subsection

(c)

 requires payment of the applicable fee

with the application.

 Subsection

(d)

 provides that the Agency’s

acceptance of a certification that the PA did not cause or

contribute in any material respect to the release or substantial

threat of a release does not bind the Agency or the State and

cannot be used as a defense in enforcement actions.

Section 740.811

 Application For Review and Payment of Costs

Prior to Perfection of No Further Remediation Letter

 This

Section comprises four subsections.

 Subsection

 (a) provides that

an PA with an approved Remedial Action Plan requiring the

remediation

 of’ groundwater for more than one year may submit an

application for reimbursement prior to the issuance of a No

Further Remediation letter.

 Subsection

 (b) parallels subsection

(b) of Section 740.810, stating the information that must be

included in an application for reimbursement.

 Subsection

(c)

limits payment to the PA prior to issuance of the No Further

~emediation letter to 75

 of the allowed reimbursement total.

Subsection

 (d) provides a disclaimer regarding certification that

is identical to the one in subsection

(d)

 of Section 740.810.

Section 740.815

 Agency Review of Application for Payment of

Remediation Costs

—

 This Section has

 11 subsections addressing

the Agency’s review of reimbursement applications.

 Subsection

(a)

 requires the Agency to review each application to determine

whether the costs are remediation costs and are reasonable.

Subsection

 (b) provides that the Agency must make a determination

within 60 days of the date of receipt of a reimbursement

application.

 Subsection

(c)

 addresses the beginning date for the

Agency’s review period.

 Subsection

 (d) provides that the PA may

waive the time for review.

 Subsection

(e)

 states that submittal

of an amended application restarts the review period.

 Subsection

(f)

 requires that the Agency’s notification of final

determination be by certified or registered mail and deemed made

on the postmarked date of mailing.

 Subsection

 (g) provides that

the PA may submit a copy of the Agency’s final determination on a

budget plan and a specified certification with the reimbursement

application.

 Subsection

(h)

 addresses Agency review of a budget

plan determination in the context of the review of a

reimbursement application.

 Subsection

(i)

 addresses Agency

review of line items

 in an approved budget plan that are not

certified pursuant to subsection

(g)

 Subsection

(j)

 sets forth

the information the Agency must provide

 in the written

notification to an PA if the application is disapproved or

approved with modifications.

 Subsection

 (k) provides for PA

appeal of an Agency final determination.

Section 740.820

 Fees and Manner of Payment

 This Section sets

forth fees

 ($500 for a preliminary review,

 $1000 for final

review) and prescribes the manner in which payment is to be made.

Section 740.825

 Rernediation Costs

—

 This Section lists the

activities, materials,

 labor, equipment,

 structure and service

costs that the Agency may reimburse as remediation costs under

the Brownfields Site Restoration Program.

 The list is not

intended to be exhaustive.

 Subsection

(a)

 lists 16 specific

types of reimbursable costs.

 Subsection

(b)

 states that an PA

may submit an itemized accounting and documentation of costs not

identified in subsection

(a)

 if the PA submits detailed

information that those costs are necessary ‘for compliance with

the regulations governing the Site Remediation Program,

the

regulations implementing TACO and the approved Remedial Abtion

Plan.

‘

Section 740.830

 Ineligible

 Costs

—

 This Section lists some but

not all costs that are ineligible for payment under the

Brownfields Site Restoration Program.

 The list identifies

24

types

 of ineligible costs,

 including costs not incurred by the

PA,

 costs incurred before approval of the site by DCCA as

eligible,

 costs associated with material improvements not

necessary to achieve remediation objectives, etc.

III.

 Technical Feasibility and Economic Reasonableness

A.

 Technical Feasibility

The Agency submits that the proposed amendments raise no issues

of technical feasibility.

B. ‘Economic Reasonableness

The Agency submits that the proposed amendments are economically

reasonable.

 The enabling legislation

 1415 ILCS 5/58.15

 is very

detailed and the proposed changes mirror the statute;

 thus,

 they

can be presumed reasonable. Where we have had to fill gaps, we

have used language from other Board rules.

IV.

 Agency Witnesses and Synopsis of Testimony

The Agency expects to provide one witness in this rulemaking

proceeding: Gary King,

 manager of the Bureau of Land’s Division

of Remediation Management.

 The Agency will provide the written

pre-filed testimony of Gary King.

 In his testimony,

 Mr. King

will further elucidate and provide justification for the above-

described proposed amendments.

V.

 Conclusion

‘8

In conclusion,

 the Agency respectfully submits this STATEMENT OF

REASONS in support of the above-described technically feasible

and economically reasonable proposed amendments to 35

 Ill. Adm.

Code 740 for the Board’s consideration.

Respectfully submitted,

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

1~dithS. Dye&~

Assistant Counsel

DATED:

_____________

1021 North Grand Avenue East

P0 Box 19276

Springfield,

 IL 62794-9276

217-782-5544

THIS FILING IS SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL

CL~Rt~

7_nc)3

IN

THE MATTER OF:

‘

)

Amendmentsto35 Ill. Adm.

)

R03-

~~orro1

Board

Code 740; Site Remediation

)

(Rulemaking)

Program

)

APPEARANCE

The undersigned hereby enters her appearance as attorney on behalfof the Illinois Environmental

Protection Agency.

Respectfully submitted,

•

 ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

~tA

ithS.Dyer

Assistant Counsel

DATED:

___________

1021

North Grand Avenue East

P0 Box

19276

Springfield, IL

62794-9276

217-782-5544

THIS FILING IS SUBMITTED ON RECYCLED PAPER

STATE OF ILLINOIS

)

COUNTY OF SANGAMON)

PROOF OF

SERVICE

I, the undersigned,

on oath state that I have served

the attached Motion for Acceptance on

behalfofthe Illinois Environmental Protection Agency upon the person to

whom it is directed, by

placing a copy in an envelope addressed to:

Dorothy M. Gunn,

Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph St., Ste 11-500

Chicago, Illinois 60601

Attorney General’sOffice

EnvironmentalBureau

188 W. Randolph,

20th

Floor

Chicago, Illinois 60601

Robert T. Lawley

Dept. OfNatural Resources

One

Natural Resources Way

Springfield, Illinois 62702

OFFICIAL

SEAL

BRENDA BOEHNER

:~

NOTARY

PUBLIC,

STATE

ILLINOIS ~

:~:MYCOMMISSION

EXPIRES

i.i4.2U05:i:

and mailing it from

 Springfield, Illinois on

~

(4_

SUBSCRIBED AND SWORN TO BEFORE ME

thisL~~~ayof

~

 )~7~’3

Notary PuUic

THIS FILING IS SUBMITTED ON RECYCLED PAPER