Microsoft Word - R04-022,23 Opinion and Order 021705.doc

ILLINOIS POLLUTION CONTROL BOARD

February 17, 2005

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION OF PETROLEUM LEAKING

UNDERGROUND STORAGE TANKS (35

ILL. ADM. CODE 732

______________________________________

)

R04-22

(UST Rulemaking)

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

REGULATION OF PETROLEUM LEAKING

UNDERGROUND STORAGE TANKS (35

ILL. ADM. CODE 734

)

R04-23

(UST Rulemaking)

Consolidated

Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

Today the Board will proceed to first notice under the Illinois Administrative Procedure

Act (5 ILCS 100/1-1

et. seq.

(2002)) with a rulemaking proposed by the Illinois Environmental

Agency (Agency). The Agency originally proposed amendments to the regulations concerning

the leaking Underground Storage Tank (UST) program in January 2004. The Board has held

seven days of hearings and received substantial comment on the Agency’s proposal. The Board

received comments from industry, trade groups, and professional organizations including a group

formed as a result of the proposal called Professionals of Illinois for the Protection of the

Environment (PIPE). The Board has evaluated the comments in this proceeding and the

additional language changes suggested by both the Agency and the participants. The first-notice

proposal adopted by the Board today reflects the Board’s consideration of all the comments and

testimony the Board has received.

During this process, which began over a year ago, the Agency has submitted three

errata

sheets reflecting changes based on the questions and comments at the hearings. In addition,

PIPE and other participants have suggested changes to the proposal. Based on all the

suggestions and the record of this proceeding, the Board proposes for first notice a rule that

includes lump sum maximum payments for certain tasks, but not a scope of work for those tasks.

The Board is proposing the maximum payment amounts proposed by the Agency in most cases.

The Board is cognizant that the methods used to develop the rates by the Agency were not

scientifically or statistically recognized methods. However, the Agency’s experience in the UST

program is also an element to be taken into consideration. In addition, the first-notice proposal

will include provisions for bidding, extraordinary circumstances, and an annual inflation

adjustment. The Board is convinced that the first-notice proposal, as a whole, will allow for

reimbursement of reasonable remediation costs.

As noted above, the proposal includes a provision for bidding, and further, the proposal

allows for the preparation of a request for bids and the review of the bids to be reimbursed on a

time and materials basis. The Board is also proposing that Stage 3 site investigations be

reimbursed based on time and materials. The Board will also propose the rule for first notice

including a definition for “financial interest” and prohibiting reimbursement for handling charges

when the primary contractor has a financial interest in the subcontractor. The Board will also

retain the prohibition for a subcontractor to bid on a project where the primary contractor has a

financial interest in the subcontractor.

The Board’s opinion contains four main sections. The first section sets forth the

background of this proceeding. The second section will provide a summary of the Agency’s

proposed language, including the Agency’s testimony and comments. Third, the comments and

testimony of the participants is summarized. Finally, in the discussion section, the Board

identifies the main issues in this rulemaking and elaborates on the Board’s decision concerning

each of the issues. A list of the major issues identified in this rulemaking can be found on pages

60, 61, and 62 of this opinion.

BACKGROUND

On January 13, 2004, the Illinois Environmental Protection Agency (Agency) filed two

proposals for rulemaking. The proposal docketed as R04-22 (R04-22Prop) amends Part 732 of

the Board’s leaking underground storage tank rules (UST rules). 35 Ill. Adm. Code 732. The

proposal docketed as R04-23 (R04-23Prop) will be a new Part 734 of the Board’s UST rules. On

January 22, 2004, the Board accepted and consolidated the proposals for hearing.

Five groups of hearings were held before Board Hearing Officer Marie Tipsord. The

first hearing was held on March 15, 2004, in Chicago (Tr.1). The second group of hearings was

held on May 25, 2004, in Bloomington (Tr.2) and May 26, 2004, in Springfield (Tr.3). The third

group of hearings was an additional two days held on June 21, 2004, (Tr.4) and June 22, 2004,

(Tr.5) in Springfield. The fourth and fifth groups were single days of hearing in Springfield on

July 6, 2004 (Tr.6) and August 9, 2004 (Tr.7). During those hearings the Board heard testimony

from over 15 witnesses. In addition, the Board has received nine public comments in this

proceeding.

PROPOSAL,

ERRATA

SHEETS, AND AGENCY TESTIMONY AND COMMENT

The following section will first summarize the rule language proposed by the Agency in

the original proposal and how the language was amended in the subsequent

errata

sheets. The

next section will summarize the Agency’s testimony in support of the Agency’s language as well

as the Agency’s positions on suggested language changes by other participants. Finally, the

Agency’s public comment will be summarized.

Rule Language

The amendments to Part 732 set forth corrective action measures that must be taken in

response to a leak and procedures for seeking payment from the Underground Storage Tank

Fund (UST Fund). R04-22Prop. at 1. The amendments to Part 732 also reflect changes from

P.A. 92-0554, effective June 24, 2002 and P.A. 92-0735, effective July 25, 2002, which allow a

Licensed Professional Geologist to certify certain information.

. Finally, the Agency amends

Part 732 to streamline the process for obtaining payment from the UST Fund. R04-22Prop. at 2.

The Agency has also proposed a new Part 734, which is applicable to releases reported

after June 24, 2002. R04-23Prop. at 1. Part 734 is identical to Part 732 except for changes

enacted in P.A. 92-0554.

. Those exceptions include different corrective action requirements

and increased caps on the total amount owners and operators can be paid from the UST Fund.

Where the language is identical, the summary will reference both sections with citations

to the R04-22 proposal. Also, certain sections of Part 734 are identical to existing language in

Part 732 which is not being amended. A list of those sections can be found below. Where the

proposals differ, the proposed amendments will be summarized with citations to the appropriate

Agency proposal.

Section 732.100/734.100

The Agency proposes language in both applicability sections. The Agency proposes

amending Section 732.100 to establish that releases reported after the effective date of P.A. 92-

0554 are not subject to Part 732. R04-22Prop. at 3. The Agency proposes amendments to

Section 734.100 to establish that releases which occurred after the enactment of P.A. 92-0554,

but reported prior to the adoption of Part 734, can use the work performed or budget approved to

satisfy the requirement of Part 734. Exh. 87 at 1-2. The Agency’s proposed language in the

third

errata

sheet is designed to ensure that Part 734 is not applied retroactively. Exh. 88 at 20.

Section 732.101

The Agency proposes amendments to clarify that owners or operators could only elect to

proceed under Part 732 until June 23, 2002. R04-22Prop. at 1.

Section 732.103/734.115

The Agency has proposed several definitions to the rules for words or phrases used in the

proposal. R04-22Prop. at 5. In the second

errata

sheet, the Agency proposed an amendment to

the definition proposed for “financial interest” in the original proposal. Exh. 15 at 1. The

Agency also changed the definition of “half-day” in the third

errata,

(Exh. 87 at 2), in response

to a recommendation by members of PIPE, and defined a “half-day” in terms of four hours rather

than five hours. Exh. 88 at 20.

Sections 732.104/734.120 and 732.106/734.420

The Agency is updating the incorporation by references and requiring the inclusion of a

laboratory certification with analytical sample results. R04-22Prop. at 7.

Section 732.108/734.130

The Agency proposes a new section in Part 732 to address the statutory change which

allows a licensed professional geologist to certify certain information submitted to the Agency.

R04-22Prop. at 7. The new section would allow either a licensed professional geologist or

engineer to certify information on all plans, budget plans and reports other than high priority

corrective action completion reports and corrective action completion reports.

. A licensed

professional engineer must still certify information on high priority corrective action completion

reports and corrective action completion reports. R04-22Prop. at 7-8.

Section 732.110/734.135/734.440

A new section is proposed to consolidate general requirements for plans, budget plans

and reports. R04-22Prop. at 8. The Agency suggests amending the language in this section in

both the first and third

errata

sheets. Exh. 1 at 1; Exh. 87 at 4. Specifically, in the third

errata

sheet the Agency amends the language to clarify that a professional is certifying only the

“standards and practices” of their own profession. Exh. 88 at 22.

Section 732.112/734.145

The Agency proposes in the third

errata

sheet to add Section 732.112/734.145 in

response to comments from members of PIPE. Exh. 87 at 3; Exh. 88 at 21. The Agency is

adding language that would allow the Agency to require notification of field activities so that the

Agency can elect to perform direct oversight of field activities. Exh. 88 at 21.

Section 732.114/734.145

In response to concerns regarding the Agency’s administration of the UST program, the

Agency recommends adding a provision which would establish a “LUST Advisory Committee”

within the Agency. Exh. 87 at 3. The committee would be required to meet at least once each

quarter to discuss the Agency’s implementation of the rules.

. The committee would include

members from numerous groups involved in the UST program.

Section 732.200/734.200

Because a work plan is not required for early action, the Agency proposes excluding the

submission of a budget plan for the corresponding work plan. R04-22Prop. at 8. However, free

product removal activities conducted more than 45 days after the confirmation of free product

are excepted from this provision.

Section 732.202/734.210

This section deals with early action at a site where a leaking UST has been removed. The

Agency proposes changes to ensure internal consistency, to reflect changes made by the Office

of State Fire Marshal (OSFM), and to reflect changes made in the enabling statute. R04-22Prop.

at 8-9. The Agency proposes the addition of a new subsection (h)(1), which specifies the

location from which samples must be collected when the UST is removed. R04-22Prop. at 9.

The Agency suggests language in the third

errata

sheet that allows for deviation from the

locations in subsection (h)(1) if a different location is necessary because of site-specific

attributes. Exh. 87 at 4-5. The Agency, in the second

errata

sheet suggests that subsection

(h)(1)(D) be amended to allow for one sample of backfill for every 100 cubic yards of backfill

returned to the excavation. Exh. 15 at 4.

Similarly in subsection (h)(2), the Agency specifies the sample locations to be used when

the UST is not removed and the deviation from those locations for site-specific circumstances in

the third

errata

. R04-22Prop. at 9; Exh. 87 at 5. The Agency also suggested clarifying language

for subsection (h)(2)(A) concerning sampling below the groundwater table. Exh. 15 at 4.

Subsection (h)(3) is renumbered from (h)(1) and amended to require owners and

operators to submit a report demonstrating compliance with the most stringent Tier 1

remediation objectives if the remediation objectives have not been exceeded and a groundwater

investigation is not required. R04-22Prop. at 9. Subsection (h)(4) is renumbered and amended

to require owners or operators to continue with a site evaluation if the remediation objectives are

exceeded and a groundwater investigation is required.

. The Agency also proposes adding

criteria for determining if groundwater investigation is necessary.

Section 732.203/734.215

The Agency proposes to amend this section by specifying the amount of free product that

must be present to trigger the free product removal requirements. R04-22Prop. at 10. The

Agency also suggests clarifying language in each of the three

errata

sheets. Exh. 1 at 2, Exh. 15

at 5, Exh. 87 at 6. And specifically in the third

errata

sheet, the Agency amends the language to

provide that free product be removed to the “maximum extent practicable”. Exh. 88 at 23.

The Agency proposes new subsections (c), (d), (e), (f), and (g). Subsection (c) is added

to require the submission of a plan for the removal of free product, if the removal will be

conducted more than 45 days after the confirmation of the release. R04-22Prop. at 10.

Subsection (d) requires submission of a budget plan if the removal will be conducted more than

45 days after the confirmation of the release.

. Subsection (e) requires that the owner or

operator proceed with the free product removal after Agency approval of the plan.

Subsection (f) allows an owner or operator to proceed with removal of free product without a

plan or budget; however, reimbursement will not be approved until both are submitted.

. And

subsection (g) requires submission of amended plans or budgets.

Section 732.204/734.220

The Agency proposes an amendment to this section which ensures consistency with

Section 732.200. R04-22Prop. at 11.

Section 732.300/734.300

The Agency proposes clarifying language to this section. R04-22Prop. at 11. The

Agency proposes language which establishes that a site classification is not required if after early

action a report is submitted demonstrating compliance with Tier 1 TACO

objectives.

. Also

the Agency proposes deleting site ownership certification provisions while adding provisions

addressing the content of corrective action completion reports.

. The Agency also proposes

the addition of two subsections in conjunction with adding water supply well survey

requirements in Part 732.

. The Agency suggested further clarification in the second and third

errata

sheets. Exh. 15 at 5-6; Exh. 87 at 6-7.

The Agency’s proposal for Section 734.300 does not include subsections (b) and (c) as

these two subsections are not necessary for Part 734. R04-23Prop. at 7.

Section 732.305

The Agency proposes changes to this section to reflect the addition of Section 732.110

and to require submission of various plans at specified times in the process. R04-22Prop. at 22.

The Agency also proposes language to prevent owners or operators from seeking payment from

the UST Fund for site classification before a site classification budget plan is submitted.

. The

Agency suggests adding language to alert owners and operators of new requirements in the

proposed rule.

Section 732.306/734.450

The Agency proposes amendments to replace statutory language with non-statutory

language due to changes from P.A. 92-0554. R04-22Prop. at 13. The Agency suggests several

changes to ensure consistency with Section 732.406.

. In the third

errata

sheet the Agency

suggests additional language referring to Tier 1 groundwater ingestion exposure routes. Exh. 87

at 9.

Section 732.307/734.415/734.425/734.430

The Agency proposes several changes for consistency with new statutory language and

with other sections of the proposal. R04-22Prop. at 13. The Agency proposes additional

clarifying language in each of the three

errata

sheets. Exh. 1 at 3; Exh. 15 at 6; Exh. 87 at 9. In

addition subsection (f) was amended to provide a more accurate survey of water supply wells.

R04-22Prop. at 13.

Section 732.309

TACO is the “Tiered Approach to Corrective Action” found at 35 Ill. Adm. Code 742. TACO

sets forth different “Tier” approaches to cleanup.

The Agency proposes that requirements for documentation of the results of water well

surveys be added to this section. R04-22Prop. at 14. The Agency proposes additional changes

in the third

errata

sheet. Exh. 87 at 9.

Section 732.310/734.405 and 732.311

The Agency recommends amending Section 732.110 for clarity as well as consistency

with the other sections of the rule. R04-22Prop. at 14. The Agency also proposes the deletion of

redundant language.

. In Section 732.311, the Agency proposes replacing “indicator

contaminant groundwater quality standards” with “groundwater remediation objectives”.

Section 732.312

The Agency proposal also includes clarifying language and amendments for consistency

with the rest of the proposal. The Agency proposes language to require owners and operators to

proceed under new Part 734 in certain circumstances. R04-22Prop. at 15. Specifically, the

Agency would require an owner or operator desiring to classify a site by the exclusion of human

exposure pathways to proceed under Part 734.

Section 732.403

The Agency proposes to delete a requirement for line item estimates in a budget plan.

R04-22Prop. at 16. The Agency’s proposal also deletes redundant language.

Section 732.404/734.345

The Agency proposes clarifying language to establish that this section applies to all sites

classified as high priority. R04-22Prop. at 16. The Agency also proposes changes to ensure the

identification of potable water supply wells that may be impacted by the release.

Section 732.405/734.355

In addition to clarifying amendments and amendments for consistency with the rest of the

proposal, the Agency proposes language that will allow the Agency to require a comparison of

remediation costs where available. R04-22Prop. at 17. The Agency also proposes additional

language that will require submission of revised budgets with revised corrective action plans, if

reimbursement will be sought.

Section 732.406/734.450

The Agency proposes clarifying language and language for consistency with the rest of

the proposal. R04-22Prop. at 17. The Agency also proposes new subsections that set forth

procedural requirements for the submission and review of elections to defer site classifications.

R04-22Prop. at 18. The Agency also proposes a procedure for placing sites on a priority list for

payments with priority being established by the date the Agency received the completed

application.

Section 732.407/734.340

The Agency proposes language that would require a comparison of the cost of the

proposed alternative technology with at least two other alternative technologies. R04-22Prop. at

18; Exh. 87 at 15. The Agency also proposes provisions which will provide for remote

monitoring by the Agency of alternative technologies. R04-22Prop. at 18.

Section 732.408/734.410 and 732.410

In the third

errata

sheet, the Agency proposes amendments to these two sections. Exh.

87 at 19-20. The suggested amendments set forth the parameters to be determined on-site, when

the owner or operator is performing on-site corrective action in accordance with Tier 2 of TACO.

Section 732.409 and 732.411/734.350

The Agency proposes changes which expand the section to set forth documentation

requirement relating to water supply well surveys. R04-22Prop. at 19. Section 732.411 is

amended to correct statutory citations and add a new statutory term.

Section 732.500/734.500

The Agency proposes the deletion of two subsections which define what constitutes a

plan or report. R04-22Prop. at 19. The Agency proposes language throughout Part 732

identifying whether a document is a plan or report.

Sections 732.501, 732.502, and 732.504

The Agency proposes that Section 732.501, 732.502, and 732.504 be deleted. R04-

22Prop. at 19-20. Section 732.501 is being deleted because of the proposed addition of Section

732.110. R04-22Prop. at 19. Section 732.503 is proposed for deletion because of the additional

administrative burden the requirement places on the Agency.

. The Agency believes that a

completeness review can be performed during a substantive review.

. Section 732.504 is no

longer required because of the deletion of Section 732.502 and the changes in Section 732.503.

R04-22Prop. at 20. The Agency will be conducting full reviews on every plan, budget plan, or

report.

Section 732.503/734.505

The Agency proposes amendments to subsections (a), (b), and (g) to reflect the deletion

of Section 732.503. R04-22Prop. at 20. Subsection (f) is amended by removing a requirement

for a revised report, if the owner or operator agrees with the Agency’s modification of the report.

. Further, the Agency stated that the last sentence of subsection (f) is no longer necessary as

the Agency maintains sufficient staff to review submissions within 120 days.

. The Agency

also proposes amendments to subsection (h) to require the Agency to provide notice of the UST

Fund’s balance to owners and operators.

Section 732.601/734.605

The Agency’s proposes changes to this section are necessary because of changes made

throughout Part 732. R04-22Prop. at 21. For example, references to “materials, activities, or

services” are deleted because pursuant to the proposed Subpart H, payment from the UST Fund

will generally no longer be made based on “materials, activities, or services”.

. The Agency

proposed new subsections (b)(9) and (b)(10)

requiring certain information be a part of the

application for reimbursement.

. The Agency seeks amendment of subsection (f) to require

the submission of a budget plan prior to the Agency’s review of a corresponding application for

payment.

Subsection (g) is amended to include a general reference rather than a reference to

revised budget plans. R04-22Prop. at 22. The Agency recommends the addition of subsection

(i) and (j) as well.

. Subsection (i) would prohibit submission of applications for payment of

deferred costs prior to the submission of a completion report.

. Subsection (j) would require

the submission of applications for payment of corrective action costs no later than one year after

the issuance of a no further remediation (NFR) letter.

Section 732.602/734.610

The Agency proposes revisions to this section in combination with other changes

proposed in Part 732. For example, the Agency proposes amendments to reflect that: (1) the

Agency performs “full” reviews of all applications for payment; (2) budget plans are not required

for early action other than free product removal; and (3) line item estimates are no longer

required as a part of the budget plan. R04-22Prop. at 22.

Section 732.603/734.615

The Agency proposes changes for consistency and also language to provide that the

Board or a court may order payment from the UST Fund. R04-22Prop. at 22-23.

Section 732.604

Because of changes made in P.A. 92-0554, the Agency undesignated subsections (a) and

(b) as statutory language; but retained the wording in the rule for releases reported prior to the

effective date of P.A. 92-0554. R04-22Prop. at 23.

Section 732.605/734.625

The Agency in the original proposal included a new subsection (b)(11); however, in the third

errata

sheet, the Agency withdrew subsection (b)(11). Exh. 87 at 20.

The Agency has proposed the addition of new subsections, rearrangement and

renumbering of existing subsections, and the addition of “corrective action” to the title of the

section. R04-22Prop. at 23-24. More specifically, in subsection (a)(16) the Agency is adding

requirements for the payment of costs associated with the destruction and replacement of

concrete, asphalt, or paving. R04-22Prop. at 23. The Agency suggests additional changes to that

subsection in the first and second

errata

sheets. Exh. 1 at 3; Exh. 15 at 8-9. The Agency is

proposing amendments which ensure that the Agency does not pay for the destruction and

replacement of concrete, asphalt, or paving numerous times at a site. R04-22Prop. at 24.

The Agency proposes changes to subsection (a)(17) that require prior written approval by

the Agency for work and costs associated with the destruction or dismantling of above grade

structures. R04-22Prop. at 24. In subsection (a)(19), the Agency proposes to allow costs

associated with removal or abandonment of potable water supply wells to be reimbursed under

the subsection.

. Likewise, in subsection (a)(20), the repair or replacement of potable water

supply lines may also be eligible for reimbursement.

Section 732.606/734.630

The Agency proposes the addition of several costs which will be deemed ineligible for

reimbursement. R04-22Prop. at 25-26. In addition, the Agency suggests amending existing

sections to add ineligible requirements and to clarify the existing language. R04-22Prop. at 24;

Exh. 1 at3. Finally, the Agency suggests adding “corrective action” to the title of the section.

R04-22Prop. at 24.

In the third

errata

sheet the Agency agrees to withdraw new subsection (ccc) from the

rule and recommends a change to subsection (eee). Exh. 87 at 20-21. The Agency suggests

further changes to subsection (ggg) and (hhh).

Section 732.607/734.635

Because of changes made in P.A. 92-0574, the Agency proposes removing the language

in Part 732 from statutory language. R04-22Prop. at 27. However, the Agency retains the

language as non-statutory language.

Section 732.608/734.640

In the first

errata

sheet the Agency withdrew the proposed amendment to this section.

Exh. 1 at 4.

Section 732.610/734.650

The Agency is proposing amendments to this section in order to more fully set forth the

procedures for an owner or operator to follow when seeking indemnification from the UST Fund.

R04-22Prop. at 27. The amendments delineate the requirements for submitting applications, the

items the Agency must consider when determining eligibility for indemnification, the eligible

and ineligible costs.

Section 732.612/734.660

The Agency proposes amendments to clarify that payment of an ineligible cost

constitutes an “excess payment” from the UST Fund. R04-22Prop. at 28.

Section 732.614/734.665

The Agency’s proposal adds this new section to set forth record retention requirements

and auditing procedures. R04-22Prop. at 28. In both the second and third

errata

sheets the

Agency suggests changes to the proposed language. Exh. 15 at 11; Exh. 87 at 22.

Section 732.701/734.705

The proposal amends this section to correct a cross-reference and to reference reports

submitted pursuant to Section 732.202(h)(2). R04-22Prop. at 28.

Section 732.702/734.710

The Agency proposes amending this section to clarify that an owner or operator is not

relieved of the responsibility for cleaning up contamination that migrates off-site where a NFR

letter has been issued. R04-22Prop. at 28.

Section 732.703/734.715

The Agency’s amendment would ensure that attachments to a NFR letter are filed with

the letter. R04-22Prop. at 28. In addition, the amendatory language would allow a site located

along a right-of-way of any highway authority to perfect a NFR letter via a Memorandum of

Agreement with the highway authority. R04-22Prop. at 29.

Section 732.704/734.720

The Agency proposes clarifying language to this section as well as requiring owners or

operators to complete groundwater-monitoring programs prior to the issuance of a NFR letter.

R04-22Prop. at 29.

Subpart H

The Agency proposes a new subpart that proposes maximum amounts that will be paid

from the UST Fund for certain activities. R04-22Prop. at 29. The Agency proposes the new

subpart to “streamline payment from the UST Fund.”

. The Agency proposes lump sum or

unit rates for some activities while other rates will be determined on a time and materials basis.

. The following paragraphs will more completely summarize the Agency’s proposed new

subpart.

Section 732.800/734.800.

This section explains what the subpart contains and noted that

the subpart enumerates only the “major costs” associated with a task. R04-22Prop. at 30. The

section clarifies that the maximum payment amount is intended to include all costs associated

with an activity and the subpart does not enumerate eligible costs.

Section 732.810/734.810.

This section establishes the maximum payment amounts for

costs involved in removing or abandonment of a UST. R04-22Prop. at 30.

Section 732.815/734.815.

The maximum payment amounts for removal of free product

are set forth in this section. R04-22Prop. at 30; Exh. 87 at 23.

Section 732.820/734.820.

The maximum payment amounts for costs of drilling, well

installation, and well abandonment are set forth in this section. R04-22Prop. at 30. The Agency

proposes the addition of direct-push platform drilling in the first

errata

sheet. Exh. 1 at 4.

Section 732.825/734.825.

The maximum payment amounts for costs of soil removal,

transportation, and disposal are set forth in this section. R04-22Prop. at 31.

Section 732.830/734.830.

The maximum payment amounts for costs associated with

disposal of material using 55-gallon drums are set forth in this section. R04-22Prop. at 31.

Section 732.835/734.835.

This section addresses the cost associated with handling and

laboratory analysis of samples. R04-22Prop. at 31. The specific maximum payment amounts

are set forth in Appendix D of the proposal.

Section 732.840/734.840

The maximum payment amounts for costs of replacement of

concrete, asphalt, and paving are set forth in this section. R04-22Prop. at 31. The maximum

payment for dismantling of concrete, asphalt, or paving is also included.

. In the second

errata

sheet the Agency proposes language to increase the maximum payment for replacement.

Exh. 15 at 9.

Section 732.845/734.845.

In the proposal, the Agency included this section setting forth

maximum payment amounts for consulting services. R04-22Prop. at 31-32. The Agency

recommended several changes to the proposal in the third

errata

sheet. Exh. 87 at 24-25.

Section 732.850/734.850.

The language of this section delineates the procedure for the

Agency to determine rates based on time and material. R04-22Prop. at 32. Personnel costs

cannot exceed the rates included in Appendix E and are determined based on the work being

done, not the title of the person performing the work.

. The Agency suggests an amendment

to reflect other changes proposed in the third

errata

sheet. Exh. 87 at 35-36.

Section 732.855/734.855.

In the proposal, the Agency proposed language to address the

circumstance where the costs associated with an activity exceeded the maximum payment

amount. R04-22Prop. at 32. In the third

errata

sheet, the Agency suggests renumbering this

section to Section 732.860 and adding a new Section 732.855. Exh. 87 at 36-38.

Section 732.855/734.855 in the Third

Errata

Sheet.

The Agency’s language would

allow the use of a bidding process as an alternative to the maximum amounts set forth in Subpart

H. Exh. 87 at 36-37.

Section 732.860/734.860.

In the proposal the Agency included this section to set forth

maximum payment amounts for handling charges. R04-22Prop. at 32. In the third

errata

sheet

this section is renumbered to Section 732.865. Exh. 87 at 38.

Section 732.865/734.865 in the First

Errata

Sheet.

In the first

errata

sheet, the Agency

proposed to replace the language proposed in Section 732.865 with a new section. Exh. 1 at 11.

The new language sets forth a procedure for adjusting the maximum payment amounts in

Subpart H.

. In the third

errata

sheet, the Agency renumbered this section to Section 732.870.

Exh. 87 at 37.

Section 732.865/734.865.

This section requires the Agency to review the rates in

Subpart H on a regular basis. R04-22Prop. at 33; Exh. 1 at 5; Exh. 87 at 38. The third

errata

sheet reinstates the language as originally proposed and renumbers this to Section 732.875. Exh.

87 at 38.

Identical provisions of Part 734

Several sections of the new Part 734 are taken from existing language in Part 732. The

list that follows indicates the new Part 734 section and the corresponding section from Part 732:

Section 734.110 from Section 732.102

Section 734.125 from Section 732.105

Section 734.305 from Section 732.301

Section 734.425(c) from Section 732.308(a)(1), (c)(1)(E) and (G)

Section 734.435 from Section 732.308(b)

Section 734.510 from Section 732.505(a) and (c)

Section 734.600 from Section 732.600

Section 734.645 from Section 732.609

Section 734.655 from Section 732.611

Section 734.700 from Section 732.700.

Section 734.105

This section delineates the procedural requirements for an owner or operator to proceed

under Part 734. R04-23Prop. at 5. The owner or operator is allowed to submit a summary of

Part 734 requirements which have been satisfied.

. However, if a NFR letter has been issued

an owner or operator may not proceed under Part 734. R04-23Prop. at 5-6.

Section 734.140

The Agency suggests language that establishes the requirements for developing

remediation objectives. Exh. 1 at 2-3.

Section 734.310

The Agency proposes that site investigation proceeds in three stages under Part 734.

R04-23Prop. at 7. If the extent of the contamination is fully defined after any of the stages, the

owner or operator may skip the remaining stages and proceed directly to a site completion report.

Section 734.315

This section establishes the requirements for a Stage 1 site investigation. R04-23Prop. at

7. A Stage 1 site investigation is designed to gather initial information on the extent of the

contamination and includes provisions for soil sampling and groundwater investigation.

. The

Agency suggests additional language be added to this provision in both the second and third

errata

sheets. Exh. 15 at 5; Exh. 87 at 10-11.

Section 734.320

This section establishes the requirements for Stage 2 site investigation. R04-23Prop. at 8.

The Agency suggests additional language be added to this provision in the second

errata

sheet.

Exh. 15 at 5.

Section 734.325

This section establishes the requirements for Stage 3 site investigation. R04-23Prop. at

9-10. The Agency suggests additional language be added to this provision in the second

errata

sheet. Exh. 15 at 5.

Section 734.330

This section sets forth the required contents of the site classification completion report.

R04-23Prop. at 10.

Section 734.400

The Agency proposes this section to establish that the provisions of Subpart D apply to

all activities conducted under Part 734. R04-23Prop. at 10.

Section 734.445

The Agency proposes water supply well survey requirements. R04-23Prop. at 11. The

language includes requirements for what information from water supply well surveys must be

included with site classification and completion reports.

. Minor changes were suggested in

the first and third

errata

sheets. Exh. 1 at 5-6; Exh. 87 at 16-17.

Section 734.620

This section is identical to Section 732.603 except for the caps on the amounts which

may be paid. R04-23Prop. at 12.

Agency Testimony

The Agency provided prefiled testimony from five Agency employees: Mr. Douglas

Clay, Mr. Hernando Albarracin, Mr. Douglas Oakley, Mr. Brian Bauer, and Mr. Harry Chappel.

In addition, Agency employee, Mr. Gary King was available to answer questions and comment

on the proceedings. The following will summarize the testimony.

Douglas Clay

Mr. Clay offered testimony which generally discussed the proposal and specifically

addressed certain rule language. Mr. Clay also provided testimony in response to testimony

offered by participants. The paragraphs below will summarize his testimony.

General.

Mr. Clay is the manager of the leaking UST section within the Bureau of Land

and has been in his current position since 1994. Exh. 3 at 1. Mr. Clay testified in support of the

amendments to both Part 732 and 734. Tr. 1 at 16. Mr. Clay stated that the amendments are the

result of modifications to the Act, “the need to reform the current reimbursement procedures,”

and to clarify issues that have arisen since Part 732 was last amended. Exh. 3 at 1-2.

In general, Mr. Clay stated that this proposal is intended to streamline the UST

remediation process, clarify remediation requirements, and “most notably, reform the budget and

reimbursement process”. Exh. 3 at 2. Mr. Clay testified that the new budget and reimbursement

process would eliminate a majority of the budgets and reimbursement packages submitted to the

Agency based on time and materials because the lump sum and unit rates would replace them.

. Mr. Clay stated that the Agency believes this will streamline the approval of budgets and the

processing of reimbursement claims.

Mr. Clay’s testimony indicated that the Agency currently spends a tremendous amount of

time reviewing budgets and reimbursement packages. Exh. 3 at 2. Further, Mr. Clay testified

that a majority of plan and report denials, amendments to plans and reports submitted by

consultants, and appeals to the Board are related to budget and reimbursement issues rather than

technical issues.

. Mr. Clay stated that the Agency believes that the proposal will allow for a

more efficient use of Board and Agency resources.

Mr. Clay testified that the costs proposed in Subpart H were developed with input from

the industry and utilized nearly fifteen years of Agency experience. Exh. 3 at 2. Mr. Clay stated

that the rates are “generally consistent” with the rates the Agency currently approves.

Mr. Clay testified that in Part 734 in addition to the reimbursement changes, the Agency

is proposing a new three-stage approach to site investigation. Exh. 3 at 3. Mr. Clay indicated

that the consultants originally suggested this approach to site investigation.

. Mr. Clay stated

that the concept is to allow more site investigation work to be conducted after early action,

giving consultants more information to develop a site investigation plan and budget..

Specific Rule Language.

Mr. Clay testified that in Sections 732.306/734.450 and

732.406/734.450 the Agency proposes language to clarify the procedures for deferring site

classification due to insufficient funds. Exh. 3 at 3. Mr. Clay stated that the Agency believes

the proposed additions are necessary to allow the Agency to determine that deferral of site

investigation would not pose a threat to human health or the environment.

Mr. Clay testified that in Section 732.404/734.345 wording was added to extend the

potable water well survey if contamination migrated off-site. Exh. 3 at 3. Mr. Clay noted that

the Agency may require a more extensive well survey if site-specific circumstances warrant.

Section 732.405/734.355 eliminates line item estimates for corrective action plans, and

for administrative purposes, will require the budget be approved by the Agency prior to seeking

reimbursement from the UST Fund. Exh. 3 at 4. Also, Mr. Clay testified that language is

included which provides for cost comparisons between remediation methods.

. Mr. Clay

stated that the Agency does not intend to require cost comparisons as a standard requirement;

however, if a costly method of remediation is proposed, the Agency may require a comparison.

. Language has also been included in these sections to require reimbursement requests be

made within one year of a NFR letter. Exh. 3 at 5. This change is necessary, according to Mr.

Clay, to help the Agency manage the UST Fund.

Mr. Clay testified that the language in Section 732.407/734.340 was necessary to help

prevent excessive remediation costs and to ensure the solvency of the UST Fund. Exh. 3 at 5.

Also language is proposed to allow remote modeling of alternative technologies and this could

result in monitoring by the Agency, the consultant, or both. Exh. 3 at 6.

In Section 732.409, the Agency proposes wording be added that will ensure that potable

water supply wells are adequately protected, according to Mr. Clay. Exh. 3 at 6. And in Section

732.605/734.625, the Agency proposes a limit for destruction or dismantling and reassembly that

is reasonable and reflects historical practices. Exh. 3 at 6-7. In Sections

732.605/734.625(a)(19), (a)(2), 732.606/734.630 (tt), (uu), (vv), (xx), (bbb), (ccc), and (eee), Mr.

Clay testified that the language was amended to codify current Agency practices. Exh. 3 at 7-9.

Mr. Clay testified that other changes were made to Section 732.606/734.630 including in

subsection (kk) expanding the list of costs that are eligible for reimbursement after a NFR letter

is issued. Exh. 3 at 7. Also included is subsection (yy) to clarify that treatment or removal of

soil which is not contaminated is not eligible for reimbursement. Exh. 3 at 8. Mr. Clay

explained that this is necessary for situations where the contamination is below the surface and

clean soil is between the surface and the contamination.

. Subsection (ddd) was added to

specify that fees or payments to government entities or other person for corrective action related

activities is not an eligible cost. Exh. 3 at 9. Mr. Clay testified that the Agency has approved

reimbursement of some reasonable fees and payments for state, county or local permits;

however, these costs are more variable and “have become hard to justify as reasonable.”

Mr. Clay testified that the provisions in Section 732.614/734.665 are based upon other

Board and Agency rules addressing retention and inspection of records. Exh. 3 at 9. Mr. Clay

stated that the Agency plans to perform periodic audits of owners, operators, and consultants.

Mr. Clay further testified that the Agency does not intend to look at a company’s financial

statements; rather the Agency will review documents related to payments from the UST Fund.

Exh. 88 at 26. Mr. Clay explained that the Agency needs to ensure that records related to

reimbursement are retained for a certain period of time in case the Agency needs to review the

records.

Response to Testimony by Participants.

Mr. Clay testified that PIPE submitted

agendas from meetings between the Agency and PIPE. Exh. 88 at 3. Mr. Clay wanted to clarify

that the agendas were prepared by PIPE and did not necessarily reflect what was actually

discussed at the meetings.

. Mr. Clay also sought to clarify the reason the Agency has

proposed these revisions to the UST rules.

. Mr. Clay emphasized that the changes were

brought about because of statutory change and in order to streamline the preparation and review

of budgets and applications for payment. Exh. 88 at 3-4. In addition, the Agency believes the

proposal will allow for more efficient use of consultant, Board, and Agency resources while

improving consistency in the Agency’s decisions. Exh. 88 at 4. Mr. Clay stated that the Agency

further believes that the proposed changes could help control cleanup costs, expedite cleanups,

and ultimately allow owners and operators to be reimbursed in a more efficient and timely

manner.

Regarding the economic savings that may be expected because of this proposal, Mr. Clay

stated that the Agency has not performed a formal economic analysis to determine the savings

that may be generated by the proposal. Exh. 88 at 4. Mr. Clay noted that based on recent data,

$25 million more a year is being paid out from the UST Fund than is being received and if this

difference is not reduced, delays in payments could occur.

. Under this proposal, the Agency

believes there will be significant savings in cleanup costs with reasonable rates being established

in regulations.

. Mr. Clay testified that there will be less time needed for consultants to

prepare budgets and reimbursement packages and less time required for Agency review.

. Mr.

Clay also stated that limiting reimbursement to Tier 2 remediation objectives and requiring use

of groundwater ordinances “will significantly reduce” the cost of cleanup. Exh. 88 at 4-5.

In response to testimony concerning the time the Agency takes to make a decision under

the UST program, Mr. Clay pointed out that the Act provides the Agency with 120 days to

respond to submittals. Exh. 88 at 5. Mr. Clay opined that “any change to that timeframe would

need to be a statutory change” and a reduction of that timeframe would impact the Agency’s

administration of the UST program.

. Secondly, Mr. Clay noted that the Agency’s actual time

for review is often less than 120 days. Exh. 88 at 6. In the period from May 2003 through May

2004, the Agency completed review of more than half the submittals within sixty days. Exh. 88

at 6. Mr. Clay further pointed out that 25% of the submittals were decided within thirty days.

. Mr. Clay opined that the amount of time the Agency takes to review a submittal is largely

based on the quality of the submittal.

The Agency is also opposed to the concept of requiring the Agency to prepare a draft

denial letter prior to the Agency decision. Exh. 88 at 13. Mr. Clay testified that such a process

would extend review times and is counterproductive to streamlining the UST program.

. Mr.

Clay testified that unlike a permit decision, the Agency UST decision timeframe would not be

stayed by the issuance of a draft denial.

. And the Agency would “likely end up just sending”

the final decision on the 120th day because the Agency was waiting for a response to the draft

letter.

. Mr. Clay stated that in the current review process, the project manager frequently asks

consultants for additional information. Exh. 88 at 14. Thus, according to Mr. Clay, the

Agency’s current practice would appear to address the concerns that the draft letter process is

designed to address.

Mr. Clay noted that there had been comments asking that reimbursement requests be

allowed to be submitted more often than every 90 days. Exh. 88 at 6. Mr. Clay pointed out that

the statute at Section 57.8 of the Act (415 ILCS 5/57.8 (2002)) limits submissions to “no more

frequently than 90 days.”

. Mr. Clay stated that in an attempt to allow earlier reimbursement

requests, the Agency has proposed to allow submission of reimbursement requests after each

stage of a site investigation under Part 734. Exh. 88 at 6-7.

Mr. Clay takes issue with the claim from PIPE that “member firms conduct or provide

services on nearly all of the underground storage tank cleanups conducted” in the State. Exh. 88

at 7. Mr. Clay stated that based on the testimony of PIPE members, PIPE has twenty member

firms. Exh. 88 at 7; citing Tr.4 at 137. In response, Mr. Clay stated that based on the Agency’s

records, there are:

1. 375 different consultants who have performed work on UST sites in the

last five years;

2. 48 landfills in the State are permitted to accept UST soil;

3. 668 haulers are permitted to transport UST contaminated soils;

4. 89 laboratories are certified by the Agency to perform analyses required

under the UST program;

5. 153 tank removal contractors are permitted by the OSFM;

6. Numerous drillers and excavators work with UST sites. Exh. 88 7-8.

Mr. Clay testified that the Agency appreciates the contributions of PIPE in this rulemaking;

however, PIPE represents only a small fraction of the persons involved in UST work. Exh. 88 at

8. Mr. Clay stated that the Agency has “heard, either directly or indirectly,” that many

consultants are “happy with the rules as proposed” and have no problems with Subpart H.

Concerning comments that consulting services have not been adequately defined in the

rules, Mr. Clay stated that the Agency does not believe that a defined scope of work for every

aspect of UST cleanup is necessary. Exh. 88 at 8. Further, Mr. Clay testified that a defined

scope of work should not be included in the rules.

. Mr. Clay conceded that there is some

variability from site to site, but that has been taken into account in the amount proposed in the

rules.

Mr. Clay responded to comments regarding the soil conversion factor and the swell

factor. Mr. Clay maintained that the Agency’s proposal allows for a twenty percent swell factor.

Exh. 88 at 9. Mr. Clay explained that the “swell factor” proposed is actually equivalent to

twenty percent because the swell factor is applied to the total for excavation, transportation, and

disposal.

. Regarding the conversion factor, Mr. Clay indicated that the Agency is proposing

to apply a consistent conversion factor throughout the rules. Exh. 88 at 9-10. Mr. Clay testified

that the Agency believes a 1.5 tons per cubic yard conversion factor is more appropriate for

Illinois, because of the different types of soil that may be used as backfill. Exh. 88 at 10.

The Agency opposes allowing owners or operators back into the UST program after

issuance of a NFR letter, according to Mr. Clay. Exh. 88 at 10. Mr. Clay testified that the

Agency should be allowed to concentrate on sites which have not yet been remediated and not on

sites that have actually received a NFR letter.

In response to testimony and comments that the Agency should rely on the certifications

of the licensed professional engineer or geologist, Mr. Clay stated that the testimony and

comments assume that the certifications have a greater role in the UST program than the

certifications are given by the Act and the Board rules. Exh. 88 at 11. Mr. Clay testified that

Section 57.7 of the Act (415 ILCS 5/57.7 (2002)) requires that all investigations, plans and

reports be conducted or prepared “under the supervision of” a licensed professional engineer or

geologist. Exh. 88 at 11. Mr. Clay stated that the Act speaks “only of oversight of site

investigation and corrective action.”

. Mr. Clay asserted that neither Section 57.7 of the Act

(415 ILCS 5/57.7 (2002)) nor the regulations “are intended to grant” licensed professional

engineers or geologists “with a final decision making authority that supercedes the Agency.”

Exh. 88 at 11.

Mr. Clay testified that the Agency is the party responsible for protecting human health

and the environment and properly administering the UST Fund; therefore, preventing the Agency

from reviewing the documentation certified would result in unchecked access to the UST Fund.

Exh. 88 at 12. Mr. Clay stated that the Agency has discovered numerous examples where a

licensed professional engineer or geologist has certified either technical or reimbursement

submittals that were not in accordance with the Act and regulations.

The Agency strongly opposes the recommendations by PIPE that the Agency develop a

database for the purpose of establishing rates, according to Mr. Clay. Exh. 88 at 12. Mr. Clay

explained that the development of a database would greatly complicate and lengthen the

preparation of budgets by consultants and result in increased costs.

. Also, Mr. Clay believes

that the data submitted would be skewed from the beginning, as there is nothing to ensure that

the data submitted would be reasonable.

. Lastly, Mr. Clay stated that there is no need for

such data collection as the Agency has proposed adding bidding provisions and the bidding

procedure will provide a more accurate reflection of the prevailing market prices. Exh. 88 at 12-

13.

In response to the suggestion that a committee be developed consisting of Agency

supervisors as well as persons from outside the Agency who are familiar with UST cleanups, Mr.

Clay expressed the Agency’s opposition. Exh. 88 at 14. Mr. Clay noted that the Act gives the

Agency the authority and responsibility to oversee the UST program and determine the

reasonableness of reimbursement.

. Mr. Clay further noted that the Act does not allow

persons outside the Agency to review submittals and the decisions of such a committee would

not be appealable to the Board. Exh. 88 at 14-15. However, to “foster and enable greater

communication between the Agency and other parties” the Agency proposes language in the

third

errata

to establish an advisory committee. Exh. 88 at 15.

Mr. Clay testified that the Agency also opposes any alternative method for resolution of

issues under the UST program. Exh. 88 at 15-16. Mr. Clay stated that an alternative to an

appeal to the Board is not consistent with the Act. Exh. 88 at 16. Mr. Clay further testified that

a mediation or alternative dispute resolution would likely be more expensive because the owner

or operator would be paying the cost.

Mr. Clay also takes issue with the numbers taken from the UST section’s annual report.

Exh. 88 at 16. Mr. Clay stated that the numbers “only represent the average amount of costs

submitted by owners and operators in a single application for payment. They should not be

confused with the total amounts reimbursed per site.”

. Mr. Clay presented, for clarification,

the average total amount paid per incident for incidents closed in 1997 through 2001.

Mr. Clay offered testimony to clarify the procedure used to develop the maximum costs

proposed in Subpart H. Exh. 88 at 17. Mr. Clay agreed that the Agency used the average

numbers from a spreadsheet that was also used to develop the rate sheet.

. The Agency

compared the historical data used in developing the spreadsheet with current submittals.

Based on this comparison, the Agency determined if the historical data was still accurate and

reflected a reasonable reimbursement amount.

. In some cases, the current data established

that the historical data was not relevant and the Agency adjusted the maximum rate.

Mr. Clay defended proposed requirements that proof of payment to subcontractors and

application for payment from the UST Fund be made within one year. Exh. 88 at 18. Mr. Clay

pointed out that cancelled checks are not the only mechanism for providing proof of payment to

a subcontractor; lien waivers or affidavits from the subcontractor would be acceptable.

. Mr.

Clay testified that such proof is necessary to show that the subcontractor was actually paid and

the owner or operator is therefore entitled to reimbursement for handling charges.

. As to the

one-year deadline, Mr. Clay testified that the Agency does not believe the deadline creates an

undue hardship on the owners and operators.

. Mr. Clay stated that one year is sufficient to

submit an application for final costs and the Agency has no evidence to support an exception to

the one-year requirement.

Mr. Clay clarified earlier testimony on Stage 3 investigations due to concerns raised on

the issue of additional borings. Exh. 88 at 18. Mr. Clay stated that Stage 3 investigations should

be contingent in nature and additional rounds of borings should be proposed to be conducted if

necessary. Exh. 88 at 19. Mr. Clay testified that once a plan has been approved, additional

borings will be reimbursed based on the rates in the proposed rules.

Mr. Clay also clarified that groundwater remediation is by definition considered an

alternative technology and will be reimbursed on a time and materials basis. Exh. 88 at 19. Mr.

Clay also discounted the testimony that Illinois Department of Transportation’s (IDOT) rates for

excavation, transportation, and disposal averaged $99.75.

. Mr. Clay testified that IDOT

reviews total bids and does not compare individual line items.

Mr. Clay’s testimony also explained that to ensure that UST Fund money is used in the

most cost effective manner, the Agency proposes changes in the third

errata

sheet which require

the use of TACO. Exh. 88 at 24. The Agency proposes two changes which require the use of

TACO.

. First, the Agency proposes language that will limit payment from the UST Fund to

costs that achieve cleanup to Tier 2 objectives.

. Mr. Clay testified that owners and operators

may still remediate their sites to Tier 1 objectives, but reimbursement will be limited to the cost

necessary to achieve cleanup to Tier 2 objectives.

The second proposed change in the use of TACO is to require owners or operators of a

site to use a groundwater ordinance as an institutional control if an ordinance already had been

approved by the Agency is available. Exh. 88 at 25. Mr. Clay testified that owners or operators

will not be required to seek a groundwater ordinance for their site if one has not already been

approved by the Agency.

. Mr. Clay stated that this change would prevent the payment from

the UST Fund to cleanup groundwater that cannot be used as a potable water source because of a

local groundwater ordinance.

Hernando Albarracin

Mr. Albarracin is a unit manager in the leaking UST section within the Bureau of Land.

Exh. 5 at 1, Tr.1 at 19. Mr. Albarracin testified in support of the amendments to Subparts A, B,

and C (except Section 732.306) of Part 732.

. He testified in support of Subparts A, B, C, and

D of Part 734. Tr. 1 at 20; Exh. 6 at 1. Mr. Albarracin’s testimony summarized the changes to

the rule included in the proposal.

Douglas Oakley

Mr. Oakley is the office manager of the leaking UST claims unit within the Bureau of

Land and has been for the last five years. Tr.1 at 21; Exh. 7 at 1. Mr. Oakley’s testimony related

to Sections 732.601, 732.602, 732.605, 732.606, and 732.610 and the corresponding sections in

Part 734. Tr.1 at 21. Mr. Oakley testified that Section 732.601(b)(9) was amended to require

submission of legible invoices, receipts and supporting documentation. Exh. 7 at 1. Mr. Oakley

stated that this information has always been requested by the Agency as a part of an application

for payment.

. Because “of an alarming number of phone calls” to the Agency from

subcontractors claiming they have not been paid, the Agency added Section 732.601(b)(10),

according to Mr. Oakley. Exh. 7 at 2. This new subsection requires primary contractors to

provide proof of payment to a subcontractor before reimbursement for handling charges will be

approved.

. Mr. Oakley stated that the Agency feels that this requirement should resolve the

problem.

Section 732.601, Mr. Oakley testified that subsection 732.601(j) was added to encourage

prompt submittals of claims. Exh. 7 at 2. Mr. Oakley stated that long delay in submitting claims

has led to “numerous” problems involving documentation of costs and avoiding such delays

should help to streamline the process.

. Mr. Oakley also testified that this change will help to

better predict the outstanding liabilities of the UST Fund.

In Section 732.605, the Agency is adding language to clarify when concrete replacement

should occur. Exh. 7 a 2-3. Mr. Oakley stated that in the past owners or operators have replaced

concrete after early action, before remediation was complete. Exh. 7 at 3. According to Mr.

Oakley, the Agency believes this change will ensure that costs associated with concrete

replacement will only be paid once.

In Section 732.606, the Agency proposes language to disallow handling charges for

subcontractors who are associated with the primary contractor. Exh. 7 at 3. Mr. Oakley testified

that there is no prohibition over hiring one’s own company to do the work and be paid a fair

price including a profit.

Brian Bauer

Mr. Bauer is a project manager in the leaking UST section within the Bureau of Land and

has worked in his current position since April 1992. Exh. 9 at 1. Mr. Bauer’s testimony

concerns maximum payment amounts in Subpart H and Appendix E. Tr.1 at 23. Mr. Bauer

testified that the proposal is a result of modifications to the Act and “the need to reform the

current reimbursement procedures.” Exh. 9 at 1.

Mr. Bauer reiterated the maximum payment amounts in the proposal for UST Removal

and Abandonment Costs (Section 732.810/734.810), Free Product or Groundwater Removal and

Disposal (Section 732.815/734.815), Drilling, Well Installation and Well Abandonment (Section

732.820/734.820), Replacement of Concrete, Asphalt, or Paving; Destruction or Dismantling and

Reassembly of Above Grade Structures (Section 732.840/734.840), Professional Consulting

Services (Section 732.845/734.845), and Professional Titles and Rates (Section 732.Appendix

E/734.Appendix E). Exh..9 at 1. Mr. Bauer then explained how the maximum rates were

developed.

According to Mr. Bauer, for Section 732.810/734.810, the Agency evaluated 20 leaking

UST sites, nine of which had tanks removed or abandoned. Exh. 9 at 2. The evaluation

established that the average cost to remove the USTs was $3,152.71.

. Mr. Bauer stated that

“based on the Agency’s experience, this average cost is consistent with the amounts the Agency

has seen historically for the removal of USTs within the typical range of 6,000-gallons to

10,000-gallons in size.” Exh. 9 at 2-3.

In establishing the maximum allowable costs for the removal, transportation, and disposal

of free product or groundwater (Section 732.815/734.815), Mr. Bauer testified that the Agency

evaluated 57 sites. Exh. 9 at 3. The 57 sites all had free product or contaminated groundwater

removed and the average cost was $0.68 per gallon.

. Mr. Bauer testified that after discussion

with consultants, the Agency determined a minimum amount needed to be established and so the

Agency did so.

. The minimum amount was determined based on a survey of vacuum truck

contractors and the Agency determined that $200 was the appropriate minimum charge.

Mr. Bauer indicated that the maximum amounts in Section 732.820/734.820(a) were

established for three types of drilling: hollow-stem auger, direct-push platform, and direct-push

platform for injection. Exh. 9 at 4. For hollow-stem auger drilling, the Agency evaluated forty-

nine sites and determined the average for drilling to be $16.72 per linear foot of soil boring.

Exh. 9 at 5. The Agency added in average costs for mobilization/demobilization and

decontamination based on an average drilling depth of 100 to 120 feet.

. The Agency also

added $1.84 per foot for “incidental expenses or charges” for drilling. Exh. 9 at 6. The Agency

determined a minimum charge should be set for instances where limited hollow-stem auger

drilling was needed.

For direct-push platform drilling, Mr. Bauer stated that the Agency evaluated nine sites

and found that the average rate ranges from $1,000 to $1,200 per day. Exh. 9 at 6. Mr. Bauer

further stated that “based on the Agency’s experience this range is typical of what the Agency

would normally see.”

. The Agency again based the rate on an average of 100 feet drilling per

event and added in the same rates for mobilization/demobilization and decontamination.

. The

Agency also set a minimum charge that would be available. Exh. 9 at 6-7.

Mr. Bauer testified that for direct-push platform for injection, the Agency used the same

data set as used for direct-push platform drilling. Exh. 9 at 7. The Agency added in cost for

mobilization/demobilization but not for decontamination or incidental expenses.

. The

Agency again set a minimum charge that would be available.

With Section 732.820/734.820(b), Mr. Bauer stated that the Agency evaluated 37 sites.

Exh. 9 at 8. The average costs for those 37 sites resulted in the maximum payment amount

proposed by the Agency.

. According to Mr. Bauer for Section 732.820/734.820(c), the

Agency evaluated seven sites. Exh. 9 at 10. The average rates were then used to establish the

maximum payment amount.

Mr. Bauer’s testimony indicated that for Section 732.820/734.820(d), the average cost to

abandon a groundwater monitoring well is $150. Exh. 9 at 11. Mr. Bauer stated that the average

depth for a groundwater-monitoring well is 15 to 20 feet and so the Agency divided $150 by 15

to determine the maximum cost for abandonment of a groundwater-monitoring well.

Mr. Bauer testified that the rates in Section 732.840/734.840(a) are based on the

thickness of asphalt to be applied to the site. Exh. 9 at 11-12. The Agency used the

2003

National Construction Cost Estimator

51st Edition to establish the rate for installation of

concrete per square foot. Exh. 9 at 12. Mr. Bauer stated that concrete installed at the same

thickness is more expensive and the Agency believes the most cost-effective approach should be

utilized.

. Therefore, Mr. Bauer stated the Agency limits the reimbursement for concrete to

the same level as the maximum rate for asphalt.

For Section 732.840/734.840(b), Mr. Bauer indicated that the limit has been established

at $10,000 per occurrence. Exh. 9 at 12. For reimbursement the activities must be submitted on

a time and materials basis to the Agency.

Mr. Bauer testified concerning the rates for professional consulting services in Section

732.845/734.845. Exh. 9 at 12-15. Mr. Bauer stated that after consultation, the American

Consulting Engineers Council of Illinois

(ACECI), the Agency determined that fieldwork

should be billed on a half-day rate, which is five hours billed at $80 per hour. Exh. 9 at 12. The

Agency included additional expenses for vehicles or mileage, photo ionization detector (PID),

and miscellaneous supplies to develop the maximum of $500 per half-day. Exh. 9 at 12-13. Mr.

Bauer testified that maximum half-day increments had been established for oversight of UST

removal, removal of contaminated soil, soil borings, line release repair, free product removal,

and groundwater sampling event. Exh. 9 at 13-15.

Mr. Bauer testified that Section 732.Appendix E/734.Appendix E establishes personnel

titles and rates to be used when submitting activities on a time and materials basis. Exh. 9 at 15.

The titles must be used and the consultant’s personnel must be able to meet the title

requirements.

. The rates are based on the task performed and not the title of the person

performing the task.

. Mr. Bauer stated that the consolidation of titles is essential to maintain

consistency in Agency reviews and to expedite the review process.

. Mr. Bauer indicated that

the maximum hourly rates are based on the average rate the Agency has seen on budgets and

reimbursement claims. Exh. 9 at 16.

Harry Chappel

Mr. Chappel is a unit manager in the leaking UST section within the Bureau of Land and

has been in his current position since 2002. Exh. 11 at 1. Mr. Chappel was previously employed

by the Agency from 1976 to 1995 and was in private practice from 1995 to 2002.

. Since

1979, Mr. Chappel has been a registered professional engineer.

. Mr. Chappel’s testimony

supports the proposed language in Subpart H. Mr. Chappel testified that the proposal is a result

of modifications to the Act and “the need to reform the current reimbursement procedures.”

Mr. Chappel testified that Section 732.800/734.800 specifies all reimbursable tasks will

be limited to the maximum amounts set forth in Subpart H. Exh. 11 at 2. The Agency grouped

reimbursable activities into eleven categories.

. Mr. Chappel’s testimony includes several

attachments in support of the proposed maximum allowable rates. Exh. 11 at 3.

For Section 732.825/734.825, Mr. Chappel testified that the rate for soil excavation,

transportation and disposal was developed using randomly selected projects. Exh. 11 at 3. The

maximum rate for the cost to excavate, transport, and dispose (ETD) is the sum of costs for each

activity plus one standard of deviation rounded up to a whole dollar amount.

. The result is

$57 per cubic yard.

. Mr. Chappel indicated that the rate for backfill would be $20 per cubic

yard.

. This maximum rate was developed by using the sum of the costs to backfill plus one

On July 1, 2004, the Consulting Engineers Council of Illinois became the American Consulting

Engineers Council of Illinois. Tr.6 at 7-8.

standard of deviation.

. Mr. Chappel testified that the Agency is proposing separate amounts

for the two activities because the amount of soil excavated does not always equal the amount of

backfill necessary.

Mr. Chappel testified that to determine the volume of soil, a volume calculation is

included in the proposal. Exh. 11 at 4. Mr. Chappel indicated that to account for the fact that in-

place volume is less than excavated volume, the equation includes a “fluff” factor of five

percent.

Mr. Chappel testified that in developing the maximum rates for sampling handling and

analysis (Section 732.834/734.835), the Agency contacted the Illinois Association of

Environmental Laboratories, Inc. (IAEL) for assistance. Exh. 11 at 4. IAEL provided a survey

of laboratories and recommended that the Agency use the highest rate reported.

. Mr. Chappel

testified that the Agency instead “opted to use the average amounts” provided by IAEL. Exh. 11

at 4-5.

To develop the limits for fees that consultants may be reimbursed, delineated in Section

732.845/734.845, Mr. Chappel indicated that the Agency consulted with ACECI. Exh. 11 at 5.

The Agency coordinated with ACECI to determine the activities conducted by a consultant in

each step of the process and the estimated personnel time required for each activity. Exh. 11 at

5-6. Mr. Chappel stated that once the hours required to perform an activity were determined, the

Agency developed an average hourly rate by reviewing historical records of the Agency from

prior reimbursements. Exh. 11 at 6. The Agency totaled the hourly rates for each job title and

developed an average hourly rate.

. The Agency selected 19 random requests to verify that the

rate was reasonable.

Mr. Chappel stated that using the $80 rate derived, the Agency then applied that to the

number of hours estimated for the various tasks to realize the maximum rate for reimbursement

for an activity. Exh. 11 at 6-7. Mr. Chappel testified that a ten-hour workday was assumed and

the maximum rate includes all costs incurred by a consultant for completing the specified

activity.

Mr. Chappel stated that the Agency could not develop a set fee for all activities, so the

Agency proposes Section 732.850/734.850 to address those situations where the activity will be

reimbursed on time and materials. Exh. 11 at 10. Also, Mr. Chappel noted that the Agency

proposed Section 732.855/734.855 to provide an opportunity to an owner or operator to

demonstrate that their site presents unusual or extraordinary circumstances.

Gary King

Mr. King is the manager of the Division of Remediation Management within the Bureau

of Land with the Agency. Tr.1 at 12. In his position, Mr. King is responsible for nearly all

cleanup programs including the UST program. Tr.1 at 12-13. Mr. King has been a senior

manager with the UST program since the establishment of the program in 1990. Tr.1 at 13. Mr.

King was directly involved in every statutory change to the UST program and has testified in

every UST rulemaking since 1990.

Mr. King testified that the amendments to the UST rules in the past have been instigated

because of statutory changes or because the Agency recognized the need for a change based on

the Agency’s experience with the program. Tr.1 at 13. This rulemaking falls into both

categories.

. Mr. King stated that the rulemaking is necessary “to meet statutory mandates and

. . . to make the program more cost effective.”

Mr. King conceded that parts of the proposed changes will be controversial. Tr.1 at 13-

14. However, even though Illinois has a successful track record, the Agency has noted issues.

Tr.1` at 14. Mr. King stated that over the last few years “more and more administrative time” is

spent reviewing budget approvals than overseeing UST cleanup activities.

. In addition, Mr.

King testified that the Agency has encountered “more frequent instances of what we believe are

abuses of the system.” Tr.1 at 14-15.

Mr. King indicated that while developing the proposal, the Agency was constantly aware

that the Agency is responsible for reimbursing for the “reasonable costs” of remediation. Tr.1 at

15. Mr. King testified to his belief that the Board’s review of the Agency’s data will support the

Agency’s proposal. Tr.1 at 15-16.

Public Comment

The Agency commented that the development of the proposal in this proceeding has been

an ongoing process and the Agency has responded to concerns and comments with three

errata

sheets. PC 4 at 1-2. The Agency believes that these changes have improved upon the original

proposal and benefit all parties involved in the UST program. PC 4 at 2. The Agency indicated

that the proposal reflects statutory changes and streamlines the UST program in a way that

allows for quicker and easier submittals, reviews and fewer appeals to the Board.

. The

Agency comment is divided into three parts. The first discusses the proposed amendments. The

second addresses additional amendments to the proposal. The third responds to the alternative

proposal offered by PIPE. Below the Board will summarize the Agency comments on each of

these areas.

Proposed Amendments

Applicability of Public Acts.

The Agency responded to PIPE’s concern that the Board

should determine which of the four public acts which amended 415 ILCS 5/57.1

et seq.

should

apply. PC 4 at 3. The Agency argued that there is not “such a total and manifest repugnance

between” the public acts that the amendments cannot stand together. PC 4 at 7. The Agency has

considered the changes to the Act and has ensured that the proposal is consistent with the

changes.

Subpart H.

The Agency believes that the maximum amounts set forth in Subpart H are

reasonable for the work being performed, unless a higher amount can be justified either through

bidding or unusual or extraordinary circumstances. PC 4 at 7. The Agency did use historical

data to develop some of the maximum amounts, but those amounts are consistent with amounts

owners and operators request for reimbursement and the Agency approves. PC 4 at 8. The

Agency believes that the maximum amounts are not out of date and do not need to be increased

by any inflationary rate.

. The amounts are consistent with current market rates, according to

the Agency.

The Agency acknowledged that there has been much discussion about alternative rates.

PC 4 at 8. However, no alternative rates have been proposed and there is insufficient

justification for alternative amounts.

. The Agency also noted that the owners and operators

are not constrained by the maximum rates.

. The owner or operator can exceed those amounts

by either the bidding process or demonstrating that the site poses unusual or extraordinary

circumstances.

. The Agency argued that taken as a whole, Subpart H provides a flexible

method for determining what amounts are reasonable. PC 4 at 9.

Tier 2 Objectives.

The Agency’s proposal to limit on-site cleanup to Tier 2 TACO

cleanup objectives is justified because the limitation will ensure cost-effective cleanup which

results in the same protection of human health and the environment. PC 4 at 10-11. The Agency

noted that the Tier 2 objectives are as equally protective of human health and the environment as

Tier 1, but Tier 2 is generally less costly. PC 4 at 11. The Agency argued that the UST Fund is

designed to ensure that sites are cleaned up to levels that protect human health, but the UST Fund

is not designed to cover costs of remediation which would make a property more marketable.

The Agency clarified that the Tier 2 objectives can be met without the use of institutional

controls and the Agency will not require the use of institutional controls. PC 4 at 12.

Groundwater Ordinances.

The Agency proposal to require the use of groundwater

ordinances is intended to ensure that the UST Fund is not used for cleanup of groundwater that

cannot be used as potable water because of an existing ordinance. PC 4 at 12. The Agency

proposal does not require an owner or operator to seek an ordinance.

. However if an

ordinance is in place and the Agency has already approved the institutional control, the owner or

operator will be required to use that ordinance as an institutional control.

Amendments to the Proposal

The Agency proposes to change “may” to “shall” in Section 723.202(h)(1) and (2),

Section 734.210(h)(1) and (2). Also the Agency proposed changes to Section 732.800/734.800

to provide more of a “roadmap” to Subpart H. PC 4 at 17-18. The main change suggested by the

Agency is to add Section 732.606(ggg) and 734.630(ddd). These two subsections limit

reimbursement to Tier 2 remediation objectives. PC 4 at 16-17. The Agency proposes changes

in other sections to reflect the addition of Section 732.606(ggg) and 734.630(ddd).

PIPE’s Alternative Proposal

The Agency has continued to meet with representatives of PIPE; however at the time of

the submission of the public comment, the parties had not reached agreement on the outstanding

issues. PC 4 at 20. The Agency offered comments in addition to the testimony of Mr. King and

Mr. Clay at the August 9, 2004 hearing (

see

Tr.7 at 19-27, 32-38, and 55-60; Exh. 88 at 3-19).

PC 4 at 20. The Agency noted that absence of comment or response by the Agency should not

be construed as acquiescence in or support of changes other than those proposed by the Agency.

PC 4 at 2-3. The Agency specifically commented on four areas of the PIPE’s proposal. PC 4 at

20-28. The following paragraphs summarize the Agency’s comment one each area.

UST Remediation Applicant.

The Agency believes that the addition of the phrase

“UST remediation applicant” is inappropriate for the UST program. PC 4 at 20. The phrase is

borrowed from the Site Remediation Program and is used in that program so that anyone with

potential liability for contamination can enter the program.

. However, with the UST program

only an owner or operator of the UST is liable for a release and to ensure consistency with the

federal regulations the rules should maintain the narrow focus.

Free Product Removal.

PIPE’s proposal would allow for free product removal “as

required to address the health and safety of the site” and the Agency feels that such language

would create an inconsistency between the State and Federal programs. PC 4 a 21. Under

Federal regulations, the standard is removal of free product “to the maximum extent practicable”

(40 C.F.R. 280.64 (2004)). PC 4 at 21. The Agency has proposed language to require removal

of free product to the “maximum extent practicable”.

Review of Plans, Budgets, Reports, and Applications for Payment.

The Agency

believes that both the shortened review time (45-day review) and the draft denial letters proposed

by PIPE are inconsistent with the Act. PC 4 at 21-23. The Agency argued that the Act grants the

Agency 120 days to make a decision on submittals. PC 4 at 21. The suggestion that the review

time be shortened to 45 days would be extremely difficult for the Agency to meet for review of

all submittals. PC 4 at 22.

The Agency noted that the Act does not require a draft decision letter prior to denying a

request. PC 4 at 22. The Agency argued that the issuance of a draft denial letter in the UST

program is not required by Wells Manufacturing Co. v. IEPA, 195 Ill. App. 3d 593, 552 N.E.2d

1074 (1st Dist. 1990). PC 4 at 24-25. The Agency pointed out that, with the UST program, the

Agency makes determinations based on the information provided by owner or operator unlike

the permit program where information from the public is considered. PC 4 at 26. The purpose

of a Wells letter in the permit program is to notify the applicant of a potential denial of a permit

because of information beyond the contents of a permit application. PC 4 at 25. This situation

does not occur in the UST program. PC 4 at 26.

The Agency stated that additional alternative language proposed by PIPE is inconsistent

with the Board’s regulations and the Act. PC 4 at 26-28. Specifically, the language proposed for

Section 734.505(b) that would shift the burden of proof to the Agency (PC 4 at 26), and the

language in Section 734.505(f) that allows the Agency to deem submittal rejected after 120 days

is inconsistent. PC 4 at 27.

Finally, the Agency disagreed that only licensed professional engineers or geologists

should review submittals to the Agency. PC 4 at 27. A requirement that licensed professional

engineers or geologists review submittals would make 85% to 90% of the Agency’s current

project managers ineligible to review the submissions.

. This limitation would “cripple” the

UST program.

SUMMARY OF TESTIMONY AND COMMENTS

This section of the Board’s opinion will summarize the testimony and comments received

by the Board during this proceeding. The Board will begin with PIPE and then proceed with

members of PIPE in the following order: CSD Environmental Services, Inc., United Science

Industries, Jarrett Thomas and CW

M Company. The Board will then summarize the testimony

of Russ Goodiel, Michael Rapps, Bill Fleischli, Harold Primack, and Daniel Goodwin. The

Board will end this section by summarizing the comment of Maurer-Stutz, Inc.

Professionals in Illinois for Protection of the Environment (PIPE)

PIPE presented testimony (Exh. 91) and an alternative proposal (Exh. 90) at the August

2, 2004 hearing. In addition, PIPE filed a public comment on September 23, 2004, (PC 6)

expanding on the issues raised in the testimony and the alternative proposal. The following

discussion will summarize the general comments from PIPE and then highlight the issues raised

by PIPE in the alternative proposal. Next, PIPE’s testimony will be summarized. The public

comment will be included, where relevant, under the subjects raised in the testimony and

alternative proposal.

General Comments

PIPE was formed as a not-for-profit organization in April, 2004 to voice concerns of

consultants and contractors in Illinois over the Agency’s proposed changes to the UST

regulations. Exh. 49 at 3. PIPE’s members conduct or provide services on nearly all of the UST

cleanups conducted in Illinois.

. Although many of the individuals who prefiled testimony

indicated that the testimony was “PIPE testimony” at the June 22, 2004 hearing, Claire Manning,

PIPE’s attorney, stated that the individuals were not presenting testimony on behalf of PIPE.

Tr.5 at 4-5.

PIPE along with a workgroup, which included of members the ACECI, Illinois Society

for Professional Engineers (ISPE) and the Illinois Petroleum Marketers Association (IPMA) met

with the Agency a number of times during the course of this proceeding concerning the proposal.

Exh. 90 at 5. As a result of those meetings, the Agency submitted the third

errata

sheet. Exh. 90

at 6. PIPE supports a large number of the Agency’s proposed changes; however, PIPE has

lingering concerns about the proposal.

PIPE noted in its comment that participants in the rulemaking still have substantial issues

with the proposal. PC 6 at 1-2. PIPE “hopes” the Board is prepared to address the substantial

issues remaining.

. PIPE suggests if the Board is not ready, then another hearing should be

held. PC 6 at 2.

Alternative Proposal

Merger of Part 732 and 734.

PIPE indicated that this is not a “serious concern” and the

issue has not been discussed with the Agency. Exh. 90 at 6. PIPE questioned the necessity of

amending Part 732 and proposing a new Part 734.

. PIPE suggests that with a “certain degree

of wordsmithing” on the part of the Board, the rules could be merged into one set of

requirements.

. Such a merger might eliminate any confusion which might exist by the

regulated community, according to PIPE. Exh. 90 at 6; PC 6 at 6.

Subpart A.

PIPE suggested language changes in three areas under Subpart A.

Specifically, PIPE suggested changes in the Applicability section, under Definitions, and in

Section 732.110/734.135. The following paragraphs will specify PIPE’s suggested changes.

Applicability.

PIPE expressed concern that the language in Section 732.100/734.100 will

result in an unlawful retroactive application of the rules. Exh. 90 at 6. PIPE was unable to

review the Agency’s change to the language in the third

errata

sheet, so PIPE suggested

language to address their concern. Exh. 90 at 6-7. PIPE reiterated in the comment that the

Agency’s proposed applicability language may have the effect of retroactively applying the

rules. PC 6 at 7.

Definitions.

PIPE proposed that the Board add a definition for “UST Remediation

Applicant” to the rule. Exh. 90 at 9. The definition suggested by PIPE is drawn from an almost

identical definition in the Board’s rules for the Site Remediation Program.

. PIPE suggested

that this concept be incorporated in the UST rules because an owner or operator may often

contract out responsibility for site cleanup to a consultant, as is the case in the Site Remediation

Program.

. PIPE argued that the UST program would benefit by the Agency’s recognition that

consultants are many times authorized by the owner or operator to act on behalf of the owner or

operator.

In the public comment, PIPE noted that this proposed definition was not intended to

equate the UST program with the site remediation program. PC 6 at 7. PIPE stated that the

language was proposed merely to reflect the reality that the person who deals with the Agency is

not always the owner or operator.

Section 732.110/734.135.

PIPE suggested adding as a subsection to this section or as a

new subsection a requirement that the Agency gather data and develop efficiencies in the UST

program. Exh. 90 at 10. PIPE shares the Agency’s goal of protecting the UST Fund; however,

PIPE believes the Agency’s proposal falls short of this goal.

. The proposal falls short,

according to PIPE, because the proposal is not based on statistically reliable data.

. Rather,

the basis for the rates includes “a file pulled here and there” argued PIPE. Exh. 90 at 10-11.

PIPE opined that the Board has not historically adopted a regulation based on such data. Exh. 90

at 10.

PIPE noted that the Agency maintained at hearing that other than various remediation

files, the Agency does not maintain records of cost data relevant to UST remediation. Exh. 90 at

11. In addition, PIPE noted that various individuals testified at the hearings to the inefficiencies

of the current program, including the multi-levels of review and time consuming rejection and

appeals.

PIPE commented that the UST Fund has collected $78,000,000 in revenue during the

2004 fiscal year, which represents a $12,000,000 increase from the 2003 fiscal year. Exh. 90 at

11. PIPE pointed out that the administration costs have also increased.

; citing Exh. 76.

However, the monies paid out in remediation have been decreasing, according to PIPE. Exh. 90

at 11. Therefore, while PIPE recognizes the propriety of developing rates for identifiable tasks,

PIPE suggested that data should be collected on the costs of both administration and

implementation of the UST Fund. Exh. 90 at 11-12.

Early Action.

PIPE raised two areas of concern with Early Action and free product

removal in Section 732.203/734.215. The first is the Agency’s review of technical judgments.

The second is the processing of free product removal requests. The following paragraphs will

specify PIPE’s suggested changes.

Review of Technical Judgments.

Many of the members of PIPE have testified with

concerns regarding the “over-prescriptive approach” of the Agency’s technical review of

decisions which must, by statute, be made by a licensed professional engineer or geologist. Exh.

90 at 12-13. PIPE noted that this is particularly onerous when the potential rejection of a

licensed professional engineer or geologist’s judgment is overturned by a project manager

without similar professional credentials. Exh. 90 at 13. PIPE opined that the interests of neither

the UST Fund nor the environment are served by such an overly prescriptive approach.

. PIPE

acknowledged that the Agency’s third

errata

sheet may address some of PIPE’s concerns;

however, PIPE suggested specific language for Section 732.203/734.215 to address this issue.

PIPE suggested that this section and other sections of the rule as well be amended to

provide clarity and greater efficiency to the claims review and payment process. Exh. 90 at 13.

Specifically, in this section and throughout the rule, PIPE recommended that “maximum

payment amounts” be replaced with “reimbursable costs” in the proposal.

. PIPE stated that

the phrase “maximum payment amounts” is confusing and a misnomer as the rule allows for

reimbursement above the “maximum payment amounts” in the case of extraordinary

circumstances.

. PIPE offered that the phrase “reimbursable costs” is more consistent with the

rest of the rules and the history of the program. Exh. 90 at 14.

PIPE recommended that the phrase “the Agency may” should be clarified to explain

when and under what circumstances such discretionary requirements will be utilized. Exh. 90 at

14. PIPE suggested that the Board review the use of “Board Notes” throughout the rule proposal

and eliminate those that are obsolete. Exh. 90 at 15.

Processing of Free Product Removal Requests.

PIPE asked that the language in Section

732.203(e) and (g)/734.215(e) and (g) be clarified. Exh. 90 at 15. PIPE seeks language which

would require the Agency to review a free product submittal plan in a very short timeframe and

if the Agency does not act expeditiously, allow the owner or operator to move forward to remove

the environmental hazard.

Subpart E, Review of Plans, Budget, and Reports.

PIPE stated that “much testimony

was elicited” concerning the Agency’s UST review process and that the process is “overly

burdensome, too costly, and unfairly balanced in favor of the Agency.” Exh. 90 at 16. PIPE

acknowledged that the Agency has agreed to propose an advisory committee in the third

errata

sheet; however, that committee will not be able to address procedural deficiencies.

. PIPE

opined that the rulemaking process currently before the Board can address the procedural

deficiencies.

PIPE stated that the “process issues are at the very heart of this proposal” and the very

workability of these rules depends on the Board recognizing and dealing with these issues. PC 6

at 21. PIPE asserted that no one other than the Agency believes these rules will work as

envisioned without significant revision.

. PIPE’s members have no confidence in the

workability of the rule and look to the Board resolve the issues before proceeding with the rule.

PIPE noted that the UST process has followed closely the permit review process, but the

traditional permit review process does not provide a proper procedural overlay for the UST

reimbursement process. Exh. 90 at 16. PIPE stated that this is especially true given recent

statutory changes which provide that the Agency’s failure to act within the statutory timeframe

results in a denial of the reimbursement. Exh. 90 at a16-17.

PIPE pointed to areas of disparity between the permit process and the UST process.

First, PIPE noted that in the permit process an applicant can often operate with an existing permit

during the review and appeal of a permit application; whereas a UST owner or operator is

“essentially stymied” until the process is complete. Exh. 90 at 17. Second, PIPE stated that the

cost of the appeal in a UST reimbursement often exceeds the dollar amount of the denial. Exh.

90 at 17.

Third, in the permit process the Agency is required to issue a letter identifying potential

denial reasons and allowing the applicant to respond, before denying a permit application.

PIPE has suggested to the Agency that a procedure could be developed which would be an

alternative to an appeal to the Board; however the Agency is opposed to such an alternative. PC

6 at 22. PIPE suggested that the proposal be amended to require that prior to any denial, the

Agency give notice of the specific reasons for the denial and an opportunity to correct the

deficiency.

. PIPE suggested that this should occur during the 120-decision timeframe of the

Agency.

. PIPE argued that the Agency’s opposition to this suggestion because of the number

of denials issued by the Agency is belayed by the Agency’s own testimony that ninety percent of

claims would fall within the Subpart H parameters.

. PIPE asserted that the lack of notice of

denial may “jeopardize the due process component of the administrative process.” PC 6 at 22,

citing Wells Manufacturing Co., v. IEPA, 195 Ill. App. 3d 593, 552 N.E.2d 1074 (1st Dist.

1990).

Fourth, the denial letter in a UST reimbursement case often indicates that the denial is

because the request “exceeds the minimum requirements of the Act” without additional

specificity. Exh. 90 at 17. PIPE opined that, because the denial letter frames the issues on

appeal, the UST applicant bears the burden of proving the Agency wrong when the applicant

may not be sure what the issues even are.

In the public comment, PIPE suggested that the language proposed by PIPE concerning

the denial letters be adopted. PC 6 at 24. PIPE language would “require that the Agency follow

the relevant provisions of the law and further, would put the burden on the Agency to establish

why the plan, budget or report was not ‘approvable’ in the context of its new, presumably

‘streamlined’ rules.” PC 6 at 24. PIPE feels that the Agency’s continued opposition to the

language is not warranted.

. PIPE argued that testimony by PIPE and PIPE members

establishes that one of the major costs to a company in the UST program is the cost of dealing

with the Agency.

PIPE suggested that the procedural imbalances border on a violation of due process and

suggest that the offered amendments to Subpart E would restore the balance. Exh. 90 at 18.

PIPE suggested changes to the appeal process, that while still being based on Section 40 of the

Act (415 ILCS 5/40 (2002)) would recognize the uniqueness of the UST process.

Subpart F.

PIPE opined that expeditious processing of reimbursement payments and

expeditious and judicious processing of plans, budgets and reports is crucial to the stewardship

of the UST Fund. Exh. 90 at 21. PIPE conceded that the Act allows the Agency 120 days to

process payments; however, PIPE maintains that there is no reason the Agency could not process

payments faster if the costs have been approved in a prior submittal.

. PIPE suggested a

language change in Subpart F to effectuate this goal. Exh. 90 at 22.

Subpart H.

PIPE offered numerous, specific language changes to Subpart H which are

discussed in the testimony and final comments. Exh. 90 at 22-23. PIPE maintained that the

professional service costs proposed by the Agency are too low to capture reasonable costs. PC 6

at 8. PIPE further maintained that the professional service costs proposed by the Agency do not

consider the actual work required to perform the tasks.

PIPE argued that the Subpart H rates proposed by the Agency are based on limited data

from as long ago as 1998. PC 6 at 8. PIPE asserted that the cost data was not analyzed using

defendable scientific statistical procedures or proper sampling.

. Further, the Agency has set

the rate by averaging numbers and using the average; as a result half the costs are above the rate

set.

. PIPE argued that these rates unfairly hurt the consultants that perform good professional

work at a reasonable cost.

PIPE opined that the Board is “challenged” to determine what is “reasonable” based upon

this record for purposes of Subpart H. PC 6 at 8. PIPE suggested that one way to proceed would

be to direct the Agency to redevelop the proposed amounts based upon reliable and

representative data.

. A second way to proceed, suggested by PIPE, would be to adjust the

rates for inflation; or thirdly, to utilize where possible the

RS Means Environmental Cost

Handling Options and Solutions

(10th Edition 2004). PC 6 at 9.

In addition to PIPE generally assailing the rates in Subpart H, PIPE specifically

commented on (1) UST removal (Section 732.810/734.810), (2) free product or groundwater

removal (Section 732.815/734.815), (3) drilling, well installation, and well abandonment

(Section 732.820/734.820), (4) soil removal and disposal, and (5) drum disposal

(732.830/734.830), sample handling and analysis (Section 732.835/734.835), and concrete,

asphalt, and paving (Section 732.840/734.840). PC 6 at 11-13. Other than PIPE’s comment on

UST removal and abandonment, PIPE offers no alternatives to the rates proposed by the Agency

on each of these issues.

. PIPE does offer suggested language changes to the related sections.

PIPE proposed alternative rates for UST removal and abandonment. PC 6 at 11. PIPE

based the alternative rates on the 2004

RS Means Environmental Cost Handling Options and

Solutions

. PIPE believes that the alternative rates are “eminently more justifiable” as

reasonable rates than those proposed by the Agency.

Testimony

In addition to expressing support for some of the changes in the third

errata

sheet and

testifying in support of the alternative proposal, PIPE’s testimony from the August 9, 2004

hearing responds to the Agency’s testimony. PIPE specifically addresses the use of TACO and

reentry into the UST Fund (Exh. 91 at 11). PIPE seeks to clarify statements from the Agency

regarding the agendas for meetings between the Agency and PIPE’s workgroup. Exh. 91 at 2. In

addition, PIPE addresses the Agency’s statements regarding: (1) the “impetus for the

rulemaking” (Exh. 91 at 3); (2) the “time to review claims” (Exh. 91 at 5); (3) the “vocal

minority” (Exh. 91 at 7); (4) the scope of work (Exh. 91 at 9); (5) professional technical

certification (Exh. 91 at 12); (6) the database (Exh. 91 at 15); (7) the average cost per site (Exh.

91 at 16); (8) the proof of payment for subcontractors (

.); and (9) drilling beyond stage three

(Exh. 91 at 17). Each of those will be discussed below.

TACO and Reentry into the UST Fund.

PIPE believes that forcing a TACO based

cleanup affects the choices available to Illinois Petroleum Marketer’s Association (IPMA)

owners and operators who hire PIPE members. Exh. 91 at 11. PIPE deferred to the IPMA on

this issue specifically; however, PIPE has concerns regarding the Agency’s position not to allow

reentry into the UST Fund.

. PIPE maintained that owners and operators will not accept

TACO as a mandate unless they can access the UST Fund after a NFR letter. Exh. 91 at 11-12.

PIPE stated in the comment that PIPE supports IPMA’s concerns regarding mandating the use of

TACO. PC 6 at 20.

Meeting Agendas.

PIPE agreed that agendas for meetings between PIPE’s workgroup

and the Agency were prepared by PIPE. Exh. 91 at 2-3. The agendas reflected the issues that

PIPE had with the proposal that PIPE wished to discuss at the meetings.

. PIPE stated that

some the issues were discussed in more detail than others. Exh. 91 at 3.

“Impetus for the Rulemaking”.

PIPE takes issue with statements by the Agency that

the rulemaking proposal was initiated in response to statutory changes made in 2002. Exh. 91 at

3. PIPE noted that the proposal was not filed until January 13, 2004, a full year and a half after

the effective date of the public act relied upon by the Agency.

. PIPE asserted that the

Agency’s testimony is contradictory and that the impetus for the rulemaking is controlling costs.

Exh. 91 at 3-4.

PIPE pointed out that although the Agency’s testimony indicated that approximately $25

million more is being paid out of the UST Fund than is coming into the UST Fund, the cost of

reimbursement has not historically exceeded the revenue generated by the UST Fund. Exh. 91 at

4. PIPE asserted that over the last three fiscal years, the Agency share of operational costs from

the fund has risen $200,000 to $400,000 a year.

. PIPE noted that for fiscal 2004, the

Agency’s cost was almost $4 million.

. PIPE suggested that if the “State’s goal is cost

control” the Board and the Agency should look at the costs of the implementation of the UST

program.

PIPE noted that the Agency has not performed a formal economic analysis to determine

what if any savings will be generated by the proposal. Exh. 91 at 4. PIPE asserted that the

Agency’s expectation of savings is predicated on the assumption that the Agency has established

“reasonable costs” for reimbursement. Exh. 91 at 4-5. However, PIPE argued the “reasonable

costs” have not been established based on reliable market data or scientifically sound

methodology. Exh. 91 at 5.

Time to Review Claims.

PIPE conceded that testimony from a PIPE member might

have been inaccurate concerning the time the Agency takes to review claims. Exh. 91 at 5. PIPE

researched the issue further and agrees with Agency’s statements that the time for the Agency to

make a decision is normally less than 120 days.

. However, the PIPE member was accurate

concerning the timeframe for Agency review of claims by her firm. Exh. 91 at 6.

In addition, the testimony of PIPE members is correct that reimbursement of an owner or

operator “takes a very long time”. Exh. 91 at 6. PIPE asks the Board to keep in mind that there

are so many decisional steps that the actual timeframe from start to finish includes a number of

decisional steps added together.

PIPE takes issue with the Agency’s assertion that a statutory change would be required to

effectuate a change in timeframes to review claims and any change would impact the Agency’s

administration of the UST program. Exh. 91 at 6. PIPE asserted that the language of the statute

allows

for 120-decision timeframe but does not

require

such a timeframe.

. PIPE further

stated that since the Agency agrees that most of the decisions are made in less than 120 days, the

Agency opposition to shortening the timeframe is “perplexing” to PIPE. Exh. 91 at 6-7.

Vocal Minority.

PIPE suggested that if, as the Agency suggests, there are companies or

associations who are happy with the rules but have not participated in the rulemaking, those

companies or associations should participate. Exh. 91 at 8. PIPE pointed out that many

recognized organizations have worked with PIPE throughout this rulemaking including those

who participated in the PIPE workgroup.

. PIPE maintains that member companies who have

participated in this rulemaking “have the greatest market share” of businesses who remediate

small retail gas stations in the State. Exh. 91 at 9.

Scope of Work.

PIPE maintains that the Agency’s description of the “scope of work”

illustrates the differences between the Agency and the participants in the rulemaking. Exh. 91 at

9. PIPE asserted that State job descriptions are more comprehensive than the Agency’s

description of the scope of work.

. PIPE opined that a payment structure for environmental

services requires flexibility and the ability to adjust depending on the difficulty of the project.

The Agency’s proposal divides payment for the services of consultants into lump sum

payments or time and material payments and PIPE agrees that these two types of payments are

appropriate in some circumstances. Exh. 91 at 9-10. PIPE suggested that time and material

payments work best when the technical and financial risks and unknowns are large. Exh. 91 at

10. Alternatively, lump sum payments can be applied to discreet, well-defined tasks with small

risks and unknowns, according to PIPE.

PIPE pointed out that throughout these proceedings, PIPE and others have questioned the

Agency’s procedure for developing the rates, which are being proposed as “reasonable” for lump

sum payments. PC 6 at 14. PIPE pointed to the averaging of all professional job titles into one

lump sum rate, as one of the concerns PIPE has regarding lump sum rates.

PIPE is not seeking a defined scope of work for every aspect of UST projects; however,

any service for which the Agency suggests a lump sum payment should have a defined scope of

work. Exh. 91 at 10. PIPE has drafted suggested language defining the scope of work for

services that PIPE believes are appropriate for lump sum payment. Exh. 91 at 10; PC 6. PIPE

asserted that the intent of the scope of work is to identify all the tasks needed to prepare the

reports or services and to establish a standard of review. Exh. 91 at 10. PIPE maintained that

without a clear scope of work the Agency and the consultant may have differing opinions of

what work is required to perform the service. Exh. 91 at 10-11. PIPE opined that to the extent

the Agency decides additional information is needed beyond the scope of work, the consultant

should be paid on a time and materials basis. Exh. 91 at 11.

Professional Technical Certification.

PIPE disagreed with the Agency’s testimony that

the legislature only intended for licensed professional engineers or geologists to perform

“oversight” of site investigation and corrective action. Exh. 91 at 12. PIPE asserted that the

certification of a licensed professional engineer or geologist is required to justify the work was

necessary for site remediation. Exh. 91 at 13. PIPE also noted that the provision is necessary

because the Agency does not oversee UST remediation from a technical perspective.

PIPE reiterated that the point being made is that when there is a need for technical

judgment regarding site remediation, the Agency ought to defer to the licensed professional

engineer or geologist. Exh. 91 at 13.

Database.

PIPE is perplexed by the Agency’s concerns that developing a database

would be burdensome and time-consuming. Exh. 91 at 15. PIPE feels that with all the resources

of the UST Fund at the Agency’s disposal, the Agency should be in a position to consider the

benefits of an electronic database.

. PIPE argued that electronic filing and data collection

could reduce work and such a goal is in accordance with the Agency’s stated goals for this

rulemaking proposal.

Average Cost Per Site.

PIPE takes issue with the Agency’s “average cost of

remediating sites from 1997-2001” (

see

Exh. 88 at 16). Exh. 91 at 16. Specifically, PIPE

questioned the Agency’s assumption that sites closed in later years may still have outstanding

claims.

. PIPE and PIPE’s members have presented testimony and exhibits, which indicate

many sites from 1997-2001 are still open.

. PIPE asserted that the Agency did not include

sites from 2002 through the present because those sites do not support the Agency’s position in

this rulemaking.

Proof of Payment to Subcontractors.

PIPE asserted that by definition handling charges

are due to the contractor whether or not the subcontractor is paid by the contractor. Exh. 91 at

17. PIPE noted that even if the subcontractor has agreed to await payment until the Agency

reimburses the owner or operator, the prime contractor has incurred the costs of insurance and

administration of the subcontract.

. PIPE believes that the financial interest of a prime

contractor in the subcontractor’s business also has no effect on the cost incurred by the prime

contractor.

PIPE opined that requiring proof of payment to a subcontractor is “an unnecessary overly

bureaucratic requirement” that has nothing to do with cost containment. PC 6 at 18. PIPE

maintained that this requirement will slow the process and provide a hardship to small businesses

in the State.

Stage 3.

PIPE noted that the Agency indicated that if remediation of a site requires

drilling beyond Stage 3, the drilling should be done and will be reimbursed. Exh. 91 at 17. PIPE

stated that the Agency fails to explain whether the Agency will approve the drilling at all.

PIPE argued that the Agency has not shown a willingness to defer to the judgment of a licensed

professional.

PIPE noted that the testimony demonstrates that many of the “easier to resolve” sites

have been closed and an increasing number of sites that are being remediated are more complex

and difficult. PC 6 at 16. PIPE opined that the Agency’s proposed lump sum payment for Stage

3 investigations is an issue.

. PIPE stated that the experience of consultants demonstrates that

even when monitoring and boring are performed in the most logical off-site locations, the

consultant may be unable to define the contamination plume.

. In order to define the plume,

new plans and budgets may need to be sent to the Agency and this approach has worked well for

the regulated community and the Agency, according to PIPE.

. PIPE does not believe that this

approach works for lump sum payments and recommends that reimbursement be treated on a

time and materials basis for Stage 3 investigations.

Section 57.7 of the Act (415 ILCS 5/57.7)

PIPE asked which version of Section 57.7 of the Act is the version which is applicable.

Exh. 91 at 13. PIPE pointed out that four different bills amended Section 57.7 of the Act and all

four versions are in the published volume of the Illinois Revised Statutes.

. PIPE suggested

that the Board should address this question in this rulemaking.

Bidding

PIPE stated that with certain changes to the Agency’s proposal on bidding, PIPE can

accept the bidding process. PC 6 at 2. Specifically PIPE opined that the Agency has “seriously

underestimated the amount of time and effort” that will be necessary to conduct bidding. PC 6 at

17. PIPE believes that the reimbursement for the bidding process should be based on time and

materials and not a lump sum payment.

. PIPE suggested that as an alternative to accepting

three bids, the proposal allow a contractor to justify costs by utilizing published industry data.

PC 6 at 18. Finally, PIPE stated that the record does not support the exclusion of a subcontractor

when the primary consultant has a financial interest in that subcontractor.

Id.

Compaction

In the public comment PIPE also suggests that compaction and backfill material should

be removed as an ineligible cost. PC 6 at 19. PIPE believes these costs should be eligible

because without compaction and backfill, the site can settle and additional backfill must be

added.

CSD Environmental Services, Inc

CSD Environmental Services, Inc. (CSD) presented testimony from two witnesses.

Cindy S. Davis and Joseph W. Truesdale. The following paragraphs summarize their testimony.

Cindy S. Davis

Ms. Davis is the sole owner of CSD and Heartland Drilling & Remediation Inc., both of

Springfield. Exh. 49 at 1. Ms. Davis is a member of PIPE and Consulting Engineers Council of

Illinois (CECI).

. As a member of CECI, Ms. Davis participated in the

ad hoc

workgroup

brought together by the Agency to discuss the proposal prior to submission to the Board.

Ms. Davis raised several concerns with the proposal, which will be summarized in the following

paragraphs.

Subpart H.

Ms. Davis described the rates being set in the proposal as below the current

market rates in Illinois and the rates do not reflect industry standards in Illinois. Exh. 49 at 4.

Ms. Davis noted that many of the Agency’s rates for reimbursement have decreased over the

years even though the cost of doing business in Illinois has increased.

. Ms. Davis indicated

that when the maximum rates proposed in Subpart H were presented to the

ad hoc

committee,

the Agency suggested that if the work was done for less money than the amount, the consultant

would profit, if the work was done for more the consultant would lose. Exh. 49 at 5. However,

Ms. Davis believes that the maximum payments proposed by the Agency are at a level where the

consultant will either break even or lose.

. Ms. Davis has already experienced the rates

proposed by the Agency and noted that consultants and contractors were losing money.

. In

some cases, clients perceived that the consultant or contractor was price gouging.

Ms. Davis suggested that the scope of work must be defined for the projects. Exh. 49 at

6. Also, the proposal does not take into consideration the level of work deemed necessary by a

licensed professional engineer or a licensed professional geologist.

. Ms. Davis testified that

the

ad hoc

workgroup informed the Agency that a lump sum price cannot be determined without

a clear scope of work.

. Further, because the Act requires much of this work to be completed

by a licensed professional engineer or a licensed professional geologist, Ms. Davis finds that it is

difficult to accept that an Agency reviewer who is not a licensed professional engineer or a

licensed professional geologist can reject the plans. Exh. 49 at 6-7.

Frequency of Request for Reimbursement.

Ms. Davis recommended that the Agency

allow for reimbursement requests to be submitted more often. Exh. 49 at 7. Currently under the

regulations, reimbursement requests may be submitted only every 90 days.

. Ms. Davis

suggested that reimbursement be allowed to be submitted at the end of early action, upon

completion and submittal of each stage of site investigation, upon Agency approval of corrective

action plan, and every 30 days after approval of the corrective action plan.

UST Fund.

Ms. Davis opined that the negative cash flow of the UST Fund is not as a

result of the UST Fund being overcharged. Exh. 49 at 7. Ms. Davis pointed to the transfer of

funds from the UST Fund as one problem. Exh. 49 at 8. A second reason for the increased costs

is that corrective action (often the most expensive activity) is being performed on many sites

where releases were reported prior to 2000. Exh. 49 at 7-8. A third reason for increased

expenditures is that the cost of doing business in Illinois has risen, according to Ms. Davis. Exh.

49 at 8.

Site Investigation.

Ms. Davis believes that the Agency’s proposed staged site

investigation is too prescriptive in regards to placement of wells and locations of soil samples.

Exh. 49 at 8. Ms. Davis recommended leaving these decisions to the licensed professional

engineer or a licensed professional geologist based on their knowledge of the site. Exh. 49 at 8-

Process for Denial.

Ms. Davis questioned the Agency’s process when denying

reimbursement. Exh. 49 at 9-10. Ms. Davis noted that the Agency at the end of 120 days denies

reimbursement with very little detail, leaving only three options.

. The first option is to

resubmit. Second, appeal to the Board; or third, accept the decision and eat the cost. Exh. 49 at

9. This approach causes two problems, according to Ms. Davis. Exh. 49 at 10. An owner or

operator is never given the opportunity to submit additional information and then must bear the

legal costs.

. Ms. Davis recommended modifying the denial process to allow for a draft denial

letter to be issued prior to the final decision and a provision to allow for mediation or arbitration

prior to appeal to the Board.

Atypical Situation.

Ms. Davis expresses concern that the “atypical” situation is not

defined. Exh. 49 at 10-11. Ms. Davis pointed out that the

ad hoc

workgroup proposed the use of

an “atypical site form” to be used when a consultant determines that the site warrants extra

expense. Exh. 49 at 11. Ms. Davis indicated that PIPE recommends the formation of a peer

review committee be formed.

Joseph W. Truesdale

Mr. Truesdale is a licensed professional engineer and geologist and he is a senior project

manager and managing agent for CSD. Exh. 73 at 1. Mr. Truesdale’s testimony covers four

topics, which are discussed below.

Mr. Truesdale supports the Agency’s position of proposing some sort of more

comprehensive site investigation. Exh. 73 at 3. Mr. Truesdale believes that adequate site

assessment facilitates cost effective and efficient remediation when the assessment is complete.

Tr. 5 at 130-31.

Mr. Truesdale takes issue with the rates of Subpart H. Exh. 73 at 5. Mr. Truesdale stated

that assuming fixed maximum payment amounts could be established for activities that do not

have a clearly defined, fixed, scope of work is unreasonable.

Swell Factor.

Mr. Truesdale disagreed with the Agency’s proposed “swell” factor, the

amount by which the volume of the soil will change when either excavated or compacted. Exh.

73 at 4. The Agency has proposed a five percent increase and Mr. Truesdale believes that value

is not consistent with the value commonly used by engineers.

. Mr. Truesdale stated that the

swell factor for “earth and rock” ranges from 12% to 60% and the typical value for earthen

material is 25%.

. Mr. Truesdale noted that given the variability of swell for various geologic

materials, the Agency’s use of a single value for percentage of swell is unreasonable.

. Mr.

Truesdale opined that the more appropriate way to evaluate the costs would be by independently

evaluating the costs. Exh. 73 at 4-5.

NFR Letters.

Mr. Truesdale made two points regarding NFRs. Exh. 73 at 5-7. First,

Mr. Truesdale observes that of the sites which have reported releases, essentially all the easily

remediated sites have been remediated and NFR letters have been issued. Exh. 73 at 5. The sites

that are left are sites that are more technically challenging and as a result tremendous amounts of

data are necessary to determine how best to remediate the sites, according to Mr. Truesdale.

Exh. 73 at 5-6. The second point Mr. Truesdale made is that more owners or operators would

use TACO to remediate a site if they could access the UST Fund after the issuance of a NFR.

Exh. 73 at 6-7.

United Science Industries

United Science Industries (USI) presented testimony from Mr. Duane Doty, Mr. Joseph

M. Kelly, Robert J. Pulfrey, and Mr. Barry F. Sink. In addition, Mr. Jay Koch, president of USI,

filed a public comment.

Mr. Duane Doty

Mr. Doty is the General Manager for United Science Industries, Inc. (USI). Exh. 53 at 1.

He is a licensed professional geologist and has consulted with owners and operators of USTs on

compliance issues since 1988.

. Mr. Doty offered testimony on behalf of PIPE.

. Mr. Doty

raised several issues concerning the Agency’s proposal. The following paragraphs summarize

those issues.

Work Breakdown Structure.

Mr. Doty testified that after reviewing the Agency’s

proposal in Subpart H, USI recognized that there were several variables in some of the pay items.

Mr. Doty developed with USI a standardized format to allow the Agency to collect data on the

pay items. Tr.4 at 151-152, Exh. 48. Mr. Doty conceded that the format of Exhibit 48 is just a

draft, but suggests that along with the suggestions from the

ad hoc

workgroup, the Agency could

collect data to define the scope of work and the rates. Tr.4 at 153.

Half-Day Rate.

Mr. Doty expressed several concerns with the Agency’s proposed use of

a half-day rate. As an initial concern, Mr. Doty feels that a half-day is four hours in duration, not

the five proposed by the Agency. Exh. 53 at 1. Also, the Agency’s limitation of two half-day

units per calendar day does not take into consideration that many businesses have more than one

eight-hour shift in a calendar day. Exh. 53 at 1-2. Mr. Doty noted that the limitation of two half-

day units does not acknowledge instances where a longer day is worked to avoid potential

weather or weekend delays. Exh. 53 at 2.

Mr. Doty’s testimony reflects a concern that the travel time, included with the half-day

rate, is not realistic. Exh. 53 at 2-3. Mr. Doty questioned the Agency’s assumption that all

project sites will be within a half-hour of the consultant’s office. Exh. 53 at 3. Mr. Doty

recommended revisiting the half-day rate to adjust the rate to better represent typical travel times

or to separate travel time from the half-day rate.

Mr. Doty suggested that the half-day rate of $500 be revisited, as the rate is not

reasonable and sufficient if the rate is to include instrumentation. Exh. 53 at 3. Mr. Doty

pointed out that daily rates for instrumentation can range from less than $50 per day to more than

$100 per day. Exh. 53 at 3-4. If a project manager, who is entitled to $90 per hour under the

Agency’s proposed Subpart H, spends a half-day at the site, the cost is already $450 before

instrumentation is included, according to Mr. Doty. Exh. 53 at 3.

Mr. Doty discussed the issues of whether a consultant is present when a tank is removed

and the limitation of one half-day regardless of the number of tanks removed. Exh. 53 at 4-5.

Mr. Doty conceded that consultants are not always present when tanks are removed; but that is

because a release may not yet have been reported. Exh. 53 at 4. Mr. Doty stated that the

common practice is to have a consultant present for tank removal if a release has been reported.

. The consultant is present in an effort to document the event, evaluate the condition of the

UST system, determine the source of the release, prepare a site map, sample the excavation, and

collect the data necessary to comply with Agency reporting requirements.

. Mr. Doty

suggested that limiting the reimbursement to one half-day is not reasonable and the owner or

operator should be eligible for reimbursement for as many half-day increments are necessary to

complete the UST removal activities. Exh. 53 at 5.

Report Preparation.

Mr. Doty feels that the Agency’s proposal to reimburse owners or

operators for preparation of various reports on a fixed rate basis does not take into consideration

the variations of the scope of work. Exh. 53 at 5. Mr. Doty stated that the scope of work has a

direct effect on the effort dedicated to the plan or report.

. Mr. Doty offered, as an example,

that a corrective action plan prepared to address a small plume of on-site contamination does not

require the same effort as a corrective action plan to address widespread contamination that has

migrated to several sites.

Mr. Doty suggested that when working with a site, unforeseen circumstances can

commonly arise after the Agency has approved a plan or budget. Exh. 53 at 6. However, the

Agency’s proposal does not allow for reimbursement for preparation of an amended plan or

budget.

. Mr. Doty believes that the owner or operator should be allowed to seek

reimbursement for an amended plan or budget when conditions unforeseen by both the owner or

operator and the Agency arise.

Agency Review.

Mr. Doty agrees that some of the changes proposed by the Agency will

streamline the reporting process for both the owner or operator and the Agency. Exh. 53 at 6.

However, Mr. Doty noted that the Agency’s review time remains 120 days.

. Mr. Doty

suggested that the 120 review might be reduced to reflect the benefit of the streamlined process.

Exh. 53 at 6-7.

Excavation, Transportation and Disposal (ETD).

Mr. Doty expressed concern that the

Agency’s calculations for ETD do not take into consideration either small amounts of soil or

remote locations. Exh. 53 at 7-8. Mr. Doty suggested that this situation could be addressed

either by recognizing that small amounts of soil or a remote location would constitute

extraordinary circumstances or by offering a scale reflecting extended transportation

requirements or less than average volumes of soil.

Subpart C.

Mr. Doty commends the Agency for proposing Subpart C and believes that

the revisions have the potential to improve the current regulations. Exh. 53 at 8. Mr. Doty

recommended certain changes for consideration. Mr. Doty suggested that the proposal be

modified to require a minimum interval between borings to avoid the possibility of borings being

placed in the same place.

. Mr. Doty also suggested that the Agency provide some

explanation regarding the rationale that will be used when reviewing the Stage 2 and Stage 3

plans. Exh. 53 at 9.

Joseph M. Kelly

Mr. Kelly is a licensed professional engineer and a licensed civil engineer. Exh. 54 at 1.

Mr. Kelly is the Vice President of Engineering for EcoDigital Development Group, LLC and the

senior professional engineer for USI.

. Mr. Kelly feels that over the last few years the Agency

has reduced rates by redefining what is “reasonable” and, as a result, acceptability of a plan or

budget is being determined on what the plan or budget will cost rather than what is necessary.

Exh. 54 at 2-4.

In general Mr. Kelly’s testimony takes issue with the proposed rates in Subpart H and the

methodology for developing those rates. Exh. 54 and 54a; Tr.5 at 4-77. More specifically, Mr.

Kelly noted that the raw data used to develop the rates was chosen in-house by the Agency. Exh.

54 at 5. Mr. Kelly stated that reviewing costs and determining if the costs are reasonable and

necessary is good, “but collecting raw data and then deriving a one-size fits all lump sum

payment schedule without noting what is in the scope of work is detrimental.” Exh. 54 at 6. Mr.

Kelly opined that the Agency seems to be dictating what is reasonable and necessary without

taking into consideration the owner or operator, the consultant, or the professional engineer.

Mr. Kelly also provided numerous exhibits that mapped: UST sites (Exh. 57), sites being

remediated by members of PIPE (Exh. 58), and landfills which accept special waste such as

contaminated soils from USTs (Exh. 59). Mr. Kelly presented these exhibits and others to

provide the Board with information on how sites can vary. Tr.5 at 23.

Mr. Kelly also offered specific comments on certain issues. The first was soil

measurement for purposes of budget submittals. Mr. Kelly suggested that in measuring soil,

rather than using cubic yards the measurement should be in tons. Exh. 54a at 1. Mr. Kelly

suggested that applying a swell factor would allow for a reliable estimate for purposes of budget

submittal. Exh. 54 at 9-10; Exh. 54a at 1-2. Second, Mr. Kelly took issue with the travel time

included in the half-day rate. Exh. 54a at 3. Third, Mr. Kelly expressed concern that the

provision in the proposal to be used for extraordinary circumstances will need to be invoked on

too many projects and, therefore, the administrative burden has not been lessened by the

proposal.

. Fourth, Mr. Kelly stated that the reimbursable costs for abandonment of a tank are

totally inadequate. Exh. 54a at 3-4.

Robert J. Pulfrey

Mr. Pulfrey is a senior project manager for USI and has been involved in environmental

investigation and remediation for 15 years, including three years in the public sector. Exh. 55 at

1. Mr. Pulfrey believes that the Agency’s purpose is to protect human health and the

environment. Exh. 55 at 3. However, Mr. Pulfrey opined that this purpose has transformed to

protecting the UST Fund.

. Mr. Pulfrey feels that the scope of projects is being driven by

monetary concerns, not protection of human health or the environment.

Mr. Pulfrey also offered insight into the Agency’s proposed drilling rates in Subpart H.

Exh. 55 at 2. Mr. Pulfrey noted that the basis on which drillers charge is highly dependent on the

type of lithologies that are encountered and the types of drilling employed.

. A comparison of

drilling rates from Texas, Colorado, Oklahoma, and Arizona with Illinois would not be an

accurate comparison due to the differences in the soils. Exh. 55 at 3. Drilling rates from

Indiana, Ohio, and Michigan would give a more accurate comparison, according to Mr. Pulfrey.

Barry F. Sink

Mr. Sink is a professional engineer with USI and has worked with them since 2002. Prior

to joining USI, Mr. Sink worked for 20 years as a project engineer in the mining industry. Exh.

56 at 1. Mr. Sink testified that the payment amounts proposed by the Agency in Subpart H will

make the “ethical professional hesitant to perform professional services” associated with UST

sites. Exh. 56 at 2. Mr. Sink stated that the lump sum approach offered by the Agency is an

over-simplification of the professional process associated with the remediation of UST sites.

Exh. 56 at 3. Mr. Sink testified that the Agency lump sum approach suggests, among other

things, that remediation is a “cook book” process, each owner or operator is typical, and the

magnitude of contamination does not effect the amount of work. Exh. 56 at 3-4.

Mr. Sink took issue with the proposal’s limitation on reimbursement for an engineered

barrier. Exh. 56 at 8. Specifically, the proposal at Section 734.630(tt) and Section 732.606(xx)

prohibits reimbursement for the costs of an engineered barrier that exceeds the cost of asphalt

four inches in depth. Exh. 56 at 7. Mr. Sink opined that the engineering characteristics of

asphalt and concrete are not the same and site-specific conditions dictate the design of an

engineered barrier. Exh. 56 at 8. Mr. Sink further opined that the traffic on an engineered

barrier must be determined to properly construct an engineered barrier.

Public Comment

Mr. Koch’s comment asks for an additional hearing to present a testimony regarding an

electronic format for developing a database. PC 8 at 8.

Jarrett Thomas

Mr. Thomas is Vice President and co-owner of Suburban Laboratories, Inc. Exh. 75 at 1.

Mr. Thomas is a member of the Community Water Supply Testing Council, Chairman of the

Environmental Laboratory Certification Committee, and board member of PIPE.

. Mr.

Thomas is also a member of the Illinois Association of Environmental Laboratories, Inc. (IAEL).

Mr. Thomas offered his testimony on behalf of PIPE and IAEL.

Mr. Thomas testified that he and IAEL surveyed members to develop a spreadsheet of

rates charges by the laboratories in Illinois who do work with USTs. Exh. 75 at 2-3. Five

laboratories responded to the survey and were included in the spreadsheet. Exh. 75 at 3. The

five laboratories that responded to the survey perform an estimated seventy percent of the UST

analyses in the State.

After the development of the data, Mr. Thomas forwarded the information to the Agency

with a recommendation that the Agency propose the maximum rate. Exh. 75 at 3. The Agency’s

proposal instead used the average and Mr. Thomas disagrees with those rates. Exh. 75 at 3-4.

Mr. Thomas opined that assuming a natural distribution, use of the average will result in 50 % of

the rates falling above the reimbursement limit. Exh. 75 at 4. Mr. Thomas recommended using

either the maximum rate established by the data or the average plus one standard of deviation,

whichever is greater.

Mr. Thomas offered several specific suggestions for language changes in the proposal as

well. Exh. 75 at 4-5. The changes he recommended included addressing how to handle potential

tests requested by the Agency, and addressing costs for approve methods not specified in the

Appendix of the rule.

. Mr. Thomas also recommends adding analyses, sample containers,

and collection devices as eligible costs. Exh. 75 at 5.

M Company

Mr. Vince Smith, Ms. Carol Rowe, and Mr. Jeff Wienhoff all testified on behalf of

M Company (CW

M) at the June 21, 2004 hearing. Tr.4 at 6. In addition, on September

23, 2004, CW

M filed a public comment (PC 9). Mr. Smith summarized the general comments

of CW

M, while Ms. Rowe and Mr. Wienhoff presented additional information.

Vince Smith

Mr. Smith testified that the prefiled testimony was prepared with the assistance of both

Ms. Rowe and Mr. Wienhoff. Tr.4 at 7. Specifically Mr. Smith indicated that CW

M has

worked with remediation of UST sites since the founding of the company in 1991. Tr.4 at 8.

Many of CW

M’s clients own a single facility located in remote parts of the State.

. In the

prefiled testimony CW

M offers comments on the proposed technical modifications and

extensive comment on Subpart H. Tr.4 at 8; Exh. 29.

Mr. Smith testified that the basis for CW

M’s testimony in opposition to Subpart H is

M’s “serious concerns regarding the collection and evaluation of data utilized to support the

rates.” Tr.4 at 8. Mr. Smith stated that the spreadsheets, made available by the Agency, have

“revealed” serious flaws in the selection and age of the data as well as input into statistical

formulas.

. Furthermore, errors have been carried forward in rate calculations and even when

rates from other states have been reviewed, factors were left out which skewed the results. Tr.4

at 9.

M also takes issue with lump sum payments. Mr. Smith stated that the lump sum

values are “arbitrary, lack understanding and consideration of site variations, and actual cleanup

costs based upon severely flawed methods with no supporting evidence.” Tr.4 at 9-10. Mr.

Smith stated that the lump sum value evaluation exacerbated the already flawed maximum rates.

Tr.4 at 10.

M agrees that efforts to streamline the program are beneficial to the UST Fund;

however, the means of streamlining the fund have not been well thought out. Tr.4 at 11. Mr.

Smith stated that in the long term, the efforts will negatively impact the UST Fund.

. Mr.

Smith opined that smaller owners who must rely on the UST Fund to afford corrective action

will no longer be able to cleanup their sites because too many costs will not be reimbursable.

Mr. Smith stated that the rules have been proposed to protect the UST Fund and not the

environment, contrary to the real purpose of the fund which is to protect the environment. Tr.4

at 14.

Mr. Smith pointed out CW

M’s concern with the proposed auditing procedures by the

Agency. Tr.4 at 13. Mr. Smith testified that the auditing procedures in the proposed rule are

more comprehensive than the Act allows. Tr.4 at 13. Ms. Rowe reiterated this concern. Tr.4 at

35-36.

In addition to the general testimony, Mr. Smith specifically explained the reasoning by

M for including Appendix C, D, J, and K. Tr.4 at 56-60. CW

M included Appendix C as a

demonstration of what can happen if you improperly apply statistics. Tr.4 at 57. Appendix D

was provided to support CW

M’s contention that a conversion factor of 1.68 is more accurate.

Tr.4 at 58. Appendix J is a summary of information obtained from the IDOT which indicates the

costs to IDOT for tank removal and for disposal on competitively bid projects. Tr.4 at 58.

Finally, Appendix K contains excerpts from

National Construction Estimator

and CW

M’s

interpretation on what the rates should be. Tr.4 at 59.

Carol Rowe

Ms. Rowe offered testimony concerning the higher expenditures from the UST Fund and

the fewer number of NFR letters being issued. Tr.4 at 25-28. Ms. Rowe opined that the higher

costs were not a result of new releases but rather of releases reported in 1998, 1999, and 2000

reaching the corrective action stage. Tr.4 at 25, 27. CW

M provided Exhibit 30 to support Ms.

Rowe’s contentions.

Ms. Rowe noted that under the current UST regulations, all sites are essentially “high

priority sites” which could be the reason for increased expenditures from the UST Fund. Tr.4 at

27. Ms. Rowe explained the decreasing number of NFR letters as resulting from the fact that the

easier sites from 1998, 1999, and 2000 have already been closed. Tr. 4 at 27.

Ms. Rowe highlighted several specific concerns of CW

M with the proposed regulations.

Regarding the one-year timeframe for submittal of applications for payment after issuance of a

NFR, CW

M believes that certain exceptions should be created. Tr.4 at 27-28. Ms. Rowe stated

that CW

M understands the Agency’s desire to close files on sites which have completed

remediation; however, there are specific instances where additional time may be warranted. Tr.4

at 28.

Next, Ms. Rowe suggested that the Agency reconsider the amount of personnel that may

be present on site during drilling activities. Tr.4 at 29. CW

M has concerns regarding the limits

on time and personnel for site oversight. Tr.4 at 31-33. Ms. Rowe also suggested that the

Agency reconsider the proposed language declaring permit fees to be ineligible for

reimbursement. Tr.4 at33. CW

M believes that permit fees are necessary corrective action costs

and disallowing reimbursement could be the end of groundwater remediation systems.

Ms. Rowe recommended that Section 732.855 and 734.855 be carefully evaluated in light

of the Agency’s history. Tr.4 at 35. Ms. Rowe noted that the Agency has been reluctant in the

past to reimburse higher costs associated with a site-specific unusual circumstances. Tr.4 at 34.

M predicts that these two provisions may result in more appeals than the current system.

Ms. Rowe expressed CW

M’s unease with the Agency proposal to deny handling charges

until proof of payment is supplied. Ms. Rowe noted that requiring proof of payment results in

higher handling costs for the contractor and the higher costs will not be reimbursable. Tr.4 at 36-

37.

M asks that the Agency include more specificity in denial letters. Tr.4 at 38. Ms.

Rowe testified that PIPE’s suggestion for the Agency to provide a draft denial or modification, if

adopted, could improve the relationship between the Agency and the regulated community.

Jeff Wienhoff

ETD.

Mr. Wienhoff discussed CW

M’s responses to the Agency’s statistical analysis

performed to establish the excavation, transportation, disposal, and backfill rates. Tr.4 at 40-46;

50-52. Mr. Wienhoff reviewed the Agency’s submission regarding other States (Exh. 23), and

summarized CW

M’s impressions of the materials. Tr.4 at 46-49. Mr. Wienhoff explained

Appendix I, included with the prefiled testimony, and CW

M’s position on the Agency’s

proposed half-day rates. Exh. 29 at App. I; Tr.4 at 52-56.

Mr. Wienhoff pointed to specific problems with the Agency’s data used to establish rates

for ETD and backfill. Tr.4 at 41-46. Mr. Wienhoff reviewed the data used by the Agency to

develop Exh. 27 and found that the data was skewed for several reasons. First, the spreadsheet

relied on too many sites in the metro Chicago area. Tr.4 at 41. Mr. Wienhoff stated that 80% of

the sites reviewed on the spreadsheet were in the four-county Chicago metro area, while only

40% of the currently opened UST sites are in that same area. Tr. 4 at 41. A second issue with

the Agency’s data is that the actual reporting period was earlier than indicated by the Agency,

thus, the data is older, according to Mr. Wienhoff. Tr.4 at 42-44, Exh. 31, 32, 33. In addition to

the data being older, Mr. Wienhoff pointed to information that establishes that the data included

was not from conventional technologies, was for material only, and was adjusted by the Agency.

. Based on Mr. Wienhoff’s review of the Agency materials, CW

M does not believe that Exh.

27 should be relied upon by the Board. Tr.4 at 45.

In reviewing the materials submitted by the Agency regarding UST programs in other

states, Mr. Wienhoff stated that only three of the states included ETD and backfill as one lump

sum rate similar to that proposed by the Agency. Tr.4 at 46. Mr. Wienhoff used the average

rates prepared by the Agency in Exh. 23 and developed Exh. 34. Tr.4 at 47-48. CW

M’s

average number was higher than the Agency’s average number. Tr.4 at 48. Also, the Agency’s

proposal included 39 personnel rates while the average for the other states was 95, and CW

feels this is a further indication of the oversimplification of the Agency’s proposal. Tr.4 at 49.

Early Action.

M, in Appendix I, provided information from several sites where

M has performed early action. Tr.4 at 52. Mr. Wienhoff stated that these examples were

presented to demonstrate that for the same type of report, depending on site-specific conditions,

costs can vary. Tr.4 at 52-53. CW

M believes that Subpart H is oversimplified. Tr.4 at 53. As

examples of the over-simplified nature of Subpart H, Mr. Wienhoff explained that some sites

may require additional activities at a site. Those activities could include early action excavation

at sites while other sites would not require early action excavation. Tr.4 at 53. Mr. Wienhoff

noted that the same amount of reimbursement dollars is available for placement of monitoring

wells, even though certain sites may require more wells. Tr.4 at 54. In sum, Subpart H does not

allow for variations from site to site and more variables need to be a part of Subpart H, according

to Mr. Wienhoff. Tr.4 at 54.

Half-Day Rate.

M agrees with the Agency’s proposed half-day rate for field

activities. Tr.4 at 56. However, CW3M recommends that travel should be separate from the rate

for field activities.

Prefiled Testimony

M expressed concerns with the Agency’s proposal for Stage 3 Site Investigations.

Exh. 29 at 16-17, 69-71. CW

M offered two primary areas of concern: first, with the proposed

language at Section 734.325, and second, with the language at Section 734.845(b)(5) and (6). In

Section 734.325, CW3M suggested the addition of a provision allowing for additional off-site

investigation to define the extent of soil and groundwater contamination. Exh. 29 at 16. The

additional language should also allow for collection of all data required for submittal of the site

investigation completion report.

. CW

M acknowledges that the Agency has suggested that

the proposal include contingencies; however, there are no criteria for how much additional

drilling should be proposed. Exh. 29 at 17. Furthermore, CW

M pointed out that if the Agency

modifies or reduces the drilling plan and later more drilling is required, there is no mechanism

for the owner or operator to be reimbursed.

In Section 734.845(b)(5) and (6), CW

M asserted that the Agency’s “attempt to simplify

and quantify a lump sum rate for Stage 3” site investigation plans fails to recognize three factors.

Exh. 29 at 69. Those three factors are: (1) the extent of field work which was conducted during

Stage 2; (2) the amount of field work proposed to be conducted during Stage 3 or potentially

conducted; and (3) the extent or number of potentially affected off-site properties.

M maintained that in order to prepare a plan for Stage 3 investigation, the plan

should include the results of the Stage 2 investigation and the extensiveness of that investigation

will determine the cost of preparing a Stage 3 plan. Exh. 29 at 69. CW

M opined that the extent

of field work is dictated by the findings of Stage 1 and 2 investigations and the costs for

performing Stage 3 correlate to the amount of work to be conducted. Exh. 29 at 70

M noted that factors which affect the cost of conducting off-site investigations

include the number of potentially affected properties, the number of owners, and the number of

requests. Exh. 29 at 70. Additional off-site investigations would be required if the results of the

first round of off-site investigations did not define the extent of the contamination.

M stated that because site-specific variables have not been included in the Agency’s

proposed rate, Section 734.845(b)(5) and (6) should be stricken. Exh. 29 at 70-71. CW

believes that the reasonable costs for Stage 3 investigations should be determined on a time and

material basis.

Public Comment

M indicated that in preparing the comment, CW

M believed that a reassessment of

the purpose of the proposed regulations was necessary. PC 9 at 1. Clearly, the technical changes

being proposed are in response to statutory changes; however, CW

M feels that the purpose for

fiscal changes is more difficult to ascertain.

. CW

M stated that if solvency of the UST Fund

is not a factor for proposing the rulemaking, then CW

M suggests that the perhaps the fiscal

portion should be tabled. PC 9 at 2.

M noted that the Agency has indicated that the purpose for fiscal changes proposed

in this rulemaking was to streamline the budget and reimbursement processes. PC 9 at 2.

M supports streamlining the process.

. CW

M opined that components of the proposal

“created additional bureaucratic roadblocks” that undermine the streamlining.

M takes issue with the Agency’s contention that the establishment of “reasonable

costs” in regulations will result in significant cost savings. PC 9 at 3. CW

M’s prefiled

testimony disagrees with the Agency that the proposal will result in cost savings because CW

does not agree with the data used by the Agency to develop reimbursement rates. PC 9 at 3.

M asks how there can be a cost savings if the rates proposed by the Agency are consistent

with those historically approved and deemed reasonable by the Agency.

M believes that the Agency should reconsider many of the proposed rates because

the reimbursement rates are lower than the actual costs for performing the work. PC 9 at 3.

M pointed out that one of the stated purposes of the UST Fund is to pay “costs of corrective

action” (415 ILCS 5/57.11(a)(5) (2002)). PC 9 at 3. And although the Agency may review the

costs for reasonableness, the Act still requires that corrective action cost be paid by the UST

Fund.

. For these reasons, CW

M supports the rates presented in PIPE’s alternative proposal.

M believes that the Agency is attempting to turn professional services and

remediation activities into a commodity-based system rather than time and materials basis. PC 9

at 4. CW

M feels that the system proposed by the Agency is oversimplified.

. CW

M noted

that consultants are not entirely opposed to commodity-based systems, but a clear scope of work

must be included for each item.

. Absent a clear scope of work, one variable that is not

accounted for could lead to a substantial profit or loss.

In PC 9, CW

M also clarified earlier testimony. CW

M clarified that the IDOT

information was presented as an indication of current pricing activities and to demonstrate that

the Agency’s proposed rates are unreasonably low in comparison to IDOT’s real work

experiences. PC 9 at 4-5. A second point that CW

M sought to clarify is that while 48 landfills

in Illinois are permitted to accept soils from leaking UST sites, not all actually accept the waste.

PC 9 at 5. Also while 668 haulers are available to transport soils from leaking UST sites, not all

are actually available.

Section-by-Section Comments

M provided specific comments on several section of the proposal in both the prefiled

testimony (Exh. 29 at 9-84) and the public comment (PC 9 at 6-26). The following discussion

will summarize only the comments which question or oppose the language proposed by the

Agency.

Sections 732.103 and 734.115, Definitions.

M proposed that the definition for

“financial interest” and all references to “financial interest” be removed from the proposal. PC 9

at 6. CW

M recommended the deletion of this definition because of CW

M’s concern that the

Agency is attempting “to reduce or eliminate handling charges.” PC 9 at 6. CW

M maintained

that when a contractor secures the work of a subcontractor, even where there is an ownership

interest, the contractor incurs similar expenses for the subcontractor as those incurred where

there is no ownership interest.

. CW

M asserted that the Agency is attempting to limit a

consultant's profits by eliminating handling charges when “the Agency does not clearly

understand the costs associated with conducting work in the private sector.” PC 9 at 6-7.

Sections 732.112 and 734.145, Notification of Field Activities.

M supports the

premise of having Agency personnel visit sites to observe field activities. PC 9 at 7. However,

M recommended that Subpart H be modified to allow for the additional expenses incurred to

prepare and provide the notification of field activities.

. CW

M conceded that the costs are

generally minimal. CW

M argued that the expense represents “an example of additional tasks

imposed by the Agency to comply with regulations without corresponding consideration to the

costs.”

Sections 732.407(b) and 734.340(b), Alternative Technologies.

M takes issue

with the Agency’s requirement that at least two alternative technologies be compared with the

proposed alternative technology. PC 9 at 7. CW

M indicated that in some instances, other

alternative technologies may not be technically feasible as a result of site conditions.

. For

this reason, CW

M proposed that language be added to address such an instance by proceeding

under Sections 732.855 or 732.855.

. Specifically, CW

M recommended that the following be

added to each section:

If two other technologies are unavailable or are not technically feasible corrective action

measure, the owner or operator must proceed in accordance with [Section] 734.855 (or 732.855).

PC 9 at 8.

M noted that in some cases, the use of alternative technology is preferable for

technical reasons or because the costs for using conventional technology are high. PC 9 at 8.

M suggested that for cases where conventional technology exceeds the amounts in Subpart

H, procedures should be crafted to allow for comparison of costs between conventional and

alternative technologies.

. CW

M stated that “preparation of bids for a technology which has

already been ruled out as unfeasible is not ethical and a waste of resources.”

. CW

recommended that following language also be added to Sections 732.407(b) and 734.340(b):

If the estimated costs for conventional technology exceed the maximum payment amounts set

forth in Subpart H, the owner or operator shall prepare a cost estimate of the conventional

technology for comparison to the alternative technology in accordance with the requirements of

[Section] 732.860 (734.860) and [Section] 732.850 (734.850).

Sections 732.408 and 734.410, Remediation Objectives (Board Notice), and 732.606

(ggg), (hhh) and 735.630 (ggg) and (hhh), Ineligible Corrective Action Costs.

M argued

that the fundamental purpose of these regulations is to protect human health and the

environment. PC 9 at 11. The long term effect of the Agency’s proposal to limit reimbursement

to Tier 2 TACO cleanup levels and limit reimbursement for groundwater remediation have not

been researched to determine the impact of the proposal on human health and the environment,

according to CW

. CW

M also expressed concern that these limits could lead to additional

litigation by off-site owners whose property values could be impacted by the Agency’s proposal.

PC 9 at 10-11. The following paragraphs summarize the specific concerns of CW

M regarding

both Tier 2 cleanup and groundwater remediation.

Cleanup to Tier 2.

M protested the Agency’s decision to eliminate reimbursement

for cleanup costs above Tier 2 levels. PC 9 at 8. CW

M’s protest is not only that the Agency

would make such a “sweeping” change to the proposal at this point in the process, but also

M has two primary concerns regarding the change. PC 9 at 8-9. The first concern is that

M believes that the property owner should determine the level of remediation, which is not

always the same as the tank owner or operator. PC 9 at 9. Second, CW

M expressed concern

that off-site properties and their owners may insist on Tier 1 cleanup levels.

. CW

M opined

that if the Agency cannot force Tier 2 objectives on off-site property owners, than Tier 2

objectives should not apply in situations where the property owner is different than the tank

owner.

M noted that Mr. Clay testified that most owners and operators already utilize

alternatives afforded by TACO. PC 9 at 9. CW

M asked that if this is so, why force owners and

operators to use components of TACO that may be detrimental to the site or adjoining properties.

. Further, CW

M argued that if the Agency does not allow owners or operators back into the

UST Fund if a problem later arises from the use of TACO, then the Agency should not consider

requiring the use of TACO.

M stated that current Agency policy and the proposed regulatory language require

site owners or operators to define the extent of contamination to Tier 1 residential objectives. PC

9 at 9. In order to perform this task, a consultant contacts potentially affected neighboring or

adjoining property owners and requests access and notifies the property owner that the UST

owner is responsible for remediation, according to CW

M. PC 9 at 9-10. CW

M stated that to

notify off-site owners that they may experience loss of property value absent remediation, but

also to notify them remediation may not occur is “unconscionable”. PC 9 at 10. CW

maintained that in such cases, the off-site property owners should have the discretion of

remediating their property to address whatever levels of contamination that may be present and

the UST Fund should cover the remediation costs.

M asserted that the Agency proposed limiting of reimbursement to Tier 2 levels is in

conflict with regulatory language. PC 9 at 10. CW

M pointed out that Sections 732.411(f),

734.350(f) and 734.710(d)(3), as proposed, state that the owner or operator “is not relieved of

responsibility to cleanup portions of the release that may have migrated off-site.”

Groundwater Cleanup.

M takes issue with the Agency’s proposal to declare

ineligible for reimbursement costs for groundwater remediation if a groundwater ordinance is in

place. PC 9 at 10. CW

M asserted that remediation may still be required in certain instances

including where free product needs to be removed and modeling must be performed to determine

if there would be an issue related to vapor intrusion into buildings. PC 9 at 10. Further, CW

pointed out that current Board regulations at 35 Ill. Adm. Code 742.1015 require scaled maps

delineating the boundaries of all properties under which groundwater is located which exceeds

the applicable groundwater remediation objectives and scaled maps delineating the area and

extent of groundwater contamination. PC 9 at 11.

Sections 732.606 (ll), (mm), (ss) and 734.630 (hh), (ii), (oo), Ineligible Corrective

Action Costs.

These proposed subsection deal with handling charges. CW

M reiterates that

there is no need for proof of payment to subcontractors. PC 9 at 12. CW

M also believes that

requiring such proof is beyond the scope of the Agency’s authority.

M renewed the request to strike the Agency’s proposed ineligible cost for handling

charges to a subcontractor where the contractor has a financial interest in the subcontractor’s

business. PC 9 at 13. CW

M suggested that if the Board decides to keep this as an ineligible

cost, the words “direct or indirect” be stricken because the words are redundant.

Sections 732.606 (rr) and 734.630 (nn), Ineligible Corrective Action Costs.

does not oppose this language, if the Agency agrees that the provisions do not apply to sites

being remediated under Part 731. PC 9 at 14. CW

M believes that if an appeal is pending before

the Board and settlement negotiations are under way, final disposition may take more than one

year.

. Thus, a NFR letter may be issued while the appeal is pending and the one-year

timeframe could expire. PC 9 at 14-15.

Sections 732.606 (ddd) and 734.630 (aaa), Ineligible Corrective Action Costs.

renewed the objection to the Agency’s proposal to disallow reimbursement for “governmental

fees”. PC 9 at 15. CW

M also asked if the Agency intended to include sales tax as an ineligible

cost for reimbursement.

Sections 732.605 and 734.625, Eligible Corrective Action Costs.

M suggested the

addition of the following language as a new subsection (a)(21): “Handling charges for any

subcontractor cost or field purchase cost incurred by the owner or operator’s primary contractor.”

PC 9 at 13.

Sections 732.614 and 734.665, Audits and Access to Records; Records Retention.

M stated that the Agency’s modified language “still suffers from most of the same problems

that was contained in the previous draft language.” PC 9 at 15. CW

M maintained that the

Agency’s proposal continues to “overstep the Agency’s statutory authority.”

. CW

M argued

that the plain language of the statute limits the Agency’s authority to auditing only the data,

reports, plans, documents, or budgets submitted pursuant to the Act and thus the Board should

not adopt Section 732.614 and 734.665. PC 9 at 16-17.

Sections 732.825 and 734.825, Soil Removal and Disposal.

M believes that the

proposed rate of $57 per cubic yard rate for soil removal, excavation and transport is out of date

and unreliably calculated. PC 9 at 17. CW

M suggest that the Board consider a rate more

applicable to current and realistic rates which take into account site-specific factors.

Sections 732.845 and 734.845, Professional Consulting Services.

M supports the

PIPE proposal for reimbursement of travel expenses. PC 9 at 18.

Sections 732.845(a)(2)(A) and 734.845(a)(2)(A), Professional Consulting Services.

M noted that the Agency has modified the oversight rate of 250 cubic yards to 225 cubic

yards as a result of the proposed changes to the number of hours considered for a half-day rate.

PC 9 at 19. CW

M recommended revising the yardage rate to reflect actual field conditions

during an excavation. PC 9 at 20. CW

M believes that the Agency’s rate fails to account for all

activities underway which will affect the overall time on the job.

. CW

M indicated that the

$57 rate assumes no activity except excavation; however, in reality backfill operations are often

conducted concurrently with excavation.

. Also, field oversight does not begin with the first

shovel of dirt excavated; rather personnel overseeing excavation must arrive before heavy

equipment to prepare the day’s activities. PC 9 at 20-21. CW

M estimates that additional

activities account for 20% of the professional’s time during excavation oversight. PC 9 at 21.

M recommends the rate of 160 cubic yard to calculate excavation oversight.

Sections 732.845(g) and 734.845(g), Professional Consulting Services.

disagrees with the Agency’s allotment of $160 per task bid. PC 9 at 22. CW

M maintained that

the allotment fails to take into account the extent of work associated with preparing a bid

proposal.

. The $80 hourly rate is insufficient, as is the number of hours allotted.

M believes that handling charges should also be allowed for a contractor even if the

owner or operator directly pays the subcontractor. PC 9 at 22. CW

M argued that whether or

not the contactor pays the subcontractor, the contractor will still incur expenses preparing the

bids, screening the subcontractors and evaluating bids.

. CW

M asserted that the Agency is

“attempting to force the bidding process, yet denying the consultant payment of legitimately

earned costs.”

Section 732.855 and 734.855, Bidding.

M suggested modifying the bidding

process to remove the prohibition for bidding by entities with a financial or related interest in

either the owner or operator or the primary contractor. PC 9 at 23. CW

M argued that for

consultants who can provide additional services, obtaining three external bids will be difficult.

PC 9 at 24. CW

M maintained that there is no incentive for an external contractor to bid and

they would be at a competitive disadvantage from the outset.

M recommended that the bidding procedures be further developed to define “best

efforts” to include that certified letters be sent to a minimum of three contractors containing a

specific scope of work, required qualifications, and allowing for a 14-day response time. PC 9 at

25.

Russ Goodiel

Mr. Goodiel is the owner of Applied Environmental Solutions in Centralia, Illinois and

he has worked in the environmental area since 1989. Tr.5 at 124. Mr. Goodiel’s firm is a small

firm and has clients who own 70 to 80 sites in Illinois. Tr.5 at 125. Mr. Goodiel raises four

issues in his testimony. Those issues will be summarized below.

Mr. Goodiel urged the Agency to reconsider the method by which reimbursement for site

investigation is done. Tr.5 at 125-26. Mr. Goodiel stated that the process can take anywhere

from one to three years and this places a substantial financial burden on owners or operators.

Mr. Goodiel suggested that the Agency consider reimbursement after each stage of the site

investigation to lessen this burden on the owner or operator.

A second concern revolves around the method for appeal of an Agency decision. Tr.5 at

127. Mr. Goodiel recommended that an informal process but adopted to save both State and

private resources.

Mr. Goodiel takes issue with the Agency’s proposal to allow for reimbursement for only

one professional on-site under certain circumstances. Tr.5 at 127. Mr. Goodiel stated that a

consultant must have a geologist at the site to log soils and identify boring and well locations.

. A second professional is required to assist in the preservation of samples, according to Mr.

Goodiel.

Finally, Mr. Goodiel disagrees with the limits placed on reimbursement for travel time in

the proposal. Tr.5 at 127. Mr. Goodiel noted that many of his clients are more than 30 minutes

away and he urges the Agency to reconsider that proposal.

Michael Rapps, Illinois Society of Professional Engineers

Mr. Rapps testified at the third group of hearings on June 21, 2004 (Tr.4 at 139-47) and

submitted a public comment on September 23, 2004 (PC 7). In addition to the Illinois Society of

Professional Engineers (ISPE), Mr. Rapps is a member of several professional organizations

including the IPMA. Tr.4 at 139; Exh. 50 at 1. Mr. Rapps has been involved in underground

storage tanks going back to the 1980s and has testified before the Board in prior rulemakings

regarding the UST program. Tr.4 at 139-40; Exh. 50 at 1. Mr. Rapps’ testimony includes

observations concerning the UST program and Board appeals as well as comments on the

Agency’s proposal.

Mr. Rapps observed that in the early years, inadequate funding and a lack of formal

cleanup standards plagued the UST program; however, those issues have been resolved. Exh. 50

at 2. Mr. Rapps believes that on balance the UST program is functioning smoothly.

. Mr.

Rapps noted that appeals to the Board have become common and apparently a steadily increasing

disagreement between the Agency and the participants in cleanups. Exh. 50 at 3. Mr. Rapps

stated that to the extent that this rulemaking may expedite environmental cleanups and reduce

disputes, ISPE supports the proposal.

As to the proposal, Mr. Rapps noted that the Agency has not articulated a clear statement

of the problems this rulemaking is intended to address. Exh. 50 at 5. Mr. Rapps offered theories

on what the basis for this rulemaking may be, which includes a potential concern by the Agency

that the UST fund will be over-taxed by claims.

. Mr. Rapps also put forth the theories that

the Agency may be suspicious that contractors may be removing excessive dirt in “dig and haul”

cleanups or that tank owners are engaged in endless “pump and treat” groundwater controls.

Mr. Rapps questioned the Agency’s use of audits as required by Section 57.8(a)(1) of the

Act (415 ILCS 5/57.8(a)(1) (2002)). Exh. 50 at 6. Mr. Rapps indicated that he believes that the

audits were introduced to be used in a random manner similar to the audits performed by the

Internal Revenue Service.

. Specifically, Mr. Rapps believes that if a reimbursement request

is for an amount less than or equal to the amount budgeted, the quest should be summarily

approved for payment and only occasionally audited.

. Mr. Rapps suggested language be

added to the proposal to clarify that the Agency would perform audits pursuant to the statutory

intent.

Mr. Rapps suggested that using a published maximum cost may have the unintended

result of actually costing the UST fund more money. Exh. 50 at 7. Mr. Rapps evaluated the

Agency’s lump sum reimbursement for excavation, transportation and disposal. Mr. Rapps

noted that if every contractor charges the maximum, and they could, the costs to the UST fund

would actually increase.

Mr. Rapps is concerned that a by-product of this rulemaking could be the enactment of

arbitrary constraints that would discourage professional engineers from engaging in legitimate

problem solving. Exh. 50 at 8. His concern arises because although some of the activities

involved with USTs are homogeneous, others including intellectual work products devoted to

sight investigation and remedial design are not homogeneous.

Mr. Rapps opined that while maximum costs is one way to determine the reasonableness

of budget or reimbursement requests, there are other alternatives. Exh. 50 at 8. One example is

a statistical approach to determine reasonableness.

. A second example would be a bidding

process. Tr.4 at 147.

In his public comment, Mr. Rapps discussed the need for additional hearings and noted

that the issue of what will be discussed is not clear. PC 7 at 1. Mr. Rapps pointed out that the

rationale for the proposal has not been clarified by the hearings and the Agency’s suspicions

have not been corroborated.

. Furthermore, Mr. Rapps feels that while “sound inquiry was

made into the proposed regulations, the loose ends that continue to dangle do not foster a great

deal of confidence in the regulations.” PC 7 at 2.

Mr. Rapps opined that the proposal represents a process which is in essence the process

the Agency currently utilizes in reviewing application under the UST program. PC 7 at 3. Mr.

Rapps suggested that the current system is labor intensive, expensive, controversial and requires

high maintenance.

. Mr. Rapps therefore contended that the proposal is conceptually flawed

and he believes the Board should ask the Agency to withdraw the proposal and to begin anew.

PC 7 at 4.

Bill Fleischli, Executive Director Illinois Petroleum Marketer’s Association

Mr. Fleischli provided testimony at the third group of hearings on June 22, 2004 (Tr.5 at

77-92), the last hearing on August 9, 2004 (Tr.7 at 7-11), and submitted a public comment on

August 16, 2004 (PC 1), on behalf of IPMA. IPMA represents two-thirds to seventy percent of

the distributors of gasoline in the State. Tr.5 at 78. IPMA had a large role in the creation of the

UST Fund, which was established by P.A. 86-25 in July 1989. Exh. 71 at 1. P.A. 86-25

provided for a tax of $.003 per gallon on the sale of certain petroleum products to be collected by

distributors and deposited with the Department of Revenue.

. In 1995, an environmental

impact fee was assessed “for a total revenue stream into the fund on an average of over $6

million per month, or about $70,000,000 a year.”

Mr. Fleischli testified that if the UST program fails, it is IPMA members who will suffer,

because they will need to seek private insurance. Tr.5 at 78. Mr. Fleischli indicated that IPMA

members pay over $72 million into the UST Fund each year, then pay for the remediation at the

sites and wait for reimbursement.

. Mr. Fleischli stated that IPMA does not feel the rates

proposed by the Agency are competitive (Tr.5 at 78) and the IPMA would support some sort of

bidding process as long as the reimbursement process was not slowed down. Tr.5 at 89. Mr.

Fleischli testified that some of the IPMA members may already do some type of bidding when

selecting contractors for the remediation work. Tr.5 at 88-89.

Mr. Fleischli expressed concern that the UST Fund has been accessed by the

administrations by removing funds to the general revenue fund (GRF). Tr.5 at 80; Exh. 71 at 1.

Mr. Fleischli stated that the Agency “cannot simply expect to realize those lost dollars by

ratcheting down the costs of legitimate businesses doing remediation for reasonable rates. Exh.

71 at 2.

Mr. Fleischli also testified at the August 9, 1004 hearing regarding the Agency’s third

errata

sheet (Exh. 87). Tr.7 at 7-11. Mr. Fleischli expressed “real concerns” regarding the

changes suggested in Exhibit 87. Mr. Fleischli stated that the changes would require the use of

less stringent cleanup objectives for IPMA members’ property while requiring that off-site

impacts be addressed using the most stringent regulatory requirements. Tr.7 at 8. Mr. Fleischli’s

concern is that if an owner chooses to cleanup a site to a higher standard, the owner would be

required to pay out of pocket for that cleanup.

. Mr. Fleischli indicated that the current rules

allow the owner and their engineers to decide how stringent of cleanup objectives should be

applied based on land use. Tr.7 at 8-9.

The Agency determining cleanup objectives at a less stringent level is also a concern

because after a NFR letter is issued to the property, the owner can no longer access the UST

Fund, according to Mr. Fleischli. Tr.7 at 9. Mr. Fleischli opined that if the IDOT or a future law

change requires a study of the property and contamination is found, the property will not be

eligible for reimbursement.

. While generally supporting a tiered approach to cleanup, IPMA

opposes not allowing an owner to make the decision as to what cleanup is correct for their

property. Tr.7 at 9-10.

Mr. Fleischli asked that the hearings be left open and that lender and real estate people

testify on the effect of this change. Tr.7 at 10. If UST Fund shortage is the reasoning for the

proposal, Mr. Fleischli asked the Agency to join IPMA in passing legislation that would prohibit

any further removal of moneys from the UST Fund to GRF.

Harold Primack, BP Products North America, Inc.

Mr. Primack is the environmental business manager for BP Products North America, Inc.

(BP) and he testified at the third group of hearings on June 22, 2004. His responsibilities include

managing environmental incidents at BP’s retail sites in Illinois. Exh. 72 at 1. Currently there

are over 240 Illinois sites that BP is remediating due to leaking underground storage tanks. Tr.4

at 93.

Mr. Primack testified that BP believes that maximum payment amounts and unit pricing

as proposed by the Agency are concepts with value to the consumers of environmental products.

Exh. 72 at 1; Tr.4 at 94. Mr. Primack stated that unit pricing and maximum payments will

provide predictability, stability and will allow for more informed consumer decisions.

. Mr.

Primack opined that maximum payment amounts and unit pricing, if reasonable and applied

correctly, would improve the Agency’s efficiency in administering the UST fund. Exh. 72 at 2;

Tr.4 at 94.

However, Mr. Primack enunciated three concerns with the proposal. Exh. 72 at 2; Tr.4 at

94. First, Mr. Primack stated that the process for arriving at the costs should be transparent to

allow the consumers to see the usual pricing and better price evaluation.

. Transparency

would also allow better stakeholder acceptance, as the Agency’s numbers would be documented.

A second concern is that the maximum payment amounts be reasonable. Exh. 72 at 2;

Tr.4 at 94. If maximum payments are too low, good consultants may be driven out of the

marketplace and the costs of remediation could be shifted to the owner, opined Mr. Primack.

Exh. 72 at 2; Tr.4 at 95.

Finally, Mr. Primack testified that flexibility must be built into the process. Exh. 72 at 2;

Tr.4 at 95. Mr. Primack testified that much of UST work is a “commodity activity which can

generally be priced in advance.”

. However, Mr. Primack noted that the maximum costs and

rates must account for regional differences and complex sites which present unique challenges.

. Mr. Primack suggested that the Board look to

the TACO rules for guidance in this matter.

Daniel J. Goodwin, American Consulting Engineers Council Of Illinois

Mr. Goodwin testified at the July 6, 2004 hearing Tr.6 at 7-9), the August 9, 2004 hearing

(Tr.7 at 219-28), and submitted a public comment on September 23, 2004 (PC 3). Mr. Goodwin

testified on behalf of the ACECI and he offered his own personal observations as well. ACECI

represents approximately 231 members and in response to an Agency request ACECI

participated in an

ad hoc

workgroup to develop the proposal. Exh. 74 at 1-2. In his first

appearance in this proceeding, Mr. Goodwin stated that the Agency’s proposal is consistent with

the basic structure of the

ad hoc

workgroup’s suggestions; however there are five significant

differences. Exh. 74 at 2. Mr. Goodwin delineated those differences in his testimony and also

offered testimony concerning the problem of updating rates and the Agency’s practice for issuing

denials. Exh. 74 at 6-8. .

The first difference is in the area of Stage 1 site investigations. Exh. 74 at 3. Mr.

Goodwin stated that there was a feeling that the Agency’s proposal is overly prescriptive.

Mr. Goodwin indicated that the

ad hoc

workgroup feels that the Agency should leave more of

the details of boring and monitoring well location to the licensed professional engineer or

geologist responsible for the work.

The second difference is the lack of a clear delineation of the scope of activities to be

included in each of the phases of the project for which reimbursement limits are set forth in

Subpart H of the proposal. Exh. 74 at 3-4. The

ad hoc

workgroup provided the Agency with

detailed lists of individual tasks, and Mr. Goodwin attached that document to his testimony.

Exh. 74 at 4, Attach. B. Mr. Goodwin testified that ACECI recommends that the detailed lists be

incorporated into the regulation. Exh. 74 at 4.

The third difference arises from the Agency’s proposal for maximum reimbursement

amounts for various phases of a project. Exh. 74 at 4. Mr. Goodwin noted that the proposal

implies that the individual expenditures on a time and materials basis in the budget and

reimbursement claim musts still be detailed.

. This approach defeats the Agency’s stated

purpose of streamlining the review of budgets and claims, according to Mr. Goodwin.

. Mr.

Goodwin recommended rewriting the language to clarify that if the reimbursement amount is to

be on a lump sum basis, then no detailed costs justification is required. Exh. 74 at 5.

The fourth difference can be found in the proposed Sections 732.855 and 734.855

relating to unusual or extraordinary expenses. Exh. 74 at 5. Mr. Goodwin testified that the

proposed language offers little guidance and recommends that additional guidance be made a

part of the rule language.

. Mr. Goodwin provided the

ad hoc

workgroup’s suggested

guidance to the Board as a part of his testimony. Exh. 74 at Attach. D.

The fifth difference is the personnel titles and rates included in the Agency’s Appendix E.

Exh. 74 at 5. The

ad hoc

workgroup had provided the Agency with a list and the most notable

difference is the omission of a “Principal” classification, according to Mr. Goodwin. Exh. 74 at

6. Mr. Goodwin testified that a classification for “Principal” should be included because project

oversight and quality assurance by a firm’s “Principal” is an important management practice for

many of ACECI’s firms.

. Mr. Goodwin stated that a reasonable number of hours charged to a

project by a “Principal” should be reimbursable at a higher hourly rate.

Regarding the updating of rates, Mr. Goodwin pointed out that the age of the data on

which lump sums and maximum allowable rates was determined will be as much as seven years

old by the time the rules are adopted. Exh. 74 at 6. A mechanism for updating the rates should

be included in the rules, according to Mr. Goodwin. Exh. 74 at 6-7.

Concerning the Agency’s practice for issuing denials, Mr. Goodwin stated that the

Agency’s practice has been to disallow costs with only the vaguest of explanations of the reason

for disallowance. Exh. 74 at 7. Mr. Goodwin suggested that the Agency issue a “proposed

disallowance” with specific explanations as to why the Agency is denying reimbursement.

This would allow the owner or operator to provide additional justification for the expenditure.

In his second appearance, Mr. Goodwin offered testimony on the Agency’s changes made

in the third

errata

sheet. Mr. Goodwin indicated that the latest changes “are generally moving in

the right directions, but I must say there are significant problems that remain.” Tr.7 at 219. The

Agency’s suggested changes to the Stage 1 site investigations do alleviate the concerns initially

held by ACECI. Tr.7 at 220. However, the review and updating of reimbursement limits

remains a concern and the Agency’s flat rejection of creating a database is shortsighted,

according to Mr. Goodwin. Tr.7 at 222. Further, Mr. Goodwin is “not optimistic that the

proposed advisory committee will be a very successful mechanism for accomplishing the

updating” of reimbursements limits.

Mr. Goodwin noted that Subpart H still lacks clear delineation of the scope of work

associated with several of the lump sum payment provisions. Tr.7 at 220. Mr. Goodwin

emphasized that this issue must be addressed as the movement to lump sum payment entails a

shift in the element of risk from the UST Fund to the owner/operator.

. Mr. Goodwin testified

that if that risk is significant, the risk can be minimized by making clear what is or is not covered

in the scope of a given phase of work. Tr.7 at 220-21.

The introduction of competitive bidding in the third

errata

sheet is another area of

concern, although Mr. Goodwin does believe that the idea is a constructive one. Tr.7 at 221.

Mr. Goodwin feels that more consideration and discussion should be given to the concept.

Mr. Goodwin also reviewed the alternative proposal offered by PIPE. Tr.7 at 223. Mr.

Goodwin believes the alternative proposal provides “a good vehicle for resolving some of the

issues” in this proceeding. Tr.7 at 223-24.

On his own behalf, Mr. Goodwin believes that three issues raised in the third

errata

sheet

need additional discussion. Tr. at 224-25. Those issues are competitive bidding, limiting

reimbursement to Tier 2 objectives, and requiring cost estimates for alternative technologies.

In his final comment, Mr. Goodwin expressed ACECI’s continuing concern with the lack

of clear delineation of the scope of services covered under the various lump sum payments. PC 3

at 5. ACECI is also disappointed that the Agency rejected the proposal for a formal procedure

for notifying owners and operators in advance of an Agency denial.

. On the three new areas

proposed in the third

errata

sheet, Mr. Goodwin expressed ACECI’s support for allowing

reimbursement to Tier 2 objectives, while suggesting changes to the competitive bidding and

alternative technologies changes. PC 3 at 2-5.

ACECI agrees that competitive bidding may be a good solution to determining fair

reimbursement amounts in atypical situations. PC 3 at 2. However, ACECI sees two problems.

First, securing three bids prior to submittal and approval of the budget may not be practical.

ACECI suggested that the owner/operator be allowed to bid the project while the Agency

reviews the budget.

. Once the budget is approved, the owner or operator would be entitled to

reimbursement in the amount of the lowest qualified bid.

. Second, ACECI feels that the

reimbursement rate proposed by the Agency for the bidding process is too low. PC 3 at 2. A

suggested resolution to this problem is to allow reimbursement for the bidding process on a time

and materials basis. PC 3 at 3.

ACECI believes that the requirement for three cost estimates for alternative technologies

is flawed because there may not be three alternative technologies. PC 3 at 3-4. ACECI

commented that the proposal assumes that feasibility and estimated costs for three technologies

can be determined with enough sufficiency to make a meaningful comparison. PC 3 at 4. The

proposal also does not take into consideration differences in the anticipated length of

remediation, according to ACECI.

. ACECI suggested the addition of appropriate exemption

language to the proposal.

Maurer-Stutz, Inc.

Maurer-Stutz, Inc. (Maurer-Stutz) filed a comment on September 23, 2004 (PC 5). In the

comment, Maurer-Stutz expressed concern regarding the manner in which the Agency issues

denial letters. PC 5 at 1. Specifically, Maurer-Stutz believes that it would be beneficial if the

Agency would issue a pre-decision letter when a denial is anticipated.

. Maurer-Stutz feels

this would increase the efficiency of the process.

Maurer-Stutz is also concerned about the “scope of work” versus the “fixed fee” process.

PC 5 at 2. Maurer-Stutz does not believe that any two projects can be done in the same manner.

Maurer-Stutz suggested that pre-defining the “scope of work” prior to any on-site investigation is

a more realistic approach than fixing fees for certain tasks.

Maurer-Stutz noted that in situations where the contamination plume extends beyond two

or more properties, delineating the plume during a Stage 1 or 2 investigation is sometimes

impossible. PC 5 at 2. Maurer-Stutz stated that as the investigation continues discoveries can

often change the scope of work and thus effect the budget and extent of Tier 2 calculations.

Maurer-Stutz next commented on the off-site cleanup procedures and objectives. PC 5 at

2. Maurer-Stutz has found that required engineering controls, institutional controls, and

environmental land use controls (ELUC) often take more time and effort than anticipated.

Maurer-Stutz stated that developing and implementing ELUCs has become an “extremely

tedious part of the Tier 2 process.”

. Maurer-Stutz commented that the proposed regulations

are unreasonable for this part of a Tier 2 process and suggest that the Agency establish a better

system for setting the budget for implementing ELUCs.

Maurer-Stutz takes issue with the subcontractor costs for transportation, manifesting, and

disposal of liquid and solid wastes. PC 5 at 3. Maurer-Stutz often pays more than the

reimbursement maximum for completion of the required work even though Maurer-Stutz

contacts several contractors for estimates for this work.

ISSUES

After carefully reviewing the testimony, comments, and exhibits presented by the

participants in this rulemaking, the Board is faced with numerous issues. The issues range from

minor differences to disagreement on the basis for a large section of the proposal. The issues are

as follows:

1. What is the relationship of the four Public Acts amending Title XVI of the Act

(415 ILCS 5/57.1

et seq

. (2002))?

2. Should additional hearings be held prior to proceeding to first notice?

3. Does the applicability language ensure that the rulemaking does not have a

retroactive effect (Section 732.100/734.100)?

4. Should the proposal include the concept of a UST Remediation Applicant

(Section 732.103/734.115)?

5. What is the appropriate language to address the removal of free product (Section

732.203/734.215)?

6. Should the proposal include a requirement that alternative methods be compared

with either conventional technology or other alternative methods (Section

732.407(b)/734.340(b))?

7. Is the Agency’s proposed language for audits, record retention, and review

consistent with the requirements of the Act (Section 732.614/734.665)?

8. Is the Agency’s language requiring submission of all reimbursement requests

within one year of receipt of a NFR letter sufficient time for submittals (Sections

732.601(j)/734.605(j) and 732.606(rr)/734.630(nn))?

9. Should the Board adopt a bidding process (Section 732.855/734.855)?

10. Should the Agency be required to develop a database?

11. Should the Agency rely on the technical decisions performed by professional

engineers or geologists?

12 Should the proposal include requirements that shorten the Agency’s review time

and require pre-denial denial letter?

13 When a primary contractor has a financial interest in a subcontractor, should the

contractor be ineligible for handling charges (Section 732.606(ss)/734.630(oo))

and should the subcontractor be excluded from bidding (Sections732.103/734.115

and 732.855/734.855)?

14. Should the proposed rule require proof of payment to a subcontractor before

allowing reimbursement for handling charges (Section

732.601(b)(10)/734.605(b)(10))?

15. Should the proposed rule delineate “atypical” situations in Section

732.855/734.855?

16. Does the Agency’s proposed conversion factor and “swell factor” address ETD

(Section 732.825/734.825)?

17. Should permit fees and other government fees be included as an eligible

corrective action cost (Section 732.606(ddd)/734.630(aaa))?

18. Should the proposal limit reimbursement based on TACO clean up objectives

(Sections 732.408/734.410 and 732.606(hhh)/734.630(eee))?

19. Should the lump sum maximum payment amounts be raised and include a

standard scope of work (Subpart H)? and

20. Miscellaneous issues raised.

DISCUSSION

In the following paragraphs the Board will discuss each issue in turn. After the Board

has discussed each issue, the Board will summarize the rulemaking language which the Board

will adopt for first notice.

1. What is the Relationship of the Four Public Acts Amending Title XVI of the Act (415

ILCS 5/57.1

et seq.

(2002))?

During the 92nd General Assembly, the Illinois legislature passed four separate Public

Acts amending the provisions of the UST program.

See

P.A.92-554,

eff

. 6/24/02; P.A. 92-574,

eff

. 6/28/02; P.A. 92-651,

eff

. 7/11/02; and P.A. 92-735,

eff

. 7/25/02. PIPE suggested that the

Board should take this opportunity to determine the relationship of the four Public Acts and

determine which applies. Exh. 91 at 13. The Agency, in response, argued that the Public Acts

can and should be read together. PC 4 at 7. The Board declines to make a finding concerning

the relationship between the four Public Acts. The Board does not see the urgency for such a

decision and further does not find that this is the correct forum for such a decision. The Board

will make findings on the relationship of the four Public Acts, if necessary, in the context of

specific cases that may be brought before the Board.

2. Should Additional Hearings be Held Prior to Proceeding to First Notice?

The participants have expressed mixed feelings as to whether additional hearings should

be held. Mr. Fleischli specifically asked that the hearings be left open for additional input from

lenders and real estate people. Tr.7 at 10. ACECI, however, believes that the Board should

move forward with a first-notice proposal on the record. PC 3 at 6. The Agency also suggested

that the Board proceed to first notice based on the record before the Board. Tr.7 at 229-31. PIPE

notes that the members are divided on the need for an additional hearing; but then stated that if

the Board is not ready to address the concerns expressed by the participants, PIPE would suggest

another hearing. PC 6 at 2.

The Board finds that the record is sufficient for the Board to identify areas of

disagreement and develop a first-notice proposal that addresses the participants’ concerns.

Therefore, the Board will proceed to first notice today without additional hearings. If necessary,

the hearing officer will schedule additional hearings after publication of the first-notice proposal.

The Board requests comment from the participants on whether additional hearings are necessary,

and if so, specifying what additional information will be brought into the record.

3. Does the Applicability Language Ensure that the Rulemaking Does Not Have a

Retroactive Effect (Section 732.100/734.100)?

Section 732.100/734.100 specifies when the rules of each Part apply. Part 734 applies to

sites where a release is reported after the effective date of the rules. Part 734 also applies to sites

where a release occurred before the effective date of the rules, but after the effective date of P.A.

92-0554. Part 732 applies to sites where the release was reported prior to the effective date of

P.A. 92-0554.

PIPE expressed concern that the Agency’s proposed language, even as amended in the

third

errata

sheet, would allow for retroactive application of the rules. The Board has carefully

examined the proposed language. While cognizant of PIPE’s concern, the Board believes that

with minor changes, the applicability language can be clarified to ensure that the rules do not

apply retroactively. The Board will propose for first notice the Agency’s language with minor

changes.

4. Should the Proposal Include the Concept of a UST Remediation Applicant (Section

732.103/734.115)?

PIPE has suggested the inclusion of the concept of UST Remediation Applicant because

an owner or operator may often contract out responsibility for site cleanup to a consultant. Exh.

90 at 9. PIPE used the definition for site “remediation applicant” at 35 Ill. Adm. Code 740.120

as a model for the proposed definition.

. PIPE is not suggesting that the site remediation

program equates with the UST program; rather the language is proposed to reflect the reality that

the person who deals with the Agency may not be the owner or operator. PC 6 at 7.

The Agency is opposed to including the concept because only the owner or operator may

seek reimbursement from the UST program. PC 4 at 20. The site remediation program includes

the concept of a site remediation applicant because anyone with potential liability for

contamination can enter the program.

. The Agency also has some concerns that the inclusion

of the concept of a UST remediation applicant could impact consistency with the federal UST

program.

The Board has carefully reviewed the definition suggested by PIPE. The Board agrees

with the concerns expressed by the Agency and, therefore, the Board finds that PIPE’s suggested

concept of UST Remediation Applicant is not necessary. Therefore, the Board declines to add

the concept of a UST remediation applicant to the proposed rule.

5. What is the Appropriate Language to Address the Removal of Free Product (Section

732.203/734.215)?

In the original proposal, the Agency proposed language to specify that free product

“exceeding one-eight of an inch in depth . . .” be removed. R04-22 at 10. In addressing

concerns raised at hearing, the Agency suggested requiring removal of free product to the

“maximum extent practicable”. Exh. 88 at 23. The Agency noted that this language is the

standard used in the federal regulations at 40 C.F.R. 280.64 (2004). PC 4 at 21. PIPE had

suggested that the language be amended to allow for free product removal “as required to

address the health and safety of the site.” Exh. 90 at 13. The Agency feels that PIPE’s language

would create an inconsistency between the State and Federal programs. PC 4 a 21.

The Board will accept the Agency’s suggested language from the third

errata

sheet. The

Board finds that the Agency’s language will address the concern from PIPE (Exh. 90 at 13) as

well as others that the language resulted in an overly prescriptive approach. The Agency’s

language adopts the standard used in the federal regulations and removes the originally proposed

one-eighth of an inch level.

6. Should the Proposal Include a Requirement that Alternative Methods be Compared

with Either Conventional Technology or Other Alternative Methods (Section

732.407(b)/734.340(b))?

Section 732.407(b)/734.340(b) as proposed required that the cost of an alternative

technology not be substantially higher than other alternative technologies which may be

available. At hearing, questions were raised concerning the number of alternative technologies

which must be compared. Exh. 87 at 15. In response, the Agency proposed language in the third

errata

sheet that requires comparison of at least two other alternative methods.

M took issue with the Agency’s requirement that at least two alternative

technologies be compared with the proposed alternative technology. PC 9 at 7. CW

M pointed

out that in some instances, other alternative technologies may not be technically feasible as a

result of site conditions.

. CW

M suggested amendments to address the possibility that there

may not be other methods available.

M also noted that in some cases, the use of alternative technology is preferable for

technical reasons or because the costs for using conventional technology are high. PC 9 at 8.

M suggested that for cases where conventional technology exceeds the amounts in Subpart

H, procedures should be crafted to allow for comparison of costs between conventional and

alternative technologies.

. CW

M suggested language to allow for such a comparison.

Mr. Goodwin testified that ACECI also believes that the requirement for three cost

estimates for alternative technologies is flawed because there may not be three alternative

technologies. PC 3 at 3-4. ACECI commented that the proposal assumes that feasibility and

estimated costs for three technologies can be determined with enough sufficiency to make a

meaningful comparison. PC 3 at 4.

The Board appreciates the concerns put forth by both CW

M and ACECI. However, the

Board is not convinced that the language suggested by CW

M is necessary. For example,

additional language to compare costs between conventional and alternative technologies is not

necessary because existing Section 732.407(b) already provides that alternative technology not

exceed the cost of conventional technology. Regarding alternative technology comparisons, the

Agency has proposed language that requires comparison of two other

available

alternative

technologies. CW

M proposed language to allow the owner or operator to proceed under the

rule’s extraordinary circumstance provisions if two alternative technologies were

unavailable

not technically feasible. CW

M’s suggested language seems at least partially redundant.

Therefore, the Board will not proceed with the language as suggested by CW

M; however, the

Board will propose language which will address the concerns of CW

M and ACECI. The Board

will propose in Sections 732.407(b) and 734.340(b) the following:

An owner or operator intending to seek payment for costs associated with the use

of an alternative technology shall submit a corresponding budget plan in

accordance with Section 732.405 of this Part. In addition to the requirements for

corrective action budget plans at Section 732.404 of this Part, the budget plan

must demonstrate that the cost of the alternative technology will not exceed the

cost of conventional technology and is not substantially higher than other

available alternative technologies. The budget plan shall compare the costs of at

least two other alternative technologies to the costs of the proposed alternative

technology, if other alternative technologies are available and are technically

feasible.

The Board invites the participants to comment on this proposed language.

7. Is the Agency’s Proposed Language for Audits, Record Retention, and Review

Consistent with the Requirements of the Act (Section 732.614/734.665)?

Section 732.614/734.665 in Agency’s proposal is titled “Audits and Access to Records;

Records Retention”. The Agency proposal requires retention of records for a specified period of

time and allows the Agency to access those records for auditing. Exh. 3 at 9. Although, the

language is similar to other Board and Agency rules (

.), participants expressed concerns that

the Agency language was beyond the Agency’s statutory authority.

Specifically, Mr. Rapps and CW

M questioned the Agency’s use of audits as required by

both Sections 57.8(a)(1) and 57.15 of the Act (415 ILCS 5/57.8(a)(1) and 57.15 (2002)). Exh. 50

at 6; PC 9 at 15. Mr. Rapps, discussing Section 57.8(a)(1) of the Act (415 ILCS 5/57.8(a)(1)

(2002)), believes that audits were to be used in a random manner similar to audits performed by

the Internal Revenue Service, and suggested amending the proposal to indicate the Agency

would use the audit as intended by the statute.

. CW

M argued that the plain language of the

Section 57.15 of the Act (415 ILCS 5/57.15) limits the Agency’s authority to audit only the data,

reports, plans, documents, or budgets submitted pursuant to the Act and thus the Board should

not adopt Section 732.614 and 734.665. PC 9 at 16-17.

The Board respectfully disagrees with the comments and does not believe that the

Agency’s proposal is beyond the statutory intent. The word “audit” is defined in Section 57.2 of

the Act (415 ILCS 5/57.2 (2002)) as “a systematic inspection or examination of plans, reports,

records, or documents to determine the completeness and accuracy of the data and conclusions

contained therein.” 415 ILCS 5/57.2 (2002). Pursuant to Section 57.15 of the Act (415 ILCS

5/57.15 (2002)), the Agency has the authority to “audit all data, reports, plans, documents and

budgets submitted pursuant to this Title.” 415 ILCS 5/57.15 (2002). Thus, the Agency is given

broad authority by the Illinois legislature to review all data, reports, plans, documents, and

budgets submitted to the Agency.

8. Is the Agency’s Language Requiring Submission of All Reimbursement Requests Within

One Year of Receipt of a NFR Letter Sufficient Time for Submittals (Sections

732.601(j)/734.605(j) and 732.606(rr)/734.630(nn))?

In Section 732.601(j)/734.605(j), the Agency proposed language requiring submittal of

all applications for payment for corrective action within one year of the issuance of a NFR letter.

The proposal goes on to specifically provide that costs submitted later than one year after

issuance of a NFR letter are ineligible costs. Section 732.606(rr)/734.630(nn).

M takes issue with the Agency’s proposed requirement that all reimbursement

requests must be submitted within one year of receipt of a NFR letter. CW

M believes that

certain exceptions should be created. Tr.4 at 27-28. CW

M understands the Agency’s desire to

close files on sites which have completed remediation; however, there are specific instances

where additional time after issuance of a NFR letter may be warranted. Tr.4 at 28. CW

believes that one example is that if an appeal is pending before the Board and settlement

negotiations are under way, final disposition may take more than one year, particularly with Part

731 sites. PC 9 at 14-15; Exh. 29 at 29-30. Thus, a NFR letter may be issued while the appeal is

pending and the one-year timeframe could expire.

The Agency does not believe the deadline creates an undue hardship on the owners and

operators. Exh. 88 at 18. The Agency believes that one year is sufficient to submit an

application for final costs and the Agency has no evidence to support an exception to the one-

year requirement.

After careful consideration of the comments by CW

M and the Agency, the Board will

propose for first-notice the language proposed by the Agency. The Board agrees with the

Agency that one year is sufficient to submit reimbursement applications for final costs.

However, the Board invites additional comment on this issue, particularly regarding the Part 731

sites and other potential exceptions.

9. Should the Board Adopt a Bidding Process (Section 732.855/734.855)?

In the third

errata

sheet, the Agency introduced language, which was discussed in earlier

hearings, that would allow owners or operators to receive bids for any of the tasks involved in

remediating a site. PIPE, Mr. Goodwin, IPMA, and CW

M were all supportive of the concept.

However, both PIPE and CW

M had specific issues with the bidding process as proposed.

PIPE and CW

M both believe that the prohibition for bidding by entities where the

primary contractor holds a financial interest is unnecessary. Also CW

M recommended that the

bidding procedures be further developed to include that certified letters be sent to a minimum of

three contractors containing a specific scope of work, required qualifications, and allowing for a

14-day response time. PC 9 at 25. PIPE indicated that the Agency has “seriously

underestimated the amount of time and effort” that will be necessary to conduct bidding. PC 6 at

17. PIPE recommends that the reimbursement for the bidding process should be based on time

and materials and not a lump sum payment.

. PIPE suggested that as an alternative to

accepting three bids, the proposal should allow a contractor to justify costs by utilizing published

industry data. PC 6 at 18.

At this time the Board finds that the record supports proceeding to first notice with a

proposal which includes a bidding process. Many of the participants approve of the concept of

bidding projects where costs may exceed the lump sums proposed in Subpart H. Also, the

inclusion of bidding will address some of the concerns raised by the participants over the specific

proposed lump sums (

see

supra

at 78). Finally, the Board finds that the inclusion of bidding in

the proposal will assist in achieving the Agency’s goals to streamline the UST remediation

process, clarify remediation requirements, determine market rates for costs, and “most notably,

reform the budget and reimbursement process”. Exh. 3 at 2.

As discussed below, the Board will not strike the prohibition from bidding by entities that

have a financial interest with the primary consultant (

see supra

at 71). However, the Board will

accept CW

M’s comment and strike “direct or indirect” from Section 732.855/734.855(a). In

that same section, the Board will also change “consultant” to “contractor” as the Board believes

that is the more appropriate term. Concerning the other specific suggestions from PIPE and

M on the bidding process, the Board is not convinced that the changes suggested are

necessary for the proposal. The Board invites additional comments on these issues.

Lastly, the Board reviewed the Agency’s proposal in Section 732.845/734.845(g) to limit

the reimbursement for preparation of a request for bids and the review of the bids. The Board

shares the concerns of PIPE that the Agency’s proposal underestimates the time and effort that

the preparation of a request for bids and the review of the bids will require. The Board is

especially concerned given that bidding is an alternative to any of the lump sum payments in

Subpart H and the Board is not convinced that the maximum rate of $160 would be sufficient for

the preparation of a request for bids and review of bids for all the tasks in Subpart H. Therefore,

the Board will propose the rule to allow for reimbursement on a time and materials basis by

eliminating subsection (g) from the Agency’s proposed language.

10. Should the Agency be Required to Develop a Database?

PIPE has suggested that the Board include in this proposal a provision requiring the

Agency to develop an electronic database to be used to develop maximum payment rates. The

database would include information on reimbursement requests including the amount sought for

reimbursement. PIPE argued that electronic filing and data collection could reduce work and

such a goal is in accordance with the Agency’s stated goals for this rulemaking proposal. Exh.

91 at 15. The Agency however believes that the development of a database would greatly

complicate and lengthen the preparation of budgets by consultants and result in increased costs.

Exh. 88 at 12.

Mr. Goodwin also suggested that creating a database would be beneficial. Mr. Goodwin

noted that reviewing and updating reimbursement limits remains a concern, and the Agency’s

flat rejection of creating a database is shortsighted. Tr.7 at 222. Mr. Goodwin does not believe

that the Agency’s agreement to include an advisory committee is sufficient to address the need

to update reimbursement rates.

The Board acknowledges that many participants have made meaningful comments about

the value of an electronic database to track reimbursement rates. However, the Board will not

require the Agency to develop an electronic database of reimbursement information. The Board

is not convinced that an electronic database is necessary to administer either these specific rules

or the UST program. The inclusion of competitive bidding in these new rules will allow the

Agency to determine market rates based on the bids. Furthermore, the Agency proposed in the

third

errata

sheet Sections 732.870/74.870 and 732.875/734.875, which specifically allow an

increase in the maximum rate based on an inflation factor and require the Agency to triennially

review the maximum payment amounts and propose changes where necessary. Therefore, the

Board declines to follow the suggestion that the Agency be required to develop an electronic

database.

11. Should the Agency Rely on the Technical Decisions Performed by Professional

Engineers or Geologists?

PIPE suggested that if technical expertise is required, the Agency should rely on the

certification of the licensed professional engineer or geologist necessary for submittals under the

UST program. Exh. 91 at 13. PIPE asserted that the certification of a licensed professional

engineer or geologist is required to justify whether or not the work was necessary for site

remediation. Exh. 91 at 13. The Agency disagrees with PIPE’s suggestion and noted that

Section 57.7 of the Act (415 ILCS 5/57.7 (2002)) requires that all investigations, plans and

reports be conducted or prepared “under the supervision of” a licensed professional engineer or

geologist. Exh. 88 at 11. The Agency asserted that neither Section 57.7 of the Act (415 ILCS

5/57.7 (2002)) or the regulations “are intended to grant” licensed professional engineers or

geologists “with a final decision making authority that supercedes the Agency.” Exh. 88 at 11.

The Board agrees with the Agency that under the Act (415 ILCS 5/57.7 (2002)), the

Agency has the responsibility to review all submittals for consistency with the Act and Board

regulations. If the Agency denies approval for any reason, the applicant may appeal to the Board

for review of the Agency’s decision. The Board finds nothing in the statue that convinces the

Board that the Agency should rely on the certification of an applicant’s licensed professional

engineer or geologist on any issue. The Board finds no merit in PIPE’s suggestion.

12. Should the Proposal Include Requirements that Shorten the Agency’s Review Time

and Require Pre-Denial Denial Letter?

The record includes substantial comment from the participants regarding Agency

procedures for reviewing and deciding on submittals in the UST program. The participants in

this proceeding suggested “process” changes to the Agency’s review of submittals. The

suggestions are numerous and include: a shortened review time to allow for changes in the

submittals before the statutory 120-day decision deadline expires; a pre-denial letter similar to a

Wells letter in a permit process; placing the burden of proof on the Agency as to why the

application violated the Act or Board rules; and requiring more specific reasons for denial in the

denial letter.

PIPE stated that the “process issues are at the very heart of this proposal” and the very

workability of these rules depends on the Board recognizing and dealing with these issues. PC 6

at 21. PIPE noted that the UST process has followed closely the permit review process, but the

traditional permit review process does not provide a proper procedural overlay for the UST

reimbursement process. Exh. 90 at 16.

The Agency believes that both the shortened review time (45-day review) and the draft

denial letters proposed by PIPE are inconsistent with the Act. PC 4 at 21-23. The Agency

argued that the Act grants the Agency 120 days to make a decision on submittals. PC 4 at 21.

The suggestion that the review time be shortened to 45 days would be extremely difficult for the

Agency to meet for review of all submittals. PC 4 at 22. The Agency stated that additional

alternative language proposed by PIPE is inconsistent with the Board regulations and the Act.

PC 4 at 26-28. Specifically, inconsistent language is proposed for Section 734.505(b) that would

shift the burden of proof to the Agency (PC 4 at 26), and in Section 734.505(f) that allows the

Agency to deem submittal rejected after 120 days. PC 4 at 27.

The Board has reviewed appeals of Agency decisions in the UST program under Section

40 of the Act (415 ILCS 5/40 (2002)) and the Board has adopted procedural rules at 35 Ill. Adm.

Code 105.Subpart D. As both the Agency and PIPE have pointed out there are some similarities

in the Board’s review of Agency decisions on UST reimbursements and permits. However, the

two reviews are not identical and as such, the Board does not believe the Wells case requires a

pre-denial denial letter in the UST program. The Board also does not believe the remaining

differences between the permit review process and the UST program are conducive to requiring a

pre-denial denial letter. The timeframes are just too tight.

The Board also will not shorten the Agency’s review time. Although the record

demonstrates that the Agency does review submittals in less than 120 days, the record also

reflects that at times the Agency needs the entire review time. The Board also acknowledges that

the Act (415 ILCS 5/57.7 (2002)) clearly gives the Agency 120 days to make decisions on UST

reimbursement cases. For these reasons, the Board declines to propose rules that shorten the

Agency’s review time.

As to the concerns that the Agency’s denial letters lack specificity, the Board is cognizant

of that concern. However, Section 57.7(c)(4) (or (c)(4)(D)) (415 ILCS 5/57.7(c)(4) (or

(c)(4)(D)) (2002))

sets forth the requirements for the Agency’s denial letter. Section 57.7(c)(4)

of the Act (415 ILCS 5/57.7(c)(4) (2002)) provides that any Agency action to disapprove or

modify a plan submitted pursuant to this Title shall be accompanied by:

(A) an explanation of the Sections of this Act which may be violated if the

plans were approved;

(B) an explanation of the provisions of the regulations, promulgated under this

Act which may be violated if the plans were approved;

Agency deems the applicant did not provide the Agency; and

(D) a statement of specific reasons why the Act and the regulations might not

be met if the plan were approved. (415 ILCS 5/57.7(c)(4) (2002))

The Board notes that the language of Section 57.7(c)(4) (415 ILCS 5/57.7(c)(4) (2002)) clearly

outlines the required content of a plan disapproval or modification by the Agency. The Board is

not convinced that additional language is necessary to effectuate the legislative intent of Section

57.7(c)(4) (415 ILCS 5/57.7(c)(4) (2002)). Therefore, the Board will not include additional

requirements for denial letters in the first-notice proposal.

Finally, regarding the language proposed by PIPE that would shift the burden of proof to

the Agency, the Board will not propose the language. The Board will not consider such a

change. The Act is clear that the burden of proof in any appeal to the Board from an Agency

determination under the UST program is on the petitioner.

See

415 ILCS 5/40(a)(1) and

57.7(c)(4) 2002.

13. When a Primary Contractor has a Financial Interest in a Subcontractor, Should the

Contractor be Ineligible for Handling Charges (732.606(ss)/734.660(oo)) and Should the

Subcontractor be Excluded from Bidding (Sections 732.103/734.115 and 732.588/734.855)?

The Agency proposed a definition for “Financial Interest” to address the situation where

a contractor owns or owns some part of a subcontracting business. This definition is used for

handling charges and for bidding. The Agency believes that a contractor should not be eligible

to add handling charges when the contractor has a financial interest in the subcontractor and

proposes language in Section 732.606(ss)/734.660(oo) which makes the cost ineligible for

reimbursement. Tr.1 at 37-38. The Agency’s proposal would also exclude a firm that has a

direct or indirect financial interest with the primary consultant from the bidding process in

Section 732.855/734.855. Exh. 87 at 36-37.

Handling Charges

The language in the Act concerning the contents of the Agency’s denial letter is identical in all

four Public Acts; except that, the numbering and lettering differs from Public Act to Public Act.

The definition of “handling charges” in existing Section 732.103 is:

“Handling Charges” means administrative, insurance, and interest costs and a

reasonable profit for procurement, oversight, and payment of subcontracts and

field purchases. 35 Ill. Adm. Code 732.103.

M proposed that the definition for “financial interest” and all references to “financial

interest” be removed from the proposal because of CW

M’s concern that the Agency is

attempting “to reduce or eliminate handling charges.” PC 9 at 6. CW

M maintained that when a

contractor secures the work of a subcontractor, even where there is an ownership interest, the

contractor incurs similar expenses for the subcontractor as those incurred where there is no

ownership interest.

. CW

M asserted that the Agency is attempting to limit a consultant's

profits by eliminating handling charges when “the Agency does not clearly understand the costs

associated with conducting work in the private sector.” PC 9 at 6-7.

PIPE believes that the financial interest of a prime contractor in the subcontractor’s

business also has no effect on the cost incurred by the prime contractor. Exh. 91 at 17.

The Board is not convinced by the record to date that a primary contractor or consultant

who has a financial interest in a business which subcontracts part of the work associated with

remediation of a site incurs the same costs as a primary contractor without the financial interest.

As stated by Mr. Oakley, there is no prohibition over hiring one’s own company to do the work

and be paid a fair price including a profit. Therefore, the Board will propose for first notice the

Agency’s language, which excludes handling charges for subcontractors where the primary

contractor has a financial interest in the subcontractor. However, the Board invites comment on

this issue and if sufficient information is added to the record, the Board will revisit this issue

during the first-notice period.

Bidding

As discussed above, CW

M believes that the definition of “financial interest” should be

removed from the proposal. PIPE opined that the record does not support excluding a

subcontractor from the bidding process where the primary consultant has a financial interest in

that subcontractor. PC 6 at 18. PIPE argues that nothing in the record establishes that the costs

are higher where a prime contractor has a business interest in the subcontractor.

While the Board appreciates the concerns of PIPE and CW

M, the Board is not

convinced that the record is sufficient to delete the definition of financial interest. Therefore the

Board will proceed to first notice with the definition of “financial interest” in the rule. Further,

the Board finds that the record at this juncture does not support the deletion of the Agency’s

language that prohibits bidding by subcontractor if the primary contractor has a financial interest

in the subcontractors. Thus, the Board will propose for first notice the prohibition. However, the

Board invites additional comment from the participants on the issue and if sufficient information

is added to the record, the Board will revisit this issue during the first-notice period.

14. Should the Proposed Rule Require Proof of Payment to a Sub-Contractor Before

Allowing Reimbursement for Handling Charges (Section 732.601(b)(10)/734.605(b)(10))?

Section 732.601(b)(10)/734.605(b)(10) as proposed requires that the application for

reimbursement include proof of payment to a subcontractor when handling charges are being

sought. The participants question the Agency’s proposal. CW

M noted that requiring proof of

payment results in higher handling costs for the contractor and the higher costs will not be

reimbursable. Tr.4 at 36-37. PIPE asserted that by definition handling charges are due to the

contractor whether or not the subcontractor is paid by the contractor. Exh. 91 at 17.

Furthermore, PIPE noted that even if the subcontractor has agreed to await payment until the

Agency reimburses the owner or operator, the prime contractor has incurred the costs of

insurance and administration of the subcontract.

Because “of an alarming number of phone calls” to the Agency from subcontractors

claiming they have not been paid, the Agency added Section 732.601(b)(10), according to Mr.

Oakley. Exh. 7 at 2. Mr. Clay pointed out that cancelled checks are not the only mechanism for

providing proof of payment to a subcontractor, lien waivers or affidavits from the subcontractor

would be acceptable. Exh. 88 at 18. Mr. Clay testified that such proof is necessary to show that

the subcontractor was actually paid and the owner or operator is therefore entitled to

reimbursement for handling charges.

The existing language in Section 732.606(ll) includes as an ineligible cost “Handling

charges for subcontractor’s costs when the contractor has not paid the subcontractor.” The

language proposed by the Agency is asking for proof that the contractor has paid the

subcontractor before allowing reimbursement. The existing language provides that handling

charges are only eligible reimbursement costs if the contractor

paid

the subcontractor. To the

Board, it would appear that the Agency is merely requiring proof of a prerequisite which already

exists. However, to allay the concerns of the participants, the Board will propose language in

Sections 732.601(b)(10) and 734.605(b)(10) which reflects the Agency’s position that cancelled

checks are not the only mechanism for providing proof of payment to a subcontractor; lien

waivers or affidavits from the subcontractor would be acceptable. Sections 732.601(b)(10) and

734.605(b)(10) will read:

Proof of payment of subcontractor costs for which handling charges are requested.

Proof of payment may include cancelled checks, lien waivers, or affidavits from

the subcontractor.

The Board invites additional comment on this language.

15. Should the Proposed Rule Delineate “Atypical” Situations in Section 732.855/734.855?

The Agency’s original proposal at Section 732.855/734.855 included a provision that

allowed an owner or operator to seek payment for costs which exceeded the maximum rates in

Subpart H. The proposal allows for reimbursement costs which exceed the maximum if unusual

or extraordinary circumstances occur. The language as originally proposed in Section

732.855/734.855 has been moved to Section 732.860/734.860.

Ms. Davis expressed concern that the “atypical” situation is not defined and pointed out

that the

ad hoc

workgroup proposed the use of an “atypical site form” to be used when a

consultant determines that the site warrants extra expense. Exh. 49 at 10-11. Mr. Goodwin

testified that the proposed language offers little guidance and recommends that additional

guidance be made a part of the rule language.

. Mr. Goodwin provided the

ad hoc

workgroup’s suggested guidance to the Board as a part of his testimony. Exh. 74 at Attach. D.

Mr. Kelly expressed concern that the provisions will need to be invoked on too many

projects. Exh. 54a at 3. Ms. Rowe recommended that Section 732.855 and 734.855 be carefully

evaluated in light of the Agency’s history. Tr.4 at 35. Ms. Rowe noted that the Agency has been

reluctant in the past to reimburse higher costs associated with a site-specific unusual

circumstances. Tr.4 at 34. CW

M predicts that these two provisions may result in more appeals

than the current system.

The Board is not convinced that the proposal would benefit from specification of

“atypical” situations. As proposed in the third

errata

sheet, the proposal allows for bidding of

tasks if the owner or operator believes the costs will exceed the lump sum payments. The

addition of bidding to the proposal along with the general “extraordinary circumstances”

language in Sections 732.860/734.860 should sufficiently address the “atypical” situations.

16. Does the Agency’s Proposed Conversion Factor and “Swell Factor” Address ETD

(Section 732.825/734.825)?

Section 732.825/734.825 of the proposal sets forth the maximum rates for reimbursement

for soil removal and disposal. The maximum rate is $57 per cubic yard. To calculate the volume

of soil to be disposed, the proposed formula is “Excavation Length x Excavation Width x

Excavation Depth) x 1.05”, where “1.05” represents a five percent “swell factor” to account for

the larger volume occupied by the excavated soil as compared to in-situ soil. In addition, a

conversion factor of “1.5 tons per cubic yard of soil” is proposed for converting soil quantity

measured on weight basis to cubic yards.

Several participants took issue with the Agency’s proposal concerning the “swell factor”

and “weight/volume” conversion factor as proposed by the Agency. For the swell factor, the

concerns ranged from Mr. Truesdale’s comment that given the variability of swell for various

geologic materials, the Agency’s use of a single value for percentage of swell is unreasonable

(Exh. 73 at 4) to Mr. Doty’s concern that the Agency’s calculations for ETD do not take into

consideration either small amounts of soil or remote locations (Exh. 53 at 7-8). On the

conversion factor, Mr. Kelly, a representative of USI, stated that a factor of 1.5 tons per cubic

yard is too high and does not represent the less compact excavated material. Exh. 54 at 9. He

asserted that a more appropriate conversion factor for loose sands, clays, silts, or silty clay ranges

between 1.15 to 1.2 tons per cubic yard.

. Mr. Smith of CW

M testified that the conversion

factor of 1.68 in the current regulations under Part 732 more accurately reflects the conversion

factor for glacial till, which is the predominant soil type in Illinois. Tr.4 at 58.

The Agency explained that the five percent “swell factor” proposed at Section 732.825 is

actually equivalent to twenty percent for estimating cost of transportation because the proposed

swell factor is applied to the cost of excavation, transportation and disposal, and not just to the

transportation cost. Exh. 88 at 9. Regarding the conversion factor, the Agency believes that a

conversion factor of 1.5 tons per cubic yard is reasonable for Illinois soils. Further, the Agency

also proposes to change the conversion factor in Part 732.Appendix C to 1.5 tons per cubic yard.

The Board has reviewed the comments and testimony regarding the swell factor and

conversion factor. First, the Board does not see a significant disparity between the Agency’s

proposed swell factor and the swell factor recommended by the other participants. The Board is

convinced that a swell factor of five percent applied to the total for ETD is equivalent to a twenty

percent swell factor and twenty percent is appropriate. Regarding the conversion factor, the

Board recognizes that the factor ranges from one to two tons per cubic yard for different types of

geologic material. The conversion factor proposed by the Agency takes into consideration

various types of geologic material that occur at Illinois UST sites and the Board finds that the

record supports a 1.5 tons per cubic yard conversion factor. The Board will proceed to first

notice with the swell factor and conversion factor as proposed by the Agency.

17. Should Permit Fees and Other Government Fees be Included as an Eligible Corrective

Action Cost (Section 732.606(ddd)/734.630(aaa))?

The Agency proposed as ineligible costs payments to a “governmental entity or other

person in order to conduct corrective action, including but not limited to permit fees, institutional

control fees, and property access fees.” Section 732.606(ddd)/734.630(aaa). Ms. Rowe

suggested that the Agency reconsider the proposed language. Tr.4 at 33. CW

M believes that

permit fees are necessary corrective action costs and disallowing reimbursement could be the end

of groundwater remediation systems.

The Agency proposal included language in Sections 732.606(ddd) and 734.630(aaa) to

specify that fees or payments to government entities or other persons for corrective action related

activities is not an eligible cost. Exh. 3 at 9. Mr. Clay stated that the Agency has approved fees

in the past; however the Agency proposes to declare all such fees ineligible for reimbursement.

Mr. Clay testified that the Agency has approved reimbursement of some reasonable fees and

payments for state, county or local permits; however, these costs are more variable and “have

become hard to justify as reasonable.”

The Board is not convinced that such a blanket exemption is appropriate. Government

fees are a necessary cost of doing business, and therefore could be a necessary corrective action

cost. The Agency testimony did not specify examples of “fees or payments … to other

persons”, so the Board is not certain what type of fees the Agency would disallow by this

proposed language. Therefore, the Board finds that based on the testimony in this record, the

more appropriate approach is to decide if the fees are reasonable on a case-by-case basis. The

Board will delete Section 732.606(ddd) and 734.630(aaa) of the Agency’s proposal from the

first-notice rules, and renumber the remaining subsections.

18. Should the Proposal Limit Reimbursement Based on TACO Cleanup Objectives

(Sections 732.408/734.410 and 732.606(hhh)/734.630(eee))?

In the third

errata

sheet, the Agency proposed language which would limit

reimbursement for cleanup to Tier 2 TACO objectives and require the use of a groundwater

ordinance where an ordinance already exists. Exh. 87 at 19-20. The participants opposed both

of these changes. TACO is the “Tiered Approach to Corrective Action Objectives” found at 35

Ill. Adm. Code 742. TACO establishes procedures for developing remediation objectives for soil

and groundwater at remediation sites based on risks to human health, taking into account the

existing pathways for human exposure and current and future use of the remediation site. Tiered

Approach to Corrective Action Objectives; 35 Ill. Adm. Code 742, R97-12 slip op

at 3 (June 5,

1997). TACO sets forth a three tiered approach for establishing remediation objectives for

remediation of a site.

A Tier 1 analysis involves the comparison of levels of contaminants of concern at a

remediation site to pre-determined remediation objectives set forth in the rule. A Tier 2 analysis

requires the use of mathematical models (equations) set forth in the rules to develop alternative

remediation objectives for contaminants of concern using site-specific information. Finally, a

Tier 3 analysis provides for developing remediation objectives using alternative parameters not

found in Tiers 1 or 2. In addition to the three tiers, TACO allows for addressing contamination

at a site by means of exclusion of pathways and reliance on area background. The approaches in

TACO allow for “institutional controls” such as ordinances, environmental land use controls, and

agreements between landowners and highway authorities. 35 Ill. Adm. Code 742.1000.

Tier 2 Objectives

The Agency’s proposal to limit reimbursement to Tier 2 cleanup objectives and not allow

an owner or operator to seek reimbursement for Tier 1 cleanup objectives concerns IPMA. Tr.7

at 8. Part of IPMA’s concern is that while the Agency proposal only allows reimbursement for

Tier 2 cleanup objectives on IPMA members’ properties, the proposal requires that off-site

impacts be addressed using the most stringent regulatory requirements. Tr.7 at 8. IPMA is also

concerned that if an owner chooses to cleanup a site to the higher Tier 1 standards; the owner

would be required to pay out of pocket for that cleanup.

. In contrast, the current rules allow

the owner and the owner’s engineer to decide how stringent the cleanup objectives should be

based on land use. Tr.7 at 8-9.

PIPE agrees with IPMA’s concerns regarding the use of Tier 2 TACO cleanup objectives.

PC 6 at 20. PIPE believes that reimbursing costs only to TACO Tier 2 cleanup objectives affects

the choices available to owners and operators who hire PIPE members. Exh. 91 at 11. PIPE

deferred to the IPMA on this issue specifically; however, PIPE also has concerns regarding the

Agency’s position not to allow reentry into the UST Fund.

. PIPE maintained that owners and

operators will not accept TACO as a mandate unless they can access the UST Fund after a NFR

letter. Exh. 91 at 11-12.

M also expressed opposition to limiting reimbursement to the Tier 2 cleanup

objectives. CW

M believes that the property owner should determine the level of remediation,

which is not always the same as the tank owner or operator. PC 9 at 9. Second, CW

expressed concern that off-site properties and their owners may insist on Tier 1 cleanup levels.

. CW

M opined that if the Agency cannot force Tier 2 cleanup objectives on off-site property

owners, then Tier 2 cleanup objectives should not apply in situations where the property owner is

different than the tank owner.

. CW

M further opined that the limitation to Tier 2 cleanup

objectives was contrary to regulatory language. PC 9 at 10.

The Agency believes that limiting reimbursement to Tier 2 remediation objectives and

requiring use of groundwater ordinances “will significantly reduce” the cost of cleanup. Exh. 88

at 4-5, 24-25. The Agency stated that the limitation will ensure cost-effective cleanup which

results in the same protection of human health and the environment. PC 4 at 10-11. The Agency

insisted that the Tier 2 remediation objectives are as equally protective of human health and the

environment as Tier 1, but Tier 2 is generally less costly. PC 4 at 11.

The Agency also opposes allowing owners or operators back into the UST program after

issuance of a NFR letter. Exh. 88 at 10. The Agency argues that concentrating on sites which

have not yet been remediated and not on sites that have actually received a NFR letter should be

the Agency’s focus.

The Board has reviewed the comments of the participants and the Agency on the issue of

limiting reimbursement to Tier 2 cleanup objectives. The Board is convinced that limiting

cleanup cost reimbursement to Tier 2 TACO objectives is appropriate. As noted above, Tier 2

objectives are derived by using site-specific data rather than the conservative default values used

in determining Tier 1 objectives. Thus, in most cases cleanup to Tier 2 objectives would be less

expensive, but equally protective of human health and the environment as cleanup to Tier 1

objectives. The UST Fund is designed to reimburse reasonable costs for remediation that

mitigates “any threat to human health, human safety, or the environment resulting from the

underground storage tank release.” 415 ILCS 5/57.7(b)(2) and (c)(3) (2002). Furthermore, the

Board does not find a contradiction between the regulatory language and this limitation. The

Agency’s proposed language is consistent with existing language and does not create

inconsistencies with the existing regulatory language or language proposed in this proceeding.

The Board is not convinced that owners or operators should be allowed back into the

UST Fund after a NFR letter has been issued for a site. The NFR letter concept is predicated on

finality. Participants have expressed concerns that if reimbursement is limited to Tier 2

objectives and some future event occurs, the owner or operator may be liable for additional

cleanup. The Board finds that these hypothetical problems are not sufficient to warrant a change

in the UST program to this extent. The Board invites additional comment on this issue.

Groundwater Ordinance

M disagrees with the Agency’s proposal that groundwater remediation costs are

ineligible for reimbursement if a groundwater ordinance is in place. PC 9 at 10. CW

M asserted

that remediation may still be required in certain instances including where free product needs to

be removed and modeling must be performed to determine if there would be an issue related to

vapor intrusion into buildings. PC 9 at 10. PIPE also expressed opposition to the Agency

requiring the use of groundwater ordinances where a community already has one. PC 6 at 20.

The Agency explained that an ordinance must be used as an institutional control if the

ordinance is already established. Exh. 88 at 25. The Agency would not require an owner or

operator to

obtain

a groundwater ordinance, but merely to use an ordinance if already

established.

. Further, the Agency believes that the use of groundwater ordinances “will

significantly reduce” the cost of cleanup. Exh. 88 at 4-5

The Board appreciates the concerns of CW

M; however, the Board finds that using an

established groundwater ordinance as an institutional control is appropriate. The Board notes

that the actual language the Agency has proposed declares that groundwater remediation costs

are ineligible if a groundwater ordinance is in place that “can be used” as an institutional control.

The Board believes that removal of free product, which is generally an eligible cost, would not

be affected by the proposed limitation on reimbursement of groundwater remediation costs.

19. Should the Lump Sum Maximum Payment Amounts be Raised and Include a Standard

Scope of Work (Subpart H)?

Subpart H of the Agency’s proposal establishes maximum reimbursement amounts for

numerous tasks performed when remediating a leaking UST site. The Agency proposed several

changes to the language in Subpart H in the

errata

sheets in response to questions and comments

at the hearings. Those changes include adding sections to allow for bidding projects, provide for

an increase in the amounts set forth in Subpart H, and require Agency review of the payment

amounts. The Agency also added a provision at Section 732.114/734.145 creating an advisory

committee to meet and discuss the implementation of Parts 732 and 734.

Subpart H generated significant discussion at each of the hearings. The comments and

testimony established two main issues with Subpart H. The first issue is scope of work for each

lump sum payment. The second issue is the reasonableness of the maximum payment amounts.

The following discussion will be divided based on each of the issues.

Scope of Work

The participants adamantly seek the addition of a defined scope of work for projects

where a lump sum maximum payment rate has been established by the Agency in the proposal.

A scope of work would delineate the activities involved with a task being reimbursed as a lump

sum. More specifically, PIPE suggested that a defined scope of work is needed for any service

where a lump sum payment has been proposed. Exh. 91 at 10. PIPE drafted suggested language

defining the scope of work for services that PIPE believes are appropriate for lump sum

payment. Exh. 91 at 10; PC 6. CW

M believes that the Agency is attempting to turn

professional services and remediation activities into a commodity-based system rather than time

and materials basis. PC 9 at 4. Absent a clear scope of work, one variable that is not accounted

for could lead to a substantial profit or loss, according to CW

The Agency does not believe that a defined scope of work for every aspect of UST

cleanup is necessary. Exh. 88 at 8. Mr. Clay testified that a defined scope of work should not be

included in the rules.

. Mr. Clay conceded that there is some variability from site to site, but

that has been taken into account in the amount proposed in the rules.

The Board is cognizant of the concerns expressed by the participants; however, the Board

does not believe a defined scope of work is required for the lump sum maximum payment rates.

The Board agrees with the Agency that the variability from site to site is accounted for in the

rates. Furthermore, the proposal, as adopted for first notice, will include a bidding process for

projects that cannot be undertaken for the maximum rate in Subpart H. The Board also feels that

including a scope of work for every project would result in a cumbersome rule and a rule that

could define almost all tasks out of the lump sum category. Therefore, the Board finds that

defining the scope of work for lump sum payments is unnecessary and the Board will not

propose such language.

Maximum Payment Amounts

Section 57.7(b)(2) of the Act allows reimbursement for corrective action that mitigates

“any threat to human health, human safety, or the environment resulting from the underground

storage tank release.” 415 ILCS 5/57.7(b)(2) (2002). Section 57.7(c) requires the Agency to

determine that costs associated with any plan “are reasonable, will be incurred in the

performance of site investigation or corrective action, and will not be used for site investigation

of corrective action activities in excess of those required to meet the minimum requirements of

this Title.” 415 ILCS 5/57.7(c) (2002). Therefore, the Board must determine whether the

maximum rates proposed meet the requirements of the Act and have been supported by the

Agency in this proceeding.

The following discussion will begin by discussing the Agency’s methods for developing

the rates. Next the Board will generally discuss the maximum payment amounts. Finally, the

Board will address specific payment amounts.

Agency Methods for Developing Rates.

The Agency’s direct testimony described in

detail how the Agency developed the maximum payment amounts proposed in Subpart H.

Essentially, the Agency used applications for reimbursement that the Agency had received to

collect the data. After collecting the data, the Agency determined the average, or in some cases

the average plus one standard deviation, to determine the maximum payment amounts.

The Agency used as few as nine sites as a data source (

see

Exh. 9 at 6.) Under

questioning, the Agency admitted that there was no statistical random sampling and the

information may be a year or two old. Tr.2 at 131-32. Thus, the Agency’s research and

collection of data was not performed using a scientific or statistically recognized method.

The participants questioned the Agency extensively on the procedures used to develop

the rates. The comments and testimony before the Board demonstrated real concerns with how

the rates were developed. However, other than certain specific areas, alternative rates were not

offered.

Although the Agency’s methodology for determining the maximum rates is not

statistically defensible, the Agency’s data is from actual applications for reimbursement for sites

in Illinois. The Agency’s testimony is that the rates as developed will be inclusive of ninety

percent of the sites remediated in Illinois (

see

Tr.3 at 52) and based on the Agency’s experience

the rates are reasonable (

see

Tr.3 at 54-56). Therefore, the Board finds that the Agency’s method

for developing the maximum payment amounts is primarily based on the Agency’s experience

administering the UST program in Illinois. The Board further finds that the rates are reasonable.

Any deficiencies in the maximum rates are obviated by the language dealing with extraordinary

circumstances and the addition of the bidding process.

General Discussion of Maximum Payment Amounts.

The Board will not discuss each

and every proposed lump sum maximum payment amount; however, the Board has carefully

reviewed all the rates proposed by the Agency. Other than the rates discussed in more detail in

this opinion, the Board finds the rates are reasonable and supported by the record. Furthermore,

given the Agency’s inclusion in the third

errata

sheet of a bidding process, provisions for

triennial review of the maximum payment amounts, and provisions for the annual adjustment of

the maximum payment amounts based on inflation, the Board finds that the proposal will allow

for reimbursement of reasonable costs for remediation of UST sites in Illinois. Therefore, the

Board will proceed to first notice with the rates proposed by the Agency unless the Board

specifically indicates a different rate in this opinion.

Maximum Rates for Lab Analysis.

According to Mr. Chappel, the Agency sought

input on the maximum rates for analyses performed by laboratories under the UST program from

Illinois laboratories. Specifically, the Agency contacted the Illinois Association of

Environmental Laboratories, Inc. (IAEL) for assistance. Exh. 11 at 4. IAEL provided a survey

of laboratories and recommended that the Agency use the highest rate reported.

. Mr. Chappel

testified that the Agency instead “opted to use the average amounts” provided by IAEL. Exh. 11

at 4-5.

Mr. Thomas, a member of PIPE and IAEL, testified that he and IAEL surveyed members

to develop a spreadsheet of rates charges by the laboratories in Illinois who do work with USTs.

Exh. 75 at 2-3. After the development of the data, Mr. Thomas forwarded the information to the

Agency with a recommendation that the Agency propose the maximum rate. Exh. 75 at 3. The

Agency’s proposal instead used the average and Mr. Thomas disagrees with those rates. Exh. 75

at 3-4. Mr. Thomas opined that assuming a natural distribution, use of the average will result in

fifty percent of the rates falling above the reimbursement limit. Exh. 75 at 4. Mr. Thomas

recommended using either the maximum rate established by the data or the average plus one

standard of deviation.

The Board has reviewed the information provided by Mr. Thomas, including the

proposed rates. However, the Board is not persuaded that using either the maximum amount as

determined by the survey or the average plus one standard deviation is appropriate. As Mr. Clay

testified, 89 laboratories are certified to perform UST analyses (Exh. 88 at 7-8), yet only five

responded to the survey (Exh. 75 at 2-3). Furthermore, the information from Mr. Thomas (Exh.

75 at Attach. B) demonstrates a fluctuation in prices which the Board cannot explain from this

record.

Therefore, based on this record, the Board will propose for first notice the rates for laboratory

analysis as suggested by the Agency. The Board understands Mr. Thomas’ concern about using

the average cost as a maximum, but with the inclusion of a bidding process, and the unusual

circumstances contingency, the Board is comfortable that the Agency’s proposed rates will

balance the need to control costs with the ability of market rates to prevail in laboratory services.

The Board invites additional comment on this issue.

Travel.

The Agency’s proposal at Section 732.845/734.845(e) sets forth travel costs as a

part of the professional consulting service maximum payment rates. PIPE suggested that the

Agency proposal should be modified: (1) to allow for two people traveling when workload or

OSHA would require; (2) to use a personnel rate not “weighted” with office/clerical staff rates;

(3) to revise the 60+ mile limitation because that limitation is not reasonable. PC 6 at Attach. C.

The Board will not modify the Agency’s proposed language. The Board finds that the

costs for travel reimbursement as proposed by the Agency are reasonable based on the record

before the Board.

Stage 3.

In Section 734.845(b)(5) and (6), the Agency proposed lump sum payments for

the preparation and submission of Stage 3 site investigation plans and the costs for field work

and field oversight. In response to concerns, Mr. Clay indicated that that Stage 3 investigations

should be contingent in nature and additional rounds of borings should be proposed to be

conducted if necessary. Exh. 88 at 19. Mr. Clay testified that once a plan has been approved,

additional borings will be reimbursed based on the rates in the proposed rules.

M and PIPE argued that Stage 3 site investigation should be reimbursed on a time

and material basis. CW

M and PIPE point out that particularly with off-site investigations,

planning for costs associated with the Stage 3 investigation is difficult. Exh. 29 at 69-71; PC 6 at

16.

The Board agrees with CW

M and PIPE. The Agency’s own testimony acknowledges

that the Stage 3 investigations are contingent in nature. Because of the contingency of the plans

and the reality that planning for all contingencies would be difficult, the Board will delete

Section 734.845(b)(5) and (6) from the proposal. The Board will propose a new Section 734-

845(b)(5) which will provide:

Payment for costs associated with Stage 3 site investigations will be reimbursed pursuant to

Section 734.850.

UST Removal (Section 732.810/734.810).

The Agency evaluated twenty leaking UST

sites, nine of which had tanks removed or abandoned. Exh. 9 at 2. The evaluation established

that the average cost to remove the USTs was $3,152.71.

. Mr. Bauer stated that “based on the

Agency’s experience, this average cost is consistent with the amounts the Agency has seen

historically for the removal of USTs within the typical range of 6,000-gallons to 10,000-gallons

in size.” Exh. 9 at 2-3.

PIPE proposed alternative rates for UST removal and abandonment. PC 6 at 11. PIPE

based the alternative rates on the 2004

RS Means Environmental Cost Handling Options and

Solutions

(

RS Means

. PIPE believes that the alternative rates are “eminently more

justifiable as ‘reasonable’” rates than those proposed by the Agency.

The Board is not convinced that basing rates on

RS Means

in and of itself is appropriate.

Although as indicated above, the Agency’s method for developing the maximum payment

amounts had statistical limitations, the Agency’s rates were based on real data from actual sites

in Illinois. Therefore, the Board rejects alternative rates, such as

RS Means

, and the Board will

propose the rates as developed by the Agency for first notice.

Free Product or Groundwater Removal (Section 732.815/734.815).

PIPE indicated

that the rates proposed by the Agency were acceptable; however, PIPE suggested a change in

language. Specifically, PIPE asks the Board to change the phrase “costs . . . shall not exceed” to

“the following costs . . . shall be considered reasonable” throughout Subpart H. The Board

declines to make this change. Subpart H sets forth maximum payment amounts and the language

“costs . . . shall not exceed” is appropriate. The Board will however amend the language to

provide that “costs . . . must not exceed” consistent with Board practice of replacing the word

shall with must.

Drilling, Well Installation, and Well Abandonment (Section 732.820/734.820).

PIPE

did not propose specific rates for this category except that PIPE suggests adding language under

subsection (b) of $57 per foot. The Board declines to make this change because PIPE has not

justified the change.

Drum Disposal (Section 732.830/734.830), Sample Handling and Analysis (Section

732.835/734.835), Concrete, Asphalt and Paving (Section 732.845/734.845).

PIPE suggested

several changes to the language proposed by the Agency. The Board has reviewed those

suggested changes and finds that the changes are not necessary to clarify the language of the

rule. Therefore, the Board declines to make the changes.

20. Miscellaneous Issues Raised

In addition to the issues discussed above, several issues were raised which require less

discussion. Those issues will be addressed in this section.

Merger of Part 732 with Part 734

PIPE suggests that with a “certain degree of wordsmithing” on the part of the Board, the

rules could be merged into one set of requirements. Exh. 90 at 6. PIPE acknowledged that this

issue had not been raised with the Agency. The Board is disinclined to merge the two Parts. The

Board finds that the use of two separate Parts does not create confusion. Therefore, the Board

will not merge the two Parts.

Use of Phrase “Maximum Payment Amounts”

PIPE argues that the Agency’s use of the phrase “maximum payment amount” is

inconsistent with Section 732.860/734.860 and Section 734.800(b). PC 6 at 9. PIPE notes that

those sections of the proposal indicate that the amount in Subpart H may be exceeded and are not

exclusive.

. PIPE suggests that the phrase “reasonable costs” or “usual and customary costs”

as alternatives. PC 6 at 10.

The Board agrees that “maximum payment amount” is a phrase which denotes the

highest amount payable for a task. However, the Board believes that in the context of the rules,

the phrase is appropriate and the Board declines to make a change.

Compaction (Section 732.606/734.630(w))

PIPE raised the issue of compaction and backfill in PIPE’s public comment. PIPE

suggests that compaction of backfill material should be an eligible cost. The Board disagrees

with PIPE. Section 732.606(w), which is identical to Section 734.630(w), is existing language.

The Board is not convinced that this record supports removing compaction of backfill material

from the list of costs which are currently ineligible for reimbursement.

CONCLUSION

The Agency originally proposed amendments to the regulations concerning the leaking

UST program in January 2004. The Board has held seven days of hearings and received

substantial comments on the proposal. The Board has evaluated the comments in this proceeding

and the additional language changes suggested by both the Agency and the participants. The

first-notice proposal adopted by the Board today reflects the Board’s consideration of all the

comments and testimony the Board has received.

Based on the record of this proceeding, the Board proposes for first notice a rule that

includes lump sum maximum payments for certain tasks, but not a defined scope of work for

those tasks. The Board is proposing the maximum payment amounts proposed by the Agency in

most cases. The Board is cognizant that the methods used to develop the rates by the Agency

were not scientifically or statistically recognized methods. However, the Agency’s experience in

the UST program is also an element to be considered. In addition, the first-notice proposal will

include provisions for bidding, extraordinary circumstances, and an annual inflation adjustment.

The Board is convinced that the first-notice proposal, as a whole, will allow for reimbursement

of reasonable remediation costs.

As noted above the proposal includes a provision for bidding, and further, the proposal

allows for the preparation of a request for bids and the review of the bids to be reimbursed on a

time and materials basis. The Board is also proposing that Stage 3 investigations be reimbursed

based on time and materials. The Board will also propose for first notice a definition for

“financial interest” and language prohibiting reimbursement for handling charges when the

primary contractor has a financial interest in the subcontractor. The Board will also retain the

prohibition for a subcontractor to bid on a project where the primary contractor has a financial

interest in the subcontractor.

The Board has made additional changes to the rule, including those necessary to comport

with the requirements of the APA. The Board will not summarize or delineate the entirety of the

rule or the changes made by the Board. The Board’s order reflects the Board’s changes.

The Board finds that the proposal is technically feasible and economically reasonable.

The Board will proceed to first notice with the proposal and will accept additional comments on

the proposal. If the participants believe additional hearings should be scheduled, the participants

are invited to comment on the number and scope of hearings.

ORDER

The Board directs the Clerk to cause the publication of the following rule for first notice

in the

Illinois Register

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER d: UNDERGROUND INJECTION CONTROL AND UNDERGROUND

STORAGE TANK PROGRAMS

PART 732

PETROLEUM UNDERGROUND STORAGE TANKS

(RELEASES REPORTED SEPTEMBER 23, 1994, THROUGH JUNE 23, 2002)

SUBPART A: GENERAL

Section

732.100 Applicability

732.101 Election to Proceed under Part 732

732.102 Severability

732.103 Definitions

732.104 Incorporations by Reference

732.105 Agency Authority to Initiate Investigative, Preventive or Corrective Action

732.106 Laboratory Certification

732.108 Licensed Professional Engineer or Licensed Professional Geologist Supervision

732.110 Form and Delivery of Plans, Budget Plans, and Reports; Signatures and

Certifications

732.112 Notification of Field Activities

732.114 LUST Advisory Committee

SUBPART B: EARLY ACTION

Section

732.200 General

732.201 Agency Authority to Initiate

732.202 Early Action

732.203 Free Product Removal

732.204 Application for Payment of Early Action Costs

SUBPART C: SITE EVALUATION AND CLASSIFICATION

Section

732.300 General

732.301 Agency Authority to Initiate

732.302 No Further Action Sites

732.303 Low Priority Sites

732.304 High Priority Sites

732.305 Plan Submittal and Review

732.306 Deferred Site Classification; Priority List for Payment

732.307 Site Evaluation

732.308 Boring Logs and Sealing of Soil Borings and Groundwater Monitoring Wells

732.309 Site Classification Completion Report

732.310 Indicator Contaminants

732.311 Indicator Contaminant Groundwater Remediation Objectives

732.312 Classification by Exposure Pathway Exclusion

SUBPART D: CORRECTIVE ACTION

Section

732.400 General

732.401 Agency Authority to Initiate

732.402 No Further Action Site

732.403 Low Priority Site

732.404 High Priority Site

732.405 Plan Submittal and Review

732.406 Deferred Corrective Action; Priority List for Payment

732.407 Alternative Technologies

732.408 Remediation Objectives

732.409 Groundwater Monitoring and Corrective Action Completion Reports

A. “No Further Remediation” Letter (Repealed)

732.411 Off-site Access

SUBPART E: REVIEW OF SELECTION AND REVIEW PROCEDURES FOR PLANS,

BUDGET PLANS, AND REPORTS

Section

732.500 General

732.501 Submittal of Plans or Reports (Repealed)

732.502 Completeness Review (Repealed)

732.503 Full Review of Plans, Budget Plans, or Reports

732.504 Selection of Plans or Reports for Full Review (Repealed)

732.505 Standards for Review of Plans, Budget Plans, or Reports

SUBPART F: PAYMENT FROM THE FUND OR REIMBURSEMENT

Section

732.600 General

732.601 Applications for Payment

732.602 Review of Applications for Payment

732.603 Authorization for Payment; Priority List

732.604 Limitations on Total Payments

732.605 Eligible Corrective Action Costs

732.606 Ineligible Corrective Action Costs

732.607 Payment for Handling Charges

732.608 Apportionment of Costs

732.609 Subrogation of Rights

732.610 Indemnification

732.611 Costs Covered by Insurance, Agreement or Court Order

A. Determination and Collection of Excess Payments

732.614 Audits and Access to Records; Records Retention

SUBPART G: NO FURTHER REMEDIATION LETTERS AND RECORDING

REQUIREMENTS

Section

732.700 General

732.701 Issuance of a No Further Remediation Letter

732.702 Contents of a No Further Remediation Letter

732.703 Duty to Record a No Further Remediation Letter

732.704 Voidance of a No Further Remediation Letter

SUBPART H: MAXIMUM PAYMENT AMOUNTS

Section

732.800 Applicability

732.810 UST Removal or Abandonment Costs

732.815 Free Product or Groundwater Removal and Disposal

732.820 Drilling, Well Installation, and Well Abandonment

732.825 Soil Removal and Disposal

732.830 Drum Disposal

732.835 Sample Handling and Analysis

732.840 Concrete, Asphalt, and Paving; Destruction or Dismantling and Reassembly of

Above Grade Structures

732.845 Professional Consulting Services

732.850 Payment on Time and Materials Basis

732.855 Bidding

732.865 Unusual or Extraordinary Circumstances

732.870 Increase in Maximum Payment Amounts

732.875 Agency Review of Payment Amounts

732.APPENDIX A Indicator Contaminants

732.APPENDIX B Additional Parameters

732.APPENDIX C Backfill Volumes and Weights

732.APPENDIX D Sample Handling and Analysis

732.APPENDIX E Personnel Titles and Rates

TABLE A Groundwater and Soil Remediation Objectives (Repealed)

TABLE B Soil remediation Methodology: Model Parameter Values (Repealed)

TABLE C Soil remediation Methodology: Chemical Specific Parameters (Repealed)

TABLE D Soil remediation Methodology: Objectives (Repealed)

ILLUSTRATION A Equation for Groundwater Transport (Repealed)

ILLUSTRATION B Equation for Soil-Groundwater Relationship (Repealed)

ILLUSTRATION C Equation for Calculating Groundwater Objectives at the Source

(Repealed)

ILLUSTRATION D Equation for Calculating Soil Objectives at the Source (Repealed)

AUTHORITY: Implementing Sections 22.12 and 57-57.17 and authorized by Section 57.14 of

the Environmental Protection Act [415 ILCS 5/22.12, 57-57.17].

SOURCE: Adopted in R94-2 at 18 Ill. Reg. 15008, effective September 23, 1994; amended in

R97-10 at 21 Ill. Reg. 3617, effective July 1, 1997; amended in R01-26 at 26 Ill. Reg. 7119,

effective April 29, 2002; amended in R

at Ill. Reg. , effective

NOTE: Italics denotes statutory language.

SUBPART A: GENERAL

Section 732.100 Applicability

a) This Part applies to owners or operators of any underground storage tank system

used to contain petroleum and for which a release was reported to Illinois

Emergency Management Agency (IEMA) on or after September 23, 1994, but

prior to June 24, 2002, in accordance with regulations adopted by the Office of

State Fire Marshal (OSFM). It also applies to owners or operators that, prior to

June 24, 2002, elected to proceed in accordance with this Part pursuant to Section

732.101 of this Part. This Part applies to owners or operators of any underground

storage tank system used to contain petroleum and for which a release has been

confirmed and required to be reported to Illinois Emergency Management Agency

(IEMA) on or after September 23, 1994 in accordance with regulations adopted

by the Office of State Fire Marshal (OSFM). It does not apply to owners or

operators of sites for which the OSFM does not require a report to IEMA or for

which the OSFM has issued or intends to issue a certificate of removal or

abandonment pursuant to Section 57.5 of the Act Environmental Protection Act

(Act) [415 ILCS 5/57.5]. Owners or operators of any underground storage tank

system used to contain petroleum and for which a release was reported to IEMA

on or before September 12, 1993, may elect to proceed in accordance with this

Part pursuant to Section 732.101.

b) Upon the receipt of a corrective action order issued by from the OSFM prior to

June 24, 2002, and pursuant to Section 57.5(g) of the Act, where the OSFM has

determined that a release poses a threat to human health or the environment, the

owner or operator of any underground storage tank system used to contain

petroleum and taken out of operation before January 2, 1974, or any underground

storage tank system used exclusively to store heating oil for consumptive use on

the premises where stored and which serves other than a farm or residential unit

shall conduct corrective action in accordance with this Part.

c) Owners or operators subject to this Part by law or by election shall proceed

expeditiously to comply with all requirements of the Act and the regulations and

to obtain the No Further Remediation Letter signifying final disposition of the site

for purposes of this Part. The Agency may use its authority pursuant to the Act

and Section 732.105 of this Part to expedite investigative, preventive or corrective

action by an owner or operator or to initiate such action.

d) The following underground storage tank systems are excluded from the

requirements of this Part:

1) Equipment or machinery that contains petroleum substances for

operational purposes such as hydraulic lift tanks and electrical equipment

tanks.

2) Any underground storage tank system whose capacity is 110 gallons or

less.

3) Any underground storage tank system that contains a de minimis

concentration of petroleum substances.

4) Any emergency spill or overfill containment underground storage tank

system that is expeditiously emptied after use.

5) Any wastewater treatment tank system that is part of a wastewater

treatment facility regulated under Section 402 or 307(b) of the Clean

Water Act (33 U.S.C. 1251

et seq

. (1972)).

6) Any UST system holding hazardous waste listed or identified under

Subtitle C of the Solid Waste Disposal Act (42 U.S.C. 3251

et seq

.) or a

mixture of such hazardous waste or other regulated substances.

e) Owners or operators subject to this Part may, pursuant to 35 Ill. Adm. Code

734.105, elect to proceed in accordance with 35 Ill. Adm. Code 734 instead of this

Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.101 Election to Proceed under Part 732

a) Prior to June 24, 2002, owners Owners or operators of any underground storage

tank system used to contain petroleum and for which a release was reported to the

proper State authority on or before September 12, 1993, were able to may elect to

proceed in accordance with this Part by submitting to the Agency a written

statement of such election signed by the owner or operator. Such election shall be

submitted on forms prescribed and provided by the Agency and, if specified by

the Agency by written notice, in an electronic format. Corrective action shall then

follow the requirements of this Part. The election became shall be effective upon

receipt by the Agency and shall not be withdrawn once made. However, an

owner or operator that elected to proceed in accordance with this Part may,

pursuant to 35 Ill. Adm. Code 734.105, elect to proceed in accordance with 35 Ill.

Adm. Code 734 instead of this Part.

b) Prior to June 24, 2002, except Except as provided in Section 732.100(b) of this

Part, owners or operators of underground storage tanks (USTs) used exclusively

to store heating oil for consumptive use on the premises where stored and that

serve other than a farm or residential unit were able to may elect to proceed in

accordance with this Part by submitting to the Agency a written statement of such

election signed by the owner or operator. Such election shall be submitted on

forms prescribed and provided by the Agency and, if specified by the Agency by

written notice, in an electronic format. Corrective action shall then follow the

requirements of this Part. The election became shall be effective upon receipt by

the Agency and shall not be withdrawn once made. However, an owner or

operator that elected to proceed in accordance with this Part may, pursuant to 35

Ill. Adm. Code 734.105, elect to proceed in accordance with 35 Ill. Adm. Code

734 instead of this Part.

c) If the owner or operator elected elects to proceed pursuant to this Part, corrective

action costs incurred in connection with the release and prior to the notification of

election shall be payable from the Fund or reimbursable in the same manner as

was allowable under the law applicable to the owner or operator prior to the

notification of election then existing law. Corrective action costs incurred after

the notification of election shall be payable from the Fund or reimbursable in

accordance with Subparts E and F of this Part. Corrective action costs incurred

on or after the effective date of an election to proceed in accordance with 35 Ill.

Adm. Code 734 shall be payable from the Fund in accordance with that Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.103 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 [415 ILCS 5].

“Act” means the Environmental Protection Act [415 ILCS 5].

“Agency” means the Illinois Environmental Protection Agency.

“Alternative Technology” means a process or technique, other than conventional

technology, used to perform a corrective action with respect to soils contaminated

by releases of petroleum from an underground storage tank.

“Board” means the Illinois Pollution Control Board.

“Bodily Injury” means bodily injury, sickness, or disease sustained by a person,

including death at any time, resulting from a release of petroleum from an

underground storage tank

[415 ILCS 5/57.2].

“Class I groundwater” means groundwater that meets the Class I: potable

resource groundwater criteria set forth in the board regulations adopted pursuant

to the Illinois Groundwater Protection Act

[415 ILCS 5/57.2].

“Class III groundwater” means groundwater that meets the Class III: special

resource groundwater criteria set forth in the board regulations adopted pursuant

to the Illinois Groundwater Protection Act

[415 ILCS 5/57.2].

“Community water supply” means a public water supply which serves or is

intended to serve at least 15 service connections used by residents or regularly

serves at least 25 residents

[415 ILCS 5/3.145].

“Confirmed Exceedence” means laboratory verification of an exceedence of the

applicable remediation groundwater quality standards or objectives.

“Confirmation of a release” means the confirmation of a release of petroleum in

accordance with regulations promulgated by the Office of the State Fire Marshal

at 41 Ill. Adm. Code 170.

“Confirmed Release” means a release of petroleum that has been confirmed in

accordance with regulations promulgated by the Office of the State Fire Marshal

at 41 Ill. Adm. Code 170.

“Conventional Technology” means a process or technique to perform a corrective

action by removal, transportation and disposal of soils contaminated by a release

of petroleum from an underground storage tank in accordance with applicable

laws and regulations, but without processing to remove petroleum from the soils.

“Corrective action” means activities associated with compliance with the

provisions of Sections 57.6 and 57.7

of the Act [415 ILCS 5/57.2].

“County highway” means county highway as defined in the Illinois Highway

Code [605 ILCS 5].

“District road” means district road as defined in the Illinois Highway Code [605

ILCS 5].

“Environmental Land Use Control” means Environmental Land Use Control as

defined in 35 Ill. Adm. Code 742.200. an instrument that meets the requirements

of these regulations and is placed in the chain of title to real property that limits or

places requirements upon the use of the property for the purpose of protecting

human health or the environment, is binding upon the property owner, heirs,

successors, assigns, and lessees, and runs in perpetuity or until the Agency

approves, in writing, removal of the limitation or requirement from the chain of

title.

“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 simple by the

United States on which an institutional control is or institutional controls are

sought to be placed in accordance with this Part.

“Fill material” means non-native or disturbed materials used to bed and backfill

around an underground storage tank

[415 ILCS 5/57.2].

“Financial interest” means any ownership interest, legal or beneficial, or being in

the relationship of director, officer, employee, or other active participant in the

affairs of a party. Financial interest does not include ownership of publicly traded

stock.

“Free Product” means a contaminant that is present as a non-aqueous phase liquid

for chemicals whose melting point is less than 30°C (e.g., liquid not dissolved in

water).

“Full Accounting” means a compilation of documentation to establish,

substantiate and justify the nature and extent of the corrective action costs

incurred by an owner or operator.

“Fund” means the Underground Storage Tank Fund

underground storage tank

fund

[415 ILCS 5/57.2].

“GIS” means Geographic Information System.

“GPS” means Global Positioning System.

“Groundwater” means underground water which occurs within the saturated

zone and geologic materials where the fluid pressure in the pore space is equal to

or greater than atmospheric pressure

[415 ILCS 5/3.210] [415 ILCS 5/3.64].

“Half-day” means four hours, or a fraction thereof, of billable work time. Half-

days must be based upon the total number of hours worked in one calendar day.

The total number of half-days per calendar day may exceed two.

“Handling Charges” means administrative, insurance, and interest costs and a

reasonable profit for procurement, oversight, and payment of subcontracts and

field purchases.

“Heating oil” means petroleum that is No. 1, No. 2, No. 4 -light, No. 4 -heavy,

No. 5 -light, No. 5 -heavy or No. 6 technical grades of fuel oil; and other residual

fuel oils including navy special fuel oil and bunker c.

[415 ILCS 5/57.2].

“Highway authority” means the Illinois Department of Transportation

with

respect to a State highway;

the Illinois State Toll Highway Authority with respect

to a toll highway;

the county board with respect to a county highway or a county

unit district road if a discretionary function is involved and the county

superintendent of highways if a ministerial function is involved; the highway

commissioner with respect to a township or district road not in a county or unit

road district; or the corporate authorities of a municipality with respect to a

municipal street

[605 ILCS 5/2-213].

“Highway Authority Agreement” means an agreement with a highway authority

that meets the requirements of 35 Ill. Adm. Code 742.1020.

“IEMA” means the Illinois Emergency Management Agency.

“Indemnification” means indemnification of an owner or operator for the amount

of judgment entered against the owner or operator in a court of law, for the

amount of any final order or determination made against the owner or operator

by any agency of State government or any subdivision thereof, or for the amount

of any settlement entered into by the owner or operator, if the judgment, order,

determination, or settlement arises out of bodily injury or property damage

suffered as a result of a release of petroleum from an underground storage tank

owned or operated by the owner or operator

[415 ILCS 5/57.2].

“Indicator contaminants” means the indicator contaminants set forth in Section

732.310 of this Part.

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

land use as described in 35 Ill. Adm. Code 742, Subpart J.

“Land Use Control Memorandum of Agreement” 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”“Licensed professional engineer” means a

person, corporation or partnership licensed under the laws of the State of Illinois

to practice professional engineering

[415 ILCS 5/57.2].

“Licensed Professional Geologist” means a person licensed under the laws of the

State of Illinois to practice as a professional geologist

[415 ILCS 5/57.2].

“Line Item Estimate” means an estimate of the costs associated with each line

item (including, but not necessarily limited to, personnel, equipment, travel, etc.)

that an owner or operator anticipates will be incurred for the development,

implementation and completion of a plan or report.

“Man-made Pathway” means constructed routes that may allow for the transport

of mobile petroleum free-liquid or petroleum-based vapors including, but not

limited to, sewers, utility lines, utility vaults, building foundations, basements,

crawl spaces, drainage ditches or previously excavated and filled areas.

“Monitoring Well” means a water well intended for the purpose of determining

groundwater quality or quantity.

“Natural Pathway” means natural routes for the transport of mobile petroleum

free-liquid or petroleum-based vapors including, but not limited to, soil,

groundwater, sand seams and lenses and gravel seams and lenses.

“Non-community water supply” means a public water supply that is not a

community water supply

[415 ILCS 5/3.145].

“Occurrence” means an accident, including continuous or repeated exposure to

conditions, that results in a sudden or nonsudden release from an underground

storage tank

[415 ILCS 5/57.2].

“OSFM” means the Office of the State Fire Marshal.

“Operator” means any person in control of, or having responsibility for, the daily

operation of the underground storage tank. (Derived from 42 USC 6991)

BOARD NOTE: A person who voluntarily undertakes action to remove an

underground storage tank system from the ground shall not be deemed an

“operator” merely by the undertaking of such action.

“Owner” means:

In the case of an underground storage tank in use on November 8, 1984, or

brought into use after that date, any person who owns an underground

storage tank used for the storage, use or dispensing of regulated

substances;

In the case of any underground storage tank in use before November 8,

1984, but no longer in use on that date, any person who owned such

underground storage tank immediately before the discontinuation of its

use. (Derived from 42 USC 6991)

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

public on notice, or as otherwise provided in Sections subsections 732.703(c) and

(d) of this Part.

“Person” means, for the purposes of interpreting the definitions of the terms

“owner” or “operator,” an individual, trust, firm, joint stock company, joint

venture, consortium, commercial entity, corporation (including a government

corporation), partnership, association, State, municipality, commission, political

subdivision of a State, or any interstate body and shall include the United States

Government and each department, agency, and instrumentality of the United

States. (Derived from 42 USC 6991)

“Petroleum” means petroleum, including crude oil or any fraction thereof which is

liquid at standard conditions of temperature and pressure (60°F and 14.7 pounds

per square inch absolute). (Derived from 42 USC 6991)

“Physical soil classification” means verification

of geological conditions

consistent with regulations for identifying and protecting potable resource

groundwater or verification

that subsurface strata are as generally mapped in the

publication Illinois Geological Survey Circular (1984) entitled “Potential For

Contamination Of Shallow Aquifers In Illinois,” by Berg, Richard C., et al. Such

classification may include review of soil borings, well logs, physical soil analysis,

regional geologic maps, or other scientific publications

[415 ILCS 5/57.2].

“Potable” means generally fit for human consumption in accordance with

accepted water supply principles and practices

[415 ILCS 5/3.340] [415 ILCS

5/3.65].

"Practical quantitation limit" (“PQL”) 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

732.104 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 732.104 of this Part.

“Property damage” means physical injury to, destruction of, or contamination of

tangible property

owned by a person other than an owner or operator of the UST

from which a release of petroleum has occurred and which tangible property is

located off the site where the release occurred. Property damage includes

all

resulting loss of use of that property; or loss of use of tangible property that is not

physically injured, destroyed or contaminated, but has been evacuated,

withdrawn from use, or rendered inaccessible because of a release of petroleum

from an underground storage tank

. [415 ILCS 5/57.2].

“Public water supply” means all mains, pipes and structures through which

water is obtained and distributed to the public, including wells and well

structures, intakes and cribs, pumping stations, treatment plants, reservoirs,

storage tanks and appurtenances, collectively or severally, actually used or

intended for use for the purpose of furnishing water for drinking or general

domestic use and which serve at least 15 service connections or which regularly

serve at least 25 persons at least 60 days per year. A public water supply is either

a “community water supply” or a “non-community water supply”

[415 ILCS

5/3.365].

“Registration” means registration of an underground storage tank with the OSFM

in accordance with Section 4 of the Gasoline Storage Act [430 ILCS 15/4].

“Regulated recharge area” means a compact geographic area, as determined by

the Board, the geology of which renders a potable resource groundwater

particularly susceptible to contamination

[415 ILCS 5/3.390] [415 ILCS 5/3.67].

“Regulated Substance” means any substance defined in Section 101(14) of the

Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (42 USC Sec. 9601(14)) (but not including any substance regulated as a

hazardous waste under subtitle C of the Resource Conservation and Recovery Act

(42 USC 6921 et seq.)), and petroleum Petroleum. (Derived from 42 USC 6991)

“Release” means any spilling, leaking, emitting, discharging, escaping, leaching,

or disposing of petroleum from an underground storage tank into groundwater,

surface water or subsurface soils

[415 ILCS 5/57.2].

“Residential Tank” means an underground storage tank located on property used

primarily for dwelling purposes.

“Residential Unit” means a structure used primarily for dwelling purposes

including multi-unit dwellings such as apartment buildings, condominiums,

cooperatives or dormitories.

“Right-of-way” means

the land, or interest therein, acquired for or devoted to a

highway

[605 ILCS 5/2-217].

“Setback Zone” means a geographic area, designated pursuant to the Act

regulations

(35 Ill. Adm. Code, Subtitle F)

, containing a potable water supply

well or a potential source or potential route, having a continuous boundary, and

within which certain prohibitions or regulations are applicable in order to protect

groundwater

[415 ILCS 5/3.450]

[415 ILCS 5/3.61].

“Site” means any single location, place, tract of land or parcel of property

including contiguous property not separated by a public right-of-way

[415 ILCS

5/57.2].

“State highway” means state highway as defined in the Illinois Highway Code

[605 ILCS 5].

“Stratigraphic Unit” means a site-specific geologic unit of native deposited

material and/or bedrock of varying thickness (e.g., sand, gravel, silt, clay,

bedrock, etc.). A change in stratigraphic unit is recognized by a clearly distinct

contrast in geologic material or a change in physical features within a zone of

gradation. For the purposes of this Part, a change in stratigraphic unit is identified

by one or a combination of differences in physical features such as texture,

cementation, fabric, composition, density, and/or permeability of the native

material and/or bedrock.

“Street” means street as defined in the Illinois Highway Code [605 ILCS 5].

“Surface Body of Water” or “Surface Water Body” means a natural or man-made

body of water on the ground surface including, but not limited to, lakes, ponds,

reservoirs, retention ponds, rivers, streams, creeks and drainage ditches. Surface

body of water does not include puddles or other accumulations of precipitation,

run-off or groundwater in UST excavations.

“Tank Field” means all underground storage tanks at a site that reside within a

circle with a 100 foot radius.

“Toll highway” means toll highway as defined in the Toll Highway Act [605

ILCS 10].

“Township road” means township road as defined in the Illinois Highway Code

[605 ILCS 5].

“Underground Storage Tank” or “UST” means any one or combination of tanks

(including underground pipes connected thereto) which is used to contain an

accumulation of regulated substances, and the volume of which (including the

volume of underground pipes connected thereto) is 10 per centum or more

beneath the surface of the ground. Such term does not include any of the

following or any pipes connected thereto:

Farm or residential tank of 1,100 gallons or less capacity used for storing

motor fuel for noncommercial purposes;

Septic tank;

Pipeline facility (including gathering lines) regulated under the Natural

Gas Pipeline Safety Act of 1968 (49 USC App. 1671 et seq.), or the

Hazardous Liquid Pipeline Safety Act of 1979 (49 USC App. 2001 et

seq.), or which is an intrastate pipeline facility regulated under State laws

as provided in either of these provisions of law, and that is determined by

the Secretary of Energy to be connected to a pipeline or to be operated or

intended to be capable of operating at pipeline pressure or as an integral

part of a pipeline;

Surface impoundment, pit, pond, or lagoon;

Storm water or waste water collection system;

Flow-through process tank;

Liquid trap or associated gathering lines directly related to oil or gas

production and gathering operations; or

Storage tank situated in an underground area (such as a basement, cellar,

mineworking, drift, shaft, or tunnel) if the storage tank is situated on or

above the surface of the floor. (Derived from 42 USC § 6991)

The term “underground storage tank” shall also mean an underground storage

tank used exclusively to store heating oil for consumptive use on the premises

where stored and which serves other than a farm or residential unit

[415 ILCS

5/57.2].

“UST system” or “tank system” means an underground storage tank, connected

underground piping, underground ancillary equipment, and containment system,

if any.

“Wellhead Protection Area” means the wellhead protection area of a community

water supply well as determined under the Agency’s wellhead protection program

pursuant to 42 USC § 300h-7.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.104 Incorporations by Reference

a) The Board incorporates the following material by reference:

ASTM. American Society for Testing and Materials, 100 Barr Harbor Drive,

P.O. Box C700, West Conshohocken, PA, 19428-2959 (610) 832-9585

ASTM D 422-63, Standard Test Method for Particle-Size Analysis of

Soils, approved November 21, 1963 (reapproved 1990).

ASTM D 1140-92, Standard Test Method for Amount of Material in Soils

Finer than the No. 200 (75 μm) Sieve, approved November 15, 1992.

ASTM D 2216-92, Standard Test Method for Laboratory Determination of

Water (Moisture) Content of Soil and Rock, approved June 15, 1992.

ASTM D 4643-93, Standard Test Method for Determination of Water

(Moisture) Content of Soil by the Microwave Oven Method, approved

July 15, 1993.

ASTM D 2487-93, Standard Test Method for Classification of Soils for

Engineering Purposes, approved September 15, 1993.

ASTM D 2488-93, Standard Practice for Description and Identification of

Soils (Visual-Manual Procedure), approved September 15, 1993.

ASTM D 5084-90, Standard Test Method for Measurement of Hydraulic

Conductivity of Saturated Porous Materials Using a Flexible Wall

Permeameter, approved June 22, 1990.

ASTM D 4525-90, Standard Test Method for Permeability of Rocks by

Flowing Air, approved May 25, 1990.

ASTM D 1587-83, Standard Practice for Thin-Walled Tube Sampling of

Soils, approved August 17, 1983.

ISGS. Illinois State Geological Survey, 615 E. Peabody Drive,

Champaign, IL 61820-6964 (217) 333-4747

Richard C. Berg, John P. Kempton, Keros Cartwright, “Potential for

Contamination of Shallow Aquifers in Illinois” (1984), Circular No. 532.

NTIS. National Technical Information Service, 5285 Port Royal Road, Springfield, VA

22161 (703) 605-6000 or (800) 553-6847

“Methods for Chemical Analysis of Water and Wastes,” EPA Publication

No. EPA-600/4-79-020 (March 1983), Doc. No. PB 84-128677.

"Methods for the Determination of Metals in Environmental Samples,"

EPA Publication No. EPA/600/4-91/010 (June 1991);

“Methods for the Determination of Metals in Environmental Samples,

Supplement I,” EPA Publication No. EPA/600/R-94/111 (May 1994);

"Methods for the Determination of Organic Compounds in Drinking

Water," EPA Publication No. EPA/600/4-88/039 (December 1988)

(revised July 1991); “Methods for the Determination of Organic

Compounds in Drinking Water,” EPA, EMSL, EPA-600/4-88/039

(December 1988), Doc. No. PB 89-220461.

"Methods for the Determination of Organic Compounds in Drinking

Water, Supplement II," EPA Publication No. EPA/600/R-92/129 (August

1992);

"Methods for the Determination of Organic Compounds in Drinking

Water, Supplement III," EPA Publication No. EPA/600/R-95/131 (August

1995);

“Practical Guide for Ground-Water Sampling,” EPA Publication No.

EPA-600/2-85/104 (September 1985), Doc. No. PB 86-137304.

“Rapid Assessment of Exposure to Particulate Emissions from Surface

Contamination Sites,” EPA Publication No. EPA-600/8-85/002(February

1985), Doc. No. PB 85-192219.

“Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods,”

EPA Publication No. SW-846, Third Edition (September1986), as

amended by Updates I, IIA, III, and IIIA (Final Update IIIA dated April

1998), Doc. No. 955-001-00000-1.

USGS. United States Geological Survey, 1961 Stout Street, Denver, CO 80294 (303)

844-4169

“Techniques of Water Resources Investigations of the United States

Geological Survey, Guidelines for Collection and Field Analysis of

Ground-Water Samples for Selected Unstable Constituents,” Book I,

Chapter D2 (1981).

CFR (Code of Federal Regulations). Available from the Superintendent of

Documents, U.S. Government Printing Office, Washington, D.C. 20402 (202)

783-3238

40 CFR 261, Appendix II (1992).

40 CFR 761, Subpart G (2000).

b)c) This Section incorporates no later editions or amendments.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.106 Laboratory Certification

All quantitative analyses of samples collected on or after January 1, 2003, and utilizing any of

the approved test methods identified in 35 Ill. Adm. Code 186.180, shall be completed by an

accredited laboratory in accordance with the requirements of 35 Ill. Adm. Code 186. A

certification from the accredited laboratory stating that the samples were analyzed in accordance

with the requirements of this Section shall be included with the sample results when they are

submitted to the Agency. Quantitative analyses not utilizing an accredited laboratory in

accordance with Part 186 shall be deemed invalid.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.108 Licensed Professional Engineer or Licensed Professional Geologist

Supervision

All investigations, plans, budget plans, and reports conducted or prepared under this Part,

excluding Corrective Action Completion Reports submitted pursuant to Sections 732.300(b) or

732.409 of this Part, must be conducted or prepared under the supervision of a Licensed

Professional Engineer or Licensed Professional Geologist. High Priority Corrective Action

100

Completion Reports submitted pursuant to Sections 732.300(b) or 732.409 of this Part must be

prepared under the supervision of a Licensed Professional Engineer.

(Source: Added at

Ill. Reg.

, effective

)

Section 732.110 Form and Delivery of Plans, Budget Plans, and Reports; Signatures and

Certifications

a) All plans, budget plans, and reports must be submitted to the Agency on forms

prescribed and provided by the Agency and, if specified by the Agency in writing,

in an electronic format. At a minimum, all site maps submitted to the Agency

must meet the following requirements:

1) The maps must be of sufficient detail and accuracy to show required

information;

2) The maps must contain the map scale, an arrow indicating north

orientation, and the date the map was created; and

3) The maps must show the following:

A) The property boundary lines of the site, properties adjacent to the

site, and other properties that are, or may be, adversely affected by

the release;

B) The uses of the site, properties adjacent to the site, and other

properties that are, or may be, adversely affected by the release;

C) The locations of all current and former USTs at the site, and the

contents of each UST; and

D) All structures, other improvements, and other features at the site,

properties adjacent to the site, and other properties that are, or may

be, adversely affected by the release, including but not limited to

buildings, pump islands, canopies, roadways and other paved

areas, utilities, easements, rights-of-way, and actual or potential

natural or man-made pathways.

b) All plans, budget plans, and reports must be mailed or delivered to the address

designated by the Agency. The Agency’s record of the date of receipt must be

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

from certified or registered mail.

c) All plans, budget plans, and reports must be signed by the owner or operator and

list the owner’s or operator’s full name, address, and telephone number.

101

d) All plans, budget plans, and reports submitted pursuant to this Part, excluding

Corrective Action Completion Reports submitted pursuant to Sections 732.300(b)

or 732.409 of this Part, must contain the following certification from a Licensed

Professional Engineer or Licensed Professional Geologist. Corrective Action

Completion Reports submitted pursuant to Sections 732.300(b) or 732.409 of this

Part must contain the following certification from a Licensed Professional

Engineer.

I certify under penalty of law that all activities that are the subject of this

plan, budget plan, or report were conducted under my supervision or were

conducted under the supervision of another Licensed Professional

Engineer or Licensed Professional Geologist and reviewed by me; that this

plan, budget plan, or report and all attachments were prepared under my

supervision; that, to the best of my knowledge and belief, the work

described in the plan, budget plan, or report has been completed in

accordance with the Environmental Protection Act [415 ILCS 5], 35 Ill.

Adm. Code 732, and generally accepted standards and practices of my

profession; and that the information presented is accurate and complete. I

am aware there are significant penalties for submitting false statements or

representations to the Agency, including but not limited to fines,

imprisonment, or both as provided in Sections 44 and 57.17 of the

Environmental Protection Act [415 ILCS 5/44 and 57.17].

e) Except in the case of sites subject to Section 732.703(c) or (d) of this Part, reports

documenting the completion of corrective action at a site must contain a form

addressing site ownership. At a minimum, the form must identify the land use

limitations proposed for the site, if land use limitations are proposed; the site’s

common address, legal description, and real estate tax/parcel index number; and

the names and addresses of all title holders of record of the site or any portion of

the site. The form must also contain the following certification, by original

signature, of all title holders of record of the site or any portion of the site, or the

agent(s) of such person(s):

I hereby affirm that I have reviewed the attached report entitled

and dated , and that I accept the terms and conditions set forth

therein, including any land use limitations, that apply to property I own. I

further affirm that I have no objection to the recording of a No Further

Remediation Letter containing the terms and conditions identified in the

report upon the property I own.

(Source: Added at

Ill. Reg.

, effective

)

Section 732.112 Notification of Field Activities

The Agency may require owners and operators to notify the Agency of field activities prior to the

date the field activities take place. The notice must include information prescribed by the

102

Agency, and may include, but is not be limited to, a description of the field activities to be

conducted, the person conducting the activities, and the date, time, and place the activities will

be conducted. The Agency may, but is not required to, allow notification by telephone,

facsimile, or electronic mail. This Section does not apply to activities conducted within 45 days

plus 14 days after initial notification to IEMA of a release, or to free product removal activities

conducted within 45 days plus 14 days after the confirmation of the presence of free product.

(Source: Added at

Ill. Reg.

, effective

)

Section 732.114 LUST Advisory Committee

Once each calendar quarter the Agency must meet with a LUST Advisory Committee to discuss

the Agency’s implementation of this Part, provided that the Agency or members of the

Committee raise one or more issues for discussion. The LUST Advisory Committee must

consist of the following individuals: one member designated by the Illinois Petroleum Marketers

Association, one member designated by the Illinois Petroleum Council, one member designated

by the American Consulting Engineers Council of Illinois, one member designated by the Illinois

Society of Professional Engineers, one member designated by the Illinois Chapter of the

American Institute of Professional Geologists, one member designated by the Professionals of

Illinois for the Protection of the Environment, one member designated by the Illinois Association

of Environmental Laboratories, one member designated by the Illinois Environmental

Regulatory Group, one member designated by the Office of the State Fire Marshal, and one

member designated by the Illinois Department of Transportation. Members of the LUST

Advisory Committee must serve without compensation.

(Source: Added at

Ill. Reg.

, effective

)

SUBPART B: EARLY ACTION

Section 732.200 General

Owners and operators of underground storage tanks shall, in response to all

confirmed releases

of petroleum,

comply with all applicable statutory and

regulatory reporting and response requirements

. [415 ILCS 5/57.6](Section 57.6(a) of the Act)

No work plan or corresponding budget plan shall be required for conducting early action

activities, excluding free product removal activities conducted more than 45 days after

confirmation of the presence of free product.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.202 Early Action

a) Upon confirmation of a release of petroleum from an UST system in accordance

with regulations promulgated by the OSFM, the owner or operator, or both, shall

perform the following initial response actions within 24 hours after the release:

103

1) Report the release to IEMA (e.g., by telephone or electronic mail);

2) Take immediate action to prevent any further release of the regulated

substance to the environment; and

3) Identify and mitigate fire, explosion and vapor hazards.

b) Within 20 days after initial notification to IEMA of a release plus 14 days, after

confirmation of a release of petroleum from a UST system in accordance with

regulations promulgated by the OSFM, the owner or operator shall perform the

following initial abatement measures:

1) Remove as much of the petroleum from the UST system as is necessary to

prevent further release into the environment;

2) Visually inspect any aboveground releases or exposed below ground

releases and prevent further migration of the released substance into

surrounding soils and groundwater;

3) Continue to monitor and mitigate any additional fire and safety hazards

posed by vapors or free product that have migrated from the UST

excavation zone and entered into subsurface structures (such as sewers or

basements);

4) Remedy hazards posed by contaminated soils that are excavated or

exposed as a result of release confirmation, site investigation, abatement

or corrective action activities. If these remedies include treatment or

disposal of soils, the owner or operator shall comply with 35 Ill. Adm.

Code 722, 724, 725, and 807 through 815;

5) Measure for the presence of a release where contamination is most likely

to be present at the UST site, unless the presence and source of the release

have been confirmed in accordance with regulations promulgated by the

OSFM. In selecting sample types, sample locations, and measurement

methods, the owner or operator shall consider the nature of the stored

substance, the type of backfill, depth to groundwater and other factors as

appropriate for identifying the presence and source of the release; and

6) Investigate to determine the possible presence of free product, and begin

free product removal as soon as practicable and in accordance with

Section 732.203.

c) Within 20 days after initial notification to IEMA of a release plus 14 days, the

owner or operator after confirmation of a release of petroleum from a UST system

in accordance with regulations promulgated by the OSFM, owners or operators

shall submit a report to the Agency summarizing the initial abatement steps taken

104

under subsection (b) of this Section and any resulting information or data. The

report shall be submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format.

d) Within 45 days after initial notification to IEMA of a release plus 14 days, the

owner or operator after confirmation of a release, owners or operators shall

assemble information about the site and the nature of the release, including

information gained while confirming the release or completing the initial

abatement measures in subsections (a) and (b) of this Section. This information

shall include, but is not limited to, the following:

1) Data on the nature and estimated quantity of release;

2) Data from available sources or site investigations concerning the

following factors: surrounding populations, water quality, use and

approximate locations of wells potentially affected by the release,

subsurface soil conditions, locations of subsurface sewers, climatological

conditions and land use;

3) Results of the site check required at subsection (b)(5) of this Section; and

4) Results of the free product investigations required at subsection (b)(6) of

this Section, to be used by owners or operators to determine whether free

product must be recovered under Section 732.203 of this Part.

e) Within 45 days after initial notification to IEMA of a release plus 14 days, the

owner or operator after confirmation of a release of petroleum from a UST system

in accordance with regulations promulgated by the OSFM, owners or operators

shall submit to the Agency the information collected in compliance with

subsection (d) of this Section in a manner that demonstrates its applicability and

technical adequacy. The information shall be submitted on forms prescribed and

provided by the Agency and, if specified by the Agency by written notice, in an

electronic format.

Notwithstanding any other corrective action taken, an owner or operator may, at

a minimum, and prior to submission of any plans to the Agency, remove the tank

system, or abandon the underground storage tank in place, in accordance with

the regulations promulgated by the Office of the State Fire Marshal

(see 41 Ill.

Adm. Code 160, 170, 180, 200).

The owner may remove visibly contaminated fill

material and any groundwater in the excavation which exhibits a sheen

For

purposes of payment for early action costs, however, fill material shall not be

removed in an amount in excess of 4 feet from the outside dimensions of the tank.

Early action may also include disposal in accordance with applicable regulations

or ex situ treatment of contaminated fill material removed from within 4 feet from

the outside dimensions of the tank. in accordance with Section 57.7(a)(1)(B) of

the Act [415 ILCS 5/57.6(b)].

105

g) For purposes of payment from the Fund reimbursement, the activities set forth in

subsection (f) of this the Section shall be performed within 45 days after initial

notification to IEMA of a release plus 14 7 days, unless special circumstances,

approved by the Agency in writing, warrant continuing such activities beyond 45

days plus 14 7 days. The owner or operator shall notify the Agency in writing of

such circumstances within 45 days after initial notification to IEMA of a release

plus 14 7 days. Costs incurred beyond 45 days plus 14 7 days shall be eligible if

the Agency determines that they are consistent with early action.

BOARD NOTE: Owners or operators seeking payment from the Fund

reimbursement are to first notify IEMA of a suspected release and then confirm

the release within 14 seven days to IEMA pursuant to regulations promulgated by

the OSFM. See 41 Ill. Adm. Code 170.560 and , 170.580, 170.600. The Board is

setting the beginning of the payment reimbursement period at subsection (g) to

correspond to the notification and confirmation to IEMA.

h) The owner or operator shall determine whether the areas or locations of soil

contamination exposed as a result of early action excavation (e.g., excavation

boundaries, piping runs) or surrounding USTs that remain in place meet the most

stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants. applicable Tier 1 remediation objectives

pursuant to 35 Ill. Adm. Code 742, Subpart E. Six samples shall be collected, one

on each sidewall and two at the bottom of the excavation. If contaminated

backfill is returned to the excavation, 2 representative samples must be collected

and analyzed for the applicable indicator contaminants. Additional samples may

be required for a multiple tank excavation.

1) At a minimum, for each UST that is removed, the owner or operator shall

collect and analyze soil samples as follows. The Agency must allow an

alternate location for, or excuse the collection of, one or more samples if

sample collection in the following locations is made impracticable by site-

specific circumstances.

A) One sample must be collected from each UST excavation wall.

The samples must be collected from locations representative of soil

that is the most contaminated as a result of the release. If an area

of contamination cannot be identified on a wall, the sample must

be collected from the center of the wall length at a point located

one-third of the distance from the excavation floor to the ground

surface. For walls that exceed 20 feet in length, one sample must

be collected for each 20 feet of wall length, or fraction thereof, and

the samples must be evenly spaced along the length of the wall.

For USTs abandoned in place, the samples must be collected via

borings drilled as close as practical to the UST backfill.

106

B) Two samples must be collected from the excavation floor below

each UST with a volume of 1,000 gallons or more. One sample

must be collected from the excavation floor below each UST with

a volume of less than 1,000 gallons. The samples must be

collected from locations representative of soil that is the most

contaminated as a result of the release. If areas of contamination

cannot be identified, the samples must be collected from below

each end of the UST if its volume is 1,000 gallons or more, and

from below the center of the UST if its volume is less than 1,000

gallons.

C) One sample must be collected from the floor of each 20 feet of

UST piping run excavation, or fraction thereof. The samples must

be collected from a location representative of soil that is the most

contaminated as a result of the release. If an area of contamination

cannot be identified within a length of piping run excavation being

sampled, the sample must be collected from the center of the

length being sampled. For UST piping abandoned in place, the

samples must be collected in accordance with subsection (h)(2)(B)

of this Section.

D) If backfill is returned to the excavation, one representative sample

of the backfill must be collected for each 100 cubic yards of

backfill returned to the excavation.

E) The samples must be analyzed for the applicable indicator

contaminants. In the case of a used oil UST, the sample that

appears to be the most contaminated as a result of a release from

the used oil UST must be analyzed in accordance with Section

732.310(g) of this Part to determine the indicator contaminants for

used oil. The remaining samples collected pursuant to subsections

(h)(1)(A) through (D) of this Section must then be analyzed for the

applicable used oil indicator contaminants.

2) At a minimum, for each UST that remains in place, the owner or operator

must collect and analyze soil samples as follows. The Agency must allow

an alternate location for, or excuse the drilling of, one or more borings if

drilling in the following locations is made impracticable by site-specific

circumstances.

A) One boring must be drilled at the center point along each side of

each UST, or along each side of each cluster of multiple USTs,

remaining in place. If a side exceeds 20 feet in length, one boring

must be drilled for each 20 feet of side length, or fraction thereof,

and the borings must be evenly spaced along the side. The borings

must be drilled in the native soil surrounding the UST(s) and as

107

close practicable to, but not more than five feet from, the backfill

material surrounding the UST(s). Each boring must be drilled to a

depth of 30 feet below grade, or until groundwater or bedrock is

encountered, whichever is less. Borings may be drilled below the

groundwater table if site specific conditions warrant, but no more

than 30 feet below grade.

B) Two borings, one on each side of the piping, must be drilled for

every 20 feet of UST piping, or fraction thereof, that remains in

place. The borings must be drilled as close practicable to, but not

more than five feet from, the locations of suspected piping

releases. If no release is suspected within a length of UST piping

being sampled, the borings must be drilled in the center of the

length being sampled. Each boring must be drilled to a depth of 15

feet below grade, or until groundwater or bedrock is encountered,

whichever is less. Borings may be drilled below the groundwater

table if site specific conditions warrant, but no more than 15 feet

below grade. For UST piping that is removed, samples must be

collected from the floor of the piping run in accordance with

subsection (h)(1)(C) of this Section.

C) If auger refusal occurs during the drilling of a boring required

under subsection (h)(2)(A) or (B) of this Section, the boring must

be drilled in an alternate location that will allow the boring to be

drilled to the required depth. The alternate location must not be

more than five feet from the boring’s original location. If auger

refusal occurs during drilling of the boring in the alternate location,

drilling of the boring must cease and the soil samples collected

from the location in which the boring was drilled to the greatest

depth must be analyzed for the applicable indicator contaminants.

D) One soil sample must be collected from each five-foot interval of

each boring required under subsections (h)(2)(A) through (C) of

this Section. Each sample must be collected from the location

within the five-foot interval that is the most contaminated as a

result of the release. If an area of contamination cannot be

identified within a five-foot interval, the sample must be collected

from the center of the five-foot interval, provided, however, that

soil samples must not be collected from soil below the

groundwater table. All samples must be analyzed for the

applicable indicator contaminants.

3)1) If the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code

742 for the applicable indicator contaminants have been met, and if none

of the criteria set forth in subsections (h)(4)(A) through (C) are met,

within 30 days after the completion of early action activities there is no

108

evidence that contaminated soils may be or may have been in contact with

groundwater, the owner or operator shall submit a corrective action

completion report demonstrating compliance with those remediation

objectives. The report must include, but not be limited to, the following:

A) A characterization of the site that demonstrates compliance with

the most stringent Tier 1 remediation objectives of 35 Ill. Adm.

Code 742 for the applicable indicator contaminants;

B) Supporting documentation, including, but not limited to, the

following:

i) A site map meeting the requirements of Section

732.110(a)(1) of this Part that shows the locations of all

samples collected pursuant to this subsection (h);

ii) Analytical results, chain of custody forms, and laboratory

certifications for all samples collected pursuant to this

subsection (h); and

iii) A table comparing the analytical results of all samples

collected pursuant to this subsection (h) to the most

stringent Tier 1 remediation objectives of 35 Ill. Adm.

Code 742 for the applicable indicator contaminants; and

C) A site map containing only the information required under Section

732.110(a)(1) of this Part.

4)2) If the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code

742 for the applicable indicator contaminants have not been met, or if one

or more of the following criteria are met, there is evidence that

contaminated soils may be or may have been in contact with groundwater,

the owner or operator shall continue evaluation in accordance with

Subpart C of this Part.

A) There is evidence that groundwater wells have been impacted by

the release above the most stringent Tier 1 remediation objectives

of 35 Ill. Adm. Code 742 for the applicable indicator contaminants

(e.g., as found during release confirmation or previous corrective

action measures);

B) Free product that may impact groundwater is found to need

recovery in compliance with Section 732.203 of this Part; or

C) There is evidence that contaminated soils may be or may have

been in contact with groundwater, unless:

109

i) The owner or operator pumps the excavation or tank cavity

dry, properly disposes of all contaminated water, and

demonstrates to the Agency that no recharge is evident

during the 24 hours following pumping; and

ii) The Agency determines that further groundwater

investigation is not necessary.

BOARD NOTE: Section 57.7(a)(1)(B) of the Act limits payment or reimbursement from

the Fund for removal of contaminated fill material during early action activities. Owners

or operators proceeding with activities set forth in subsection (f) of this Section are

advised that they may not be entitled to full payment or reimbursement. See Subpart F of

this Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.203 Free Product Removal

a) Under any circumstance in which conditions at a site indicate the presence of free

product, owners or operators shall remove, to the maximum extent practicable,

free product exceeding one-eighth of an inch in depth as measured in a

groundwater monitoring well, or present as a sheen on groundwater in the tank

removal excavation or on surface water, to the maximum extent practicable while

initiating or continuing any actions required pursuant to this Part or other

applicable laws or regulations. In meeting the requirements of this Section,

owners or operators shall:

1) Conduct free product removal in a manner that minimizes the spread of

contamination into previously uncontaminated zones by using recovery

and disposal techniques appropriate to the hydrogeologic conditions at the

site and that properly treats, discharges or disposes of recovery byproducts

in compliance with applicable local, State and federal regulations;

2) Use abatement of free product migration as a minimum objective for the

design of the free product removal system;

3) Handle any flammable products in a safe and competent manner to

prevent fires or explosions;

4) Within 45 days after the confirmation of presence of free product from a

UST, prepare and submit to the Agency a free product removal report on

forms prescribed and provided by the Agency and, if specified by the

Agency, by written notice, in an electronic format. The report shall, at a

minimum, provide the following:

110

A) The name of the persons responsible for implementing the free

product removal measures;

B) The estimated quantity, type and thickness of free product

observed or measured in wells, boreholes and excavations;

C) The type of free product recovery system used;

D) Whether any discharge will take place on-site or off-site during the

recovery operation and where this discharge will be located;

E) The type of treatment applied to, and the effluent quality expected

from, any discharge;

F) The steps that have been or are being taken to obtain necessary

permits for any discharge; and

G) The disposition of the recovered free product; and

H) The steps taken to identify the source and extent of the free

product; and

I) A schedule of future activities necessary to complete the recovery

of free product still exceeding one-eighth of an inch in depth as

measured in a groundwater monitoring well, or still present as a

sheen on groundwater in the tank removal excavation or on surface

water. The schedule must include, but not be limited to, the

submission of plans and budgets required pursuant to subsections

5) If free product removal activities are conducted more than 45 days after

the confirmation of the presence of free product, submit free product

removal reports in accordance with a schedule established by the Agency.

b) For purposes of payment from the Fund reimbursement, owners or operators are

not required to obtain Agency approval pursuant to Section 732.202(g) for free

product removal activities conducted within more than 45 days after the

confirmation of the presence of free product initial notification to IEMA of a

release.

c) If free product removal activities will be conducted more than 45 days after the

confirmation of the presence of free product, the owner or operator must submit to

the Agency for review a free product removal plan. The plan must be submitted

with the free product removal report required under subsection (a)(4) of this

Section. Free product removal activities conducted more than 45 days after the

111

confirmation of the presence of free product must not be considered early action

activities.

d) Any owner or operator intending to seek payment from the Fund must, prior to

conducting free product removal activities more than 45 days after the

confirmation of the presence of free product, submit to the Agency a free product

removal budget plan with the corresponding free product removal plan. The

budget plan must include, but not be limited to, an estimate of all costs associated

with the development, implementation, and completion of the free product

removal plan, excluding handling charges. The budget plan should be consistent

with the eligible and ineligible costs listed in Sections 732.605 and 732.606 of

this Part and the maximum payment amounts set forth in Subpart H of this Part.

As part of the budget plan the Agency may require a comparison between the

costs of the proposed method of free product removal and other methods of free

product removal.

e) Upon the Agency’s approval of a free product removal plan, or as otherwise

directed by the Agency, the owner or operator must proceed with free product

removal in accordance with the plan.

f) Notwithstanding any requirement under this Part for the submission of a free

product removal plan or free product removal budget plan, an owner or operator

may proceed with free product removal in accordance with this Section prior to

the submittal or approval of an otherwise required free product removal plan or

budget plan. However, any such plan and budget plan must be submitted to the

Agency for review and approval, rejection, or modification in accordance with the

procedures contained in Subpart E of this Part prior to payment for any related

costs or the issuance of a No Further Remediation Letter.

BOARD NOTE: Owners or operators proceeding under subsection (f) of this

Section are advised that they may not be entitled to full payment from the Fund.

Furthermore, applications for payment must be submitted no later than one year

after the date the Agency issues a No Further Remediation Letter. See Subpart F

of this Part.

g) If, following approval of any free product removal plan or associated budget plan,

an owner or operator determines that a revised plan or budget plan is necessary in

order to complete free product removal, the owner or operator must submit, as

applicable, an amended free product removal plan or associated budget plan to the

Agency for review. The Agency must review and approve, reject, or require

modification of the amended plan or budget plan in accordance with Subpart E of

this Part.

BOARD NOTE: Owners and operators are advised that the total payment from

the Fund for all free product removal plans and associated budget plans submitted

112

by an owner or operator must not exceed the amounts set forth in Subpart H of

this Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.204 Application for Payment of Early Action Costs

Owners or operators intending to seek payment or reimbursement for early action activities,

excluding free product removal activities conducted more than 45 days after confirmation of the

presence of free product, are not required to submit a corresponding budget plan to the Agency

prior to the application for payment. The application for payment may be submitted to the

Agency upon completion of the early action activities in accordance with the requirements at

Subpart F of this Part, excluding free product removal activities conducted more than 45 days

after confirmation of the presence of free product. Applications for payment of free product

removal activities conducted more than 45 days after confirmation of the presence of free

product may be submitted upon completion of the free product removal activities.

(Source: Amended at

Ill. Reg.

, effective

)

SUBPART C: SITE EVALUATION AND CLASSIFICATION

Section 732.300 General

a) Except as provided in subsection (b) of this Section, or unless the owner or

operator submits a report pursuant to Section 732.202(h)(3) of this Part

demonstrating that the most stringent Tier 1 remediation objectives of 35 Ill.

Adm. Code 742 for the applicable indicator contaminants have been met, the

owner or operator of any site subject to this Part shall evaluate and classify the

site in accordance with the requirements of this Subpart C. All such sites shall be

classified as No Further Action, Low Priority or High Priority. Site classifications

shall be based on the results of the site evaluation, including, but not limited to,

the physical soil classification and the groundwater investigation, if applicable.

b) An owner or operator may choose to conduct remediation sufficient to satisfy the

remediation objectives in Section 732.408 of this Part as an alternative to

conducting site classification activities pursuant to this Subpart C provided that:

1) Upon completion of the remediation, the owner or operator shall submit a

corrective action completion report, demonstrating compliance with the

required levels. The corrective action completion report must include, but

not be limited to, a narrative and timetable describing the implementation

and completion of all elements of the remediation and the procedures used

for the collection and analysis of samples, soil boring logs, actual

analytical results, laboratory certification, site maps, well logs, and any

other information or documentation relied upon by the Licensed

Professional Engineer in reaching the conclusion that the requirements of

113

the Act and regulations have been satisfied and that no further remediation

is required at the site. With the exception of Federal Landholding Entities

subject to Section 732.703(d), the owner or operator must sign and submit,

with the corrective action completion report, a form prescribed and

provided by the Agency addressing ownership of the site. Where the

owner or operator owns the site, the owner or operator must so indicate on

the form. Where the owner or operator either does not own or does not

solely own the site, the owner or operator must provide, on the form, a

certification by original signature of the title holder(s) of record for the

remediation site or each portion thereof, or the agent(s) of such person(s),

stating as follows:

I hereby certify that I have reviewed the attached report and that I accept

the terms and conditions set forth therein, including any land use

limitations, that apply to property I own. I further certify that I have no

objection to the recording of a No Further Remediation Letter containing

the terms and conditions identified in the corrective action completion

report; and

A) Documentation of the water supply well survey conducted

pursuant to subsection (b)(3) of this Section must include, but not

be limited to, the following:

i) One or more maps, to an appropriate scale, showing the

following: The location of the community water supply

wells and other potable water supply wells identified

pursuant to subsection (b)(3) of this Section, and the

setback zone for each well; the location and extent of

regulated recharge areas and wellhead protection areas

identified pursuant to subsection (b)(3) of this Section; the

current extent of groundwater contamination exceeding the

Tier 1 groundwater ingestion exposure route remediation

objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants; and the modeled extent of

groundwater contamination exceeding the Tier 1

groundwater ingestion exposure route remediation

objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants.

ii) One or more tables listing the setback zones for each

community water supply well and other potable water

supply wells identified pursuant to subsection (b)(3) of this

Section;

iii) A narrative that, at a minimum, identifies each entity

contacted to identify potable water supply wells pursuant to

114

subsection (b)(3) of this Section, the name and title of each

person contacted at each entity, and field observations

associated with the identification of potable water supply

wells; and

iv) A certification from a Licensed Professional Engineer or

Licensed Professional Geologist that the water supply well

survey was conducted in accordance with the requirements

of subsection (b)(3) of this Section and that the

documentation submitted pursuant to subsection (b)(1)(A)

of this Section includes the information obtained as a result

of the survey.

B) The corrective action completion report must be accompanied by a

certification from a Licensed Professional Engineer stating that the

information presented in the applicable report is accurate and

complete, that corrective action has been completed in accordance

with the requirements of the Act and subsection (b) of this Section,

and that no further remediation is required at the site.

2) Unless an evaluation pursuant to 35 Ill. Adm. Code 742 demonstrates that

no groundwater investigation is necessary, the owner or operator must

complete a groundwater investigation under the following circumstances:

A) If there is evidence that groundwater wells have been impacted by

the release above the most stringent Tier 1 remediation objectives

of 35 Ill. Adm. Code 742 for the applicable indicator contaminants

Tier 1 residential numbers set forth in 35 Ill. Adm. Code

742.Appendix B (e.g., as found during release confirmation or

previous corrective action measures);

B) If free product that may impact groundwater is found to need

recovery in compliance with Section 732.203 of this Part; or

C) If there is evidence that contaminated soils may be or may have

been in contact with groundwater, except that, if the owner or

operator pumps the excavation or tank cavity dry, properly

disposes of all contaminated water, and demonstrates to the

Agency that no recharge is evident during the 24 hours following

pumping, the owner or operator does not have to complete a

groundwater investigation, unless the Agency’s review reveals that

further groundwater investigation is necessary.

3) As part of the remediation conducted under subsection (b) of this Section,

owners and operators must conduct a water supply well survey in

accordance with this subsection (b)(3).

115

A) At a minimum, the owner or operator must identify all potable

water supply wells located at the site or within 200 feet of the site,

all community water supply wells located at the site or within

2,500 feet of the site, and all regulated recharge areas and wellhead

protection areas in which the site is located. Actions taken to

identify the wells must include, but not be limited to, the

following:

i) Contacting the Agency’s Division of Public Water Supplies

to identify community water supply wells, regulated

recharge areas, and wellhead protection areas;

ii) Using current information from the Illinois State

Geological Survey, the Illinois State Water Survey, and the

Illinois Department of Public Health (or the county or local

health department delegated by the Illinois Department of

Public Health to permit potable water supply wells) to

identify potable water supply wells other than community

water supply wells; and

iii) Contacting the local public water supply entities to identify

properties that receive potable water from a public water

supply.

B) In addition to the potable water supply wells identified pursuant to

subsection (b)(3)(A) of this Section, the owner or operator must

extend the water supply well survey if soil or groundwater

contamination exceeding the Tier 1 groundwater ingestion

exposure route remediation objectives of 35 Ill. Adm. Code 742 for

the applicable indicator contaminants extends beyond the site’s

property boundary, or, as part of remediation, the owner or

operator leaves in place soil or groundwater contamination

exceeding the Tier 1 groundwater ingestion exposure route

remediation objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants and contamination exceeding such

objectives is modeled to migrate beyond the site’s property

boundary. At a minimum, the extended water supply well survey

must identify the following:

i) All potable water supply wells located within 200 feet, and

all community water supply wells located within 2,500 feet,

of the current or modeled extent of soil or groundwater

contamination exceeding the Tier 1 groundwater ingestion

exposure route remediation objectives of 35 Ill. Adm. Code

742 for the applicable indicator contaminants; and

116

ii) All regulated recharge areas and wellhead protection areas

in which the current or modeled extent of soil or

groundwater contamination exceeding the Tier 1

groundwater ingestion exposure route remediation

objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants is located.

C) The Agency may require additional investigation of potable water

supply wells, regulated recharge areas, or wellhead protection

areas if site-specific circumstances warrant. Such circumstances

must include, but not be limited to, the existence of one or more

parcels of property within 200 feet of the current or modeled extent

of soil or groundwater contamination exceeding the Tier 1

groundwater ingestion exposure route remediation objectives of 35

Ill. Adm. Code 742 for the applicable indicator contaminants

where potable water is likely to be used, but that is not served by a

public water supply or a well identified pursuant to subsections

(b)(3)(A) or (b)(3)(b) of this Section. The additional investigation

may include, but not be limited to, physical well surveys (e.g.,

interviewing property owners, investigating individual properties

for wellheads, distributing door hangers or other material that

requests information about the existence of potable wells on the

property, etc.).

BOARD NOTE: Owners or operators proceeding under subsection (b) of this

Section are advised that they are not may not be entitled to full payment from the

Fund for costs incurred after completion of early action activities in accordance

with Subpart B.or reimbursement. See Subpart F of this Part.

c) For corrective action completion reports submitted pursuant to subsection (b) of

this Section, the Agency shall issue a No Further Remediation Letter upon

approval of the report by the Agency in accordance with Subpart E.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.302 No Further Action Sites

a) Unless an owner or operator elects to classify a site under Section 732.312, sites

shall be classified as No Further Action if all of the following criteria are

satisfied:

1) The physical soil classification procedure completed in accordance with

Section 732.307 confirms either of the following:

A) “Berg Circular”

117

i) The site is located in an area designated D, E, F or G on the

Illinois State Geological Survey Circular (1984) entitled

“Potential for Contamination of Shallow Aquifers in

Illinois,” incorporated by reference at Section 732.104 of

this Part; and

ii) The site's actual physical soil conditions are verified as

consistent with those designated D, E, F or G on the Illinois

State Geological Survey Circular (1984) entitled “Potential

for Contamination of Shallow Aquifers in Illinois”; or

B) The site soil characteristics satisfy the criteria of Section

732.307(d)(3) of this Part;

2) The UST system is not within the minimum or maximum setback zone of

a potable water supply well or regulated recharge area of a potable water

supply well;

3) After completion of early action measures in accordance with Subpart B

of this Part, there is no evidence that, through natural pathways or man-

made pathways, migration of petroleum or vapors threatens human health

or human safety or may cause explosions in basements, crawl spaces,

utility conduits, storm or sanitary sewers, vaults or other confined spaces;

4) There is no designated Class III special resource groundwater within 200

feet of the UST system; and

5) After completing early action measures in accordance with Subpart B of

this Part, no surface bodies of water are adversely affected by the presence

of a visible sheen or free product layer as a result of a release of

petroleum.

b) Groundwater investigation shall be required to confirm that a site meets the

criteria of a No Further Action site if the Agency has received information

indicating that the groundwater is contaminated at levels in excess of the most

stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants applicable groundwater objectives specified in

35 Ill. Adm. Code 742 at the property boundary line or 200 feet from the UST

system, whichever is less. In such cases, a groundwater investigation that meets

the requirements of Section 732.307(j) shall be performed. If the investigation

confirms there is an exceedence of the most stringent Tier 1 remediation

objectives of 35 Ill. Adm. Code 742 for the applicable indicator contaminants

applicable Tier 1 residential indicator contaminant objectives (set forth in 35 Ill.

Adm. Code 742.Appendix B), the Agency may reclassify the site as High Priority.

118

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.303 Low Priority Sites

Unless an owner or operator elects to classify a site under Section 732.312, sites shall be

classified as Low Priority if all of the following criteria are met:

a) The physical soil classification and groundwater investigation procedures confirm

the following:

1) The most stringent Tier 1 groundwater remediation objectives of 35 Ill.

Adm. Code 742 for the applicable indicator contaminants have

groundwater quality standard or groundwater objective for any applicable

indicator contaminant has not been exceeded at the property boundary line

or 200 feet from the UST system, whichever is less; and

2) "Berg Circular"

A) The site is located in an area designated A1, A2, A3, A4, A5, AX,

B1, B2, BX, C1, C2, C3, C4, or C5 on the Illinois State Geological

Survey Circular (1984) entitled, "Potential for Contamination of

Shallow Aquifers in Illinois," incorporated by reference at Section

732.104 of this Part; and

B) The site's actual physical soil conditions are verified as consistent

with those designated A1, A2, A3, A4, A5, AX, B1, B2, BX, C1,

C2, C3, C4, or C5 on the Illinois State Geological Survey Circular

(1984) entitled, "Potential for Contamination of Shallow Aquifers

in Illinois"; or

3) The site soil characteristics do not satisfy the criteria of Section

732.307(d)(3) of this Part;

b) The UST system is not within the minimum or maximum setback zone of a

potable water supply well or regulated recharge area of a potable water supply

well;

c) After completing early action measures in accordance with Subpart B of this Part,

there is no evidence that, through natural or man-made pathways, migration of

petroleum or vapors threaten human health or human safety or may cause

explosions in basements, crawl spaces, utility conduits, storm or sanitary sewers,

vaults or other confined spaces;

d) There is no designated Class III special resource groundwater within 200 feet of

the UST system; and

119

e) After completing early action measures in accordance with Subpart B of this Part,

there are no surface bodies of water adversely affected by the presence of a visible

sheen or free product layer as a result of the release of petroleum.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.304 High Priority Sites

Unless an owner or operator elects to classify a site under Section 732.312, sites shall be

classified as High Priority if any of the following are met:

a) The physical soil classification and groundwater investigation procedures confirm

the following:

1) The most stringent Tier 1 groundwater remediation objectives of 35 Ill.

Adm. Code 742 for the applicable indicator contaminants have

groundwater quality standard or groundwater objective for any applicable

indicator contaminant has been exceeded at the property boundary line or

200 feet from the UST system, whichever is less; and

2) "Berg Circular"

A) The site is located in an area designated A1, A2, A3, A4, A5, AX,

B1, B2, BX, C1, C2, C3, C4, or C5 on the Illinois State Geological

Survey Circular (1984) entitled, "Potential for Contamination of

Shallow Aquifers in Illinois," incorporated by reference at Section

732.104 of this Part; and

B) The site's actual physical soil conditions are verified as consistent

with those designated A1, A2, A3, A4, A5, AX, B1, B2, BX, C1,

C2, C3, C4, or C5 on the Illinois State Geological Survey Circular

(1984) entitled, "Potential for Contamination of Shallow Aquifers

in Illinois"; or

3) The site soil characteristics do not satisfy the criteria of Section

732.307(d)(3) of this Part;

b) The UST system is within the minimum or maximum setback zone of a potable

water supply well or regulated recharge area of a potable water supply well;

c) After completing early action measures in accordance with Subpart B of this Part,

there is evidence that, through natural or man-made pathways, migration of

petroleum or vapors threaten human health or human safety or may cause

explosions in basements, crawl spaces, utility conduits, storm or sanitary sewers,

vaults or other confined spaces;

120

d) There is designated Class III special resource groundwater within 200 feet of the

UST system; or

e) After completing early action measures in accordance with Subpart B of this Part,

a surface body of water is adversely affected by the presence of a visible sheen or

free product layer as a result of a release of petroleum.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.305 Plan Submittal and Review

a) Unless an owner or operator elects to classify a site under Section 732.312, prior

to conducting any site evaluation activities, the owner or operator shall submit to

the Agency a site classification plan, including but not limited to a physical soil

classification and groundwater investigation plan, satisfying the minimum

requirements for site evaluation activities as set forth in Section 732.307. The

plans shall be designed to collect data sufficient to determine the site

classification in accordance with Section 732.302, 732.303 or 732.304 of this

Part. Site classification plans shall be submitted on forms prescribed and

provided by the Agency and, if specified by the Agency by written notice, in an

electronic format.

b) In addition to the plan required in subsection (a) of this Section and prior to

conducting any site evaluation activities, any owner or operator intending to seek

payment from the Fund shall submit to the Agency a :

An application for payment of costs associated with eligible early action

costs incurred pursuant to Subpart B of this Part; and

A site classification budget plan with the corresponding site classification

plan. The budget plan that shall include, but not be limited to, a copy of

the eligibility and deductibility determination of the OSFM and an a line

item estimate of all costs associated with the development, implementation

and completion of the site evaluation activities required in Section

732.307, excluding handling charges. Formulation of budget plans should

be consistent with the eligible and ineligible costs listed at Sections

732.605 and 732.606 of this Part and the maximum payment amounts set

forth in Subpart H of this Part. Site classification budget plans shall be

submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format.

c) The Agency shall have the authority to review and approve, reject or require

modification of any plan or budget plan submitted pursuant to this Section in

accordance with the procedures contained in Subpart E of this Part.

121

d) Notwithstanding subsections (a), and (b), and (e) of this Section, an owner or

operator may proceed to conduct site evaluation activities in accordance with this

Subpart C prior to the submittal or approval of an otherwise required site

classification plan or budget plan (including physical soil classification and

groundwater investigation plans, costs associated with activities to date, and

anticipated further costs). However, any such plan and budget plan shall be

submitted to the Agency for review and approval, rejection, or modification in

accordance with the procedures contained in Subpart E of this Part prior to

payment or reimbursement for any related costs or the issuance of a No Further

Remediation Letter. If the owner or operator has obtained Agency approval of a

Site Classification Work Plan and site classification completion report without

submittal of a budget plan pursuant to subsection (b) of this Section, the owner or

operator may, as an alternative to submitting a budget plan, submit, on a form

provided by the Agency and attached to the application for payment, the actual

costs incurred in performing site evaluation activities.

BOARD NOTE: Owners or operators proceeding under subsection (d) of this

Section are advised that they may not be entitled to full payment from the Fund or

reimbursement. Furthermore, applications for payment must be submitted no

later than one year after the date the Agency issues a No Further Remediation

Letter. See Subpart F of this Part.

e) If, following the approval of any site classification plan, an owner or operator

determines that revised procedures or cost estimates are necessary in order to

comply with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended site classification plan or associated

budget plan for review by the Agency. The Agency shall have the authority to

review and approve, reject, or require modifications of the amended plan or

budget plan in accordance with the procedures contained in Subpart E of this Part.

BOARD NOTE: Owners and operators are advised that the total payment from the Fund

for all site classification plans and associated budget plans submitted by an owner or

operator must not exceed the amounts set forth in Subpart H of this Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.306 Deferred Site Classification; Priority List for Payment

a) An owner or operator who has received approval for any budget plan submitted

pursuant to this Part and who is eligible for payment from the Fund may elect to

defer site classification activities until funds are available in an amount equal to

the amount approved in the budget plan if the requirements of subsection (b) of

this Section are met. An OWNER OR OPERATOR WHO HAS RECEIVED

APPROVAL FOR ANY BUDGET PLAN SUBMITTED PURSUANT TO this

Part AND WHO IS ELIGIBLE FOR PAYMENT FROM THE

UNDERGROUND STORAGE TANK FUND MAY ELECT TO DEFER SITE

122

CLASSIFICATION, LOW PRIORITY GROUNDWATER MONITORING, OR

REMEDIATION ACTIVITIES UNTIL FUNDS ARE AVAILABLE IN AN

AMOUNT EQUAL TO THE AMOUNT APPROVED IN THE BUDGET PLAN

if the requirements of subsection (b) of this Section are met. (Section 57.8(b) of

the Act)

1) Approvals of budget plans shall be pursuant to Agency review in

accordance with Subpart E of this Part.

2) The Agency shall monitor the availability of funds to determine whether

sufficient resources exist to provide payment in an amount equal to the

total of the approved budget plans and shall provide notice of insufficient

funds to owners or operators in accordance with Section 732.503(g) of this

Part. of the availability of funds in accordance with Section 732.503(h).

Funds shall not be deemed available for owners or operators electing to

defer site classification so long as there are owners or operators on the

priority list established pursuant to Section 732.603(d) of this Part

awaiting forwarding of vouchers to the Office of the State Comptroller.

3) Owners and operators must submit elections to defer site classification

activities on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format. The

forms must be mailed or delivered to the address designated by the

Agency. The Agency’s record of the date of receipt must be deemed

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

certified or registered mail.

4) The Agency must review elections to defer site classification activities to

determine whether the requirements of subsection (b) of this Section are

met. The Agency must notify the owner or operator in writing of its final

action on any such election. If the Agency fails to notify the owner or

operator of its final action within 120 days after its receipt of the election,

the owner or operator may deem the election rejected by operation of law.

A) The Agency must mail notices of final action on an election by

registered or certified mail, post marked with a date stamp and

with return receipt requested. Final action must be deemed to have

taken place on the post marked date that such notice is mailed.

B) Any action by the Agency to reject an election, or rejection of an

election by the Agency’s failure to act, is subject to appeal to the

Board within 35 days after the Agency’s final action in the manner

provided for the review of permit decisions in Section 40 of the

Act.

123

5)3) Upon approval of an election receiving written notification that an owner

or operator elects to defer site classification until funds are available, the

Agency shall place the site on a priority list for payment and notification

of availability of sufficient funds. Sites shall enter the priority list for

payment based solely on the date the Agency receives a complete the

written election of deferral, with the earliest dates having the highest

priority. The Agency's record of the date of receipt shall be deemed

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

from registered or certified mail.

6)4) As funds become available, the Agency shall encumber funds for each site

in the order of priority in an amount equal to the total of the approved

budget plan for which deferral was sought. The Agency shall then notify

owners or operators that sufficient funds have been allocated for the owner

or operator's site. After such notification the owner or operator shall

commence site classification activities.

7)5) Authorization of payment of encumbered funds for deferred site

classification activities shall be approved in accordance with the

requirements of Subpart F of this Part.

8)6) The priority list for payment and notification of availability of sufficient

funds shall be the same as that used for deferred corrective action pursuant

to Section 732.406 with both types of deferrals entering the list and

moving up solely on the basis of the date the Agency receives written

notice of the deferral.

b) An owner or operator who elects to defer site classification, low priority

groundwater monitoring, or remediation activities under subsection (a) of this

Section shall submit a report certified by a Licensed Professional Engineer or

Licensed Professional Geologist demonstrating the following:

1) The Agency has approved the owner’s or operator’s site classification

budget plan;

2) The owner or operator has been determined eligible to seek payment from

the Fund;

3)1) The early action requirements of Subpart B of this Part have been met; and

4) Groundwater contamination does not exceed Tier 1 groundwater ingestion

exposure route remediation objectives of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants as a result of the release, modeling in

accordance with 35 Ill. Adm. Code 742 shows that groundwater

contamination will not exceed such Tier 1 remediation objectives as a

124

result of the release, and no potable water supply wells are impacted as a

result of the release; and

5) Soil contamination exceeding the Tier 1 groundwater ingestion exposure

route remediation objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants does not extend beyond the site’s property

boundary and is not located within a regulated recharge area, a wellhead

protection area, or the setback zone of a potable water supply well.

Documentation to demonstrate that this subsection (b)(5) is satisfied must

include, but not be limited to, the results of a water supply well survey

conducted in accordance with Section 732.307(f) of this Part.

The release does not pose a threat to human health or the environment

through migratory pathways following the investigation of migration

pathways requirements of Section 732.307(g).

c) An owner or operator may, at any time, withdraw the election to defer site

classification activities. commence corrective action upon the availability of

funds at any time. The owner or operator must notify the Agency shall be notified

in writing of the withdrawal. Upon such withdrawal, the owner or operator shall

proceed with site classification in accordance with the requirements of this Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.307 Site Evaluation

a) Except as provided in Section 732.300(b), or unless an owner or operator submits

a report pursuant to Section 732.202(h)(3) of this Part demonstrating that the most

stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants have been met or elects to classify a site under

Section 732.312, the owner or operator of any site for which a release of

petroleum has been confirmed in accordance with regulations promulgated by the

OSFM and reported to IEMA shall arrange for site evaluation and classification in

accordance with the requirements of this Section. A Licensed Professional

Engineer or Licensed Professional Geologist (or, where appropriate, persons

working under the direction of a Licensed Professional Engineer or Licensed

Professional Geologist) shall conduct the site evaluation. The results of the site

evaluation shall provide the basis for determining the site classification. The site

classification shall be certified by the supervising Licensed Professional Engineer

or Licensed Professional Geologist.

b) As a part of each site evaluation, the Licensed Professional Engineer or Licensed

Professional Geologist shall conduct a physical soil classification in accordance

with the procedures at subsection (c) or (d) of this Section. Except as provided in

subsection (e) of this Section, all elements of the chosen method of physical soil

classification must be completed for each site. In addition to the requirement for

125

a physical soil classification, the Licensed Professional Engineer or Licensed

Professional Geologist shall, at a minimum, complete the requirements at

subsections (f) through (j) of this Section before classifying a site as High Priority

or Low Priority and subsection (f) through (i) of this Section before classifying a

site as No Further Action.

c) Method One for Physical Soil Classification:

1) Soil Borings

A) Prior to conducting field activities, a review of scientific

publications and regional geologic maps shall be conducted to

determine if the subsurface strata are as generally mapped in the

Illinois State Geological Survey Circular (1984) entitled “Potential

for Contamination of Shallow Aquifers in Illinois,” incorporated

by reference in Section 732.104 of this Part. A list of the

publications reviewed and any preliminary conclusions concerning

the site geology shall be included in the site classification

completion report.

B) A minimum of one soil boring to a depth that includes 50 feet of

native soil or to bedrock shall be performed for each tank field

with a release of petroleum.

C) If, during boring, bedrock is encountered or if auger refusal occurs

because of the density of a geologic material, a sample of the

bedrock or other material shall be collected to determine

permeability or an in situ test shall be performed to determine

hydraulic conductivity in accordance with subsections (c)(3)(A)

and (c)(3)(B) of this Section. If bedrock is encountered or auger

refusal occurs, the Licensed Professional Engineer or Licensed

Professional Geologist shall verify that the conditions that

prevented the full boring are expected to be continuous through the

remaining required depth.

D) Borings shall be performed within 200 feet of the outer edge of the

tank field or at the property boundary, whichever is less. If more

than one boring is required per site, borings shall be spaced to

provide reasonable representation of site characteristics. The

actual spacing of the borings shall be based on the regional

hydrogeologic information collected in accordance with subsection

(c)(1)(A) of this Section. Location shall be chosen to limit to the

greatest extent possible the vertical migration of contamination.

E) Soil borings shall be continuously sampled to ensure that no gaps

appear in the sample column.

126

F) If anomalies are encountered, additional soil borings may be

necessary to verify the consistency of the site geology.

G) Any water bearing units encountered shall be protected as

necessary to prevent cross-contamination of water bearing units

during drilling.

H) The owner or operator may utilize techniques other than those

specified in this subsection (c)(1) for soil classification provided

that:

i) The techniques provide equivalent, or superior, information

as required by this Section;

ii) The techniques have been successfully utilized in

applications similar to the proposed application;

iii) Methods for quality control can be implemented; and

iv) The owner or operator has received written approval from

the Agency prior to the start of the investigation.

2) Soil Properties

The following tests shall be performed on a representative sample of each of the

stratigraphic units encountered in the native soil boring that has been determined

most conducive to transporting contaminants from the source based on site

factors, including but not limited to visual and tactile observations, the

classification of the soil, any prior evaluation of the site stratigraphy, the volume

of the release, the thickness or extent of the stratigraphic unit, and the

requirements of ASTM D 2488-93, Standard Practice for Description and

Identification of Soils (Visual-Manual Procedure), approved September 15, 1993:

A) A soil particle analysis using the test methods specified in ASTM

(American Society for Testing and Materials) Standard D 422-63 or D

1140-92, “Standard Test Method for Particle-Size Analysis of Soils,” or

“Standard Test Method for Amount of Material in Soils Finer than the No.

200 (75 μm) Sieve,” incorporated by reference in Section 732.104 of this

Part, or other Agency approved method;

B) A soil moisture content analysis using the test methods specified in ASTM

Standard D 2216-92 or D 4643-93, “Standard Test Method for Laboratory

Determination of Water (Moisture) Content of Soil and Rock,” or

“Standard Test Method for Determination of Water (Moisture) Content of

127

Soil by the Microwave Oven Method,” incorporated by reference in

Section 732.104 of this Part, or other Agency approved method;

C) A soil classification using the test methods specified in ASTM Standard D

2487-93 or D 2488-93, “Standard Test Method for Classification of Soils

for Engineering Purposes” or “Standard Practice for Description and

Identification of Soils (Visual-Manual Procedure),” incorporated by

reference in Section 732.104 of this Part, or other Agency approved

method;

D) Unconfined compression strength shall be determined in tons per square

foot by using a hand penetrometer; and

E) If representative samples of each stratigraphic unit are collected for soil

property testing by the use of thin-walled tube sampling, an additional soil

boring must be performed for this sampling within 5 feet of the site

classification boring. Thin-walled tube sampling must be conducted in

accordance with ASTM Standard Test Method D 1587-83, incorporated

by reference in Section 732.104 of this Part, or other Agency approved

method. The boring from which the thin-walled tubes are collected must

be logged in accordance with the requirements of Section 732.308(a) of

this Part.

3) Hydraulic Conductivity

A) If a water bearing unit is encountered while performing soil boring(s) for

the physical soil classification, an in-situ hydraulic conductivity test shall

be performed in the first fully saturated layer below the water table. If

multiple water bearing units are encountered, an in-situ hydraulic

conductivity test shall be performed on each such unit. Wells used for

hydraulic conductivity testing shall be constructed in a manner that

ensures the most accurate results.

i) Wells used for hydraulic conductivity testing shall be constructed

in a manner that ensures the most accurate results.

ii) The screen must be contained within the saturated zone.

B) If no water bearing unit is encountered in the required soil boring(s), then

the following laboratory analyses shall be conducted, as applicable, on a

representative sample from each stratigraphic unit:

i) A hydraulic conductivity analysis of undisturbed or laboratory

compacted granular soils (i.e., clay, silt, sand or gravel) using the

test method specified in ASTM Standard D 5084-90, “Standard

Test Method for Measurement of Hydraulic Conductivity of

128

Saturated Porous Materials Using a Flexible Wall Permeameter,”

incorporated by reference in Section 732.104 of this Part, or other

Agency approved method.

ii) Granular soils that are estimated to have hydraulic conductivity

greater than 1 x 10

-3

cm/sec will fail the minimum geologic

conditions for “No Further Action”, i.e., rating of D, E, F, or G as

described in the Berg Circular, and therefore, no physical tests

need to be run on the soils.

iii) A hydraulic conductivity

analysis of bedrock using the test method

specified in ASTM Standard D 4525-90, “Standard Test Method

for Permeability of Rocks by Flowing Air,” incorporated by

reference in Section 732.104 of this Part, or other Agency

approved method.

iv) If representative samples of each stratigraphic unit are collected for

soil property testing by the use of thin-walled tube sampling, an

additional soil boring must be performed for this sampling within 5

feet of the site classification boring. Thin-walled tube sampling

must be conducted in accordance with ASTM Standard Test

Method D 1587-83, incorporated by reference in Section 732.104

of this Part, or other Agency approved method. The boring from

which the thin-walled tubes are collected must be logged in

accordance with the requirements of Section 732.308(a) of this

Part.

4) If the results of the physical soil classification or groundwater

investigation reveal that the actual site geologic characteristics are

different from those generally mapped by the Illinois State Geological

Survey Circular (1984) entitled “Potential for Contamination of Shallow

Aquifers in Illinois,” incorporated by reference at Section 732.104 of this

Part, the site classification shall be determined using the actual site

geologic characteristics.

d) Method Two for Physical Soil Classification:

1) Soil Borings

A) A minimum of one soil boring to a depth that includes native

material from the invert elevation of the most shallow UST to 15

feet below the invert elevation of the deepest UST for each tank

field with a release of petroleum.

B) This boring shall meet the requirements of subsections (c)(1)(C)

through (c)(1)(G) of this Section.

129

2) Soil Properties

The following tests must be performed on a representative sample of each of the

stratigraphic units encountered in the native soil boring that has been determined

most conducive to transporting contaminants from the source based on site factors

including but not limited to visual and tactile observations, the classification of

the soil, any prior evaluation of the site stratigraphy, the volume of the release, the

size or extent of the unit, and the requirements of ASTM D 2488-93, Standard

Practice for Description and Identification of Soils (Visual-Manual Procedure),

approved September 15, 1993 and incorporated by reference in Section 732.104

of this Part:

A) A soil particle analysis satisfying the requirements of subsection

(c)(2)(A) of this Section; and

B) Either:

i) A pump test or equivalent to determine the yield of the

geologic material. Methodology, assumptions and any

calculations performed shall be submitted as part of the site

classification completion report. If the aquifer geometry

and transmissivity have been obtained through a site-

specific field investigation, an analytical solution may be

used to estimate well yield. The Licensed Professional

Engineer or Licensed Professional Geologist shall

demonstrate the appropriateness of the analytical solution

to estimate well yield versus an actual field test. Well yield

should be determined for either confined or unconfined

formations. Once the yield has been determined site-

specifically, the hydraulic conductivity shall be calculated;

ii) Hydraulic conductivity shall be determined in accordance

with subsection (c)(3) of this Section. Once the hydraulic

conductivity has been determined site-specifically, the

yield shall be calculated.

C) If representative samples of each stratigraphic unit are collected for

soil property testing by the use of thin-walled tube sampling, an

additional soil boring must be performed for this sampling within 5

feet of the site classification boring. Thin-walled tube sampling

must be conducted in accordance with ASTM Standard Test

Method D 1587-83, incorporated by reference in Section 732.104

of this Part, or other Agency approved method. The boring from

which the thin-walled tubes are collected must be logged in

130

accordance with the requirements of Section 732.308(a) of this

Part.

3) The results of the boring(s) and tests described in subsections (d)(1) and

(d)(2) of this Section shall be used to demonstrate whether the native

material from the invert elevation of the most shallow UST to 15 feet

below the invert elevation of the deepest UST meets all of the following

criteria:

A) Does not contain unconsolidated sand, gravel or sand and gravel

that is 5 feet or more in thickness with 12 percent or less fines (i.e.,

fines that pass through a No. 200 sieve tested according to ASTM

Standard Test Method D 2487-93, “Standard Test Method for

Classification of Soils for Engineering Purposes,” incorporated by

reference at Section 732.104 of this Part, or other Agency

approved method);

B) Does not contain sandstone that is 10 feet or more in thickness, or

fractured carbonate that is 15 feet or more in thickness;

C) Is not capable of sustained groundwater yield, from up to a 12 inch

borehole, of 150 gallons per day or more from a thickness of 15

feet or less; and

D) Is not capable of hydraulic conductivity of 1 x 10

-4

cm/sec or

greater.

e) If, during the completion of the requirements of subsection (c) or (d) of this

Section, a Licensed Professional Engineer or Licensed Professional Geologist

determines that the site geology is not consistent with area D, E, F or G of the

Illinois State Geological Survey Circular (1984) entitled, “Potential for

Contamination of Shallow Aquifers in Illinois,” incorporated by reference in

Section 732.104 of this Part or that the criteria of subsection (d)(3) are not

satisfied, any remaining steps required by subsection (c) or (d) may be suspended,

provided that the soil investigation has been sufficient to satisfy the requirements

of subsection (g) of this Section. If activities are suspended under this subsection

(e), the Licensed Professional Engineer or Licensed Professional Geologist shall

complete the requirements of subsections (f) through (j) of this Section in order to

determine whether the site is High Priority or Low Priority. The site conditions

upon which the suspension of the requirements of subsection (c) or (d) of this

Section is based shall be documented in the site classification completion report.

f) Survey of Water Supply Wells. At a minimum, the owner or operator must

conduct a water supply well survey to identify all potable water supply wells

located at the site and within 200 feet of the site, all community water supply

wells located at the site and within 2,500 feet of the site, and all regulated

131

recharge areas and wellhead protection areas in which the site is located. Actions

taken to identify the wells must include, but not be limited to, the following.

1) Contacting the Agency’s Division of Public Water Supplies to identify

community water supply wells, regulated recharge areas, and wellhead

protection areas;

2) Using current information from the Illinois State Geological Survey, the

Illinois State Water Survey, and the Illinois Department of Public Health

(or the county or local health department delegated by the Illinois

Department of Public Health to permit potable water supply wells) to

identify potable water supply wells other than community water supply

wells; and

3) Contacting the local public water supply entities to identify properties that

receive potable water from a public water supply.

The Licensed Professional Engineer shall conduct a survey of water

supply wells for the purpose of identifying and locating all community

water supply wells within 2500 feet of the UST system and all potable

water supply wells within 200 feet of the UST system. The survey shall

include, but not be limited to, contacting the Illinois State Geological

Survey and the Illinois State Water Survey. The unit of local government

with authority over the site shall be contacted to determine if there is a

local ordinance or policy regulating the usage of potable water supply

wells.

The Licensed Professional Engineer shall provide a map to scale showing

the locations of all community water supply wells and potable water

supply wells including the designated minimum and maximum setback

zones of the wells identified pursuant to subsection (f)(1) of this Section.

Radii of 200, 400, 1000, and 2500 feet from the UST system shall be

marked on the map.

The Licensed Professional Engineer shall provide a table indicating the

setback zone for each community water supply well and potable water

supply well identified pursuant to subsection (f)(1) of this Section and the

distance from the UST system to the well. The locations of each well

shall be identified on the map by numbers corresponding to the

information provided in the table.

The Licensed Professional Engineer shall determine if the UST system is

within the regulated recharge area of any community water supply well or

potable water supply well. The sources consulted in making this

determination shall be described in the site classification completion

report.

g) Investigation of Migration Pathways

132

1) The Licensed Professional Engineer or Licensed Professional Geologist

shall conduct an investigation either separately or in conjunction with the

physical soil classification to identify all potential natural and man-made

migration pathways that are on the site, in rights-of-way attached to the

site, or in any area surrounding the site that may be adversely affected as a

result of the release of petroleum from the UST system. Once the

migration pathways have been identified, the areas along all such

pathways shall be further investigated in a manner sufficient to determine

whether there is evidence that migration of petroleum or vapors along

such pathways:

A) May potentially threaten human health or human safety; or

B) May cause explosions in basements, crawl spaces, utility conduits,

storm or sanitary sewers, vaults or other confined spaces.

2) Natural pathways shall be identified using data obtained from

investigation at the site. This must include, but is not limited to,

identification and location of groundwater if encountered during

excavation activities or soil boring activities, identification of different soil

strata during excavation activities or soil boring activities and inspection

of surface water bodies. Investigation and evaluation of natural migration

pathways shall include, for applicable indicator contaminants along

potential natural migration pathways:

A) Soil sampling and laboratory analysis of samples; and

B) When groundwater is encountered or when there is potential for

surface water contamination, groundwater and surface water

sampling and laboratory analysis of samples.

3) Man-made pathways shall be identified from available sources, including

but not limited to site plans; , a review of underground utilities as

identified by the Joint Utility Location Information for Excavators

(J.U.L.I.E.), the Chicago Utility Alert Network (Digger), another public

locator, or a private locator; and interviews with site owners or personnel.

The Licensed Professional Engineer or Licensed Professional Geologist

must determine whether migration of indicator contaminants contaminants

of concern along any of these pathways has occurred, using laboratory

analytical data for applicable indicator contaminants obtained as follows:

A) From prior sampling, provided that such laboratory analytical data

demonstrates that no contaminant of concern has migrated to or

along any man-made pathways;

133

B) From soil samples, and groundwater samples if groundwater is

encountered, taken between man-made pathways and contaminated

soil, provided that such laboratory analytical data demonstrates

that no contaminant of concern has migrated to or along any man-

made pathways; or

C) From soil samples, and groundwater samples if groundwater is

encountered, taken along man-made pathways.

4) The Licensed Professional Engineer or Licensed Professional Geologist

shall provide a map of the site and any surrounding areas that may be

adversely affected by the release of petroleum from the UST system. At a

minimum, the map shall be to scale, oriented with north at the top, and

shall show the location of the leaking UST system(s) with any associated

piping and all potential natural and man-made pathways that are on the

site, that are in rights-of-way attached to the site, or that are in areas that

may be adversely affected as a result of the release of petroleum.

5) Unless the Agency's review reveals objective evidence to the contrary, the

Licensed Professional Engineer or Licensed Professional Geologist shall

be presumed correct when certifying whether or not there is evidence that,

through natural or man-made pathways, migration of petroleum or vapors:

A) May potentially threaten human health or human safety; or

B) May cause explosions in basements, crawl spaces, utility conduits,

storm or sanitary sewers, vaults or other confined spaces.

h) The Licensed Professional Engineer or Licensed Professional Geologist shall

verify whether Class III groundwater exists within 200 feet of the UST system.

i) The Licensed Professional Engineer or Licensed Professional Geologist shall

locate all surface bodies of water on site and within 100 feet of the site and

provide a map noting the locations. All such surface bodies of water shall be

inspected to determine whether they have been adversely affected by the presence

of a sheen or free product layer resulting from the release of petroleum from the

UST system.

j) Groundwater Investigation

1) For sites failing to meet NFA site classification or for sites where a

groundwater investigation is necessary pursuant to Section 732.302(b) of

this Part, the Licensed Professional Engineer or Licensed Professional

Geologist shall perform a groundwater investigation as required under this

Part in accordance with this subsection (j) to determine whether the most

stringent Tier 1 groundwater remediation objectives of 35 Ill. Adm. Code

134

742 for the applicable indicator contaminants have an applicable indicator

contaminant groundwater quality standard has been exceeded at the

property boundary or 200 feet from the UST system, whichever is less, as

a result of the UST release of petroleum.

2) Applicable indicator contaminants and groundwater quality standards shall

be those identified pursuant to Sections 732.310 and 732.311 of this Part.

3) Except as provided in subsection (j)(6) of this Section, a minimum of four

groundwater monitoring wells shall be installed at the property boundary

or 200 feet from the UST system, whichever is less. In the event that a

groundwater monitoring well cannot be physically installed at the property

line or 200 feet from the UST system, whichever is closer, in accordance

with this subsection (j), the owner or operator shall request approval from

the Agency to place the well further out, but at the closest practical point

to the compliance point. The owner or operator may elect to place a

monitoring well in a location that is closer to the UST system than this

Part requires. However, once the election is made, the owner or operator

may not withdraw the election at a later time. The Agency may require

the installation of additional monitoring wells to ensure that at least one

monitoring well is located hydraulically upgradient and three monitoring

wells are located hydraulically downgradient of the UST system. The

wells must be installed so that they provide the greatest likelihood of

detecting migration of groundwater contamination. At a minimum,

monitoring well construction shall satisfy the following requirements:

A) Construction shall be in a manner that will enable the collection of

representative groundwater samples;

B) All monitoring wells shall be cased in a manner that maintains the

integrity of the borehole. Casing material shall be inert so as not to

affect the water sample. Casing requiring solvent-cement type

couplings shall not be used;

C) Wells shall be screened to allow sampling only at the desired

interval. Annular space between the borehole wall and well screen

section shall be packed with clean, well-rounded and uniform

material sized to avoid clogging by the material in the zone being

monitored. The slot size of the screen shall be designed to

minimize clogging. Screens shall be fabricated from material that

is inert with respect to the constituents of the groundwater to be

sampled;

D) Annular space above the well screen section shall be sealed with a

relatively impermeable, expandable material such as

cement/bentonite grout that does not react with or in any way

135

affect the sample, in order to prevent contamination of

groundwater samples and groundwater and avoid interconnections.

The seal shall extend to the highest known seasonal groundwater

level;

E) The annular space shall be backfilled with expanding cement grout

from an elevation below the frost line and mounded above the

surface and sloped away from the casing so as to divert surface

water away;

F) All monitoring wells shall be covered with vented caps and

equipped with devices to protect against tampering and damage.

Locations of wells shall be clearly marked and protected against

damage from vehicular traffic or other activities associated with

expected site use; and

G) All wells shall be developed to allow free entry of groundwater

water, minimize turbidity of the sample, and minimize clogging.

4) Monitoring well construction diagrams prescribed and provided by the

Agency shall be completed for each monitoring well.

5) Static water elevations shall be measured for each monitoring well.

Groundwater samples shall be taken from each well and analyzed for the

applicable indicator contaminants. The data collected shall be used to

determine the direction of groundwater flow and whether the applicable

groundwater remediation quality standards or clean-up objectives have

been exceeded. Samples shall be collected and analyzed in accordance

with the following procedures:

A) Samples shall be collected in accordance with the procedures set

forth in the documents “Methods for Chemical Analysis of Water

and Wastes,” “Methods for the Determination of Organic

Compounds in Drinking Water,” “Practical Guide for Ground-

Water Sampling,” “Test Methods for Evaluating Solid Wastes,

Physical/Chemical Methods,” EPA Publication No. SW-846, or

“Techniques of Water Resources Investigations of the United

States Geological Survey, Guidelines for Collection and Field

Analysis of Ground-Water Samples for Selected Unstable

Constituents,” as appropriate for the applicable indicator

contaminants or groundwater objectives and as incorporated by

reference at Section 732.104 of this Part, or other procedures

approved by the Agency.

136

B) Groundwater elevation in a groundwater monitoring well shall be

determined and recorded to establish the gradient of the

groundwater table.

C) The analytical methodology used for the analysis of the indicator

contaminants shall be consistent with both of the following:

i) The methodology must have a practical quantitation limit

(PQL) at or below the most stringent objectives or

detection levels set forth in 35 Ill. Adm. Code 742 or as set

for mixtures or degradation products as provided in Section

732.310 of this Part; and

ii) The methodology must be consistent with the

methodologies contained in “Methods for Chemical

Analysis of Water and Wastes,” “Methods for the

Determination of Organic Compounds in Drinking Water,”

“Practical Guide for Ground-Water Sampling,” “Test

Methods for Evaluating Solid Wastes, Physical/Chemical

Methods,” EPA Publication No. SW-846, and “Techniques

of Water Resources Investigations of the United States

Geological Survey, Guidelines for Collection and Field

Analysis of Ground-Water Samples for Selected Unstable

Constituents,” as incorporated by reference at Section

732.104, or other Agency approved methods.

D) In addition to analytical results, sampling and analytical reports

shall contain the following information:

i) Sample collection information including but not limited to

the name of sample collector, time and date of sample

collection, method of collection, and monitoring location;

ii) Sample preservation and shipment information including

but not limited to field quality control;

iii) Analytical procedures including but not limited to the

method detection limits and the practical quantitation limits

(PQL);

iv) Chain of custody and control; and

v) Field and lab blanks.

6) As an alternative to the installation of monitoring wells under subsection

(j)(3) of this Section, the Licensed Professional Engineer or Licensed

137

Professional Geologist may demonstrate to the Agency through a site-

specific evaluation that the groundwater monitoring should not be

required.

A) The evaluation shall be based on a demonstration of the following

factors:

i) Whether groundwater is present within the depth of the

boring used to perform physical soil classification under the

selected method (Method One under subsection (c) of this

Section or Method Two under subsection (d) of this

Section);

ii) Whether groundwater is withdrawn for potable use within

1000 feet of the UST system and at what depths; and

iii) Whether seasonal fluctuation in groundwater could result in

groundwater contacting contaminated soil (e.g., historical

records).

B) The presence or absence of a water bearing unit under subsection

(j)(6)(A)(i) of this Section shall be determined on the basis of at

least one soil boring to the depth necessary to perform physical soil

classification under the selected method (Method One under

subsection (c) of this Section or Method Two under subsection (d)

of this Section), unless auger refusal occurs because of the density

of a geologic material or because bedrock is encountered. If auger

refusal occurs, then the Licensed Professional Engineer or

Licensed Professional Geologist must demonstrate the depth to a

water bearing unit from the available site specific or regional

information.

C) If the evaluation fails to demonstrate to the Agency that a

groundwater investigation should not be required as part of site

classification activities, then the Licensed Professional Engineer or

Licensed Professional Geologist shall perform a groundwater

investigation in accordance with the remainder of this subsection

(j).

D) If the evaluation demonstrates to the Agency that a groundwater

investigation should not be required, then the site shall be

classified as Low Priority, unless other High Priority criteria are

present. Upon Agency approval of the evaluation to demonstrate

that a groundwater investigation should not be required, then the

site shall be classified as Low Priority and a No Further

138

Remediation Letter shall be issued to the owner or operator of the

site, unless other High Priority criteria are present.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.308 Boring Logs and Sealing of Soil Borings and Groundwater Monitoring

Wells

a) Soil boring logs shall be kept for all soil borings. The logs shall be submitted

along with the site classification completion report and shall be on forms

prescribed and provided by the Agency and, if specified by the Agency by written

notice, in an electronic format.

1) Soil boring logs shall contain the following information at a minimum:

A) Sampling device, sample number and amount of recovery;

B) Total depth of boring to the nearest 6 inches;

C) Detailed field observations describing materials encountered in

boring, including soil constituents, consistency, color, density,

moisture, odors, and the nature and extent of sand or gravel lenses

or seams equal to or greater than 1 inch in thickness;

D) Petroleum hydrocarbon vapor

readings (as determined by

continuous screening of borings with field instruments capable of

detecting such vapors);

E) Locations of sample(s) used for physical or chemical analysis; and

F) Groundwater levels while boring and at completion.

2) Boring logs for soil boring(s) completed for physical soil classification

also shall include the following information, as applicable for the

classification method chosen, for each stratigraphic unit encountered at the

site:

A) Moisture content;

B) Unconfined compression strength in tons per square foot (TSF)

using a hand penetrometer;

C) Unified Soil Classification System (USCS) soil classification

group symbol in accordance with ASTM Standard D 2487-93,

“Standard Test Method for Classification of Soils for Engineering

139

Purposes,” incorporated by reference in Section 732.104 of this

Part, or other Agency approved method; and

D) The reasoning behind the Licensed Professional Engineer’s or

Licensed Professional Geologist’s decision to perform or not

perform soil testing pursuant to Section 732.307(c)(2) and (d)(2) of

this Part as to each identified stratigraphic unit.

b) Boreholes and monitoring wells shall be abandoned pursuant to regulations

promulgated by the Illinois Department of Public Health at 77 Ill. Adm. Code

920.120.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.309 Site Classification Completion Report

a) Within 30 days after the completion of a site evaluation in accordance with Section

732.307 of this Part, the owner or operator shall submit to the Agency a site classification

completion report addressing all applicable elements of the site evaluation. The report

shall contain all maps, diagrams, and any other information required by Section 732.307

of this Part, as well as the results or conclusions of all surveys and investigations and any

documentation necessary to demonstrate those results or conclusions, and . The report

shall be submitted on forms prescribed and provided by the Agency, shall be signed by

the owner or operator, and shall contain the certification of a Licensed Professional

Engineer of the site's classification as No Further Action, Low Priority or High Priority in

accordance with this Subpart C. Documentation of the water supply well survey

conducted pursuant to Section 732.307(f) of this Part must include, but not be limited to,

the following:

1) One or more maps, to an appropriate scale, showing the following:

A) The location of the community water supply wells and other potable water

supply wells identified pursuant to Section 732.307(f) of this Part, and the

setback zone for each well;

B) The location and extent of regulated recharge areas and wellhead

protection areas identified pursuant to Section 732.307(f) of this Part;

C) The current extent of groundwater contamination exceeding the Tier 1

groundwater ingestion exposure route remediation objectives of 35 Ill.

Adm. Code 742 for the applicable indicator contaminants; and

D) The modeled extent of groundwater contamination exceeding the Tier 1

groundwater ingestion exposure route remediation objectives of 35 Ill.

Adm. Code 742 for the applicable indicator contaminants. The

information required under this subsection (D) is not required to be shown

140

in the site classification completion report if modeling is not performed as

part of site investigation;

2) One or more tables listing the setback zones for each community water supply

well and other potables water supply wells identified pursuant to Section

732.307(f) of this Part;

3) A narrative that, at a minimum, identifies each entity contacted to identify potable

water supply wells pursuant to Section 732.307(f) of this Part, the name and title

of each person contacted at each entity, and field observations associated with the

identification of potable water supply wells; and

4) A certification from a Licensed Professional Engineer or Licensed Professional

Geologist that the water supply well survey was conducted in accordance with the

requirements of Section 732.307(f) of this Part and that the documentation

submitted pursuant to this Section includes the information obtained as a result of

the survey.

For No Further Action sites, with the exception of Federal Landholding Entities subject

to Section 732.703(d), the owner or operator must sign and submit, with the site

classification completion report, a form prescribed and provided by the Agency

addressing ownership of the site. Where the owner or operator owns the site, the owner

or operator must so indicate on the form. Where the owner or operator either does not

own or does not solely own the site, the owner or operator must provide, on the form, a

certification by original signature of the title holder(s) of record for the remediation site

or each portion thereof, or the agent(s) of such person(s), state as follows:

I hereby affirm that I have reviewed the attached report and that I

accept the terms and conditions set forth therein, including any land use

limitations, that apply to property I own. I further affirm that I have no

objection to the recording of a No Further Remediation Letter containing

the terms and conditions identified in the site classification completion

report.

b) The Agency shall have the authority to review and approve, reject or require

modification of any report submitted pursuant to this Section in accordance with

the procedures contained in Subpart E of this Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.310 Indicator Contaminants

a) For purposes of this Part, the term “indicator contaminants” shall mean the

parameters identified in subsections (b) through (i) of this Section.

141

b) For gasoline, including but not limited to leaded, unleaded, premium and gasohol,

the indicator contaminants shall be benzene, ethylbenzene, toluene, total xylenes

and methyl tertiary butyl ether (MTBE), except as provided in subsection (h) of

this Section. For leaded gasoline, lead shall also be an indicator contaminant.

c) For aviation turbine fuels, jet fuels, diesel fuels, gas turbine fuel oils, heating fuel

oils, illuminating oils, kerosene, lubricants, liquid asphalt and dust laying oils,

cable oils, crude oil, crude oil fractions, petroleum feedstocks, petroleum fractions

and heavy oils, the indicator contaminants shall be benzene, ethylbenzene,

toluene, total xylenes and the polynuclear aromatics (PNA) listed in Section

732.Appendix B of this Part. For leaded aviation turbine fuels, lead shall also be

an indicator contaminant.

d) For transformer oils the indicator contaminants shall be benzene, ethylbenzene,

toluene, total xylenes, and the polynuclear aromatics listed in Appendix B and the

polychlorinated biphenyl parameters listed in Section 732.Appendix B of this

Part.

e) For hydraulic fluids the indicator contaminants shall be benzene, ethylbenzene,

toluene, total xylenes, the polynuclear aromatics listed in Section 732.Appendix B

of this Part and barium.

f) For petroleum spirits, mineral spirits, Stoddard solvents, high-flash aromatic

naphthas, moderately volatile hydrocarbon solvents and petroleum extender oils,

the indicator contaminants shall be the volatile, base/neutral and polynuclear

aromatic parameters listed in Section 732.Appendix B of this Part. The Agency

may add degradation products or mixtures of any of the above pollutants in

accordance with 35 Ill. Adm. Code 620.615.

g) For used oil the indicator contaminants shall be determined by the results of a

used oil soil sample analysis. In accordance with Section 732.202(h) of this Part,

soil samples must be collected from the walls and floor of the used oil UST

excavation if the UST is removed, or from borings drilled along each side of the

used oil UST if the UST remains in place. The sample that appears to be the most

contaminated as a result of a release from the used oil UST must then be analyzed

for the following parameters. If none of the samples appear to be contaminated a

soil sample must be collected from the floor of the used oil UST excavation below

the former location of the UST if the UST is removed, or from soil located at the

same elevation as the bottom of the used oil UST if the UST remains in place, and

analyzed for the following parameters: Prior to the submission of a site

classification plan the owner or operator shall collect a grab sample from a

location representative of soil that is the most contaminated as a result of the

release from the used oil UST. If an area of contamination cannot be identified,

the sample shall be collected from beneath the used oil UST. The sample shall be

analyzed for:

142

1) All volatile, base/neutral, polynuclear aromatic, and metal parameters

listed at Section 732.Appendix B of this Part and any other parameters the

Licensed Professional Engineer or Licensed Professional Geologist

suspects may be present based on UST usage. The Agency may add

degradation products or mixtures of any of the above pollutants in

accordance with 35 Ill. Adm. Code 620.615.

2) The used oil indicator contaminants shall be those volatile, base/neutral,

polynuclear aromatic and metal parameters listed at Section 732.Appendix

B of this Part or as otherwise identified at subsection (g)(1) of this Section

that exceed their remediation objective at 35 Ill. Adm. Code 742 in

addition to benzene, ethylbenzene, toluene, total xylenes, and polynuclear

aromatics listed in Section 732.Appendix B of this Part and PNAs.

3) If none of the parameters exceed their remediation objective, the used oil

indicator contaminants shall be benzene, ethylbenzene, toluene, total

xylenes, and the polynuclear aromatics listed in Section 732.Appendix B

of this Part.

h) Unless an owner or operator elects otherwise pursuant to subsection (i) of this

Section, the term “indicator contaminants” shall not include MTBE for any

release reported to the Illinois Emergency Management Agency prior to June 1,

2002 (the effective date of amendments establishing MTBE as an indicator

contaminant).

i) An owner or operator of a site exempt from having to address MTBE as an

indicator contaminant pursuant to subsection (h) of this Section may elect to

include MTBE as an indicator contaminant under the circumstances listed in

subsections (1) or (2) of this subsection (i). following circumstances: Elections to

include MTBE as an indicator contaminant must be made by submitting to the

Agency a written notification of such election signed by the owner or operator.

The election must be effective upon the Agency’s receipt of the notification and

cannot be withdrawn once made. Owners or operators electing to include MTBE

as an indicator contaminant must remediate MTBE contamination in accordance

with the requirements of this Part.

1) If the Agency has not issued a No Further Remediation Letter for the

release site by June 1, 2002 (the effective date of the amendments

establishing MTBE as an indicator contaminant); or

2) If the Agency has issued a No Further Remediation Letter for the release

and the release at the site has caused off-site groundwater contamination

exceeding the remediation objective for MTBE set forth in 35 Ill. Adm.

Code 742, provided that the owner or operator complies with all

applicable requirements of this Part.

143

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.311 Indicator Contaminant Groundwater Remediation Objectives

For purposes of this Part, remediation objectives for groundwater indicator contaminant

groundwater quality standards shall be the groundwater remediation groundwater objectives

specified in 35 Ill. Adm. Code 742 for the applicable indicator contaminants. For mixtures and

degradation products that have been included as indicator contaminants in accordance with

Section 732.310 of this Part, the Agency shall determine groundwater remediation objectives on

a site-by-site basis.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.312 Classification by Exposure Pathway Exclusion

a) An owner or operator electing to classify a site by exclusion of human exposure

pathways under 35 Ill. Adm. Code 742, Subpart C, shall meet the requirements of

this Section, except as provided in subsections (a)(1) and (j) of this Section.

1) Such election shall be made in writing by the owner or operator as part of

the submission of the site classification plan under subsection (b) (c) of

this Section. The election may be made at any time until the Agency

issues a No Further Remediation Letter, provided, however, that the

election must be received by the Agency prior to [effective date of this

amendment]. On or after [effective date of this amendment], owners and

operators desiring to proceed with the exclusion of human exposure

pathways under 35 Ill. Adm. Code 742, Subpart C, must elect pursuant to

35 Ill. Adm. Code 734.105 to proceed in accordance with 35 Ill. Adm.

Code 734 and conduct site investigation and corrective action in

accordance with that Part instead of meeting the requirements of this

Section.

2) An owner or operator who chooses to revoke an election submitted under

subsection (b) (c) of this Section shall do so in writing.

Upon completion of early action requirements pursuant to Subpart B of this Part,

the owner or operator shall determine whether the areas or locations addressed

under early action (e.g., backfill) meet the requirements applicable for a Tier 1

evaluation pursuant to 35 Ill. Adm. Code 742, Subpart E.

If the remediation objectives have been met, the owner or operator shall

submit a corrective action completion report demonstrating compliance

with the required levels.

144

If the remediation objectives have not been met, evaluation shall continue

in accordance with subsection (c) of this Section.

b)c) The

If, upon completion of early action requirements pursuant to Subpart B of this

Part, the requirements under subsection (b) of this Section have not been met,

then the owner or operator, prior to conducting any site evaluation activities, shall

submit to the Agency a site classification plan including, but not limited to, a

contaminant identification and groundwater investigation plan (if one or more of

the criteria set forth in Sections 732.202(h)(4)(A) through (C) of this Part are met

applicable in accordance with Section 732.300(b)(1)), satisfying the minimum

requirements for site evaluation activities as set forth in this Section. Site

classification plans shall be submitted on forms prescribed and provided by the

Agency and, if specified by the Agency by written notice, in an electronic format.

The plans shall be designed to:

1) Determine the full extent of soil or groundwater contamination exceeding

the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742

for the applicable indicator contaminants. remediation objectives for Tier

1 sites under 35 Ill. Adm. Code 742, Subpart E. Such activities may

include soil borings with sampling and analysis, groundwater monitoring

wells with sampling and analysis, groundwater modeling, or a

combination of these activities.

2) Collect data sufficient to determine which, if any, of the applicable

exposure routes under 35 Ill. Adm. Code 742 can be excluded pursuant to

35 Ill. Adm. Code 742, Subpart C. The data shall include, but is not

limited to, site-specific data demonstrating the physical characteristics of

soil and groundwater.

c)d) A Licensed Professional Engineer or Licensed Professional Geologist (or, where

appropriate, persons working under the direction of a Licensed Professional

Engineer or Licensed Professional Geologist) shall conduct the site evaluation.

The results of the site evaluation shall provide the basis for determining the site

classification. The site classification shall be certified by the supervising

Licensed Professional Engineer or Licensed Professional Geologist.

d)e) As a part of each site evaluation, the Licensed Professional Engineer or Licensed

Professional Geologist shall conduct physical soil classification and contaminant

identification in accordance with the procedures at subsection (b) (c) of this

Section.

e)f) In addition to the plan required in subsection (b) (c) of this Section and prior to

conducting any site evaluation activities, any owner or operator intending to seek

payment from the Fund shall submit to the Agency a :

145

An application for payment of costs associated with eligible early action

costs incurred pursuant to Subpart B of this Part, except as provided in

subsection (f)(2) of this Section; and

A site classification budget plan with the corresponding site classification

plan. The budget plan, that shall include, but not be limited to, a copy of

the eligibility and deductibility determination of the OSFM and an a line

item estimate of all costs associated with the development, implementation

and completion of the site evaluation activities required under subsection

(b) (c) of this Section, excluding handling charges. Formulation of budget

plans should be consistent with the eligible and ineligible costs listed at

Sections 732.605 and 732.606 of this Part and the maximum payment

amounts set forth in Subpart H of this Part.

f)g) Sites shall be classified as No Further Action if the Licensed Professional

Engineer or Licensed Professional Geologist determines that all applicable

exposure routes can be excluded from further consideration pursuant to 35 Ill.

Adm. Code 742, Subpart C.

g)h) Sites shall be classified as High Priority if the Licensed Professional Engineer or

Licensed Professional Geologist determines that any of the applicable exposure

routes cannot be excluded from further consideration pursuant to 35 Ill. Adm.

Code 742, Subpart C.

h)i) Within 30 days after the completion of a site evaluation in accordance with this

Section, the owner or operator shall submit to the Agency a site classification

completion report addressing all applicable elements of the site evaluation. The

report shall contain all maps, diagrams, and any other information required by this

Section, as well as the results or conclusions of all surveys and investigations and

any documentation necessary to demonstrate those results or conclusions, and .

The report shall be submitted on forms prescribed and provided by the Agency

and, if specified by the Agency by written notice, in an electronic format, shall be

signed by the owner or operator, and shall contain the certification of a Licensed

Professional Engineer or Licensed Professional Geologist of the site's

classification as No Further Action or High Priority in accordance with this

Section. For any site classified as High Priority, the report shall also contain the

certification of a Licensed Professional Engineer or Licensed Professional

Geologist as to which exposure routes, if any, have been excluded from further

consideration under 35 Ill. Adm. Code 742, Subpart C. With the exception of

Federal Landholding Entities subject to Section 732.703(d), the owner or operator

must sign and submit, with the site classification completion report, a form

prescribed and provided by the Agency addressing ownership of the site. Where

the owner or operator owns the site, the owner or operator must so indicate on the

form. Where the owner or operator either does not own or does not solely own

the site, the owner or operator must provide, on the form, a certification by

146

original signature of the title holder(s) of record for the remediation site or each

portion thereof, or the agent(s) of such person(s), stating as follows:

I hereby affirm that I have reviewed the attached report and that I

accept the terms and conditions set forth therein, including any land use

limitations, that apply to property I own. I further affirm that I have no

objection to the recording of a No Further Remediation Letter containing

the terms and conditions identified in the site classification completion

report.

i)j) The Agency shall have the authority to review and approve, reject or require

modification of any plan, budget plan, or report submitted pursuant to this Section

in accordance with the procedures contained in Subpart E of this Part.

j)k) Notwithstanding subsections (b) (c) and (e) (f) of this Section, prior to [effective

date of this amendment] an owner or operator may proceed to conduct site

evaluation activities in accordance with this Section prior to the submittal or

approval of any otherwise required site classification plan or budget plan and

associated budget plans. However, any such plan and budget plan shall be

submitted to the Agency for review and approval, rejection, or modification in

accordance with the procedures contained in Subpart E of this Part prior to

receiving payment or reimbursement for any related costs or the issuance of a No

Further Remediation Letter. On or after [effective date of this amendment],

owners and operators desiring to proceed with the exclusion of human exposure

pathways under 35 Ill. Adm. Code 742, Subpart C, must elect pursuant to 35 Ill.

Adm. Code 734.105 to proceed in accordance with 35 Ill. Adm. Code 734 and

conduct site investigation and corrective action in accordance with that Part

instead of meeting the requirements of this Section. If the owner or operator has

obtained Agency approval of a Site Classification Work Plan and site

classification completion report without submittal of a budget plan pursuant to

subsection (b) of this Section, the owner or operator may, as an alternative to

submitting a budget plan, submit, on a form provided by the Agency and attached

to the application for payment, the actual costs incurred in performing site

evaluation activities.

k)l) If, following the approval of any site classification plan, an owner or operator

determines that revised procedures or cost estimates are necessary in order to

comply with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended site classification plan or associated

budget plan for review by the Agency. The Agency shall have the authority to

review and approve, reject, or require modification of the amended plan or budget

plan in accordance with the procedures contained in Subpart E of this Part.

BOARD NOTE: Owners or operators proceeding under subsection (a)(2) or (j) (k) of

this Section are advised that they may not be entitled to full payment from the Fund and

that applications for payment must be submitted no later than one year after the date the

147

Agency issues a No Further Remediation Letter or reimbursement. Furthermore, owners

or operators may only be reimbursed for one method of site classification. See Subpart F

of this Part.

Owners and operators are also advised that the total payment from the Fund for all

corrective action plans and associated budget plans submitted by an owner or operator

must not exceed the amounts set forth in Subpart H of this Part.

(Source: Amended at

Ill. Reg.

, effective

)

SUBPART D: CORRECTIVE ACTION

Section 732.400 General

a) Following approval of the site evaluation and classification by the Agency

pursuant to Subpart C of this Part and except as provided in subsection (b) or (c)

of this Section, the owner or operator of an UST system subject to the

requirements of this Part shall develop and submit a corrective action plan and

perform corrective action activities in accordance with the procedures and

requirements contained in this Subpart D.

b) Owners or operators of sites classified in accordance with the requirements of

Subpart C as No Further Action may choose to conduct remediation

sufficient to

satisfy the remediation objectives referenced in Section 732.408 of this Part.

c) Owners or operators of sites classified in accordance with the requirements of

Subpart C as Low Priority may choose to conduct remediation sufficient to satisfy

the remediation objectives referenced in Section 732.408 of this Part. Any owner

or operator choosing to conduct remediation sufficient to satisfy the remediation

objectives in Section 732.408 of this Part shall so notify the Agency in writing

prior to conducting such efforts. Upon completion of the remediation activities,

owners or operators choosing to conduct remediation sufficient to satisfy the

remediation objectives in Section 732.408 of this Part shall submit a corrective

action completion report to the Agency demonstrating compliance with the

required levels. Upon approval of the corrective action completion report by the

Agency in accordance with Subpart E, a No Further Remediation Letter shall be

issued by the Agency.

BOARD NOTE: Owners or operators proceeding under subsection (b) or (c) of this

Section are advised that they may not be entitled to full payment from the Fundor

reimbursement. See Subpart F of this Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.402 No Further Action Site

148

The owner or operator of a site that has been certified as a No Further Action site by a Licensed

Professional Engineer or Licensed Professional Geologist and approved as such by the Agency

shall have no additional remediation responsibilities beyond those performed pursuant to Subpart

B or C of this Part. If the Agency fails to approve, reject or modify the site classification

completion report within 120 days after receipt of the completion report pursuant to Section

732.309 or Section 732.312, the site classification completion report is rejected by operation of

law.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.403 Low Priority Site

a) The owner or operator of a site that has been certified as a Low Priority site by a

Licensed Professional Engineer or Licensed Professional Geologist and approved

as such by the Agency shall develop a groundwater monitoring plan and perform

groundwater monitoring in accordance with the requirements of this Section.

b) The owner or operator of a site certified as Low Priority by a Licensed

Professional Engineer and approved as such by the Agency shall develop a

groundwater monitoring plan designed to satisfy the following requirements at a

minimum:

1) Groundwater monitoring shall be conducted for a period of three years

following the Agency's approval of the site classification, unless

subsection (b)(6) or subsection (i) of this Section applies;

2) Groundwater monitoring wells shall be placed at the property line or 200

feet from the UST system, whichever is closer. The wells shall be placed

in a configuration designed to provide the greatest likelihood of detecting

migration of groundwater contamination. In the event that a groundwater

monitoring well cannot physically be installed at the property line or 200

feet from the UST system, whichever is closer, in accordance with this

subsection (b)(2), the owner or operator shall request approval from the

Agency to place the well further out, but at the closest practical point to

the compliance point. The owner or operator may elect to place a

monitoring well in a location that is closer to the UST system than the rule

requires. However, once the election is made the owner or operator may

not withdraw the election at a later time;

3) Groundwater monitoring wells shall satisfy the requirements at

subsections 732.307(j)(3) and (4) of this Part;

4) During the first year of groundwater monitoring, samples from each well

shall be collected and analyzed on a quarterly basis. During the second

year of groundwater monitoring, samples from each well shall be collected

and analyzed during the second and fourth quarters. During the third and

149

final year of groundwater monitoring, at a minimum, samples from each

well shall be collected and analyzed in the fourth quarter;

5) To determine whether groundwater remediation quality standards or

Agency approved objectives have been exceeded, samples for

groundwater monitoring shall be collected and analyzed in accordance

with the procedures set forth in Section 732.307(j)(5) of this Part for the

applicable indicator contaminants determined pursuant to Section 732.310

of this Part;

6) The owner or operator may use groundwater monitoring data that has been

collected up to 3 years prior to the site being certified as Low Priority, if

the data meets the requirements of subsections (b)(2) through (b)(5) of this

Section. This data may be used to satisfy all or part of the three year

period of groundwater monitoring required under this Section.

c) Prior to the implementation of groundwater monitoring, except as provided under

subsection (b)(6) of this Section, the owner or operator shall submit the

groundwater monitoring plan to the Agency for review in accordance with

Section 732.405 of this Part. If the owner or operator intends to seek payment

from the Fund, a groundwater monitoring budget plan also shall be submitted to

the Agency for review. The groundwater monitoring budget plan shall include a

line item estimate of all costs associated with the implementation and completion

of the groundwater monitoring plan. Groundwater monitoring plans and budgets

shall be submitted on forms prescribed and provided by the Agency and, if

specified by the Agency by written notice, in an electronic format.

d) Groundwater analysis results obtained pursuant to subsection (b) of this Section

shall be submitted to the Agency within 30 days after the end of each annual

sampling period on forms prescribed and provided by the Agency, except as

provided under subsection (b)(6) of this Section. Groundwater analysis data

being used pursuant to subsection (b)(6) shall be submitted to the Agency as part

of a Low Priority groundwater monitoring plan or the Low Priority groundwater

monitoring completion report.

1) The information to be collected shall include, but not be limited to, the

information set forth in Section 732.307(j)(5) of this Part.

2) If at any time the groundwater analysis results indicate a confirmed

exceedence of the applicable indicator contaminant groundwater

remediation quality standards or Agency approved objectives as a result of

the underground storage tank release of petroleum, the owner or operator

shall notify the Agency of the exceedence within 30 days and provide

supporting documentation of the nature and extent of the exceedence.

150

3) Indicator contaminant groundwater remediation objectives quality

standards shall be determined in accordance with Section 732.311 of this

Part.

e) Within 30 days after the completion of the Low Priority groundwater monitoring

plan, the owner or operator shall submit to the Agency a groundwater monitoring

completion report in accordance with Section 732.409 of this Part. If there is no

confirmed exceedence of applicable indicator contaminant objectives during the

three year groundwater monitoring period, the report shall contain a certification

to that effect by a Licensed Professional Engineer or Licensed Professional

Geologist.

f) The Agency shall review the groundwater monitoring completion report in

accordance with the procedures set forth in Subpart E of this Part and shall issue a

No Further Remediation Letter to the owner or operator in accordance with

Subpart G of this Part upon approval of the report by the Agency. If the owner or

operator elects to appeal an Agency action to disapprove, modify, or reject by

operation of law a Low Priority groundwater monitoring completion report, the

Agency shall indicate to the Board in conjunction with such appeal whether it

intends to reclassify the site as High Priority.

g) If at any time groundwater analysis results indicate a confirmed exceedence of

applicable indicator contaminant objectives, the Agency may reclassify the site as

a High Priority site any time before the Agency's final approval of a Low Priority

groundwater monitoring completion report. The Agency shall notify the owner or

operator in writing if a site is reclassified. Notice of reclassification shall be by

registered or certified mail, post marked with a date stamp and with return receipt

requested. Final action shall be deemed to have taken place on the post marked

date that such notice is mailed. Any action by the Agency to reclassify the site as

a High Priority site shall be subject to appeal to the Board within 35 days after the

Agency's final action in the manner provided for in the review of permit decisions

in Section 40 of the Act.

h) The owner or operator of a Low Priority site reclassified to High Priority pursuant

to subsection (g) of this Section shall develop and submit for Agency approval a

High Priority corrective action plan satisfying the requirements of Section

732.404 of this Part within 120 days after receiving the notice of reclassification.

If the owner or operator intends to seek payment reimbursement from the Fund, a

corrective action budget plan budget also shall be submitted within 120 days after

receiving the notice of reclassification.

i) As a result of the demonstration under Section 732.307(j)(6), the owner or

operator of a site classified as Low Priority by a Licensed Professional Engineer

or Licensed Professional Geologist shall prepare a report in accordance with

Section 732.409 of this Part, that supports the issuance of a No Further

Remediation Letter or reclassification of the site as a High Priority site. In the

151

event the site is reclassified as a High Priority site, the owner or operator shall

develop and submit for Agency approval a High Priority corrective action plan in

accordance with subsection (h) Section 732.403(h) of this Section Part.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.404 High Priority Site

a) The owner or operator of a site classified as High Priority that has been certified

by a Licensed Professional Engineer as a High Priority site and approved as such

by the Agency shall develop a corrective action plan and perform corrective

action in accordance with the requirements of this Section. The purpose of the

corrective action plan shall be to remediate or eliminate each of the criteria set

forth in subsection (b) of this Section that caused the site to be classified as High

Priority.

b) The owner or operator of a site certified as High Priority by a Licensed

Professional Engineer and approved as such by the Agency or reclassified as High

Priority by the Agency pursuant to Section 732.403(g) shall develop a corrective

action plan based on site conditions and designed to achieve the following as

applicable to the site:

1) For sites that have submitted a site classification report under Section

732.309, provide that:

A) After complete performance of the corrective action plan,

applicable indicator contaminants identified in the groundwater

investigation are not present in groundwater, as a result of the

underground storage tank release, in concentrations exceeding the

remediation objectives referenced in Section 732.408 of this Part at

the property boundary line or 200 feet from the UST system,

whichever is less;.

B) After complete performance of the corrective action plan, Class III

special resource groundwater quality standards for Class III special

resource groundwater within 200 feet of the UST system are not

exceeded as a result of the underground storage tank release for

any indicator contaminant identified in the groundwater

investigation;

C) After complete performance of the corrective action plan,

remediation of contamination in natural or man-made exposure

pathways as a result of the underground storage tank release has

been conducted in accordance with 35 Ill. Adm. Code 742;

D) Threats to potable water supplies are remediated; and

152

E) Threats to bodies of surface water are remediated.

2) For sites that have submitted a site classification completion report under

Section 732.312 of this Part, provide that, after complete performance of

the corrective action plan, the concentrations of applicable indicator

contaminants meet the remediation objectives developed under Section

732.408 for any applicable exposure route not excluded from

consideration under Section 732.312.

c) The owner or operator is not required to perform corrective action on an adjoining

or off-site property to meet the requirements of this Section, even where complete

performance of the corrective action plan under subsection (b)(1) or (b)(2) of this

Section would otherwise require such off-site action, if the Agency determines

that the owner or operator is unable to obtain access to the property despite the

use of best efforts in accordance with the requirements of Section 732.411 of this

Part.

d) In developing the corrective action plan, if the Licensed Professional Engineer or

Licensed Professional Geologist selects soil or groundwater remediation, or both,

to satisfy any of the criteria set forth in subsection (b) of this Section, remediation

objectives shall be determined in accordance with Section 732.408 of this Part.

Groundwater monitoring wells shall satisfy the requirements of Section

732.307(j)(3) and (4) of this Part.

e) Except where provided otherwise pursuant to Section 732.312 of this Part, in

developing the corrective action plan, additional investigation activities beyond

those required for the site evaluation and classification may be necessary to

determine the full extent of soil or groundwater contamination and of threats to

human health or the environment. Such activities may include, but are not limited

to, additional soil borings with sampling and analysis or additional groundwater

monitoring wells with sampling and analysis. Such activities as are technically

necessary and consistent with generally accepted engineering practices may be

performed without submitting a work plan or receiving prior approval from the

Agency, and associated costs may be included in a High Priority corrective action

budget plan. A description of these activities and the results shall be included as a

part of the corrective action plan.

1) In addition to the potable water supply wells identified pursuant to Section

732.307(f) of this Part, the owner or operator must extend the water supply

well survey if soil or groundwater contamination exceeding the Tier 1

groundwater ingestion exposure route remediation objectives of 35 Ill.

Adm. Code 742 for the applicable indicator contaminants extends beyond

the site’s property boundary, or, as part of a corrective action plan, the

owner or operator proposes to leave in place soil or groundwater

contamination exceeding the Tier 1 groundwater ingestion exposure route

153

remediation objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants and contamination exceeding such objectives is

modeled to migrate beyond the site’s property boundary. At a minimum,

the extended water supply well survey must identify the following:

A) All potable water supply wells located within 200 feet, and all

community water supply wells located within 2,500 feet, of the

current or modeled extent of soil or groundwater contamination

exceeding the Tier 1 groundwater ingestion exposure route

remediation objectives of 35 Ill. Adm. Code 742 for the applicable

indicator contaminants; and

B) All regulated recharge areas and wellhead protection areas in

which the current or modeled extent of soil or groundwater

contamination exceeding the Tier 1 groundwater ingestion

exposure route remediation objectives of 35 Ill. Adm. Code 742 for

the applicable indicator contaminants is located.

2) The Agency may require additional investigation of potable water supply

wells, regulated recharge areas, or wellhead protection areas if site-

specific circumstances warrant. Such circumstances must include, but not

be limited to, the existence of one or more parcels of property within 200

feet of the current or modeled extent of soil or groundwater contamination

exceeding the Tier 1 groundwater ingestion exposure route remediation

objectives of 35 Ill. Adm. Code 742 for the applicable indicator

contaminants where potable water is likely to be used, but that is not

served by a public water supply or a well identified pursuant to Section

732.307(f)(1) of this Part or subsection (e)(1) of this Section. The

additional investigation may include, but not be limited to, physical well

surveys (e.g., interviewing property owners, investigating individual

properties for wellheads, distributing door hangers or other material that

requests information about the existence of potable wells on the property,

etc.).

f) The owner or operator shall submit the corrective action plan to the Agency for

review in accordance with Section 732.405 of this Part. If the owner or operator

intends to seek payment from the Fund, a corrective action budget plan budget

also shall be submitted to the Agency for review. The corrective action plan

budget shall include a line item estimate of all costs associated with the

implementation and completion of the corrective action plan. The corrective

action plan and corrective action plan budget shall be submitted on forms

prescribed and provided by the Agency and, if specified by the Agency by written

notice, in an electronic format.

154

g) Within 30 days after completing the performance of the High Priority corrective

action plan, the owner or operator shall submit to the Agency a corrective action

completion report in accordance with Section 732.409 of this Part.

h) Within 120 days, the Agency shall review the corrective action completion report

in accordance with the procedures set forth in Subpart E of this Part and shall

issue a No Further Remediation Letter to the owner or operator in accordance

with Subpart G of this Part upon approval by the Agency.

(Source: Amended at

Ill. Reg.

, effective

)

Section 732.405 Plan Submittal and Review

a) Prior to conducting any corrective action activities pursuant to this Subpart D, the

owner or operator shall submit to the Agency a Low Priority groundwater

monitoring plan or a High Priority corrective action plan satisfying the minimum

requirements for such activities as set forth in Section 732.403 or 732.404 of this

Part, as applicable. Groundwater monitoring and corrective action plans shall be

submitted on forms prescribed and provided by the Agency and, if specified by

the Agency by written notice, in an electronic format.

b) In addition to the plans required in subsections (a), (e), and (f) of this Section and

prior to conducting any groundwater monitoring or corrective action activities,

any owner or operator intending to seek payment from the Fund shall submit to

the Agency a groundwater monitoring or corrective action budget plan with the

corresponding groundwater monitoring or corrective action plan. Such budget

plans shall include, but not be limited to, a copy of the eligibility and deductibility

determination of the OSFM and an a line item estimate of all costs associated with

the development, implementation and completion of the applicable activities,

excluding handling charges. Formulation of budget plans should be consistent

with the eligible and ineligible costs listed at Sections 732.605 and 732.606 of this

Part and the maximum payment amounts set forth in Subpart H of this Part. As

part of the budget plan the Agency may require a comparison between the costs of

the proposed method of remediation and other methods of remediation.

Groundwater monitoring and corrective action budget plans shall be submitted on

forms prescribed and provided by the Agency and, if specified by the Agency by

written notice, in an electronic format.

c) The Agency shall have the authority to review and approve, reject or require

modification of any plan or budget plan submitted pursuant to this Section in

accordance with the procedures contained in Subpart E of this Part.

d) Notwithstanding subsections

(a), (b), (e), and (f) of this Section and except as

provided at Section 732.407 of this Part, an owner or operator may proceed to

conduct Low Priority groundwater monitoring or High Priority corrective action

activities in accordance with this Subpart D prior to the submittal or approval of

155

an otherwise required groundwater monitoring plan or budget plan or corrective

action plan or budget plan. However, any such plan and budget plan shall be

submitted to the Agency for review and approval, rejection, or modification in

accordance with the procedures contained in this Subpart E of this Part prior to

payment or reimbursement for any related costs or the issuance of a No Further

Remediation Letter. If the owner or operator has obtained Agency approval of a

Low Priority groundwater monitoring plan and a Low Priority groundwater

monitoring completion report, or has obtained Agency approval of a High Priority

corrective action plan and a High Priority corrective action completion report,

without the submittal of a budget plan pursuant to subsection (b) of this Section,

the owner or operator may, as an alternative to submitting a budget plan, submit,

on a form provided by the Agency and attached to the application for payment,

the actual costs incurred in performing the applicable activities required, for a

Low Priority site, in Section 732.403 of this Part or, for a High Priority site, in

Section 732.404 of this Part.

BOARD NOTE: Owners or operators proceeding under subsection (d) of this Section are

advised that they may not be entitled to full payment from the Fund or reimbursement.

Furthermore, applications for payment must be submitted no later than one year after the

date the Agency issues a No Further Remediation Letter. See Subpart F of this Part.

e) If, following approval of any groundwater monitoring plan, corrective action plan

or associated budget plan, an owner or operator determines that revised

procedures or cost estimates are necessary in order to comply with the minimum

required activities for the site, the owner or operator shall submit, as applicable,

an amended groundwater monitoring plan, corrective action plan or associated

budget plan for review by the Agency. The Agency shall review and approve,

reject, or require modifications of the amended plan or budget plan in accordance

with the procedures contained in Subpart E of this Part.

f) If the Agency determines any approved corrective action plan has not achieved

applicable remediation objectives within a reasonable time, based upon the

method of remediation and site specific circumstances, the Agency may require

the owner or operator to submit a revised corrective action plan. If the owner or

operator intends to seek payment from the Fund, the owner or operator must also

submit a revised budget plan. Any action by the Agency to require a revised

corrective action plan pursuant to this subsection (f) shall be subject to appeal to

the Board within 35 days after the Agency’s final action in the manner provided

for the review of permit decisions in Section 40 of the Act.

BOARD NOTE: Owners and operators are advised that the total payment from the Fund

for all groundwater monitoring plans and associated budget plans, and for all corrective

action plans and associated budget plans, submitted by an owner or operator must not

exceed the amounts set forth in Subpart H of this Part.

(Source: Amended at

Ill. Reg.

, effective

)

156

Section 732.406 Deferred Corrective Action; Priority List for Payment

a) An owner or operator who has received approval for any budget plan submitted

pursuant to this Part and who is eligible for payment from the underground

storage tank fund may elect to defer site classification, low priority groundwater

monitoring, or remediation activities until funds are available in an amount equal

to the amount approved in the budget plan if the requirements of subsection (b) of

this Section are met. An

owner or operator who has received approval for any

budget plan submitted pursuant to

this Part

and who is eligible for payment from

the underground storage tank fund may elect to defer site classification, low

priority groundwater monitoring, or remediation activities until funds are

available in an amount equal to the amount approved in the budget plan

if the

requirements of subsection (b) of this Section are met [415 ILCS 5/57.8(b)].

1) Approvals of budget plans shall be pursuant to Agency review in

accordance with Subpart E of this Part.

2) The Agency shall monitor the availability of funds to determine whether

sufficient resources exist to provide payment of approved budget plans

and shall provide notice of insufficient funds to owners or operators of the

availability of funds in accordance with Section 732.503(g) of this Part.

Funds shall not be deemed available for owners or operators electing to

defer corrective action so long as there are owners or operators on the

priority list established pursuant to Section 732.603(d) of this Part

awaiting forwarding of vouchers to the Office of the State Comptroller.

3) Owners and operators must submit elections to defer low priority

groundwater monitoring or high priority corrective action activities on

forms prescribed and provided by the Agency and, if specified by the

Agency by written notice, in an electronic format. The Agency’s record of

the date of receipt must be deemed conclusive unless a contrary date is

proven by a dated, signed receipt from certified or registered mail.

4) The Agency must review elections to defer low priority groundwater

monitoring or high priority corrective action activities to determine

whether the requirements of subsection (b) of this Section are met. The

Agency must notify the owner or operator in writing of its final action on

any such election. If the Agency fails to notify the owner or operator of its

final action within 120 days after its receipt of the election, the owner or

operator may deem the election rejected by operation of law.

A) The Agency must mail notices of final action on an election to

defer by registered or certified mail, postmarked with a date stamp

and with return receipt requested. Final action must be deemed to

157

have taken place on the post marked date that such notice is

mailed.

B) Any action by the Agency to reject an election, or the rejection of

an election by the Agency’s failure to act, is subject to appeal to

the Board within 35 days after the Agency’s final action in the

manner provided for the review of permit decisions in Section 40

of the Act.

5)3) Upon approval of an election receiving written notification that an owner

or operator elects to defer low priority groundwater monitoring or high

priority corrective action activities corrective action until funds are

available, the Agency shall place the site on a priority list for payment and

notification of availability of sufficient funds. Sites shall enter the priority

list for payment and move up based solely on the date the Agency receives

a complete the written election of deferral, with the earliest dates having

the highest priority. The Agency's record of the date of receipt shall be

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

receipt from registered or certified mail.

6)4) As funds become available the Agency shall encumber funds for each site

in the order of priority in an amount equal to the total of the approved

budget plan for which deferral was sought. The Agency shall then notify

owners or operators that sufficient funds have been allocated for the

owner's or operator's site. After such notification the owner or operator

shall commence corrective action.

7)5) Authorization of payment of encumbered funds for deferred low priority

groundwater monitoring or high priority corrective action corrective action

activities shall be approved in accordance with the requirements of

Subpart F of this Part.

86) The priority list for payment and notification of availability of sufficient

funds shall be the same as that used for deferred site classification

pursuant to Section 732.306 of this Part with both types of deferrals

entering the list and moving up solely on the basis of the date the Agency

receives written notice of the deferral.

b) An owner or operator who elects to defer site classification, low priority

groundwater monitoring or high priority corrective action , or remediation

activities under subsection (a) of this Section shall submit a report certified by a

Licensed Professional Engineer or Licensed Professional Geologist demonstrating

the following:

1) The Agency has approved the owner’s or operator’s low priority

groundwater monitoring or high priority corrective action budget plan;

158

2) The owner or operator has been determined eligible to seek payment from

the Fund;

3)1) The early action requirements of Subpart B of this Part have been met; and

4) Groundwater contamination does not exceed the Tier 1 groundwater

ingestion exposure route remediation objectives of 35 Ill. Adm. Code 742

for the applicable indicator contaminants as a result of the release,

modeling in accordance with 35 Ill. Adm. Code 742 shows that

groundwater contamination will not exceed such Tier 1 remediation

objectives as a result of the release, and no potable water supply wells are

impacted as a result of the release; and