ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

SITE REMEDIATION PROGRAM

)

R97-11

35 Ill. Adm. Code 740

)

(Rulemaking

-

Land)

TESTIMONY OF LAWRENCE W. EASTEP ON PROPOSED SUBPART A

My name is Lawrence W. Eastep. I am the manager of the

Remedial Project Management Section of the Bureau of Land of the

Illinois Environmental Protection Agency (“Agency”). The

Remedial Project Management Section (“RPMS”) is generally

responsible for all Bureau of Land environmental remedial actions

except for leaking underground storage tanks. The RPMS works

cooperatively with the United States Environmental Protection

Agency to manage Superfund activities in Illinois, including the

37 sites currently listed on the National Priorities List. It

also continues to pursue remediation for many non-CERCLA sites

that may pose environmental threats. Finally, the RPMS manages

the voluntary Site Remediation Program, which allows and

encourages many private party clean-ups.

I graduated from the University of Missouri at Rolla in 1969

with a B.S. in Civil Engineering. I received my M.S. in Civil

Engineering (Sanitary/Environmental) in 1976 from the same

institution. With a brief exception from late 1978 to early

1979, I have been employed by the Agency since 1971 in a variety

of positions including manager of the Bureau of Land Permit

Section from 1983 through 1993. I assumed my current

1

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responsibilities in January 1994. I am registered as a

Professional Engineer in Illinois. I have over twenty-five years

experience in the environmental engineering field. A brief

summary of my education and work experience is included as

Attachment 1.

Today I will be testifying in ‘support of Subpart A of the

proposed 35 Ill. Adm. Code 740: Site Remediation Program. Subpart

A contains general provisions in support of the regulations such as

the purpose, applicability, definitions, incorporations by

reference, and severability. It also contains a statutory permit

waiver and a statement of Agency authority.

Suboart A: General

Section 740.100

Puroose

This section repeats the statutory purpose for the Site

Remediation Program (“Program”) as set forth in Section

58.1(a) (1) of the Act. That purpose is to establish procedures

for investigation and remediation at sites where there is a

release, threatened release, or suspected release of hazardous

substances, pesticides, or petroleum and for the review and

approval of those activities.

-‘

Section 740.105

Applicability

section 740.105 paraphrases the applicability provisions of

Title XVII. Subsection (a) provides that the procedures of the

Part generally are available to persons required under the Act or

electing to perform investigative or remedial activities at sites

where there is a release, threatened release or suspected release

2

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either case, delegations and the accompanying grants for

operating expenses would be jeopardized. A similar scenario led

to a phased federal withdrawal of state administrative authority

for the LUST program between August 1995 and April 1996.

As a result of these concerns, the exceptions provide that

persons whose sites are subject to such programs are excluded

from the Program procedures. As a practical matter many of the

exclusions to the program would not be able to work very well in

the total context of these rules anyway. For example, under

Superfund, or CERCLA, remedial activities are required to follow

the detailed and prescriptive requirements of the national

contingency plan (“NCP”). Compliance with the NC? is also

necessary for cost recovery purposes.

However, if it is clear under federal law or regulation that

no conflict would occur, or if there is some other federal

authorization or approval acknowledging the suitability of these

procedures in lieu of those provided in a delegated program, then

subsection (b) authorizes the use of the Program’s procedures.

An example of formal federal authorization or approval for the

use of these procedures would be a Memorandum of Agreement

between the U.S. EPA and the Agency. This type of agreement was

established for the Program predecessor, the Pre-Notice Site

Cleanup Program (“PNSCP”). The agreement provided that, with the

exception of sites already subject to federal action, sites

successfully completing investigation and remediation under the

PN5CP would not be subject to federal action under the superfund

4

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of hazardous substances, pesticides or petroleum. “Persons

required under the Act” are those who are the object of formal

enforcement activities. The procedures also are available to

persons who may not be required to perform investigative or

remedial activities but who may have commercial or personal

reasons for doing so. The use of the procedures is not mandatory

in either case, but subsection Ce) requires that they must be

followed if the participant wishes to obtain the No Further

Remediation Letter under Section 740.605.

Sections 740.105 (a) (1) through (a) (4) note the exceptions to

the use of the procedures. The purpose of the exceptions is to

keep procedures based on state law from interfering with

delegated federal programs or with federal court orders or

administrative orders issued by the United States Environmental

Protection Agency (“U.S. EPA”). Programs administered by the

state under federal delegations or cooperative agreements are

based on established regulations that usually specify their own

investigative and remedial requirements in the event of a

release. The leaking underground storage tank (“LUST”) program

is an example. To obtain the delegation or cooperative

agreement, these regulations have been approved by the U.S. EPA

as at least as stringent as federal requirements. Allowing

persons who are subject to such programs to use unapproved

alternative provisions would require new applications and

approvals from the U.S. EPA or would risk a finding by the U.S.

EPA that the procedures are less stringent than federal law. In

3

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Section 740.115

Agency Authority

Section 740.115 reaffirms the Agency’s authority to take

action as appropriate where authorized under provisions of the

Act. In addition, the section and the accompanying Board Note

expand the use of some of the proposed procedures to sites where

participants are seeking an Agency release under Section 4(y) of

the Act. This is necessary to correct an oversight in Title

XVII. Under the PNSCP, a variety of large and small sites were

addressed with procedures tailored to site-specific needs. Title

XVII sets forth a prescriptive approach that is appropriate for

more complex circumstances or for those wanting the maximum

protection offered by the NFR Letter. Even though small releases

traditionally were handled by the ?NSCP under service agreements,

Title XVII does not take into account these sites or other

circumstances that may be handled more appropriately with minimal

procedures.

One example would be where a tank truck hauling petroleum is

involved in an accident and releases a small quantity of

petroleum. The remediation may be accomplished quickly within

hours or days. The trucking company does not want to be burdened

with site investigation, planning and reporting requirements, but

it does want a written acknowledgment from the Agency that the

release has been properly remediated. Under these circumstances

limited procedures and a release under Section 4(y) are

appropriate.

A second example of the need for minimal procedures and a

6

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law in the absence of exceptional circumstances. This in effect

approyed PNSCP procedures as a st~bstitutefor potential federal

requirements under the Superfund law. The Agency is working with

the U.S. EPA on extending the agreement to the Site Rernediation

Program. A copy of the Memorandum of Agreement is included as

Attachment 2.

subsection (c) is a transitional rule that allows persons in

the existing program to use these rules if they so choose and

gives the Agency flexibility in accepting previously prepared

documents or actions as compliant with these rules. Persons

previously under the old Pre-Notice Site Cleanup Program may stay

under that program if they choose. If they do use this part, any

actions taken after the effective date of the legislation and/or

these rules would have to comply with the new procedures.

subsection (d) is based on Section 58.1(c) of the Act and

authorizes the use of Part 740 as an alternative to the

investigation and remediation procedures developed under the

Illinois Pesticide Act.

Section 740.110

Permit Waiver

This section is taken directly from the enabling legislation

at Section 58.4 and authorizes waivers for program participants

of state permits not otherwise required by federal law. Many

permit requirements typically focus on operating facilities, not

sites undergoing a very short term remediation. Additionally,

these rules and the Part 742 rules are intended to be protective

of human health and the environment during the remediation phase.

5

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The definition of “contaminant of concern” is identical to

the statutory definition of “regulated substance of concern” but

has been added here to maintain consistency with proposed Part

742.

The definition “remediation site” has been added to clear up

ambiguity created by multiple uses of the statutory definition of

“site.” The definition of “site” was broad enough to encompass

both the source property within its legal boundaries as well as

the area to be remediated, which may extend across property

boundaries. Because the word was used in both contexts, it was

decided to add the concept of “remediation site,” which

specifically means the area to be remediated regardless of

property boundaries.

Section 740.125

Incorporations

by

Reference

All the test methods and documents referred to in this

section will be discussed as necessary in the testimony on the

Subparts where they are found.

Section 740.130

Severability

This section provides direction to the courts if the

regulations are challenged and found in any portion to be

unconstitutional.

This document submitted on recycled paper.

8

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4(y) release would be for facilities that are or have been owned

or operated by the federal government. These typically include

sites owned by the Departments of Defense or Energy. They are

handled under grants from the federal government. The procedures

for site investigation and determining remediation objectives as

well as the 4(y) releases may be useful for these sites.

Both the Agency and the Committee have agreed that there

still is a need for streamlined approaches to some sites

(including risk-based remediation objectives) and for the Section

4(y) release. As proposed, the choice of Program options remains

with the participant. However, unless the Agency has the

authority to enter into service agreements and bill for services

as in the past, it will not have the resources to address these

special circumstances in the most efficient manner. Instead, as

a practical matter, the participants will be forced to comply

with the full procedures proposed today in order to obtain Agency

oversight and a written release.

Section 740.120

Definitions

Section 740.120 contains the definitions necessary to

interpret Part 740. Many of the definitions provided in Title

XVII are not used here because they have instead been included

with the procedures proposed under Part 742. Several definitions

from the Agency rules for the PNSCP at 35 Ill. Adm. Code 859 have

been added to clarify the application, billing and payment

procedures under Subparts B and C. Most of the definitions are

self-explanatory, but a few require additional explanation.

7

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AflAcHMENT ONE

C

---

ADOVIDWI NO. 1.

SVPERPUND ME10RMWWI OF AGREflDIT

annm tu

ILLINOIS ~1VTh0)fllVflALP*GflCflow AGENcY

AND

Tfl

LJNITW

STATES

OIVXIOIOCflITAL

PROTECTION AGENCY

•

REGION V

I.

SACYGROUND

the

Illinois tnvironasntal Protection Agency

(“TIPA”)

and the

United States

Environmental

Protection Agency, Region

V (“Region

V”) entered a Superfund

MemOrandum

of

Agre~rtt (8)105”)

efuctive

December

11,

1991.

lisong

other things, the 8)10* established

operating procedures for general Superfund program coordination and

cnn”nication between

ZIPS

and Region

V.

II. BROWNflELDS

In 1993 ZIPS and Region V began developing strategies to promote

the rr4iation

and redevelopment

of

Mbrowntielde

sites.

Both

agencies recognize that a

key

factor to the

Brown!ields

program in

Illinois ii for both agencies to exercise their

authorities and usa

their

rssaarces

in ways

that are ritually opleantary and are not

duplicative. Two

operational

factors

ate

important in this regard.

First, the ZIPS has suornfully operated a voluntary cleanup

since

the late 19505.

This program, mars tonally known as the Pr.-

Notice Sits Cleanup Program (“715Cr),

provides guidance,

assistance

and

oversight

by

IDA

to owner. and operators

of

sites

in Illinois who

pert on site assant

and

resediation in

accordance with the practices, and under the approveS,

of the IDA.

In addition ZIPS has established a consistent cleanup objectives

process aaose all

its r—’ietion programs (PWSCP, CENCIA, RCA,

and LUST) which is protective

of

hsn

health and

the environment.

Second,

USDA has

aalnistered a national site assessment program

to assess sites listed on the federal CflCLIS list.

This

assessment process identifies and prioritizes

sites

for

rnriation

needs and also

establishes a

“no

further rn~4iai

action planned

or

NPRAP

category of sites.

As a result

of the success of these

two

programs.

ZIPS and Reqion V have cone2nd—I that the principles

and

procedures set

forth

in this Addaada will meaningfully assist

in the

x

II!. PIDPCULIS

If a site

in

Illinois has been

remediated or

investigated under tha

practices

and procedures of the Illinois PXSCP

and ZIPS has

approved

the r—diation a couplets

or made a no-action

determination

upon

revive of

an

investigation, consistent with

existing information the site will

not be expected to require

further response actions.

Accordingly,

Region S will,

not

plan or

anticipate any federal

action under

Superfund law unless,

in

exceptional

ftircuastances, the

site

poses an Sinent threat

or

emergency

situation.

Region S

will

also

continue

to work with

Illinois

tO

remove

any. concerns

about federal activity under

Superfund

so

as

to sncouraqe appropriate redevelopment.

~,n

r~ IC, I~~il

---

AflA~HMENTTWO

a

---

RESUME

LAWRENCE W. EASTEP, P.E.

MANAGER, REMEDIAL PROJECT MANAGEMENT SECTION

BUREAU

OF LAND

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

EDUCATION

UNIVERSITY

OF MISSOURI AT ROLLA

1969

B. S. CIVIL ENGINEERING

1976

UNIVERSITY

OF MISSOURI AT ROLLA

M. S.

CIVIL ENGINEERING

(SANITARY/ENVIRONMENTAL)

EXPERIENCE

1/94

-

MANAGER, REMEDIAL PROJECT MANAGEMENT SECTION,

PRESENT

BUREAU

OF LAND

-

RESPONSIBLE FOR SUPERFUND

CLEANUPS,

THE VOLUNTARY SITE REMEDIATION PROGRAM

AND STATE FUNDED

REMEDIAL

ACTIONS.

5/83

-

1/94

MANAGER,

BUREAU OF LAND PERMIT SECTION

-

RESPONSIBLE FOR STATE (SOLID WASTE) AND

RCRA(HAZARDOUS WASTE) PERMITTING.

5/83

-

2/79 MANAGER, INDUSTRIAL UNIT, DIVISION OF WATER

POLLUTION CONTROL PERMIT SECTION

-

RESPONSIBLE FOR

STATE AND NPDES PERMITS FOR INDUSTRY, AND

DEVELOPMENT OF THE STATE PRETREATMENT PROGRAM.

2/79

-

7/78

ENGINEER, SHEPHERD MORGAN AND SCHWAB, CONSULTING

ENGINEER, GRANITE CITY, ILLINOIS

7/78

-

10/71

FIELD OPERATIONS ENGINEER IN DIVISION OF WATER

POLLUTION CONTROL, PEORIA AND COLLINSVILLE OFFICES

10/71

-

1/71

FIELD ENGINEER, FLUOR CORPORATION, JOLIET,

ILLINOIS

8/70

-

1/69 FIELD ENGINEER, BECHTEL CORPORATION, PONCE, PUERTO

RICO

REGISTERED AS PROFESSIONAL ENGINEER IN ILLINOIS

---

ATTACHMENT ONE

---

UIUThD

STATE £NVIRONMEWTAJ,, PROTEC11ON AGZNCY

REGIONS

77 WEST JACKSON

BOULEVARD

CHICAGO. II. 80604.3590

Mary

A. Gad.,

Dirsctor

Illinois Environinuncal Prot.ction Agency

P.O.

Box

1.9276

D.ar

Ms. Gad.:

Mm?

to

lit

Aft MIS ~

RA- 193

W~have rtcsived and nview.d

your prapoad Brownfi.ld Amendment

to tha $up.rfuad

Memorandum

Of Agresant (31CM

•

which sxiats

between th.

United

state. Environnisntal Protection Agency

(U.S. EPA) R~ion5, and the Illinois Envirnnm.ntal Protection

Agency (I!PAJ.

We bays

concludd that

such

an aasadmwtt will mv. our

Aqsnàiss

well,

from th. psr.p.ctivs

of aniating

scanosicafly d.prsa..d

eoeuaitin throughout th.

State

of

tllinoi• to

schisv• cleanups

of potentially

contaminated

site., and

hopefully

b.ing able to

rsturn those sites to

ecaisreisi

viability.

It

is our

iini4.r.tanding

that ths

snclo..d

SNQA aw.~l.nt

sx•cutsd

b.twnn th•

P.d.rai

Gov.r~nntand the

Stats

of

flhinoia is ths

tint of

its kind in th, nation, and we an

hcpstul that this

pr•csdent will foster

sitilar P.diral/State partusrahip building

with other Statse in Region 5, and the othsr Regions

and their

States

throuqhout

ths country,

we hays

bsen

mada aware of RB 359,

introduced in

tht

tlljnoi.

L.gialatur..

which

proposo to sliminats the Stats

Voluntary

Cleanup

Prograa

as it now exists.

If 0*

359

is snacted

into

law,

ths

enalo..d SNO& aasndiusnt

b.twten our

Agenci.. would

no longer

apply.

We look forward to pursuing the..

Brownfisld

endeavors

with YOU,

and apprsciat• your

continuing participation

in the

Stip.riund

Program.

Valdas

V.

Siracerdy,

Enclosure

PS.seon RcycmdPiai

u v-v

r

•-~ in

r

---

AflAQ*~ENTTWO

---

This Principle don not apply to sit.. which hay. bnn list.d on

ths

National

Prioritia List or sits. sub$ct to an

ord.r

or

oth.r

nforcnant

action

und.r supsflund

isv or aitsa

ininsntxy

thrsat*ninq public health or ths .nvLr~naant.

Futur. IflA

activttisa at tha sits vi.1 bs band on Us. conditions of the

rn—’4 itt ion approval and whsthsr any

4~~wit

tbrnt subnqu.ntly

aria...

XV.

REPORTING

On an annual basis IEPA viii

r.port to

R~ion

V on the Pollavinq:

1.) n~abtr of •itn in thm P0809:

2) sitsa .ntsriaq the PWSCP the previous y..r;

3)

sitse

having

ncsiv.d approvals by IEPA at full or

partial

-owistions in the prsviotsa ysar;

For ths

Illinois

ttvironasntal Prot.ction kq.ncy

~AA.

Dir.ctor,

0~

tilinot.

a...

A

Environnntal

Protaction Aq.incy

Por

thviro’

kqccy, Mqian

V

Data

It s:flVCZ9LLj~

—

ap.n.&aaiis

iO DIJiO:

IiNcO:tt:

~6-L

-t

va Si:A2

L¼25

---

ADOnm~ wo. i.

SVPOZUND IWØRMWW(

07 kGBWIDIT

arnam tu

ILLS1013 DlVIBOJIXEITAL flGflCTXOII AGENCY

UNZTW

STAflS

cnnomena

nm

PROTECTION

m

AGECT

• REG

IOU V

x.

ma

Illinois

~wirona.nta1

Protection Aqsncy

(IDA) and h.

Unitsd stat..

tnvirons.ntal Pratsction Aqsnoy, *sqion V

(Raqjon

V~) .ntnM a Sup.rtuad

X~randua

of Aqrnasnt (SIlOS’) srtsctivs

Dscsabsr II, 1991.

Asenq

othsr

thing., the moa •.tablish.d

opsratinq proc.durn for qctsnl Supertund progra coordination and

cnn”nication bstwnn IflA and R.qion

Ix. BRcnn fbi

In 1993 ZIPS and

Paqion

V b.qwi

dsvslapinq •trat.qin

to pro.ot.

th• ra~aAistioa and

rsd.v.lopawtt

of

Nfl_q~gj~j4N

sit... lath

ag.ncia racognis. that a key

factor

to tM

Rrawnfi.14. proqraa

in

Illinois is for both aq.acin to sarciss tMSr authoritie, aM us

th.ir rssaarcn

in

ways that at. aittafly ocaplassntary and its not

dupiicattvs. Two operational factors ars

iwortant

in this ruqard.

First, flt~10*

has

SUCCSntULSy øpsratM a voluntary cisanup sinc

Vt~

late

19$Os.

This

progra., aors tonally known

as

ths Pr.-

)Iotiot sit.

Cisanup

Proqna

(‘flS~),

provide. qnidntcs,

assistance sad ovanight by IDA to ownsn aM

opsntors of

sita

in

Illinois

who psrfors sits nna~—nt and rasdiation in

accordance with the practicss, and undsr tb.

approval, of the

IflA.

In addition IflA has

ntabliaad

*

consistant

cisanup

objctivn

proc...

aaos. all its r’i&tion prograss (fl$CP,

COCXJ., RCA,

and WST) which is

protsctiv.

of hsa haith and Ut~.nvirovawtt.

S•cond,

USIPA has

aAaiaist.rS a

national •it

asnsnsnt

proqra

to

an.n

•itsa liatM on the

Eudral CERCLI3 list. This

ansnssnt proc... id.ntitta and

priorittzss

situ for

reaIiation

n.sds and

a1•o

ntabliakss

a no Eurth.r r—~ia1

action p1&nn~

or II7RJAP tathqory

of

.its..

As a rnult of th. macan. of

thns

two proqrw. ZIPS and Mqion

V )Thvs concludS that ths

principles

and procsturss at forth in

thi•

kddanaa

will asan,tnqfully assist

in the

•

iation and d.v.lopa*at of broimfisid

sit...

III. P*DI~LIS

If a

sits

Ia

Illinois has bsan

nr’iat.d or invatiqatsd und.r tha

practice a~ procsdurn of tha

Illinois PWZCP

and ZEPA has

approved

the naMiation

as ciospists or ads a no-action

datarathation upon review of an invntiqation,

consistsnt with

existinq intonation tb• sits viii not bs expected to

r.quir.

further rssponaa actions. Accordingly, Reqion 5 viii not plan or

anticipats any Isdaral action undsr

Snpsflund isv

unlas, in

.xc.ptionsl

circusatanc...

ths sits pose. an

iaain.nt

thrsat

or

.ssrgsncy situation. Rsqion 5 viii

also

continia. to

work

with

Illinois to

rncvs

any

concsrns about

fsdnal

activity under

Superfund so a to sncouxaqa appropriat.

rsdsv.lopwant.

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