Eventually require elctronic filing of submittals to the Agency,

OVERVIEW OF THE BSRP
DISCUSSION OF ADOPTED AMENDMENTS
SUBPART A: GENERAL
1. SUBPART A: GENERAL
Section 740.120 Definitions
1. Section 740.925 Remediation Costs

ILLINOIS POLLUTION CONTROL BOARD

January 22, 2004

IN THE MATTER OF:

BROWNFIELDS SITE RESTORATION

PROGRAM, AMENDMENTS TO 35 ILL.

ADM. CODE 740

)

R03-20

(Rulemaking – Land)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by N.J. Melas):

Today the Board adopts amendments to 35 Ill. Adm. Code 740 of the Board’s Site

Remediation Program (SRP) rules. On February 18, 2003, the Illinois Environmental Protection

Agency (Agency) filed a rulemaking proposal to establish procedures and standards for obtaining

reimbursement of remediation costs, a program known as the Brownfields Site Restoration

Program (BSRP). The Board accepted this matter for hearing on February 20, 2003.

The BSRP was created by recent amendments to Title XVII of the Environmental

Protection Act (Act) (415 ILCS 5/58.15(B) (2002);

see

P.A. 92-0715, eff. July 23, 2002). The

BSRP will allow a person to be reimbursed by the State for the costs of voluntarily remediating

contamination at an “abandoned” or “underutilized” property if the remediation will lead to a

“net economic benefit” to the State. The proposed amendments will be a new Subpart I to the

Board’s SRP rules (35 Ill. Adm. Code 740).

As described below, the Agency will administer the BSRP and Agency decisions may be

appealed to the Board. Decisions on whether properties qualify for the BSRP, and the maximum

amount of potential reimbursement, will be made by the Department of Commerce and

Economic Opportunity (DCEO), formerly the Department of Commerce and Community Affairs

(DCCA). By today’s action, and pursuant to the Administrative Procedure Act (5 ILCS 100/1-1

et seq

.), the Board adopts final rules and directs the Clerk to submit them to the Secretary of

State’s Office for publication.

PROCEDURAL HISTORY

On July 10, 2003, the Board proposed rules for first notice, which were published at 27

Illinois Register

11879 (July 25, 2003). The 45-day first-notice period ended September 8, 2003.

The Joint Committee on Administrative Review (JCAR) filed non-substantive comments

regarding grammar and format changes. On November 6, 2003, the Board proposed rules for

second notice, incorporating JCAR’s changes. JCAR considered the second-notice rules at its

December 16, 2003 meeting and voted no objection.

Two public hearings were held in this rulemaking before the board hearing officer, Board

Members, and Board staff. The first hearing was held on April 30, 2003, in Springfield. The

second hearing was held on May 14, 2003, in Chicago. The Agency, represented by Judith S.

Dyer and Kimberly Geving, presented Gary King at the first hearing. Mr. King is the Manager

of the Division of Remediation Management within the Agency’s Bureau of Land. Mr. King

was also available for questions at the second hearing. Chris Perzan, Assistant Attorney General,

asked questions of Mr. King at the second hearing.

Three exhibits offered by the Agency were entered into the record at hearing: (1) the

prefiled testimony of Mr. King; (2) errata sheet number one; and (3) errata sheet number two.

The Board received no public comments in this proceeding. However, Mr. King’s prefiled

testimony included comments and questions of the Regional Commerce and Growth Association

of Greater St. Louis that he received from the association on February 14, 2003.

OVERVIEW OF THE BSRP

Title XVII of the Act became law in 1995, requiring the Board to establish rules for the

brownfields SRP (35 Ill. Adm. Code 740), risk-based remediation (35 Ill. Adm. Code 742), and

proportionate share liability (35 Ill. Adm. Code 741).

See

415 ILCS 5/58-58.17 (2002). The

2002 amendments to Title XVII, which added Section 58.15(B), require the Board to adopt rules

to implement the BSRP. The BSRP will be part of the SRP, a program under which a

“Remediation Applicant” (RA) voluntarily remediates a “brownfields” site.

See

35 Ill. Adm.

Code 740. A “brownfields” site is real property with “actual or perceived contamination and an

active potential for redevelopment.” 415 ILCS 5/58.2 (2002).

Because the SRP is a voluntary cleanup program, it excludes sites being cleaned up by

liable parties under, for example, the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), landfill

closure requirements, or the Leaking Underground Storage Tank (UST) program. The SRP is

codified in Board rules and administered by the Agency. Remediations of “regulated

substances” (hazardous substances and petroleum products) and pesticides are based on the

Board’s Tiered Approach to Corrective Action Objectives (TACO) rules (35 Ill. Adm. Code

742). TACO provides risk-based remediation objectives that take into account property use and

contaminant exposure pathways. Once the RA completes the Agency-approved remediation

under the SRP, the Agency issues a “No Further Remediation” (NFR) Letter to the RA. The RA

must record the NFR Letter in the chain of title for the site.

DISCUSSION OF ADOPTED AMENDMENTS

For BSRP reimbursement under the new Subpart I, RAs must apply to both the Agency

and the DCEO, and pay associated application fees totaling from $2,000 to $2,500 per site. The

fee is $1,000 per site for eligibility reviews conducted by the DCEO. 415 ILCS 5/58.15(B)(c)

(2002). The fee is $1,000 fee per site per application for review of remediation costs conducted

by the Agency, and $500 per site per preliminary review of the budget plan, also conducted by

the Agency.

See

415 ILCS 5/58.15(B)(j) (2002); 35 Ill. Adm. Code 740.920.

Generally, to be eligible for reimbursement, an RA must have been issued an NFR Letter

under the SRP, must have recorded the NFR Letter, and must not have materially caused or

contributed to the contamination.

See

35 Ill. Adm. Code 740.900, 740.910. The RA also must

apply for and receive a DCEO letter: (1) determining that the RA is eligible for reimbursement

because the site qualifies as either “abandoned property” or “underutilized property”; (2) setting

forth the remediation’s “net economic benefit” to the State based on factors such as capital

investment and job creation; and (3) providing the maximum amount the RA may be reimbursed.

See

415 ILCS 5/58.15(B)(b)(3) (2002); 35 Ill. Adm. Code 740.901. DCEO approval is required

before any costs are incurred.

See

415 ILCS 5/58.15(B)(a)-(e) (2002). “Priority must be given

to sites located in areas with high levels of poverty, where the unemployment rate exceeds the

State average, where an enterprise zone exists, or where the area is otherwise economically

depressed as determined by [DCEO].” 415 ILCS 5/58.15(B)(b)(3) (2002).

Reimbursement is subject to funds available in the Brownfields Redevelopment Fund for

the BSRP each fiscal year, and funds are distributed based on the order applications for

reimbursement are received.

See

415 ILCS 5/58.15(B)(a)(5). Only

“remediation costs” that are

“reasonable,” as determined by the Agency, are eligible.

See

415 ILCS 5/58.15(B)(e), (f)

(2002); 35 Ill. Adm. Code 740.915(a). In addition, an RA cannot be reimbursed more than the

lowest of the following: (1) $750,000 in remediation costs at the site; (2) 20% of the capital

investment at the site; or (3) the net economic benefit to the State of the remediation. 35 Ill.

Adm. Code 740.900.

The eligible remediation costs and ineligible costs for the BSRP are substantively the

same as currently defined in Subpart G of Part 740, the Board rules governing applying for an

environmental remediation tax credit.

See

35 Ill. Adm. Code 740.725, 740.730, 740.925,

740.930. The only change is the specification that handling charges for subcontractor costs when

the contractor has not paid the subcontractor are ineligible. 35 Ill. Adm. Code 740.930. An RA

may appeal Agency disapprovals or modifications of budget plans and reimbursement requests to

the Board within 35 days of receiving the Agency disapproval or modification letter.

See

415

ILCS 5/58.15(B)(a)-(f) (2002); 35 Ill. Adm. Code 740.915(k).

Under the BSRP, the Agency must make a final determination within 60 days of

receiving a reimbursement application. 35 Ill. Adm. Code 740.915. Submittal of a budget plan

automatically waives the remedial action plan deadlines for an additional 60 days.

See

35 Ill.

Adm. Code 740.905(e), (g), 740.915(b)-(e). The DCEO will establish its own timeframe for

making the eligibility determination.

See

35 Ill. Adm. Code 740.901(b). Furthermore,

amendments to the application or the budget plan restart the Agency’s time for review. 35 Ill.

Adm. Code 740.905, 740.915.

The Agency has stated that the proposed amendments do not raise concerns over

technical feasibility. Statement of Reasons at 8. The Board held a hearing on May 14, 2003, to

satisfy the requirements of Section 27(b) of the Act. 415 ILCS 5/27(b) (2002). Nobody testified

or commented about DCEO’s decision not to perform an economic impact study on this

rulemaking. As found at first and second notice, the Board finds the proposal is both technically

feasible and economically reasonable.

CONCLUSION

The Board adopts the amendments discussed above. This opinion constitutes the Board’s

findings of fact and conclusions of law.

ORDER

The Board adopts the following amendments to the Site Remediation Program

regulations. The Board directs the Clerk to file the following adopted amendments with the

Secretary of State.

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 of Application and Agreement

740.210 Contents of Application and Agreement

740.215 Approval or Denial of Application and Agreement

740.220 Acceptance and Modification of Application and Agreement

740.225 Termination of Agreement by the Remediation Applicant (RA)

740.230 Termination of Agreement by the Agency

740.235 Use of Review and 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 of Payment

740.320 Manner of Payment

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 of Plans and Reports by Licensed

Professional Engineer (LPE)

740.410 Form and Delivery of Plans 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 of Remediation Objectives

740.445 Remediation Objectives Report

740.450 Remedial Action Plan

740.455 Remedial Action Completion Report

SUBPART E: SUBMITTAL AND REVIEW OF PLANS AND REPORTS

Section

740.500 General

740.505 Reviews of Plans and Reports

740.510 Standards for Review of Site Investigation Reports and Related Activities

740.515 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 of Groundwater Management Zones

740.535 Establishment of Soil Management Zones

SUBPART F: NO FURTHER REMEDIATION LETTERS AND RECORDING

REQUIREMENTS

Section

740.600 General

740.605 Issuance of No Further Remediation Letter

740.610 Contents of No Further Remediation Letter

740.615 Payment of Fees

740.620 Duty to Record No Further Remediation Letter

740.621 Requirements for No Further Remediation Letters Issued to Illinois Department of

Transportation Remediation Sites Located in Rights-of-Way

740.622 Requirements for Perfection of No Further Remediation Letters Issued to Federal

Landholding Entities Without Authority to Record Institutional Controls

740.625 Voidance of No Further Remediation Letter

SUBPART G: REVIEW OF ENVIRONMENTAL REMEDIATION COSTS FOR

ENVIRONMENTAL REMEDIATION TAX CREDIT

Section

740.700 General

740.705 Preliminary Review of Estimated Remediation Costs

740.710 Application for Final Review of Remediation Costs

740.715 Agency Review of Application for Final Review of Remediation Costs

740.720 Fees and Manner of Payment

740.725 Remediation Costs

740.730 Ineligible Costs

SUBPART H: REQUIREMENTS RELATED TO SCHOOLS

Section

740.800 General

740.805 Requirements Prior to Public Use

740.810 Engineered Barriers and Institutional Controls

740.815 Public Notice of Site Remedial Action Plan

740.820 Establishment of Document Repository

740.825 Fact Sheet

SUBPART I: REVIEW OF REMEDIATION COSTS FOR BROWNFIELDS SITE

RESTORATION PROGRAM

Section

740.900 General

740.901 Pre-application Assessment and Eligibility Determination

740.905 Preliminary Review of Estimated Remediation Costs

740.910 Application for Final Review and Payment of Remediation Costs Following

Perfection of No Further Remediation Letter

740.911 Application for Review and Payment of Remediation Costs

Prior to Perfection of

No Further Remediation Letter

740.915 Agency Review of Application for Payment of Remediation Costs

740.920 Fees and Manner of Payment

740.925 Remediation Costs

740.930 Ineligible Costs

740.APPENDIX A Target Compound List

740.TABLE A Volatile Organics Analytical Parameters

740.TABLE B Semivolatile Organic Analytical Parameters

740.TABLE C Pesticide and Aroclors Organic Analytical Parameters

740.TABLE D Inorganic Analytical Parameters

740.APPENDIX B Review and Evaluation Licensed Professional Engineer Information

AUTHORITY: Implementing Sections 58 through 58.8 and 58.10 through 58.15 and authorized

by Sections 58.5, 58.6, 58.7, 58.11 58.14, and 58.15 of the Environmental Protection Act [415

ILCS 5/58 through 58.8 and 58.10 through 58.15].

SOURCE: Adopted in R97-11 at 21 Ill. Reg. 7889, effective July 1, 1997; amended in R98-27 at

22 Ill. Reg.19580, effective October 26, 1998; amended in R01-27 and R01-29 at 26 Ill. Reg.

7197, effective April 25, 2002; amended in R03-20 at 28 Ill. Reg. _________, effective

____________.

NOTE: Italics denote statutory language.

SUBPART A: GENERAL

Section 740.100 Purpose

The purpose purposes of this Part is are:

to To establish THE PROCEDURES FOR THE INVESTIGATIVE AND

REMEDIAL ACTIVITIES AT SITES WHERE THERE IS A RELEASE,

THREATENED RELEASE, OR SUSPECTED RELEASE OF HAZARDOUS

SUBSTANCES, PESTICIDES, OR PETROLEUM AND FOR THE REVIEW

AND APPROVAL OF THOSE ACTIVITIES

the procedures for the investigative

and remedial activities at sites where there is a release, threatened release, or

suspected release of hazardous substances, pesticides, or petroleum and for the

review and approval of those activities

(Section 58.1(a)(1) of the Act)[415 ILCS

5/58.1(a)(1)];

The purpose of this Part is also to To establish procedures to be followed to obtain

Illinois Environmental Protection Agency review and approval of remediation

costs before applying for the environmental remediation tax credit under Section

201(l) of the Illinois Income Tax Act [35 ILCS 5/201(l)]; and.

c) To

establish and administer a program for the payment of remediation costs to be

known as the Brownfields Site Restoration Program whereby the Agency,

with the

assistance of the Department of Commerce and Economic Opportunity (DCEO)

through the program, shall provide remediation applicants with financial

assistance for the investigation and remediation of abandoned or underutilized

properties

. [415 ILCS 5/58.15(B)(a)(1)]

(Source: Amended at 28 Ill. Reg. ________, effective __________)

Section 740.120 Definitions

Except as stated in this Section, or unless a different meaning of a word or term is clear from the

context, the definitions of words or terms in this Part shall be the same as that applied to the

same words or terms in the Environmental Protection Act.

"Abandoned property" means real property previously used for, or that has the

potential to be used for, commercial or industrial purposes that reverted to the

ownership of the State, a county or municipal government, or an agency thereof,

through donation, purchase, tax delinquency, foreclosure, default, or settlement,

including conveyance by deed in lieu of foreclosure; or privately owned property

that has been vacant for a period of not less than 3 years from the time an

application is made to the

Department of Commerce and Economic Opportunity

[415 ILCS 5/58.15(B)(b)(2)]

"Act" means the Environmental Protection Act. [415 ILCS 5/1

et seq.

]

"Agency" means the Illinois Environmental Protection Agency

. [415 ILCS

5/3.01]

"Agency travel costs" means costs incurred and 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

. [415 ILCS 5/58.2]

"ASTM" means the American Society for Testing and Materials.

[415 ILCS

5/58.2]

"Authorized agent" means a person who is authorized by written consent or by

law to act on behalf of 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.

[415 ILCS 5/58.2]

"Costs" means all costs incurred by the Agency in providing services pursuant to

a Review and Evaluation Services Agreement.

“DCEO” means the Department of Commerce and Economic Opportunity

(previously known as the Department of Commerce and Community Affairs).

“Federal Landholding Entity” means that federal department, agency or

instrumentality with the authority to occupy and control the day-to-day use,

operation, and management of Federally Owned Property.

“Federally Owned Property” means real property owned in fee by the United

States on which an institutional control is or institutional controls are sought to be

placed in accordance with this Part.

"GIS" means Geographic Information System.

"GPS" means Global Positioning System.

"Groundwater management zone" or "GMZ" means a three-dimensional region

containing groundwater being managed to mitigate impairment caused by the

release of contaminants of concern at a remediation site.

"Indirect costs" means those costs incurred by the Agency that cannot be

attributed directly to a specific site but are necessary to 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.

“Institutional Control” means a legal mechanism for imposing a restriction on

land use.

"Laboratory costs" means costs for services and materials associated with

identifying, analyzing, and quantifying chemical compounds in samples at a

laboratory.

“Land Use Control Memorandum of Agreement” or “LUC MOA” means an

agreement entered into between one or more agencies of the United States and the

Illinois Environmental Protection Agency that limits or places requirements upon

the use of Federally Owned Property for the purpose of protecting human health

or the environment, or that is used to perfect a No Further Remediation Letter that

contains land use restrictions.

"Licensed Professional Engineer" or "LPE" means a person, corporation or

partnership licensed under the laws of this State to practice professional

engineering.

[415 ILCS 5/58.2]

"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.

"Perfect" or "Perfected" means recorded or filed for record so as to place the

public on notice, or as otherwise provided in Sections 740.621 and 740.622 of this

Part.

"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.

[415 ILCS 5/58.2]

"Personal services costs" means costs relative to the employment of individuals

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.

[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

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 at Section 740.125 of this Part. For filtered water

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 Publication No.

EPA/600/4-91/010; "Methods for the Determination of Metals in Environmental

Samples, Supplement I," EPA Publication No. EPA/600/R-94/111; "Methods for

the Determination of Organic Compounds in Drinking Water," EPA Publication

No. EPA/600/4-88/039; "Methods for the Determination of Organic Compounds

in Drinking Water, Supplement II," EPA Publication No. EPA/600/R-92/129; or

"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 at Section 740.125 of this 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 of any 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 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]

Regulated substance of concern"

or "contaminant 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.

[415 ILCS 5/58.2]

"Release" means any spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, dumping, or disposing into the

environment, but excludes any release which results in exposure to persons solely

within a workplace, with respect to a claim which such persons may assert

against the employer or 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.

[415 ILCS5/3.33]

"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 of site investigations, preparation of work plans and reports, removal or

treatment of contaminants, construction and maintenance of engineered barriers,

and/or implementation of institutional controls. [415 ILCS 5/58.2]

"Remediation Applicant"

"RA" means any person seeking to perform or

performing investigative or remedial activities under Title XVII of the 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.

[415

ILCS 5/58.2]

"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 Subparts G and I of this Part

, "Remediation

Costs" shall not include costs incurred prior to January 1, 1998, costs incurred

after the issuance of a No Further Remediation Letter under

Subpart F of this

Part,

or costs incurred more than 12 months prior to acceptance into the Site

Remediation Program

under this Part. [415 ILCS 5/58.2]

"Remediation objective" means a goal to be achieved in performing remedial

action, including but not limited to the concentration of a contaminant, an

engineered barrier or engineered control, or an institutional control established

under Section 58.5 of the Act or Section 740.Subpart D of this Part.

"Remediation site" means the single location, place, tract of land, or parcel or

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

public right-of-way, for which review, evaluation, and approval of any 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, or tract 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. [415 ILCS 5/58.2]

"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 of the

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.

[415 ILCS 5/58.2] This term also includes, but is not limited to, all buildings

and improvements present at that location, place or tract of land.

"Soil management zone" or "SMZ" means a three dimensional region containing

soil being managed to mitigate contamination caused by the release of

contaminants at a remediation site.

"Underutilized property" means real property of which less than 35% of the

commercially usable space of the property and improvements thereon are used

for their most commercially profitable and economically productive uses.

[415

ILCS 5/58.15(B)(b)(2)]

(Source: Amended at 28 Ill. Reg. ________, effective __________)

SUBPART I: REVIEW OF REMEDIATION COSTS FOR BROWNFIELDS SITE

RESTORATION PROGRAM

Section 740.900 General

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

review, a final determination and payment of remediation costs under the

Brownfields Site Restoration Program. It contains procedures for preliminary

reviews of estimated remediation costs and final reviews of remediation costs

actually incurred, establishes fees for the Agency’s reviews, provides for appeals

of Agency determinations, and includes listings of eligible and ineligible costs.

For each State fiscal year in which funds are made available to the Agency for

payment under this

Subpart,

the Agency must, subject to the availability of funds,

allocate 20% of the funds to be available to Remediation Applicants within

counties with populations over 2,000,000. The remaining funds must be made

available to all other Remediation Applicants in the State

. [415 ILCS

5/58.15(B)(a)(2)] Brownfields Site Restoration Program funds shall be subject to

availability of funding and distributed based on the order of receipt of applications

satisfying all the requirements of this Subpart.

The total payment to be made to an applicant must not exceed an amount equal to

20% of the capital investment at the site

. [415 ILCS 5/58.15(B)(a)(3)]

Only those remediation projects for which a No Further Remediation Letter is

issued after December 31, 2001 are eligible to participate in the Brownfields Site

Restoration Program. The program does not apply to any sites

for which

a No

Further Remediation Letter

is issued on or

prior to December 31, 2001 or to costs

incurred prior to

DCEO

approving a site eligible for the Brownfields Site

Restoration Program

. [415 ILCS 5/58.15(B)(a)(4)]

Except as provided in

Section 740.911,

an application for review of remediation

costs must not be submitted until:

A No Further Remediation Letter has been issued by the Agency

or has

issued by operation of law;

and

The No Further Remediation Letter

, or an affidavit under Section

740.620(a)(2) of this Part stating that the No Further Remediation Letter

has issued by operation of law,

has been

recorded in the chain of title for

the site in accordance with

Subpart F of this Part. [415 ILCS

5/58.15(B)(e)]

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

Applicant for remediation costs incurred at a remediation site.

[415 ILCS

5/58.15(B)(a)(3)]

Brownfields Site Restoration Program funds shall be subject to availability of

funding and distributed based on the order of receipt of applications satisfying all

applicable requirements as set forth in

the Act and this Part

[415 ILCS

5/58.15(B)(a)(5)]

(Source: Added at 28 Ill. Reg. ______, effective ____________________)

Section 740.901 Pre-application Assessment and Eligibility Determination

a) Prior to submitting an application to determine eligibility to DCEO,

Remediation Applicant shall first submit to the Agency its proposed remediation

costs. The Agency shall make a pre-application assessment, which is not to be

binding upon

DCEO

or upon future review of the project, relating only to whether

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

costs if the applicant is found to be eligible for reimbursement of remediation

costs.

[415 ILCS 5/58.15(B)(b)]

If the Agency determines that it is likely to have adequate funding to reimburse

the applicant for remediation costs, the Remediation Applicant may then submit to

DCEO

an application for review of eligibility

. [415 ILCS 5/58.15(B)(b)] To be

eligible for payment, an RA must have a minimum capital investment in the

redevelopment of the site. Procedures for applying for eligibility and for

obtaining a determination from DCEO must be obtained from DCEO.

c) Once DCEO has determined that an RA is eligible, the RA may submit an

application to the Agency in accordance with Section 740.910 or Section 740.911

of this Part.

d) The Agency must rely on DCEO’s decision as to eligibility. The maximum

amount of the payment to be made to the RA for remediation costs may not

exceed the “net economic benefit” to the State of the remediation project, as

determined by DCEO

, based on factors including, but not limited to, the capital

investment, the number of jobs created, the number of jobs retained if it is

demonstrated the jobs would otherwise be lost, capital improvements, the number

of construction-related jobs, increased sales, material purchases, other increases

in service and operational expenditures

. [415 ILCS 5/58.15(B)(b)(3)]

(Source: Added at 28 Ill. Reg. ______, effective ____________________)

Section 740.905 Preliminary Review of Estimated Remediation Costs

A Remediation Applicant may obtain a preliminary review of estimated

remediation costs for the development and implementation of a Remedial Action

Plan

, required under Section 740.450 of this Part,

by submitting a budget plan

along with the Remedial Action Plan

. [415 ILCS 5/58.15(B)(i)(1)] The Agency

shall not accept a budget plan unless a Remedial Action Plan satisfying the

requirements of Section 740.450 of this Part also has been submitted.

b) 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:

1) Identification of applicant and remediation site, including:

A) The full legal name, address and telephone number of the RA, any

authorized agents acting on behalf of the RA, and any contact

persons to whom inquiries and correspondence must be addressed;

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

Illinois inventory identification number for the remediation site

and the date of acceptance of the site into the Site Remediation

Program; and

C) The Federal Employer Identification Number (FEIN) or Social

Security Number (SSN) of the RA.

2) Line item estimates of the costs that the RA anticipates will be incurred

for the development and implementation of the Remedial Action Plan,

including but not limited to:

A) Site investigation activities:

i) Drilling costs;

ii) Physical soil analysis;

iii) Monitoring well installation; and

iv) Disposal costs.

B) Sampling and analysis activities:

i) Soil analysis costs;

ii) Groundwater analysis costs;

iii) Well purging costs; and

iv) Water disposal costs.

C) Remedial activities:

i) Groundwater remediation costs;

ii) Excavation and disposal costs;

iii) Land farming costs;

iv) Above-ground bio-remediation costs;

v) Land application costs;

vi) Low temperature thermal treatment costs;

vii) Backfill costs; and

viii) In-situ soil remediation costs.

D) Report preparation costs.

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

follows:

I, [name of RA, if individual, or authorized agent of RA], hereby certify

that neither [“I” if RA is certifying or name of RA if authorized agent is

certifying], nor any related party (as described in Section 201(l) of the

Illinois Income Tax Act [35 ILCS 5/201(l)]), nor any person whose tax

attributes [“I” if RA is certifying or name of RA if authorized agent is

certifying] have [has] succeeded to under Section 381 of the Internal

Revenue Code, caused or contributed in any material respect to the release

or substantial threat of a release of regulated substance(s) or pesticide(s)

that are identified and addressed in the Remedial Action Plan submitted

for the site identified above.

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

the RA.

c) The RA must submit the applicable fee, as provided in Section 740.920 of this

Subpart, with the budget plan, except as provided in subsections (f) and (i)(4) of

this Section.

d) 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 of a budget plan must be deemed an automatic 60-day waiver of the

Remedial Action Plan deadlines set forth in

the Act and Section 740.505 of this

Part. [415 ILCS 5/58.15(B)(i)(4)]

If the Remedial Action Plan is amended by the Remediation Applicant or as a

result of Agency action, the corresponding budget plan must be revised

accordingly and resubmitted

. [415 ILCS 5/58.15(B)(i)(2)] No additional fee

shall be required for this review.

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

1) The Agency’s review period begins on the date of receipt of the budget

plan by the Agency. The Agency's record of the date of receipt of a budget

plan shall be deemed conclusive unless a contrary date is proven by a

dated, signed receipt from certified or registered mail.

2) 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 with an additional 60 days, due to the automatic

waiver, in accordance with subsection (e) of this Section.

3) Submittal of an 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 submitted are remediation costs and

whether the costs estimated for the activities are reasonable

. [415 ILCS

5/58.15(B)(i)(1)]

i) Upon completion of the review,

the Agency must issue a letter to the Remediation

Applicant approving, disapproving or modifying the estimated remediation costs

submitted in the budget plan.

[415 ILCS 5/58.15(B)(i)(5)] The following rules

apply regarding Agency determinations:

1) The Agency’s notification of final 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 have been

made on the postmarked date that the notice is mailed.

2) The Agency may combine the notification of its final determination on a

budget plan with the notification of its final determination on the

corresponding Remedial Action Plan.

3) If a budget plan is disapproved or approved with modification of estimated

remediation costs, the written notification shall contain the following

information as applicable:

A) An explanation of the specific type of information or

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

provide;

B) The reasons for the disapproval or modification of estimated

remediation costs; and

C) Citations to statutory or regulatory provisions upon which the

determination is based.

4) If the Agency disapproves a Remedial Action Plan or approves a

Remedial Action Plan with conditions, in accordance with Subpart E of

this Part, the Agency may return the corresponding budget plan to the RA

without review. If the Remedial Action Plan is amended in response to

Agency action, the 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 budget plan

or expiration of the Agency deadline,

the Remediation

Applicant may appeal the Agency’s decision

or the Agency’s failure to

issue a final determination

to the Board in the manner provided for the

review of permits in Section 40 of

the

Act

. [415 ILCS 5/58.15(B)(i)(6)]

(Source: Added at 28 Ill. Reg. ______, effective ____________________)

Section 740.910 Application for Final Review and Payment of Remediation Costs

Following Perfection of No Further Remediation Letter

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

application for final review and payment of remediation costs following

perfection of a No Further Remediation Letter.

b) The application must be submitted on forms prescribed and provided by the

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

1) Identification of RA and remediation site, including:

A) The full legal name, address and telephone number of the RA, any

authorized agents acting on behalf of the RA, and any contact

persons to whom inquiries and correspondence must be addressed;

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

Illinois inventory identification number for the remediation site;

C) The date of acceptance of the remediation site into the Site

Remediation Program; and

D) The Federal Employer Identification Number (FEIN) or Social

Security Number (SSN) of the RA;

2) A true and correct copy of the No Further Remediation Letter, or

affidavit(s) under Section 740.620(a)(2) of this Part stating that the No

Further Remediation Letter has issued by operation of law, for the

remediation site, as recorded in the chain of title for the site and certified

by the appropriate County Recorder or Registrar of Titles;

true and correct

copy of

DCEO’s

letter approving eligibility, including

the net economic benefit of the remediation project

[415 ILCS

5/58.15(B)(e)(4)]

;

4) Itemization and documentation of remediation 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 of proof of payment;

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

follows:

I, ___________________ [name of RA, if individual, or authorized agent

of RA], 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 application were incurred at the site and for

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

Remediation Letter was issued;

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 of RA if authorized agent is certifying] and are accurate

to the best of my knowledge and belief;

None of the costs were incurred before approval of the site by DCEO 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 of regulated

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

was issued.

6) The original signature of the RA or of the authorized agent acting on

behalf of the RA.

c) The application for final review must be accompanied by the applicable fee for

review as provided in Section 740.920 of this Subpart. Applications 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.

d) The Agency’s acceptance of a certification that the RA did not cause or contribute

in any material respect to the release or substantial threat of a 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 28 Ill. Reg. ______, effective ____________________)

Section 740.911 Application for Review and Payment of Remediation Costs Prior to

Perfection of No Further Remediation Letter

An application for review of remediation costs may be submitted to the Agency

prior to the issuance of a No Further Remediation Letter

(or an affidavit under

Section 740.620(a)(2) of this Part stating that the No Further Remediation Letter

has issued by operation of law)

if the Remediation Applicant has a Remedial

Action Plan approved by the Agency

under Section 740.450 of this Part

under the

terms of which the Remediation Applicant will remediate groundwater for more

than one year.

[415 ILCS 5/58.15(B)(f)]

b) The application must be on forms prescribed and provided by the Agency, shall

be accompanied by the applicable fee for review as provided in Section

740.920(b) of this Subpart, and must include, at a minimum, the following

information:

1) Identification of RA and remediation site, including:

A) The full legal name, address and telephone number of the RA, any

authorized agents acting on behalf of the RA, and any contact

persons to whom inquiries and correspondence must be addressed;

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

Illinois inventory identification number for the remediation site;

C) The date of acceptance of the remediation site into the Site

Remediation Program; and

D) The Federal Employer Identification Number (FEIN) or Social

Security Number (SSN) of the RA;

2) A true and correct

copy of the Agency letter approving the Remedial

Action Plan

[415 ILCS 5/58.15(B)(f)(2)];

true and correct

copy of

DCEO’s

letter approving eligibility, including

the net economic benefit of the remediation project

[415 ILCS

5/58.15(B)(f)(4)]

;

4) Itemization and documentation of remediation 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 of proof of payment;

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

follows:

I, ___________________ [name of RA, if individual, or authorized agent

of RA], 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) of this

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 defined 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 of my knowledge and belief;

None of the costs were incurred before approval of the site by DCEO 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 of regulated

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

approved.

6) The original signature of the RA or of the authorized agent acting on

behalf of the RA.

Until the Agency issues a No Further Remediation Letter for the site

(or an

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

Remediation Letter has issued by operation of law)

, no more than 75% of the

allowed payment may be claimed by the Remediation Applicant. The remaining

25% may be claimed following the issuance by the Agency of a No Further

Remediation Letter

(or an affidavit under Section 740.620(a)(2) of this Part

stating that the No Further Remediation Letter has issued by operation of law)

for

the site

[415 ILCS 5/58.15(B)(g)]

d) The Agency’s acceptance of a certification that the RA did not cause or contribute

in any material respect to the release or substantial threat of a 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 28 Ill. Reg. ______, effective ____________________)

Section 740.915 Agency Review of Application for Payment of Remediation Costs

The Agency must review

each

application

submitted pursuant to Section 740.910

or Section 740.911

to determine

, in accordance with Sections 740.925 and

740.930 of this Part,

whether the costs submitted are remediation costs and

whether the costs incurred are reasonable.

[415 ILCS 5/58.15(B)(e), (f)]

Within 60 days after receipt by the Agency of an application meeting the

requirements of

Section 740.910 or Section 740.911,

the Agency must issue a

letter to the

approving, disapproving, or modifying the remediation costs

submitted in the application.

[415 ILCS 5/58.15(B)(h)(1)]

c) The Agency’s review period begins on the date of receipt of the budget plan by

the Agency. The Agency's record of the date of receipt of a budget plan shall be

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

from certified or registered mail.

d) The RA may waive the time for review.

e) Submittal of an amended application restarts the time for review.

f) The Agency’s notification of final 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 have been made on the postmarked

date that the notice is mailed.

g) If a preliminary review of a budget plan has been obtained under

Section 740.905

of this Part

the Remediation Applicant may submit, with the application,

applicable fee under Section 740.920 of this Part, and supporting documentation

under

Section 740.910 or Section 740.911 of this Part, a copy of the Agency’s

final determination on the budget plan accompanied by a certification

signed by

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

I, ____________________[name of RA, if individual, or name of authorized

agent of RA], 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 of remediation costs are equal to or less than the costs

approved for the corresponding line items in the attached budget plan

determination.

h) If the budget plan determination and certification are submitted pursuant to

subsection (g) of this Section, the Agency may conduct further review of the

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 of the Remedial Action Plan.

i) If the certification in subsection (g) of this Section does not apply to all line items

as approved in the budget plan, the Agency shall conduct its review of the costs

for the uncertified line items as if no budget plan had been approved. In its

review, the Agency shall not reconsider the appropriateness of any activities,

materials, labor, equipment, structures or services already approved by the

Agency for the development or implementation of the Remedial Action Plan.

j) If an application is disapproved or approved with modification of remediation

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

applicable:

1) An explanation of the specific type of information or documentation, if

any, that the Agency deems the RA did not provide;

2) The reasons for the disapproval or modification of remediation costs; and

3) Citations to statutory or regulatory provisions upon which the

determination is based.

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

application for approval of remediation costs, the Remediation Applicant may

appeal the Agency’s decision to the Board in the manner provided for the review

of permits in Section 40 of

the

Act.

[415 ILCS 5/58.15(B)(h)(3)]

(Source: Added at 28 Ill. Reg. ______, effective ____________________)

Section 740.920 Fees and Manner of Payment

a) The fee for the preliminary review of estimated remediation costs conducted

under Section 740.905 of this Part shall be $500 for each remediation site

reviewed. (Derived from 415 ILCS 5/58.15(B)(j)(2))

b) The fee for the final review of remediation costs under Section 740.910 or Section

740.911 of this Part shall be $1000 for each remediation site reviewed. (Derived

from 415 ILCS 5/58.15(B)(j)(1))

c) The fee for a review under this Subpart shall be in addition to any other fees,

payments or assessments under Title XVII of the Act and this Part.

d) 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 28 Ill. Reg. ______, effective ____________________)

Section 740.925 Remediation Costs

a) 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:

1) Preparation of bid documents and contracts for procurement of

contractors, subcontractors, analytical and testing laboratories, labor,

services and suppliers of equipment and materials;

2) Engineering services performed in accordance with Section 58.6 of the

Act and implementing regulations at Sections 740.235 and 740.405 of this

Part;

3) Site assessment and remedial investigation activities conducted in

accordance with Sections 740.410, 740.415, 740.420 and 740.430 of this

Part;

4) Report or plan preparation conducted in accordance with Sections

740.425, 740.435, 740.445, 740.450 and 740.455 of this Part;

5) Collection, analysis or measurement of site samples in accordance with

Section 740.415(d) of this Part;

6) Groundwater monitoring well installation, operation, maintenance and

construction materials;

7) Removal, excavation, consolidation, preparation, containerization,

packaging, transportation, treatment or off-site disposal of wastes,

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 of this Part. Activities must be in compliance with all applicable

State or federal statutes and regulations;

8) Clean backfill materials in quantities necessary to replace soils excavated

and disposed of 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 of this Part;

9) Transportation, preparation and placement of clean backfill materials

pursuant to an approved Remedial Action Plan in accordance with Section

740.450 of this Part;

10) 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 of this Part;

11) Engineering costs associated with preparation of a budget plan in

accordance with Section 740.905 of this Subpart or an application for

review and payment of remediation costs in accordance with Section

740.910 or Section 740.911 of this Subpart if prepared before the issuance

of the No Further Remediation Letter (by the Agency or by operation of

law);

12) Removal or replacement 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 of this Part;

13) Clay, 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

of this Part;

14) Placement of clay, 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 of this Part;

15) Destruction or dismantling and reassembly of above-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;

16) Costs associated with obtaining a special waste generator identification

number not to exceed $100.

b) An RA may submit a request for review of remediation costs that includes an

itemized accounting and documentation of costs associated with activities,

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

of this 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 28 Ill. Reg. ______, effective ____________________)

Section 740.930 Ineligible Costs

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

a) Costs not incurred by the RA, including:

1) Costs incurred for activities, materials, labor or services relative to

remediation at a site other than the site for which the No Further

Remediation Letter was issued;

2) Costs for remediating a release or substantial threat of a release of

regulated substances or pesticides that was caused or contributed to in any

material respect by the RA;

b) Costs incurred before approval of the site by DCEO as eligible for the

Brownfields Site Restoration Program;

c) Costs associated with material improvements to the extent that such

improvements are not necessary to achieve remediation objectives pursuant to an

approved Remedial Action Plan in accordance with Section 740.450 of this Part;

d) Costs or losses resulting from business interruption;

e) Costs incurred as a result of vandalism, theft, negligence or fraudulent activity by

the RA or the agent of the RA;

f) Costs incurred as a result of negligence in the practice of professional engineering

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

ILCS 325/4];

g) Costs incurred as a result of negligence by any contractor, subcontractor, or other

person providing remediation services at the site;

h) Costs associated with replacement of above-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

to an approved Remedial Action Plan in accordance with Section 740.450 of this

Part;

i) Attorney fees;

j) Purchase costs of non-consumable materials, supplies, equipment or tools, except

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

equipment or tools;

k) Costs for repairs or replacement of equipment or tools due to neglect, improper or

inadequate maintenance, improper use, loss or theft;

l) Costs associated with activities that violate any provision of the Act or Board,

Agency or Illinois Department of Transportation regulations;

m) Costs associated with improperly installed or maintained groundwater monitoring

wells;

n) 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;

o) Stand-by or demurrage costs;

p) Interest or finance costs charged as direct costs;

q) Insurance costs charged as direct costs;

r) Indirect costs for personnel, labor, materials, services or equipment charged as

direct costs;

s) Costs associated with landscaping, vegetative cover, trees, shrubs and aesthetic

considerations;

t) Costs associated with activities, materials, labor, equipment, structures or services

to the extent they are not necessary for compliance with this Part 740, 35 Ill.

Adm. Code 742 and the approved Remedial Action Plan;

u) Costs determined to be incorrect as a result of a mathematical, billing or

accounting error;

v) Costs that are not adequately documented;

w) Costs that are determined to be unreasonable;

x) Handling charges for subcontractor costs when the contractor has not paid the

subcontractor.

(Source: Added at 28 Ill. Reg. ______, effective ____________________)

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on January 22, 2004, by a vote of 5-0.