ILLINOIS POLLUTION CONTROL BOARD
February 16, 2005
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION OF PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS (35
ILL. ADM. CODE 732)
______________________________________
)
)
)
)
)
)
R04-22(A)
(UST Rulemaking)
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
REGULATION OF PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS (35
ILL. ADM. CODE 734)
)
)
)
)
)
)
R04-23(A)
(UST Rulemaking)
Consolidated
Adopted Rule. Final Notice.
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On January 13, 2004, the Illinois Environmental Protection Agency (Agency) filed two
proposals for rulemaking. On January 22, 2004, the Board accepted and consolidated the
proposals for hearing. The Board held numerous hearings and received substantial comment
before proceeding to first notice on February 17, 2005, pursuant to the Illinois Administrative
Procedure Act (IAPA) (5 ILCS 100/5-5
et seq.
(2004). After an additional hearing and
numerous comments, on December 1, 2005, the Board adopted a second-notice proposal. In
addition on December 1, 2005, the Board opened subdocket B in this rulemaking, to address
ongoing issues involving scope of work and reimbursement for professional consulting services.
The Board today adopts the proposal for final notice pursuant to the IAPA (5 ILCS
100/5-5
et seq.
(2004)). The adopted rule does not differ from the rule proposed for second
notice, except for minor corrections to the text recommended by the Joint Committee on
Administrative Rules.
The Board’s authority in rulemaking proceedings stems from Section 5(b) of the
Environmental Protection Act (Act) (415 ILCS 5/5 (2004)), which provides that the Board “shall
determine, define and implement the environmental control standards applicable in the State of
Illinois and may adopt rules and regulations in accordance with Title VII of the Act.” 415 ILCS
5/5(b) (2004). Title VII of the Act sets forth the statutory parameters for rulemaking by the
Board. 415 ILCS 5/26-29 (2004). The Board may adopt a rule after hearing and determination
of the economic reasonableness and technical feasibility of the rule.
See
415 ILCS 5/27 (2004).
The Board’s decision is based on the record before the Board including all testimony and
comments filed with the Board. 35 Ill. Adm. Code 102.418.
2
BACKGROUND
On January 13, 2004, the Illinois Environmental Protection Agency (Agency) filed two
proposals for rulemaking. The proposal docketed as R04-22 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 is a new Part 734 of the Board’s UST rules. On January 22, 2004, the Board
accepted and consolidated the proposals for hearing.
On February 18, 2004, the Board requested, pursuant to Section 27(b) of the Act (415
ILCS 5/27(b) (2004)), that the Department of Commerce and Economic Opportunity (DCEO)
conduct a study of the economic impact of the proposed rules. On April 2, 2004, DCEO notified
that Board that based on a review of the proposed rules and continued fiscal constraints DCEO
would not be performing an economic impact study. The response by DCEO was entered into
the Board’s record on that date.
Five groups of hearings were held before Board Hearing Officer Marie Tipsord. The
purpose of each set of hearings was to hear testimony and gather information concerning the
technical merits and economic impacts of the proposed rules. 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 received nine public comments in this proceeding before proceeding to
first notice.
On February 17, 2005, the Board proceeded to first notice with a rule that differed from
the Agency’s proposal in some aspects, while adopting the Agency’s proposal in total in other
aspects. Proposed Amendments to Leaking Underground Storage Tanks (35 Ill. Adm. Code 732,
734), R04-22, 23 (Feb. 17, 2005). The proposal was published in the
Illinois Register
on
March 11, 2005 (29 Ill. Reg. 3538 (Part 732) and 3705 (Part 734)).
In the first-notice opinion, the Board asked for input from the public as to whether
another hearing was necessary in this rulemaking. R04-22, 23 (Feb. 17, 2005) at 83. The Board
received several requests for an additional hearing and the Board held the sixth group of hearings
on July 27, 2005, (Tr.8) in Carbondale. On July 27, 2005, the Board heard testimony from the
Agency, CSD Environmental Services, Inc. (CSD), CW
3
M Company (CW
3
M) and United
Science Industries (USI). At the close of hearing, the date for final comments to be filed was
established as September 23, 2005. Tr. 8 at 212.
After publication of the first notice, the Board received 63 additional public comments.
The Board has received over 70 public comments since the inception of this rulemaking. The
following is a list of the comments.
PC 1
Bill Fleischli of Illinois Petroleum Marketers Association and Illinois
Association of Convenience Stores
3
PC 2
Jay P. Koch, President of United Science Industries, Inc.
PC 3
Daniel J. Goodwin, P.E., on behalf of the American Council of Engineering
Companies of Illinois
PC 4
Illinois Environmental Protection Agency
PC 5
Nikki Loya of Maurer-Stutz, Inc.
PC 6
Professionals of Illinois for the Protection of the Environment
PC 7
Michael W. Rapps Engineering & Applied Science, Inc.
PC 8
Replaces PC 2 from Jay Koch, President of United Science Industries, Inc.
PC 9
CW
3
M Company
PC 10
Robert J. Pulfrey
PC 11
Daniel R. Rurak
PC 12
Lori K. Echols
PC 13
Sarah Blades
PC 14
Marvin Johnson
PC 15
Melanie Martin
PC 16
Rhonda McCowen
PC 17
Lisa Watson
PC 18
Monica A. Piasecki
PC 19
Mark Owens
PC 20
Jay P. Koch
PC 21
Beth Giacomo
PC 22
Todd A. Piper
PC 23
Barry F. Sink
PC 24
Connie L. Connaway
PC 25
Dennis L. Schweigert
PC 26
Tyler Sink
PC 27
Duplicate
PC 28
Linda Tomaszewski
PC 29
Matthew P Cherry
PC 30
Jean Germann
PC 31
Sallie Minks
PC 32
Duane Doty
PC 33
Jim Bowling
PC 34
Ross Bunton
PC 35
Dan King
PC 36
Dennis Hillen
PC 37
Illinois Environmental Protection Agency
PC 38
Attorney General's Office, Jennifer A. Tomes, Assistant Attorney General,
Illinois
PC 39
Raymond T. Reott
PC 40
United Science Industries, Inc. (comments of 18 employees)
PC 41
Michael R. Oltman of Nokomis Tire & Auto Repair
PC 42
Wilma Schleifer of Schleifer Petroleum Co., Inc.
PC 43
Chris A. Barnes, President, Spectrulite Consortium, Inc.
PC 44
Kent and Hal Devore, former owners of Devore Marina, Inc.
PC 45
Bob Foerster, President, Bob's Service Center
4
PC 46
Jay Koch
PC 47
Daniel King
PC 48
Duane Doty
PC 49
Tom Mueller
PC 50
Kevin Majors of R. L. Hoener Company
PC 51
Greg Courson of Advanced Environmental Drilling & Contracting, Inc.
PC 52
Kevin Saylor, P.E., Environmental Division Manager of HDC Engineering and
clients of HDC Engineering
PC 53
John Komocar
PC 54
Becky Canty, Superintendent of Elverado Unit PC 196, Elkville, Illinois
PC 55
United Science Industries
PC 56
Gary R. Perkowitz, P.G. Manager, Environmental Services, Clayton Group
Services
PC 57
Don McNutt of Midwest Petroleum
PC 58
David E. Kennedy, Executive Director, American Council of Engineering
Companies of Illinois
PC 59
United Science Industries
PC 60
United Science Industries
PC 61
Jay P. Koch
PC 62
Illinois Environmental Protection Agency
PC 63
CW
3
M Company
PC 64
CSD Environmental Services, Inc. by Cindy S. Davis, P.G., and Joseph
Truesdale, P.E., P.G.
PC 65
Senator John Sullivan of the 47th District
PC 66
United Science Industries comments of various entities
PC 67
United Science Industries comments and revised language
PC 68
United Science Industries sample budget and billing forms
PC 69
United Science Industries comments received from Senators Chris Lauzen,
Gary Dahl, Arthur Wilhelmi, Frank Watson, John Jones, David Luechtefeld
PC 70
Professionals of Illinois for the Protection of the Environment
PC 71
United Science Industries response to Illinois Environmental Protection
Agency
PC 72
CD copy of United Science Industries’ comments docketed as PC 61, PC 66,
PC 67, PC 68, and PC 69
On December 1, 2005, the Board adopted a second-notice opinion and order (Proposed
Amendments to Leaking Underground Storage Tanks (35 Ill. Adm. Code 732, 734), R04-22, 23
(Dec. 1, 2005)). On December 13, 2005, the Board received notice that the Joint Committee on
Administrative Rules (JCAR) accepted the second notice in this rulemaking on December 9,
2005. JCAR considered the rule at the January 18, 2006 JCAR meeting. JCAR issued a
recommendation to the Board and a certificate of no objection to the rule. JCAR’s
recommendation was that the Board continue to examine certain issues in the Subdocket B
proceeding. As discussed in more detail below, the Board will accept the JCAR
recommendation.
UST FUND PROGRAM AND REIMBURSMENT
5
Section 57 of the Act states that the intent and purpose of the leaking UST program is:
1.
to adopt procedures for the remediation of UST sites due to the release of
petroleum;
2.
to establish and provide procedures for the leaking UST program which
will oversee and review any remediation required for leaking USTs and
administer the UST Fund;
3.
to establish a UST Fund intended to be a State fund by which persons may
satisfy financial responsibility under applicable State law and regulations;
4.
to establish requirements for eligible owners/operators of USTs to seek
payment for any costs associated with physical soil classification,
groundwater investigation, site classification and corrective action from
the UST Fund;
5.
to audit and approve corrective action efforts performed by Licensed
Professional Engineers. 415 ILCS 5/57 (2004).
“Corrective Action” is defined as activities associated with compliances with the provisions of
Section 57.6 and 57.7 of the Act. 415 ILCS 5/57.2 (2004). “Site investigation” is defined as
activities associated with compliances with the provisions of subsection (a) of Section 57.7 of the
Act.
Id
.
Section 57.7(c)(3) of the Act provides:
In approving any plan submitted pursuant to subsection (a) or (b) of the Section,
the Agency shall determine, by a procedure promulgated by the Board under
Section 57.14, that the costs associated with the plan are reasonable, will be
incurred in the performance of site investigation or corrective action, and will not
be used for site investigation or corrective action activities in excess of those
required to meet the minimum requirements of this Title. 415 ILCS 5/57.7(c)(3)
(2004).
This language is repeated in Section 57.7(4)(C) of the Act, as amended by P.A. 92-574. Thus,
the Act requires reimbursement for activities necessary to “meet the
minimum
requirements” of
the Act.
The Board has long held that costs that are not corrective action will not be reimbursed.
See
McDonald’s Corporation v. IEPA PCB 04-14 (Jan. 22, 2004); Rosman Enterprise Leasing
Company v. IEPA, PCB 91-174 (Apr. 9, 1992); and Platolene 500 v. IEPA, PCB 92-9 (May 7,
1992). The Board has found that items such as compaction of backfill, concrete replacement,
and pumping and disposal of water are not eligible for reimbursement, if not corrective action.
See
McDonald’s Corporation v. IEPA
PCB 04-14 (Jan. 22, 2004); Richard and Wilma Sayer v.
6
IEPA, PCB 98-156 (Jan. 21, 1999); Clarendon Hills Bridal Center v. IEPA, PCB 93-55 (Feb. 16,
1995).
SUMMARY OF FIRST-NOTICE ACTION BY THE BOARD
The Board’s first-notice opinion examined 20 issues and determined that many changes
were necessary to proceed with the proposal. The Board amended the language of the
applicability section to clarify that the rules could not be applied retroactively, in response to
comments from PIPE. R04-22, 23 (Feb. 17, 2005) at 63. The Board amended the language
concerning the removal of free product. R04-22, 23 (Feb. 17, 2005) at 64. The first-notice
proposal also clarified that only available alternative technologies should be compared to one
another and conventional technologies. R04-22, 23 (Feb. 17, 2005) at 65. The Board added a
procedure to allow for bidding of tasks when the maximum payment amounts are too low. R04-
22, 23 (Feb. 17, 2005) at 67. The Board amended the language to allow for additional
mechanisms to prove payment to subcontractors. R04-22, 23 (Feb. 17, 2005) at 72. The Board
decided not to declare permit and government fees as ineligible costs. R04-22, 23 (Feb. 17,
2005) at 74. The Board also allowed for Stage 3 site investigation plans to be reimbursed based
on time and materials. R04-22, 23 (Feb. 17, 2005) at 80. The Board did not make substantive
changes to the remainder of Subpart H, nor did the Board adopt scopes of work. However, the
Board requested additional comment on those issues as well as many others.
SUMMARY OF SECOND-NOTICE ACTION
At second notice, the Board discussed 19 issues in the opinion and order, some issues
were the same as those discussed at first notice, while others were raised for the first time during
the first-notice period. R04-22,23 (Dec. 1, 2005) at 55-56. The Board determined that additional
changes to the proposal were warranted by the record and the Board made those changes. The
most significant change made by the Board was removal of maximum payment amounts for
professional services from the first-notice language. At second notice, the Board proposed
retaining the current practice of reimbursing professional services based on time and material.
See
R04-22,23 (Dec. 1, 2005) at 57-63. As discussed above the Board opened a Subdocket B to
examine the issue of scope of work and maximum reimbursement amounts for professional
services.
Id
. The Board also found that a primary contractor with an interest in a subcontractor
may at times be eligible for reimbursement for handling charges. R04-22,23 (Dec. 1, 2005) at
69. The Board made other changes to the auditing provisions and the advisory committee
membership. R04-22,23 (Dec. 1, 2005) at 71, 76.
The Board’s second-notice opinion also addressed the economic impact of the proposal.
R04-22,23 (Dec. 1, 2005) at 2, 57. The Board found that the rule is economically reasonable and
technically feasible.
Id
. The Board further found that any negative economic impact has been
minimized by removal of the professional service lump sum payments to subdocket B.
Id
.
DISCUSSION
The Board will first discuss the recommendation and certificate of no objection issued by
JCAR on January 18, 2005. Then the Board will summarize the rule language as adopted today.
7
JCAR Action
JCAR specifically recommended that “the Board add to the issues it is addressing in its
dockets R04-22(B) and R04-23(B) the costs that are ineligible for payment from the
Underground Storage Tank Fund stated in” 35 Ill. Adm. Code 732.606(ddd) and (eee) and
734.630(aaa) and (bbb). Section 732.606(ddd) and (eee) and Section 734.630(aaa) and (bbb) are
identical and list as ineligible:
Costs associated with on-site corrective action to achieve remediation
objectives that are more stringent than the Tier 2 remediation objectives
developed in accordance with 35 Ill. Adm. Code 742. This subsection
does not apply if Karst geology prevents the development of Tier 2
remediation objectives for on-site remediation, or if a court of law voids or
invalidates a No Further Remediation Letter and orders the owner or
operator to achieve Tier 1 remediation objectives on-site in response to the
release;
Costs associated with groundwater remediation if a groundwater ordinance
already approved by the Agency for use as an institutional control in
accordance with 35 Ill. Adm. Code 742 can be used as an institutional
control for the release being remediated.
The Board appreciates the suggestions of JCAR and the Board will continue to review
issues associated with Sections 732.606(ddd) and (eee) and 734.630(aaa) and (bbb) in Subdocket
B. The Board directs the hearing officer to include these issues as topics for the hearing to be
held in Subdocket B.
Summary Of 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). R04-22,23 (Feb. 17, 2005) at 3. 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.
Id
. Finally, the
Part 732 is amended to streamline the process for obtaining payment from the UST Fund.
Id
.
New Part 734, is applicable to releases reported after June 24, 2002. R04-22,23 (Feb. 17,
2005) at 3. Part 734 is identical to Part 732 except for changes enacted in P.A. 92-0554.
Id
.
Those exceptions include different corrective action requirements and increased caps on the total
amount owners and operators can be paid from the UST Fund.
Id
.
Where the language is identical, the summary will reference both sections. 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.
8
Section 732.100/734.100
Section 732.100 is amended to establish that releases reported after the effective date of
P.A. 92-0554 are not subject to Part 732. R04-22,23 (Feb. 17, 2005) at 3. The amendments to
Section 734.100 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 requirements of Part 734.
Id
.
Section 732.101
The amendments clarify that owners or operators could only elect to proceed under Part
732 until June 23, 2002. R04-22,23 (Feb. 17, 2005) at 3.
Section 732.103/734.115
Several definitions have been added to the rules for words or phrases used in the rule.
R04-22,23 (Feb. 17, 2005) at 4.
Sections 732.104/734.120 and 732.106/734.420
The incorporation by references are being updated and the inclusion of a laboratory
certification with analytical sample results will be required. R04-22,23 (Feb. 17, 2005) at 4.
Section 732.108/734.130
A new section in Part 732 is added to address the statutory change which allows a
licensed professional geologist to certify certain information submitted to the Agency. R04-
22,23 (Feb. 17, 2005) at 4. 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.
Id
. A licensed
professional engineer must still certify information on high priority corrective action completion
reports and corrective action completion reports.
Id
.
Section 732.110/734.135/734.440
A new section is proposed to consolidate general requirements for plans, budget plans
and reports. R04-22,23 (Feb. 17, 2005) at 4.
Section 732.112/734.145
The language added in this section would allow the Agency to require notification of
field activities so that the Agency can elect to perform direct oversight of field activities. R04-
22,23 (Feb. 17, 2005) at 4.
Section 732.114/734.150
9
This provision would establish a “LUST Advisory Committee” within the Agency. R04-
22,23 (Feb. 17, 2005) at 4. The committee would be required to meet at least once each quarter
to discuss the Agency’s implementation of the rules.
Id
. The committee would include members
from numerous groups involved in the UST program.
Id
.
Section 732.200/734.200
Because a work plan is not required for early action, the proposal excludes the
submission of a budget plan for the corresponding work plan. R04-22,23 (Feb. 17, 2005) at 4.
However, free product removal activities conducted more than 45 days after the confirmation of
free product are excepted from this provision.
Id
.
Section 732.202/734.210
This section deals with early action at a site where a leaking UST has been removed. The
changes ensure internal consistency, reflect changes made by the Office of State Fire Marshal
(OSFM), and reflect changes made in the enabling statute. R04-22,23 (Feb. 17, 2005) at 5. A
new subsection (h)(1) is added, which specifies the location from which samples must be
collected when the UST is removed.
Id
. The language allows for deviation from the locations in
subsection (h)(1) if a different location is necessary because of site-specific attributes.
Id
.
Subsection (h)(1)(D) is amended to allow for one sample of backfill for every 100 cubic yards of
backfill returned to the excavation.
Id
.
Similarly in subsection (h)(2), 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
. R04-22,23 (Feb. 17, 2005) at 5. Clarifying language for subsection (h)(2)(A) concerning
sampling below the groundwater table is also added.
Id
.
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. R04-22,23 (Feb. 17, 2005) at 5. 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.
Id
. Criteria for determining
if groundwater investigation is necessary have also been added.
Id
.
Section 732.203/734.215
The amendment to this section specifies the amount of free product that must be present
to trigger the free product removal requirements. R04-22,23 (Feb. 17, 2005) at 5. The
amendments require that free product be removed to the “maximum extent practicable.”
Id
.
Five new subsections (c), (d), (e), (f), and (g) are being added. 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. R04-22,23 (Feb. 17, 2005) at 5.
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.
Id
. Subsection (e) requires that the owner or
operator proceed with the free product removal after Agency approval of the plan.
Id
.
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.
Id
. And
subsection (g) requires submission of amended plans or budgets.
Id
.
Section 732.204/734.220
This proposed amendment ensures consistency with Section 732.200. R04-22,23 (Feb.
17, 2005) at 5.
Section 732.300/734.300
The proposed language establishes that a site classification is not required if after early
action a report is submitted demonstrating compliance with Tier 1 TACO
1
objectives. R04-
22,23 (Feb. 17, 2005) at 6. Also the site ownership certification provisions will be deleted while
adding provisions addressing the content of corrective action completion reports.
Id
. Two
subsections have been added in conjunction with adding water supply well survey requirements
in Part 732.
Id
.
Section 734.300 does not include subsections (b) and (c) as these two subsections are not
necessary for Part 734. R04-22,23 (Feb. 17, 2005) at 6.
Section 732.305
Changes in this section are necessary to reflect the addition of Section 732.110 and to
require submission of various plans at specified times in the process. R04-22,23 (Feb. 17, 2005)
at 6. Language is also proposed to prevent owners or operators from seeking payment from the
UST Fund for site classification before a site classification budget plan is submitted.
Id
.
Section 732.306/734.450
These amendments replace statutory language with non-statutory language due to
changes from P.A. 92-0554. R04-22,23 (Feb. 17, 2005) at 6. Additional language referring to
Tier 1 groundwater ingestion exposure routes was included.
Id
.
Section 732.307/734.415/734.425/734.430
Several changes are made for consistency with new statutory language and with other
sections of the proposal were proposed. R04-22,23 (Feb. 17, 2005) at 6. In addition subsection
(f) was amended to provide a more accurate survey of water supply wells.
Id
.
1
TACO is the “Tiered Approach to Corrective Action” found at 35 Ill. Adm. Code 742. TACO
sets forth different “Tier” approaches to cleanup.
11
Section 732.309
The proposal adds requirements for documentation of the results of water well surveys to
this section. R04-22,23 (Feb. 17, 2005) at 7.
Section 732.310/734.405 and 732.311
Section 732.110 is amended for clarity as well as consistency with the other sections of
the rule. R04-22,23 (Feb. 17, 2005) at 7. Redundant language is deleted.
Id
. In Section
732.311, the proposal replaces “indicator contaminant groundwater quality standards” with
“groundwater remediation objectives”.
Id
.
Section 732.312
The amendments to this section include clarifying language and amendments for
consistency with the rest of the proposal. Also, language is proposed to require owners and
operators to proceed under new Part 734 in certain circumstances. R04-22,23 (Feb. 17, 2005) at
7. Specifically, the rule would require an owner or operator desiring to classify a site by the
exclusion of human exposure pathways to proceed under Part 734.
Id
.
Section 732.403
In this section, a requirement for line item estimates in a budget plan is deleted, as is
redundant language. R04-22,23 (Feb. 17, 2005) at 7.
Section 732.404/734.345
The language is clarified to establish that this section applies to all sites classified as high
priority and to ensure the identification of potable water supply wells that may be impacted by
the release. R04-22,23 (Feb. 17, 2005) at 7.
Section 732.405/734.355
In addition to clarifying amendments and amendments for consistency with the rest of the
proposal, the language will allow the Agency to require a comparison of remediation costs where
available. R04-22,23 (Feb. 17, 2005) at 7. The additional language will also require submission
of revised budgets with revised corrective action plans, if reimbursement will be sought.
Id
.
Section 732.406/734.450
In addition to clarifying language and language for consistency with the rest of the
proposal, new subsections are added that set forth procedural requirements for the submission
and review of elections to defer site classifications. R04-22,23 (Feb. 17, 2005) at 7. A
procedure for placing sites on a priority list for payments with priority being established by the
date the Agency received the completed application is also added.
Id
.
12
Section 732.407/734.340
The proposed language would require a comparison of the cost of the proposed
alternative technology with at least two other available alternative technologies. R04-22,23
(Feb. 17, 2005) at 8. The rule also allows for remote monitoring by the Agency of alternative
technologies.
Id
.
Section 732.408/734.410 and 732.410
The amendments for these sections 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. R04-22,23 (Feb. 17, 2005) at 8.
Section 732.409 and 732.411/734.350
The changes expand the section to set forth documentation requirement relating to water
supply well surveys. R04-22,23 (Feb. 17, 2005) at 8. Section 732.411 is amended to correct
statutory citations and add a new statutory term.
Id
.
Section 732.500/734.500
Two subsections, which define what constitutes a plan or report, are being deleted. R04-
22,23 (Feb. 17, 2005) at 8. Language has been added throughout Part 732 identifying whether a
document is a plan or report.
Id
.
Sections 732.501, 732.502, and 732.504
Sections 732.501, 732.502, and 732.504 are being deleted. R04-22,23 (Feb. 17, 2005) at
8. Section 732.501 is being deleted because of the proposed addition of Section 732.110.
Id
.
Section 732.503 is proposed for deletion because of the additional administrative burden the
requirement places on the Agency.
Id
. Section 732.504 is no longer required because of the
deletion of Section 732.502 and the changes in Section 732.503.
Id
.
Section 732.503/734.505
These amendments to subsections (a), (b), and (g) reflect the deletion of Section 732.503.
R04-22,23 (Feb. 17, 2005) at 8. 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.
Id
.
Further, the last sentence of subsection (f) is no longer necessary as the Agency maintains
sufficient staff to review submissions within 120 days.
Id
. The amendments to subsection (h)
require the Agency to provide notice of the UST Fund’s balance to owners and operators.
Id
.
Section 732.601/734.605
The changes to this section are necessary because of changes made throughout Part 732.
R04-22,23 (Feb. 17, 2005) at 9. For example, references to “materials, activities, or services” are
13
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”.
Id
. New subsections (b)(9) and
(b)(10) require certain information be a part of the application for reimbursement.
Id
. The
amendment of subsection (f) to requires the submission of a budget plan prior to the Agency’s
review of a corresponding application for payment.
Id
.
Subsection (g) is amended to include a general reference rather than a reference to
revised budget plans. R04-22,23 (Feb. 17, 2005) at 9. Subsection (i), which is being added,
prohibits submission of applications for payment of deferred costs prior to the submission of a
completion report.
Id
. New Subsection (j) requires 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.
Id
.
Section 732.602/734.610
Revisions to this section are in combination with other changes proposed in Part 732. For
example, the amendments 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. R04-22,23
(Feb. 17, 2005) at 9.
Section 732.603/734.615
The language is amended to provide that the Board or a court may order payment from
the UST Fund. R04-22,23 (Feb. 17, 2005) at 9.
Section 732.604
Because of changes made in P.A. 92-0554, the subsections (a) and (b) are no longer
denoted as statutory language; but the wording is retained in the rule for releases reported prior
to the effective date of P.A. 92-0554. R04-22,23 (Feb. 17, 2005) at 9.
Section 732.605/734.625
Numerous changes were made in this section including the addition of new subsections,
rearrangement and renumbering of existing subsections, and the addition of “corrective action”
to the title of the section. R04-22,23 (Feb. 17, 2005) at 10. More specifically, in subsection
(a)(16) the requirements for the payment of costs associated with the destruction and
replacement of concrete, asphalt, or paving have been added.
Id
. The section is also amended to
ensure that the Agency does not pay for the destruction and replacement of concrete, asphalt, or
paving numerous times at a site.
Id
.
The changes to subsection (a)(17) require prior written approval by the Agency for work
and costs associated with the destruction or dismantling of above grade structures. R04-22,23
(Feb. 17, 2005) at 10. Subsection (a)(19) will allow costs associated with removal or
abandonment of potable water supply wells to be reimbursed.
Id
. Likewise, in subsection
14
(a)(20), the repair or replacement of potable water supply lines may also be eligible for
reimbursement.
Id
.
Section 732.606/734.630
The addition of several costs which will be deemed ineligible for reimbursement are
included. R04-22,23 (Feb. 17, 2005) at 10. In addition, the existing sections are amended to add
ineligible requirements and to clarify the existing language.
Id
. Finally, “corrective action” is
added to the title of the section.
Id
.
Section 732.607/734.635
Because of changes made in P.A. 92-0574, the language in Part 732 is no longer denoted
as statutory language. R04-22,23 (Feb. 17, 2005) at 10. However, the language is retained as
non-statutory language.
Id
.
Section 732.610/734.650
The amendments to this section more fully set forth the procedures for an owner or
operator to follow when seeking indemnification from the UST Fund. R04-22,23 (Feb. 17,
2005) at 10. The amendments delineate the requirements for submitting applications, the items
the Agency must consider when determining eligibility for indemnification, the eligible and
ineligible costs.
Id
.
Section 732.612/734.660
The amendments clarify that payment of an ineligible cost constitutes an “excess
payment” from the UST Fund. R04-22,23 (Feb. 17, 2005) at 11.
Section 732.614/734.665
This new section sets forth record retention requirements and auditing procedures. R04-
22,23 (Feb. 17, 2005) at 11.
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). R04-22,23 (Feb. 17, 2005) at 11.
Section 732.702/734.710
This section is amended 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. R04-22,23 (Feb. 17, 2005) at 11.
Section 732.703/734.715
15
The language in this section is amended to ensure that attachments to a NFR letter are
filed with the letter. R04-22,23 (Feb. 17, 2005) at 11. 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.
Id
.
Section 732.704/734.720
The language in this section is being clarified as well as requiring owners or operators to
complete groundwater-monitoring programs prior to the issuance of a NFR letter. R04-22,23
(Feb. 17, 2005) at 11.
Subpart H
Subpart H proposes maximum amounts that will be paid from the UST Fund for certain
activities. R04-22,23 (Feb. 17, 2005) at 11. The following paragraphs will more completely
summarize the 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. R04-22,23 (Feb. 17, 2005)
at 12. 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.
Id
.
Section 732.810/734.810.
This section establishes the maximum payment amounts for
costs involved in removing or abandonment of a UST. R04-22,23 (Feb. 17, 2005) at 12.
Section 732.815/734.815.
The maximum payment amounts for removal of free product
are set forth in this section. R04-22,23 (Feb. 17, 2005) at 12.
Section 732.820/734.820.
The maximum payment amounts for costs of drilling, well
installation, and well abandonment are set forth in this section. R04-22,23 (Feb. 17, 2005) at 12.
Section 732.825/734.825.
The maximum payment amounts for costs of soil removal,
transportation, and disposal are set forth in this section. R04-22,23 (Feb. 17, 2005) at 12.
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. R04-22,23 (Feb. 17,
2005) at 12.
Section 732.835/734.835.
This section addresses the cost associated with handling and
laboratory analysis of samples. R04-22,23 (Feb. 17, 2005) at 12. The specific maximum
payment amounts are set forth in Appendix D of the proposal.
Id
.
Section 732.840/734.840
.
The maximum payment amounts for costs of replacement of
concrete, asphalt, and paving are set forth in this section. R04-22,23 (Feb. 17, 2005) at 12. The
maximum payment for dismantling of concrete, asphalt, or paving is also included.
Id
.
16
Section 732.845/734.845.
As discussed above, this section allows for reimbursement of
professional services on a time and materials basis.
Section 732.850/734.850.
The language of this section delineates the procedure for the
Agency to determine rates based on time and material. R04-22,23 (Feb. 17, 2005) at 12.
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.
Id
.
Section 732.855/734.855.
This section allows for 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.
The language in this section allows for reimbursement to
exceed the maximum payment amounts under unusual or extraordinary circumstances.
Section 732.865/734.865.
In the proposal the Agency included this section to set forth
maximum payment amounts for handling charges. R04-22,23 (Feb. 17, 2005) at 12. In the third
errata
sheet this section is renumbered to Section 732.865.
Id
.
Section 732.870/734.870.
This section requires the Agency to review the rates in
Subpart H on a regular basis. R04-22,23 (Feb. 17, 2005) at 13.
Section 732.875/734.875.
The new language sets forth a procedure for adjusting the
maximum payment amounts in Subpart H. R04-22,23 (Feb. 17, 2005) at 13.
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. R04-22,23 (Feb. 17, 2005) at 13. The owner or operator is allowed to submit a
17
summary of Part 734 requirements which have been satisfied.
Id
. However, if a NFR letter has
been issued an owner or operator may not proceed under Part 734.
Id
.
Section 734.140
The language establishes requirements for developing remediation objectives. R04-22,23
(Feb. 17, 2005) at 13.
Section 734.310
The language proposed would require that site investigation proceeds in three stages
under Part 734. R04-22,23 (Feb. 17, 2005) at 14. 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.
Id
.
Section 734.315
This section establishes the requirements for a Stage 1 site investigation. R04-22,23
(Feb. 17, 2005) at 14. 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.
Id
.
Section 734.320
This section establishes the requirements for Stage 2 site investigation. R04-22,23 (Feb.
17, 2005) at 14.
Section 734.325
This section establishes the requirements for Stage 3 site investigation. R04-22,23 (Feb.
17, 2005) at 14.
Section 734.330
This section sets forth the required contents of the site classification completion report.
R04-22,23 (Feb. 17, 2005) at 14.
Section 734.400
This section establishes that the provisions of Subpart D apply to all activities conducted
under Part 734. R04-22,23 (Feb. 17, 2005) at 14.
Section 734.445
18
Section 734.445 is water supply well survey requirements. R04-22,23 (Feb. 17, 2005) at
14. The language includes requirements for what information from water supply well surveys
must be included with site classification and completion reports.
Id
.
Section 734.620
This section is identical to Section 732.603 except for the caps on the amounts which
may be paid. R04-22,23 (Feb. 17, 2005) at 15.
CONCLUSION
The Board adopts the proposal for final notice pursuant to the IAPA (5 ILCS 100/5-5
et
seq.
(2004). The Board will continue to review issues related to the ineligibility of costs for (1)
on-site clean up above the Tier 2 TACO levels and (2) groundwater cleanup when a groundwater
ordinance is in existence. The Board continues to examine these issues in response to a
recommendation by JCAR. Also, JCAR and the Board agreed to certain nonsubstantive changes
to the rule language, which are included in the adopted rule.
The Board finds that the rule is economically reasonable and technically feasible. The
Board further finds that any negative economic impact has been minimized by removal of the
professional service lump sum payments to subdocket B. Finally, the Board finds that the record
supports the Board’s decision to proceed to final notice with the remainder of the rule language.
ORDER
The Board directs the Clerk to cause the filing of the following rule with the Secretary of
State for publication as an adopted rule 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
19
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
20
732.409
Groundwater Monitoring and Corrective Action Completion Reports
732.410
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
732.612
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
21
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
732.860
Unusual or Extraordinary Circumstances
732.865
Handling Charges
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 R04-22/23 at 30 Ill. Reg. _______, effective March 1,
2006.
NOTE: Italics denotes statutory language.
SUBPART A: GENERAL
22
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
the 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). This Part 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.
23
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 USC 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 USC 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 30 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
24
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 30 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”
“Class I groundwater” means groundwater that meets the
Class I: potable resource groundwater criteria set forth in the Board board
regulations adopted pursuant to the Illinois Groundwater Protection Act
[415
ILCS 5/57.2].
“Class III Groundwater”
“Class III groundwater” means groundwater that meets
the Class III: special resource groundwater criteria set forth in the Board board
regulations adopted pursuant to the Illinois Groundwater Protection Act
[415
ILCS 5/57.2].
25
“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 a 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.
26
“Fill Material”
“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”
“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”
“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”
“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
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
27
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
28
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 Section
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, stateState, municipality, commission,
29
political subdivision of a stateState, 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”
“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
publication.
[415 ILCS 5/57.2].
“Potable”
“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" or “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”
“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
30
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”
“Setback Zone” means a geographic area, designated pursuant
to the Act or regulations
(see
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].
31
“Site”
“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 a 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 a 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 a toll highway as defined in the Toll Highway Act [605
ILCS 10].
“Township Road” means a 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 percent
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;
32
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” “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 30 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).
33
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);
34
"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).
b)
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
30 Ill. Reg._______, effective _____________)
Section 732.106
Laboratory Certification
35
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
30 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 Section 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
Completion Reports submitted pursuant to Section 732.300(b) or 732.409 of this Part must be
prepared under the supervision of a Licensed Professional Engineer.
(Source: Added at 30 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;
36
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
executed by Agency personnel acknowledging receipt of documents by hand
delivery or messenger or 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.
d)
All plans, budget plans, and reports submitted pursuant to this Part, excluding
Corrective Action Completion Reports submitted pursuant to Section 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 Section 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
37
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 30 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
Agency, and may include, but is not 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 30 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, two members 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 30 Ill. Reg._______, effective _____________)
38
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 30 Ill. Reg._______, effective _____________)
Section 732.202
Early Action
a)
Upon confirmation of a release of petroleum from a 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:
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
39
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
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
40
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.
f)
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)].
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.
41
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 practicable to the UST backfill.
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
42
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 described in subsections (h)(2)(A
through (D). 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
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 as 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,
43
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
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 is not 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.
44
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:
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
30 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:
45
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:
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
46
submission of plans and budgets required pursuant to subsections
(c) and (d) of this Section; and
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
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 removal 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.
47
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 removal 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 removal 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 by an
owner or operator must not exceed the amounts set forth in Subpart H of this Part.
(Source: Amended at
30 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 30 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
48
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
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 is
not 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
49
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
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);
50
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).
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 is not 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
51
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
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 are not 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 is not 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.
52
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 30 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”
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
53
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.
(Source: Amended at 30 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
54
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
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 30 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,
55
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;
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 30 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
:
1)
An application for payment of costs associated with eligible early action
costs incurred pursuant to Subpart B of this Part; and
56
2)
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.
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 classification 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 classification
plan or budget plan
in accordance with the procedures contained in Subpart E of
this Part.
57
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
30 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
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
58
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.
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
59
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
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 is not limited to, the results of a water supply well survey
conducted in accordance with Section 732.307(f) of this Part.
2)
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 30 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
60
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
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
61
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.
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
62
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
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
63
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
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
64
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.
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-
65
specifically, the hydraulic conductivity shall be calculated;
or
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
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
66
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
recharge areas and wellhead protection areas in which the site is located. Actions
taken to identify the wells must include, but is not 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.
1)
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.
2)
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.
67
Radii of 200, 400, 1000, and 2500 feet from the UST system shall be
marked on the map.
3)
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.
4)
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
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.
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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;
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.
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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
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 Section 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;
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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
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:
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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.
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
shall 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:
72
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
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
73
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
Remediation Letter shall be issued to the owner or operator of the
site, unless other High Priority criteria are present.
(Source: Amended at 30 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
74
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
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 30 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 or Licensed Professional Geologist 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 is not limited to, the following:
1)
One or more maps, to an appropriate scale, showing the following:
75
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
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 potable 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
76
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 30 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.
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 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
77
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:
1)
All volatile, base/neutral, polynuclear aromatic, and metal parameters
listed at 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 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 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
78
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.
(Source: Amended at
30 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 30 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 March 1, 2006. On or
after March 1, 2006, 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.
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2)
An owner or operator who chooses to revoke an election submitted under
subsection (b) (c) of this Section shall do so in writing.
b)
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.
1)
If the remediation objectives have been met, the owner or operator shall
submit a corrective action completion report demonstrating compliance
with the required levels.
2)
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 Section 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
80
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
:
1)
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
2)
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
81
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
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 classification 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 March 1,
2006 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 classification
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 March 1, 2006, 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.
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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
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 30 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 a 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
83
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 30 Ill. Reg._______, effective _____________)
Section 732.402
No Further Action Site
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 30 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
84
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 Section
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
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.
85
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.
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
86
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
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 30 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
87
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
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
88
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
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 is
not 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 is not 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.).
89
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.
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
30 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 is
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
90
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
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 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
91
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 30 Ill. Reg._______, effective _____________)
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.
92
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
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
93
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;
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
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 is not limited to, the results of a water supply well survey
conducted in accordance with Section 732.307(f) of this Part.
2)
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) of this Part.
c)
An owner or operator may, at any time,
withdraw the election to defer low
priority groundwater monitoring or high priority corrective action 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
corrective action in accordance with the requirements of this Part.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
94
Section 732.407
Alternative Technologies
a)
An owner or operator may choose to use an alternative technology for corrective
action in response to a release of petroleum at a High Priority site. Corrective
action plans proposing the use of alternative technologies shall be submitted to the
Agency in accordance with Section 732.405 of this Part. In addition to the
requirements for corrective action plans contained in Section 732.404, the owner
or operator who seeks approval of an alternative technology shall submit
documentation along with the corrective action plan demonstrating that:
1)
The proposed alternative technology has a substantial likelihood of
successfully achieving compliance with all applicable regulations and all
corrective action remediation objectives necessary to comply with the Act
and regulations and to protect human health or the environment;
2)
The proposed alternative technology will not adversely affect human
health or the environment;
3)
The owner or operator will obtain all Agency permits necessary to legally
authorize use of the alternative technology;
4)
The owner or operator will implement a program to monitor whether the
requirements of subsection (a)(1) of this Section have been met; and
5)
Within one year from the date of Agency approval the owner or operator
will provide to the Agency monitoring program results establishing
whether the proposed alternative technology will successfully achieve
compliance with the requirements of subsection (a)(1) of this Section and
any other applicable regulations. The Agency may require interim reports
as necessary to track the progress of the alternative technology. The
Agency will specify in the approval when those interim reports shall be
submitted to the Agency.
b)
An owner or operator intending to seek payment or reimbursement
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 must 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.
95
c)
If an owner or operator has received approval of a corrective action plan and
associated budget plan from the Agency prior to implementing the plan and the
alternative technology fails to satisfy the requirements of subsection (a)(1) or
(a)(2) of this Section, such failure shall not make the owner or operator ineligible
to seek payment or reimbursement for the activities associated with the
subsequent performance of a corrective action using conventional technology.
However, in no case shall the total payment or reimbursement for the site exceed
the statutory maximums. Owners or operators implementing alternative
technologies without obtaining pre-approval shall be ineligible to seek payment or
reimbursement for the subsequent performance of a corrective action using
conventional technology.
d)
The Agency may require remote monitoring of an alternative technology. The
monitoring may include, but is not limited to, monitoring the alternative
technology’s operation and progress in achieving the applicable remediation
objectives.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.408
Remediation Objectives
For sites requiring High Priority corrective action or for which the owner or operator has elected
to conduct corrective action pursuant to Section 732.300(b), 732.400(b) or 732.400(c) of this
Part, the owner or operator shall propose remediation objectives for applicable indicator
contaminants in accordance with 35 Ill. Adm. Code 742. Owners and operators seeking payment
from the Fund that perform on-site corrective action in accordance with Tier 2 remediation
objectives of 35 Ill. Adm. Code 742 must determine the following parameters on a site-specific
basis:
Hydraulic conductivity (K)
Soil bulk density (ρ
b
)
Soil particle density (ρ
s
)
Moisture content (w)
Organic carbon content (f
oc
)
Board Note: Failure to use site-specific remediation objectives on-site and to utilize available
groundwater ordinances as institutional controls may result in certain corrective action costs
being ineligible for payment from the Fund. See Section 732.606(ddd) and (eee) of this Part.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.409
Groundwater Monitoring and Corrective Action Completion Reports
a)
Within 30 days after completing the performance of a Low Priority groundwater
monitoring plan or High Priority corrective action
plan, the owner or operator
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shall submit to the Agency a groundwater monitoring completion report or a
corrective action completion report.
1)
The Low Priority groundwater monitoring completion report shall include,
but is not be limited to, a narrative describing the implementation and
completion of all elements of the groundwater monitoring plan and the
procedures used for collection and analysis of samples, analytical results
in tabular form, actual analytical results, laboratory certification and any
other information or documentation relied upon by the Licensed
Professional Engineer or Licensed Professional Geologist in reaching the
conclusion that the requirements of the Act and regulations have been
satisfied and that no further remediation is required at the site.
2)
The High Priority corrective action completion report shall include, but is
not be limited to, a narrative and timetable describing the implementation
and completion of all elements of the corrective action plan 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
the Act and regulations have been satisfied and that no further remediation
is required at the site. Documentation of any water supply well survey
conducted pursuant to Section 732.404(e) of this Part must include, but is
not limited to, the following:
A)
One or more maps, to an appropriate scale, showing the following:
i)
The location of the community water supply wells and
other potable water supply wells identified pursuant to
Section 732.404(e) of this Part, and the setback zone for
each well;
ii)
The location and extent of regulated recharge areas and
wellhead protection areas identified pursuant to Section
732.404(e) of this Part;
iii)
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
iv)
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.
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B)
One or more tables listing the setback zones for each community
water supply well and other potable water supply wells identified
pursuant to Section 732.404(e) of this Part;
C)
A narrative that, at a minimum, identifies each entity contacted to
identify potable water supply wells pursuant to Section 732.404(e)
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
D)
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
732.404(e) of this Part and that the documentation submitted
pursuant to this Section includes the information obtained as a
result of the survey.
3)
A High Priority corrective action completion report shall demonstrate the
following:
A)
For sites submitting a site classification report under Section
732.309 of this Part:
i)
Applicable indicator contaminant groundwater objectives
are not exceeded at the property boundary line or 200 feet
from the UST system, whichever is less, as a result of the
release of petroleum for any indicator contaminant
identified during the groundwater investigation;
ii)
Class III resource groundwater quality standards for Class
III special use resource groundwater within 200 feet of the
UST system are not exceeded as a result of the release of
petroleum for any indicator contaminant identified during
the groundwater investigation;
iii)
The release of petroleum does not threaten human health or
human safety due to the presence or migration, through
natural or manmade pathways, of petroleum in
concentration sufficient to harm human health or human
safety or to cause explosions in basements, crawl spaces,
utility conduits, storm or sanitary sewers, vaults or other
confined spaces;
iv)
The release of petroleum does not threaten any surface
water body; and
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v)
The release of petroleum does not threaten any potable
water supply.
B)
For sites submitting a site classification completion report under
Section 732.312 of this Part, the concentrations of applicable
indicator contaminants meet the remediation objectives developed
under Section 732.408 of this Part for any applicable exposure
route not excluded from further consideration under Section
732.312 of this Part.
b)
The applicable 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 be accompanied by a
certification from a Licensed Professional Engineer, in accordance with
subsection (a) of this Section, that the information presented in the applicable
report is accurate and complete, that groundwater monitoring or corrective action
have been completed in accordance with the requirements of the Act and this
Subpart D, 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 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 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 corrective action completion
report.
c)
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
30 Ill. Reg._______, effective _____________)
Section 732.411
Off-site Access
a)
An owner or operator seeking to comply with the best efforts requirements of
Section 732.404(c) of this Part must demonstrate compliance with the
requirements of this Section.
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b)
In conducting best efforts to obtain off-site access, an owner or operator must, at a
minimum, send a letter by certified mail to the owner of any off-site property to
which access is required, stating:
1)
Citation to Title XVI Section 57 of the Act stating the legal responsibility
of the owner or operator to remediate the contamination caused by the
release;
2)
That, if the property owner denies access to the owner or operator, the
owner or operator may seek to gain entry by a court order pursuant to
Section 22.2c 22.2(c) of the Act;
3)
That, in performing the requested investigation, the owner or operator will
work so as to minimize any disruption on the property, will maintain, or
its consultant will maintain, appropriate insurance and will repair any
damage caused by the investigation;
4)
If contamination results from a release by the owner or operator, the
owner or operator will conduct all associated remediation at its own
expense;
5)
That threats to human health and the environment and diminished property
value may result from failure to remediate contamination from the release;
and
6)
A reasonable time to respond to the letter, not less than 30 days.
c)
An owner or operator, in demonstrating that the requirements of this Section have
been met, must provide to the Agency, as part of the corrective action completion
report, the following documentation:
1)
A sworn affidavit, signed by the owner or operator identifying the specific
off-site property involved by address, the measures proposed in the
corrective action plan that require off-site access, and the efforts taken to
obtain access, and stating that the owner or operator has been unable to
obtain access despite the use of best efforts; and
2)
A copy of the certified letter sent to the owner of the off-site property
pursuant to subsection (b) of this Section.
d)
In determining whether the efforts an owner or operator has made constitute best
efforts to obtain access, the Agency must consider the following factors:
1)
The physical and chemical characteristics, including toxicity, persistence
and potential for migration, of applicable indicator contaminants at the
property boundary line;
100
2)
The hydrogeological characteristics of the site and the surrounding area,
including the attenuation capacity and saturation limits of the soil at the
property boundary line;
3)
The nature and extent of known contamination at the site, including the
levels of applicable indicator contaminants at the property boundary line;
4)
The potential effects of residual contamination on nearby surface water
and groundwater;
5)
The proximity, quality and current and future uses of nearby surface water
and groundwater, including setback zones and regulated recharge areas,
wellhead protection areas, and setback zones of potable water supply
wells;
6)
Any known or suspected natural or man-made migration pathways
existing in or near the suspected area of off-site contamination;
7)
The nature and use of the part of the off-site property that is the suspected
area of contamination;
8)
Any existing on-site engineered barriers or institutional controls that might
have an impact on the area of suspected off-site contamination, and the
nature and extent of such impact; and
9)
Any other applicable information assembled in compliance with this Part.
e)
The Agency shall issue a No Further Remediation Letter to an owner or operator
subject to this Section and otherwise entitled to such issuance only if the owner or
operator has, in accordance with this Section, either completed any requisite off-
site corrective action or demonstrated to the Agency’s satisfaction an inability to
obtain off-site access despite best efforts.
f)
The owner or operator is not relieved of responsibility to clean up a release that
has migrated beyond the property boundary even where off-site access is denied.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
SUBPART E: REVIEW OF
SELECTION AND REVIEW PROCEDURES FOR PLANS,
BUDGET PLANS, AND REPORTS
Section 732.500
General
a)
The Agency shall have the authority to review any plan, budget plan, or report,
including any amended plan, budget plan,
or report, submitted pursuant to this
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Part. All such reviews shall be subject to the procedures set forth in the Act and
this Subpart E.
b)
For purposes of this Part, “plan” shall mean:
1)
Any physical soil classification or groundwater investigation plan or
associated budget plan submitted pursuant to Subpart C of this Part;
2)
Any groundwater monitoring plan or associated budget plan submitted
pursuant to Subpart D of this Part; or
3)
Any site-specific corrective action plan or associated budget plan
submitted pursuant to Subpart D of this Part.
c)
For purposes of this Part, “report” shall mean:
1)
Any early action report or free product removal report submitted pursuant
to Subpart B of this Part;
2)
Any site classification completion report submitted pursuant to Subpart C;
3)
Any annual groundwater monitoring report submitted pursuant to Subpart
D of this Part;
4)
Any groundwater monitoring completion report submitted pursuant to
Subpart D of this Part; or
5)
Any corrective action completion report submitted pursuant to Subpart D
of this Part or Section 732.300(b) or 732.400(b).
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.501
Submittal of Plans or Reports (Repealed)
All plans or reports shall be made on forms
prescribed and provided by the Agency and, if
specified by the Agency by written notice, in an electronic format. Plans or reports shall be
mailed or delivered to the address designated by the Agency. 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 certified or registered mail.
(Source: Repealed at 30 Ill. Reg._______, effective _____________)
Section 732.502
Completeness Review (Repealed)
a)
The Agency shall review for completeness all plans submitted pursuant to this
Part 732. The completeness review shall be sufficient to determine whether all
102
information and documentation required by the Agency form for the particular
plan are present. The review shall not be used to determine the technical
sufficiency of a particular plan or of the information or documentation submitted
along with the plan.
b)
The Agency shall have 45 days from the receipt of a plan to finish the
completeness review. If the completeness review finds that the plan is complete,
the Agency shall so notify the owner or operator in writing and proceed, where
appropriate, to approval, rejection or modification of the substantive portions of
the plan. If the completeness review finds that the plan is incomplete, the Agency
shall notify the owner or operator in writing. The notification shall include an
explanation of the specific type of information or documentation that the Agency
deems necessary to complete the plan.
1)
The Agency may, to the extent consistent with Agency deadlines, provide
the owner or operator with a reasonable opportunity to correct deficiencies
prior to a final determination on completeness.
2)
The Agency shall mail notice of incompleteness by registered or certified
mail, post marked with a date stamp and with return receipt requested.
The decision shall be deemed to have taken place on the post marked date
that such notice is mailed.
3)
All time limits for Agency final action on a plan or report shall be
calculated from the date the Agency receives a plan or report. Receipt of
an amended plan or report, after a notice of incompleteness, shall restart
all time limits for Agency final action on that plan or report.
c)
Any budget plan submitted must be preceded or accompanied by an associated
technical plan in order for the budget plan to be deemed complete.
d)
The failure of the Agency to notify an owner or operator within 45 days that a
plan is incomplete shall result in the plan being deemed complete. Any action by
the Agency pursuant to this Section 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.
(Source: Repealed at
30 Ill. Reg._______, effective _____________)
Section 732.503
Full
Review of Plans, Budget Plans, or Reports
a)
The Agency may review
In addition to the completeness review for plans
conducted pursuant to Section 732.502 of this Part, the Agency may conduct a
full review of plans or reports selected in accordance with the requirements of
Section 732.504 of this Part. A full review may include any or all technical or
financial information, or both, relied upon by the owner or operator or the
103
Licensed Professional Engineer or Licensed Professional Geologist in developing
any the plan, budget plan, or report selected for review. The Agency may also
full review also may include the review of any other plans, budget plans, or
reports submitted in conjunction with the site.
b)
The Agency shall have the authority to approve, reject or require modification of
any plan, budget plan, or report it reviews that has been given a full review. The
Agency shall notify the owner or operator in writing of its final action on any
such plan, budget plan,
or report, except in the case of 20 day, 45 day or free
product removal
reports, in which case no notification is necessary. Except as
provided in subsections (c) and (d) and (e) of this Section, if the Agency fails to
notify the owner or operator of its final action on a plan, budget plan, or report
within 120 days after the receipt of a plan, budget plan, or report, the owner or
operator may deem the plan, budget plan,
or report rejected by operation of law.
If the Agency rejects a plan, budget plan,
or report or requires modifications, the
written notification shall contain the following information, as applicable:
1)
An explanation of the specific type of information, if any, that the Agency
needs to complete the full review;
2)
An explanation of the Sections of the Act or regulations that may be
violated if the plan, budget plan, or report is approved; and
3)
A statement of specific reasons why the cited Sections of the Act or
regulations may be violated if the plan, budget plan, or report is approved.
c)
For High Priority corrective action plans submitted by owners or operators not
seeking payment reimbursement from the Fund, the Agency may delay final
action on such plans until 120 days after it receives the corrective action
completion report required pursuant to Section 732.409 of this Part.
d)
An owner or operator may waive the right to a final decision within 120 days after
the submittal of a complete plan, budget plan, or report by submitting written
notice to the Agency prior to the applicable deadline. Any waiver shall be for a
minimum of 60 days.
e)
The Agency shall mail notices of final action on plans, budget plans, or reports 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.
f)
Any action by the Agency to reject or require modification, or rejection by failure
to act, of a plan, budget plan, or report 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. If the owner or operator
elects to incorporate modifications required by the Agency rather than appeal, a
104
revised plan or report shall be submitted to the Agency within 35 days after the
receipt of the Agency's written notification. If no revised plan or report is
submitted to the Agency or no appeal to the Board is filed within the specified
time frames, the plan or report shall be deemed approved as modified by the
Agency. If any plan or report is rejected by operation of law, in lieu of an
immediate appeal to the Board the owner or operator may either resubmit the plan
or report to the Agency or file a joint request for a 90 day extension in the manner
provided for extensions of permit decisions in Section 40 of the Act.
g)
Notification of Selection for Full Review
1)
Owners or operators submitting plans shall be notified by the Agency
within 60 days after the date the plan is deemed complete if the plan has
not been selected for full review in accordance with Section 732.504 of
this Part. Failure of the Agency to so notify the owner or operator shall
mean that the plan has been selected for full review. Notification by the
Agency that the plan has not been selected for full review shall constitute
approval of the plan.
2)
Owners or operators submitting reports shall be notified by the Agency
within 60 days after the receipt of the report if the report has not been
selected for full review in accordance with Section 732.504 of this Part,
except in the case of 20 day, 45 day or free product reports, in which case
no notification of selection is necessary. Failure of the Agency to so
notify the owner or operator shall mean that the report has been selected
for full review. Notification by the Agency that the report has not been
selected for full review shall constitute approval of the report.
3)
Notice shall be sent and the date of notification shall be computed in
accordance with subsection (e) of this Section.
g)h)
In accordance with Sections 732.306 and 732.406 of this Part, upon the approval
of any budget plan by the Agency, the Agency shall include as part of the final
notice to the owner or operator a notice of insufficient funds if the Fund does not
contain sufficient funds to provide payment of the total costs approved in the
budget plan.statement of whether or not the Fund contains sufficient resources in
order to immediately commence the approved measures.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.504
Selection of Plans or Reports for Full Review (Repealed)
a)
The Agency shall select for full review a reasonable number of each type of plan
or report. The number of plans or reports selected for full review shall be
determined by the Agency based on the resources available to the Agency, the
potential environmental impact at the site, the financial and technical complexity
105
of the plan or report, and experience with prior reviews. To assure consistency
and fairness in the selection process, the Agency shall follow a selection process
that has the following goals:
1)
A full technical and financial review of every “High Priority” corrective
action plan, associated budget plan, and completion report submitted
pursuant to Subpart D of this Part;
2)
A full technical and financial review of every corrective action plan,
associated budget plan, and completion report submitted pursuant to
Sections 732.300(b) or 732.400© of this Part;
3)
A full technical review of approximately 20% of the site classification
reports submitted pursuant to Subpart C of this Part;
4)
Site Classification Plans
A)
A full technical review of any site classification plan (including
physical soil classification and groundwater investigation plans)
for which the associated site classification report was selected for
full review or that has an associated budget plan exceeding the
typical cost for such plans as determined by the Agency;
B)
A full financial review of any site classification budget plan
exceeding the typical cost for such plans as determined by the
Agency;
5)
“Low Priority” Groundwater Monitoring Plans
A)
A full technical review of any “Low Priority” groundwater
monitoring plan that has an associated budget plan exceeding the
typical cost for such plans as determined by the Agency;
B)
A full financial review of any “Low Priority” groundwater
monitoring budget plan exceeding the typical cost for such plans as
determined by the Agency;
6)
A full technical review of any “Low Priority” annual groundwater
sampling and analysis report or any groundwater monitoring completion
report submitted pursuant to Subpart D of this Part;
7)
A full technical review of any 20-day report, 45-day report, or free product
report submitted pursuant to Subpart B of this Part in conjunction with the
review of another plan or report selected in accordance with this Section.
106
b)
The Agency may conduct a full review of any plan or report not selected in
accordance with the provisions of this Section if the Agency has reason to believe
that such review is necessary in conjunction with the review of another plan or
report selected for that site.
c)
Notwithstanding any other limitations on reviews, the Agency may conduct a full
technical review on any plan or report identified in this Section that concerns a
site for which an investigation has been or may be initiated pursuant to Section
732.105 of this Part.
d)
Agency decisions on whether or not to select a plan or report for full review shall
not be subject to appeal.
(Source: Repealed at
30 Ill. Reg._______, effective _____________)
Section 732.505
Standards for Review of Plans, Budget Plans,
or Reports
a)
A full technical review shall consist of a detailed review of the steps proposed or
completed to accomplish the goals of the plan and to achieve compliance with the
Act and regulations. Items to be reviewed, if applicable, shall include, but is not
be limited to, number and placement of wells and borings, number and types of
samples and analysis, results of sample analysis, and protocols to be followed in
making determinations. The overall goal of the technical review for plans shall be
to determine if the plan is sufficient to satisfy the requirements of the Act and
regulations and has been prepared in accordance with generally accepted
engineering practices or principles of professional geology. The overall goal of
the technical review for reports shall be to determine if the plan has been fully
implemented in accordance with generally accepted engineering practices or
principles of professional geology, if the conclusions are consistent with the
information obtained while implementing the plan, and if the requirements of the
Act and regulations have been satisfied.
b)
If the Licensed Professional Engineer or Licensed Professional Geologist
certifies that there is no evidence that, through natural or manmade 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, the Licensed Professional Engineer’s or
Licensed Professional Geologist’s certification to that effect shall be presumed
correct unless the Agency’s review reveals objective evidence to the contrary.
c)
A full
financial review shall consist of a detailed review of the costs associated
with each element necessary to accomplish the goals of the plan as required
pursuant to the Act and regulations. Items to be reviewed shall include, but are
not be
limited to, costs associated with any materials, activities or services that are
included in the budget plan. The overall goal of the financial review shall be to
assure that costs associated with materials, activities and services shall be
107
reasonable, shall be consistent with the associated technical plan, shall be incurred
in the performance of corrective action activities, and shall not be used for
corrective action activities in excess of those necessary to meet the minimum
requirements of the Act and regulations, and must not exceed the maximum
payment amounts set forth in Subpart H of this Part.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
SUBPART F: PAYMENT FROM THE FUND
OR REIMBURSEMENT
Section 732.601
Applications for Payment
a)
An owner or operator seeking payment from the Fund shall submit to the Agency
an application for payment on forms prescribed and provided by the Agency and,
if specified by the Agency by written notice, in an electronic format. The owner
or operator may submit an application for partial payment or final payment for
materials, activities or services contained in an approved budget plan. Costs for
which payment is sought must be approved in a budget plan, provided, however,
that no budget plan shall be required for early action activities conducted pursuant
to Subpart B of this Part other than free product removal activities conducted
more than 45 days after confirmation of the presence of free product. An
application for payment also may be submitted for materials, activities or services
for early action conducted pursuant to Subpart B of this Part and for which no
budget plan is required.
b)
A complete application for payment shall consist of the following elements:
1)
A certification from a Licensed Professional Engineer or a Licensed
Professional Geologist acknowledged by the owner or operator that the
work performed has been in accordance with a technical plan approved by
the Agency or, for early action activities, in accordance with Subpart B of
this Part;
2)
A statement of the amounts approved in the corresponding budget plan
and the amounts actually sought for payment along with a certified
statement by the owner or operator that the amounts so sought have been
expended in conformance with the elements of a budget plan approved by
the Agency;
3)
A copy of the OSFM or Agency eligibility and deductibility
determination;
4)
Proof that approval of the payment requested will not exceed the
limitations set forth in the Act and Section 732.604 of this Part;
108
5)
A federal taxpayer identification number and legal status disclosure
certification;
6)
A private insurance coverage
Private Insurance Coverage form;
7)
A minority/women’s business
Minority/Women's Business Usage form;
and
8)
Designation
designation of the address to which payment and notice of
final action on the application for payment are to be sent;
.
9)
An accounting of all costs, including but not limited to, invoices, receipts,
and supporting documentation showing the dates and descriptions of the
work performed; and
10)
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.
c)
The address designated on the application for payment may be changed only by
subsequent notification to the Agency, on a form provided by the Agency, of a
change in address.
d)
Applications for payment and change of address forms shall be mailed or
delivered to the address designated by the Agency. 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 certified or registered mail.
e)
Applications for partial or final payment may be submitted no more frequently
than once every 90 days.
f)
Except for applications for payment for costs of early action conducted pursuant
to Subpart B of this Part, other than costs associated with free product removal
activities conducted more than 45 days after confirmation of the presence of free
product, or applications for payment/budget plans submitted pursuant to Sections
732.305(e), 732.312(l), 732.405(e), and 732.405(f) of this Part, in no case shall
the Agency review an application for payment unless there is an approved budget
plan on file corresponding to the application for payment.
g)
In no case shall the Agency authorize payment to an owner or operator in amounts
greater than the amounts approved by the Agency in a corresponding budget plan.
Revised cost estimates or increased costs resulting from revised procedures must
be submitted to the Agency for review in accordance with Subpart E of this Part
using amended budget plans as required under in accordance with Section
732.305(e) or 732.405(e) of this Part.
109
h)
Applications for payment of costs associated with site classification may not be
submitted prior to approval or modification of the site classification completion
report.
i)
Applications for payment of costs associated with site classification, low priority
groundwater monitoring, or high priority corrective action that was deferred
pursuant to Section 732.306 or 732.406 of this Part may not be submitted prior to
approval or modification of the corresponding site classification completion
report, low priority groundwater monitoring completion report, or high priority
corrective action completion report.
j)
All applications for payment of corrective action costs must be submitted no later
than one year after the date the Agency issues a No Further Remediation Letter
pursuant to Subpart G of this Part. For releases for which the Agency issued a No
Further Remediation Letter prior to March 1, 2006, all applications for payment
must be submitted no later than March 1, 2007.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.602
Review of Applications for Payment
a)
At a minimum, the Agency must review each application for payment submitted
pursuant to this Part to determine the following:
1)
whether the application contains all of the elements and supporting
documentation required by Section 732.601(b) of this Part;
2)
for costs incurred pursuant to Subpart B of this Part, other than free
product removal activities conducted more than 45 days after confirmation
of the presence of free product, whether the amounts sought are
reasonable, and whether there is sufficient documentation to demonstrate
that the work was completed in accordance with the requirements of this
Part;
3)
for costs incurred pursuant to Subpart C of this Part and free product
removal activities conducted more than 45 days after confirmation of the
presence of free product, whether the amounts sought exceed the amounts
approved in the corresponding budget plan, and whether there is sufficient
documentation to demonstrate that the work was completed in accordance
with the requirements of this Part and a plan approved by the Agency; and
4)
Whether the amounts sought are eligible for payment.
The Agency
shall conduct a review of any application for payment submitted
pursuant to this Part. Each application for payment shall be reviewed to
determine whether the application contains all of the elements and supporting
110
documentation required by Section 732.601(b) of this Part and whether the
amounts sought for payment have been certified in accordance with Section
732.601(b)(2) of this Part as equal to or less than the amounts approved in the
corresponding budget plan. Any action by the Agency pursuant to this subsection
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.
b)
The Agency may conduct a full review of any application for payment:
1)
If the amounts sought for payment exceed the amounts approved in the
corresponding budget plan;
2)
If the Agency has reason to believe that the application for payment is
fraudulent; or
3)
If the application for payment includes costs for early action activities
conducted pursuant to Subpart B of this Part and either of the following
circumstances exists:
A)
The application for payment is solely for early action costs that
have not been approved as part of a prior budget plan; or
B)
The application for payment includes early action costs that have
not been approved as part of a prior budget plan, except that only
the portion of the application for the unapproved early action costs
may be given a full review.
b)c)
When conducting a full review of any application for payment, the Agency may
require the owner or operator to submit a full accounting supporting all claims as
provided in subsection (c)
subsection (d) of this Section.
c)d)
A full review of an application for payment shall be sufficient to determine which
line items contained in the application for payment have caused the application
for payment to exceed the corresponding approved budget plan pursuant to
subsection (b)(1) of this Section, which line items, if any, are ineligible for
payment pursuant to subsection (b)(2) or (b)(3) of this Section, and whether there
is sufficient documentation to demonstrate that line items have been completed in
accordance with a plan approved by the Agency. The Agency’s A full review
may include review of any or all elements and supporting documentation relied
upon by the owner or operator in developing the application for payment,
including but not limited to a review of invoices or receipts supporting all claims.
The full
review also may include the review of any plans, budget plans, or reports
previously submitted for the site to ensure that the application for payment is
consistent with work proposed and actually performed in conjunction with the
site.
111
d)e)
Following a review, the Agency shall have the authority to approve, deny or
require modification of applications for payment or portions thereof. The Agency
shall notify the owner or operator in writing of its final action on any such
application for payment. Except as provided in subsection (e) subsection (f) of
this Section, if the Agency fails to notify the owner or operator of its final action
on an application for payment within 120 days after the receipt of a complete
application for payment, the owner or operator may deem the application for
payment approved by operation of law. If the Agency denies payment for an
application for payment or for a portion thereof or requires modification, the
written notification shall contain the following information, as applicable:
1)
An explanation of the specific type of information, if any, that the Agency
needs to complete the full
review;
2)
An explanation of the Sections of the Act or regulations that may be
violated if the application for payment is approved; and
3)
A statement of specific reasons why the cited Sections of the Act or
regulations may be violated if the application for payment is approved.
e)f)
An owner or operator may waive the right to a final decision within 120 days after
the submittal of a complete application for payment by submitting written notice
to the Agency prior to the applicable deadline. Any waiver shall be for a
minimum of 30 days.
f)g)
The Agency shall mail notices of final action on applications for payment 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. The Agency shall mail notices of final action on
applications for payment, and direct the Comptroller to mail payments to the
owner or operator, at the address designated for receipt of payment in the
application for payment or on a change of address form, provided by the Agency,
submitted subsequent to submittal of the application for payment.
g)h)
Any action by the Agency to deny payment for an application for payment or
portion thereof or to require modification 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. If the owner or operator
elects to incorporate modifications required by the Agency rather than appeal, a
revised application for payment shall be submitted to the Agency within 35 days
after the receipt of the Agency's written notification. If no revised application for
payment is submitted to the Agency or no appeal to the Board is filed within the
specified time frames, the application for payment shall be deemed approved as
modified by the Agency and payment shall be authorized in the amount approved.
112
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.603
Authorization for Payment; Priority List
a)
Within 60 days after notification to an owner or operator that the application for
payment or a portion thereof has been approved by the Agency or by operation of
law, the Agency shall forward to the Office of the State Comptroller in
accordance with subsection (d) or (e) of this Section a voucher in the amount
approved. If the owner or operator has filed an appeal with the Board of the
Agency's final decision on an application for payment, the Agency shall have 60
days after the final resolution of the appeal to forward to the Office of the State
Comptroller a voucher in the amount ordered as a result of the appeal.
Notwithstanding the time limits imposed by this Section, the Agency shall not
forward vouchers to the Office of the State Comptroller until sufficient funds are
available to issue payment.
b)
The following rules shall apply regarding deductibles:
1)
Any deductible, as determined by the OSFM or the Agency, shall be
subtracted from any amount approved for payment by the Agency or by
operation of law or ordered by the Board or courts;
2)
Only one deductible shall apply per occurrence;
3)
If multiple incident numbers are issued for a single site in the same
calendar year, only one deductible shall apply for those incidents, even if
the incidents relate to more than one occurrence; and
4)
Where more than one deductible determination is made, the higher
deductible shall apply.
c)
The Agency shall instruct the Office of the State Comptroller to issue payment to
the owner or operator at the address designated in accordance with Section
732.601(b)(8) or (c)
of this Part. In no case shall the Agency authorize the Office
of the State Comptroller to issue payment to an agent, designee, or entity that who
has conducted corrective action activities for the owner or operator.
d)
For owners or operators who have deferred site classification or corrective action
in accordance with Section 732.306 or 732.406 of this Part, payment shall be
authorized from funds encumbered pursuant to Section 732.306(a)(6) or
732.406(a)(6)732.306(a)(4) or 732.406(a)(4) of this Part upon approval of the
application for payment by the Agency or by operation of law.
e)
For owners or operators not electing to defer site classification or corrective
action in accordance with Section 732.306 or 732.406 of this Part, the Agency
113
shall form a priority list for payment for the issuance of vouchers pursuant to
subsection (a) of this Section.
1)
All such applications for payment shall be assigned a date that is the date
upon which the complete application for partial or final payment was
received by the Agency. This date shall determine the owner’s owner or
operator's priority for payment in accordance with subsection (e)(2) of this
Section, with the earliest dates receiving the highest priority.
2)
Once payment is approved by the Agency or by operation of law or
ordered by the Board or courts, the application for payment shall be
assigned priority in accordance with subsection (e)(1) of this Section. The
assigned date shall be the only factor determining the priority for payment
for those applications approved for payment.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.604
Limitations on Total Payments
a)
Limitations per occurrence:
1)
The Agency must not approve any payment from the Fund to pay an
owner or operator for costs of corrective action incurred by the owner or
operator in an amount in excess of $1,000,000 per occurrence. THE
AGENCY SHALL NOT APPROVE ANY PAYMENT FROM THE
FUND TO PAY AN OWNER OR OPERATOR FOR COSTS OF
CORRECTIVE ACTION INCURRED BY SUCH OWNER OR
OPERATOR IN AN AMOUNT IN EXCESS OF $1,000,000 PER
OCCURRENCE. (Section 57.8(g) of the Act)
2)
The Agency must not approve any payment from the Fund to pay an
owner or operator for costs of indemnification of the owner or operator in
an amount in excess of $1,000,000 per occurrence. THE AGENCY
SHALL NOT APPROVE ANY PAYMENT FROM THE FUND TO PAY
AN OWNER OR OPERATOR FOR COSTS OF INDEMNIFICATION
OF SUCH OWNER OR OPERATOR IN AN AMOUNT IN EXCESS OF
$1,000,000 PER OCCURRENCE. (Section 57.8(g) of the Act)
b)
Aggregate limitations:
1)
Notwithstanding any other provision of this Part, the Agency must not
approve payment to an owner or operator from the Fund for costs of
corrective action or indemnification incurred during a calendar year in
excess of the following amounts based on the number of petroleum
underground storage tanks owned or operated by the owner or operator in
114
Illinois:
Amount
Number of Tanks
$1,000,000
fewer than 101
$2,000,000
101 or more
NOTWITHSTANDING ANY OTHER PROVISION OF THIS Part 732,
THE AGENCY SHALL NOT APPROVE PAYMENT TO AN OWNER
OR OPERATOR FROM THE FUND FOR COSTS OF CORRECTIVE
ACTION OR INDEMNIFICATION INCURRED DURING A
CALENDAR YEAR IN EXCESS OF THE FOLLOWING AMOUNTS
BASED ON THE NUMBER OF PETROLEUM UNDERGROUND
STORAGE TANKS OWNED OR OPERATED BY SUCH OWNER OR
OPERATOR IN ILLINOIS:
AMOUNT NUMBER OF TANKS
$1,000,000 FEWER THAN 101
$2,000,000 101 OR MORE
2)
Costs incurred in excess of the aggregate amounts set forth in subsection
(b)(1) of this Section will not be eligible for payment in subsequent years.
COSTS INCURRED IN EXCESS OF THE AGGREGATE AMOUNTS
SET FORTH IN subsection (b)(1) of this Section SHALL NOT BE
ELIGIBLE FOR PAYMENT IN SUBSEQUENT YEARS. (Section
57.8(d) of the Act)
c)
For purposes of
subsection (b) of this Section,
requests submitted by any of the
agencies, departments, boards, committees or commissions of the State of Illinois
shall be acted upon as claims from a single owner or operator
[415 ILCS
5/57.8(d)(2)]. FOR PURPOSES OF subsection (b) of this Section, REQUESTS
SUBMITTED BY ANY OF THE AGENCIES, DEPARTMENTS, BOARDS,
COMMITTEES OR COMMISSIONS OF THE STATE OF ILLINOIS SHALL
BE ACTED UPON AS CLAIMS FROM A SINGLE OWNER OR OPERATOR.
(Section 57.8(d) of the Act)
d)
For purposes of
subsection (b) of this Section,
owner or operator includes
;
1)
any subsidiary, parent, or joint stock company of the owner or operator
;
and
2)
any company owned by any parent, subsidiary, or joint stock company of
the owner or operator
[415 ILCS 5/57.8(d)(3)].
115
FOR PURPOSES OF subsection (b) of this Section, OWNER OR OPERATOR
INCLUDES;
1)
ANY SUBSIDIARY, PARENT, OR JOINT STOCK COMPANY OF
THE OWNER OR OPERATOR; AND
2)
ANY COMPANY OWNED BY ANY PARENT, SUBSIDIARY, OR
JOINT STOCK COMPANY OF THE OWNER OR OPERATOR.
(Section 57.8(d) of the Act)
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.605
Eligible Corrective Action Costs
a)
Types of costs that may be eligible for payment from the Fund include those for
corrective action activities and for materials or services provided or performed in
conjunction with corrective action activities. Such activities and services may
include but are not limited to reasonable costs for:
1)
Early action activities conducted pursuant to Subpart B of this Part;
2)
Engineer or geologist Engineering oversight services;
3)
Remedial investigation and design;
4)
Feasibility studies;
4)5)
Laboratory services necessary to determine site classification and whether
the established remediation corrective action objectives have been met;
5)6)
The installation Installation and operation of groundwater investigation
and groundwater monitoring wells;
6)7)
The removal, treatment, transportation, and disposal of soil contaminated
by petroleum at levels in excess of the established remediation corrective
action objectives;
7)8)
The removal, treatment, transportation, and disposal of water
contaminated by petroleum at levels in excess of the established
remediation
corrective action objectives;
8)9)
The placement of clean backfill to grade to replace excavated soil
contaminated by petroleum at levels in excess of the established
remediation
corrective action objectives;
9)10) Groundwater corrective action systems;
116
10)11) Alternative technology, including but not limited to feasibility studies
approved by the Agency;
11)12) Recovery of 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 phase
petroleum from groundwater;
12)13) The removal and disposal of any UST if a release of petroleum from the
UST was identified and IEMA was notified prior to its removal, with the
exception of any UST deemed ineligible by the OSFM Office of State Fire
Marshal;
1314) Costs incurred as a result of a release of petroleum because of vandalism,
theft or fraudulent activity by a party other than an owner, operator or
agent of an owner or operator;
14)15) Engineer or geologist Engineering costs associated with seeking payment
or reimbursement from the Fund including, but not limited to, completion
of an application for partial or final payment;
15)16) Costs associated with obtaining an Eligibility and Deductibility
Determination from the OSFM or the Agency;
16)17) Costs for destruction and replacement of concrete, asphalt, or and paving
to the extent necessary to conduct corrective action and if the concrete,
asphalt, or paving was installed prior to the initiation of corrective action
activities, the destruction and replacement has been certified as necessary
to the performance of corrective action by a Licensed Professional
Engineer, and the destruction and replacement and its costs are approved
by the Agency in writing prior to the destruction and replacement. The
costs for destruction and replacement of concrete, asphalt, and paving
must not be paid more than once. Costs associated with the replacement
of concrete, asphalt, or paving must not be paid in excess of the cost to
install, in the same area and to the same depth, the same material that was
destroyed (e.g., replacing four inches of concrete with four inches of
concrete);
17)18)
The destruction or dismantling and reassembly of above grade structures
in response to a release of petroleum if such activity has been certified as
necessary to the performance of corrective action by a Licensed
Professional Engineer and such activity and its costs are approved by the
Agency in writing prior to the destruction or dismantling and re-assembly.
Such costs must not be paid in excess of a total $10,000 per occurrence.
For purposes of this subsection (a)(17)
(a)(18), destruction, dismantling or
117
reassembly of above grade structures does not include costs associated
with replacement of pumps, pump islands, buildings, wiring, lighting,
bumpers, posts or canopies; and
18)19) Preparation of reports submitted pursuant to Section 732.202(h)(3) of this
Part, free product removal plans and associated budget plans, free product
removal reports, site classification plans (including physical soil
classification and groundwater investigation plans) and associated budget
plans, site classification reports, groundwater monitoring plans and
associated budget plans, groundwater monitoring completion reports, High
Priority corrective action plans and associated budget plans, and High
Priority corrective action completion reports;.
19)
Costs associated with the removal or abandonment of a potable water
supply well, and replacement of the well or connection to a public water
supply, whichever is less, if a Licensed Professional Engineer or Licensed
Professional Geologist certifies that such activity is necessary to the
performance of corrective action and that the property served by the well
cannot receive an adequate supply of potable water from an existing
source other than the removed or abandoned well, and the Agency
approves such activity in writing. If the well being removed or abandoned
is a public water supply well, the Licensed Professional Engineer or
Licensed Professional Geologist is required to certify only that the
removal or abandonment of the well is necessary to the performance of
corrective action; and
20)
Costs associated with the repair or replacement of potable water supply
lines damaged to the point of requiring repair or replacement as a direct
result of the release, if such activity is certified by a Licensed Professional
Engineer or Licensed Professional Geologist as necessary for the
protection of the potable water supply and approved by the Agency in
writing.
b)
An owner or operator may submit a budget plan or application for partial or final
payment that includes an itemized accounting of costs associated with activities,
materials or services not identified in subsection (a) of this Section if the owner or
operator submits detailed information demonstrating that the activities, materials
or services not identified in subsection (a) of this Section are essential to the
completion of the minimum corrective action requirements of the Act and this
Part.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.606
Ineligible Corrective Action
Costs
Costs ineligible for payment from the Fund include but are not limited to:
118
a)
Costs for the removal, treatment, transportation, and disposal of more than four
feet of fill material from the outside dimensions of the UST, as set forth in
Appendix C of this Part, during early action activities conducted pursuant to
Section 732.202(f), and costs for the replacement of contaminated fill materials
with clean fill materials in excess of the amounts set forth in Appendix C of this
Part during early action activities conducted pursuant to Section 732.202(f) of this
Part;
b)
Costs or losses resulting from business interruption;
c)
Costs incurred as a result of vandalism, theft or fraudulent activity by the owner
or operator or agent of an owner or operator including the creation of spills, leaks
or releases;
d)
Costs associated with the replacement of above grade structures such as pumps,
pump islands, buildings, wiring, lighting, bumpers, posts or canopies, including
but not limited to those structures destroyed or damaged during corrective action
activities;
e)
Costs of corrective action or indemnification incurred by an owner or operator
prior to July 28, 1989
[415 ILCS 5/57.8(j)];
f)
Costs associated with the procurement of a generator identification number;
g)
Legal fees or costs, including but not limited to legal fees or costs for seeking
payment under this Part unless the owner or operator prevails before the Board
and the Board authorizes payment of such costs
Legal defense costs
including
legal costs for seeking payment under
these regulations
unless the owner or
operator prevails before the Board
and the Board authorizes payment of legal
fees [415 ILCS 5/57.8(l)];
h)
Purchase costs of non-expendable materials, supplies, equipment or tools, except
that a reasonable rate may be charged for the usage of such materials, supplies,
equipment or tools;
i)
Costs associated with activities that violate any provision of the Act or Board,
OSFM or Agency regulations;
j)
Costs associated with investigative action, preventive action, corrective action, or
enforcement action taken by the State of Illinois if the owner or operator failed,
without sufficient cause, to respond to a release or substantial threat of a release
upon, or in accordance with, a notice issued by the Agency pursuant to Section
732.105 of this Part and Section 57.12 of the Act;
119
k)
Costs for removal, disposal or abandonment of a UST if the tank was removed or
abandoned, or permitted for removal or abandonment, by the OSFM before the
owner or operator provided notice to IEMA of a release of petroleum;
l)
Costs associated with the installation of new USTs, the repair of existing USTs
and removal and disposal of USTs determined to be ineligible by the Office of the
State Fire Marshal;
m)
Costs exceeding those contained in a budget plan or amended budget plan
approved by the Agency;
n)
Costs of corrective action or indemnification incurred before providing
notification of the release of petroleum to IEMA in accordance with Section
732.202 of this Part;
o)
Costs for corrective action activities and associated materials or services
exceeding the minimum requirements necessary to comply with the Act;
p)
Costs associated with improperly installed sampling or monitoring wells;
q)
Costs associated with improperly collected, transported, or analyzed laboratory
samples;
r)
Costs associated with the analysis of laboratory samples not approved by the
Agency for constituents other than applicable indicator contaminants or
groundwater objectives;
s)
Costs for any corrective activities, services or materials unless accompanied by a
letter from OSFM or the Agency confirming eligibility and deductibility in
accordance with Section 57.9 of the Act;
t)
Interest or finance costs charged as direct costs;
u)
Insurance costs charged as direct costs;
v)
Indirect corrective action costs for personnel, materials, service, or equipment
charged as direct costs;
w)
Costs associated with the compaction and density testing of backfill material;
x)
Costs associated with sites that have not reported a release to IEMA or are not
required to report a release to IEMA;
y)
Costs related to activities, materials or services not necessary to stop, minimize,
eliminate, or clean up a release of petroleum or its effects in accordance with the
minimum requirements of the Act [415 ILCS 5] and regulations;
120
z)
Costs incurred after completion of early action activities in accordance with
Subpart B by owners or operators choosing, pursuant to Section 732.300(b) of this
Part, to conduct remediation sufficient to satisfy the remediation objectives;
aa)
Costs incurred after completion of site classification activities in accordance with
Subpart C by owners or operators choosing, pursuant to Section 732.400(b) or (c)
of this Part, to conduct remediation sufficient to satisfy the remediation
objectives;
bb)
Costs of alternative technology that exceed the costs of conventional technology;
cc)
Costs for investigative activities and related services or materials for developing a
High Priority corrective action plan that are unnecessary, or inconsistent with
generally accepted engineering practices or principles of professional geology,
or
unreasonable costs for justifiable activities, materials, or services;
dd)
Costs to prepare site classification plans and associated budget plans under
Section 732.305 of this Part, to perform site classification under Section 732.307
of this Part, or to prepare site classification completion reports under Section
732.309 of this Part, for sites where owners or operators have elected to classify
under Section 732.312 of this Part;
ee)
Costs to prepare site classification plans and associated budget plans under
Section 732.312 of this Part, to perform site classification under Section 732.312
of this Part, or to prepare site classification completion reports under Section
732.312 of this Part, for sites where owners or operators have performed
classification activities under Sections 732.305, 732.307, or 732.309 of this Part;
ff)
Costs requested that are based on mathematical errors;
gg)
Costs that lack supporting documentation;
hh)
Costs proposed as part of a budget plan that are unreasonable;
ii)
Costs incurred during early action that are unreasonable;
jj)
Costs incurred on or after the date the owner or operator enters at a site that has
entered the Site Remediation Program under Title XVII of the Act and 35 Ill.
Adm. Code 740 to address the UST release;
kk)
Costs incurred for additional remediation
after receipt of a No Further
Remediation Letter for the occurrence for which the No Further Remediation
Letter was received. This subsection (kk) does not apply to the following:
121
1)
Costs, except costs incurred for MTBE remediation pursuant to Section
732.310(i)(2) of this Part;
2)
Monitoring well abandonment costs;
3)
County recorder or registrar of titles fees for recording the No Further
Remediation Letter;
4)
Costs associated with seeking payment from the Fund; and
5)
Costs associated with remediation to Tier 1 remediation objectives on-site
if a court of law voids or invalidates a No Further Remediation Letter and
orders the owner or operator to achieve Tier 1 remediation objectives in
response to the release;
ll)
Handling charges for subcontractor
subcontractors costs that have been billed
directly to the owner or operator;
mm) Handling charges for subcontractor subcontractor’s costs when the contractor has
not submitted proof of payment of the subcontractor costs paid the subcontractor;
nn)
Costs associated with standby and demurrage; and
oo)
Costs associated with a corrective action plan incurred after the Agency notifies
the owner or operator, pursuant to Section 732.405(f) of this Part, that a revised
corrective action plan is required,; provided, however, that costs associated with
any subsequently approved corrective action plan will be eligible for payment
reimbursement if they meet the requirements of this Part;.
pp)
Costs incurred after the effective date of an owner’s or operator’s election to
proceed in accordance with 35 Ill. Adm. Code 734;
qq)
Costs associated with the preparation of free product removal reports not
submitted in accordance with the schedule established in Section 732.203(a)(5) of
this Part;
rr)
Costs submitted more than one year after the date the Agency issues a No Further
Remediation Letter pursuant to Subpart G of this Part;
ss)
Costs for the destruction and replacement of concrete, asphalt, or paving, except
as otherwise provided in Section 732.605(a)(16) of this Part;
tt)
Costs incurred as a result of the destruction of, or damage to, any equipment,
fixtures, structures, utilities, or other items during corrective action activities,
except as otherwise provided in Section 732.605(a)(16) or (17) of this Part;
122
uu)
Costs associated with oversight by an owner or operator;
vv)
Handling charges charged by persons other than the owner’s or operator’s
primary contractor;
ww) Costs associated with the installation of concrete, asphalt, or paving as an
engineered barrier to the extent they exceed the cost of installing an engineered
barrier constructed of asphalt four inches in depth. This subsection does not apply
if the concrete, asphalt, or paving being used as an engineered barrier was
replaced pursuant to Section 732.605(a)(16) of this Part;
xx)
The treatment or disposal of soil that does not exceed the applicable remediation
objectives for the release, unless approved by the Agency in writing prior to the
treatment or disposal;
yy)
Costs associated with the removal or abandonment of a potable water supply well,
or the replacement of such a well or connection to a public water supply, except
as otherwise provided in Section 732.605(a)(19) of this Part;
zz)
Costs associated with the repair or replacement of potable water supply lines,
except as otherwise provided in Section 732.605(a)(20) of this Part;
aaa)
Costs associated with the replacement of underground structures or utilities,
including but not limited to septic tanks, utility vaults, sewer lines, electrical lines,
telephone lines, cable lines, or water supply lines, except as otherwise provided in
Sections 732.605(a)(19) or (20) of this Part;
bbb) Costs associated with the maintenance, repair, or replacement of leased or
subcontracted equipment, other than costs associated with routine maintenance
that are approved in a budget plan;
ccc)
Costs that exceed the maximum payment amounts set forth in Subpart H of this
Part;
ddd) Costs associated with on-site corrective action to achieve remediation objectives
that are more stringent than the Tier 2 remediation objectives developed in
accordance with 35 Ill. Adm. Code 742. This subsection (ddd) does not apply if
Karst geology prevents the development of Tier 2 remediation objectives for on-
site remediation, or if a court of law voids or invalidates a No Further
Remediation Letter and orders the owner or operator to achieve Tier 1
remediation objectives on-site in response to the release;
eee)
Costs associated with groundwater remediation if a groundwater ordinance
already approved by the Agency for use as an institutional control in accordance
with 35 Ill. Adm. Code 742 can be used as an institutional control for the release
being remediated.
123
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.607
Payment for Handling Charges
Handling charges are eligible for payment only if they are equal to or less than the amount
determined by the following table:
Subcontract or Field
Eligible Handling Charges
Purchase Cost:
as a Percentage of Cost:
$0 - $5,000..............................12%
$5,001 - $15,000.....................$600 + 10% of amt. over $5,000
$15,001 - $50,000...................$1,600 + 8% of amt. over $15,000
$50,001 - $100,000.................$4,400 + 5% of amt. over $50,000
$100,001 - $1,000,000...........$6,900 + 2% of amt. over $100,000
Handling charges are eligible for payment only if they are equal to or less than the amount
determined by the following table
(Section 57.8(g) of the Act):
SUBCONTRACT
ELIGIBLE HANDLING CHARGES
OR FIELD
AS A PERCENTAGE OF COST:
PURCHASE COST:
$0 -$5,000
12%
$5,001 -$15,000
$600 PLUS 10% OF AMOUNT OVER $5,000
$15,001 -$50,000
$1,600 PLUS 8% OF AMOUNT OVER $15,000
$50,001 -$100,000
$4,400 PLUS 5% OF AMOUNTOVER $50,000
$100,001 - $1,000,000
$6,900 PLUS 2% OF AMOUNT OVER $100,000
[415 ILCS 5/57.8
(f)]
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.608
Apportionment of Costs
a)
The Agency may apportion payment of costs if:
1)
The owner or operator was deemed eligible to access the Fund for
payment of corrective action costs for some, but not all, of the
underground storage tanks at the site; and
THE OWNER OR
OPERATOR WAS DEEMED ELIGIBLE TO ACCESS THE FUND FOR
PAYMENT OF CORRECTIVE ACTION COSTS FOR SOME, BUT
NOT ALL, OF THE UNDERGROUND STORAGE TANKS AT THE
SITE; AND
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2)
The owner or operator failed to justify all costs attributable to each
underground storage tank at the site
. [415 ILCS 5/57.8(m)] THE OWNER
OR OPERATOR FAILED TO JUSTIFY ALL COSTS ATTRIBUTABLE
TO EACH UNDERGROUND STORAGE TANK AT THE SITE.
(Derived from Section 57.8(m) of the Act)
b)
The Agency will determine, based on volume or number of tanks, which method
of apportionment will be most favorable to the owner or operator. The Agency
will notify the owner or operator of such determination in writing.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.610
Indemnification
a)
An owner or operator seeking indemnification from the Fund for payment of costs
incurred as a result of a release of petroleum from an underground storage tank
must submit to the Agency an application for payment on forms prescribed and
provided by the Agency and, if specified by the Agency by written notice, in an
electronic format.
1)
A complete application for payment must contain the following:
A)
A certified statement by the owner or operator of the amount
sought for payment;
B)
Proof of the legally enforceable judgment, final order, or
determination against the owner or operator, or the legally
enforceable settlement entered into by the owner or operator, for
which indemnification is sought. The proof must include, but is
not limited to, the following:
i)
A copy of the judgment certified by the court clerk as a true
and correct copy, a copy of the final order or determination
certified by the issuing agency of State government or
subdivision thereof as a true and correct copy, or a copy of
the settlement certified by the owner or operator as a true
and correct copy; and
ii)
Documentation demonstrating that the judgment, final
order, determination, or settlement arises out of bodily
injury or property damage suffered as a result of a release
of petroleum from the UST for which the release was
reported, and that the UST is owned or operated by the
owner or operator;
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C)
A copy of the OSFM or Agency eligibility and deductibility
determination;
D)
Proof that approval of the indemnification requested will not
exceed the limitations set forth in the Act and Section 732.604 of
this Part;
E)
A federal taxpayer identification number and legal status
disclosure certification;
F)
A private insurance coverage form; and
G)
Designation of the address to which payment and notice of final
action on the request for indemnification are to be sent to the
owner or operator.
2)
The owner’s or operator’s address designated on the application for
payment may be changed only by subsequent notification to the Agency,
on a form provided by the Agency, of a change of address.
3)
Applications for payment 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.
b)a)
The Upon submittal of a request for indemnification for payment of costs incurred
as a result of a release of petroleum from an underground storage tank, the
Agency shall review applications the application for payment in accordance with
this Subpart F. In addition, the Agency must review each application for payment
to determine the following:
1)
Whether the application contains all of the information and supporting
documentation required by subsection (a) of this Section;
2)
Whether there is sufficient documentation of a legally enforceable
judgment entered against the owner or operator in a court of law, final
order or determination made against the owner or operator by an agency of
State government or any subdivision thereof, or settlement entered into by
the owner or operator;
3)
Whether there is sufficient documentation that the judgment, final 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; and
4)
Whether the amounts sought for indemnification are eligible for payment.
126
c)b)
If the application for payment of the costs of indemnification is deemed complete
and otherwise satisfies all applicable requirements of this Subpart F, the Agency
shall forward the request for indemnification to the Office of the Attorney General
for review and approval in accordance with Section 57.8(c) of the Act. The
owner or operator’s request for indemnification shall not be placed on the priority
list for payment until the Agency has received the written approval of the
Attorney General. The approved application for payment shall then enter the
priority list established at Section 732.603(e)(1)
Section 732.603(d)(1) of this Part
based on the date the complete application was received by the Agency in
accordance with Section 57.8(c) of the Act.
d)
Costs ineligible for indemnification from the Fund include, but are not limited to:
1)
Amounts an owner or operator is not legally obligated to pay pursuant to a
judgment entered against the owner or operator in a court of law, a final
order or determination made against the owner or operator by an agency of
State government or any subdivision thereof, or any settlement entered
into by the owner or operator;
2)
Amounts of a judgment, final order, determination, or settlement that do
not arise 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;
3)
Amounts incurred prior to July 28, 1989;
4)
Amounts incurred prior to notification of the release of petroleum to
IEMA in accordance with Section 732.202 of this Part;
5)
Amounts arising out of bodily injury or property damage suffered as a
result of a release of petroleum from an underground storage tank for
which the owner or operator is not eligible to access the Fund;
6)
Legal fees or costs, including but not limited to legal fees or costs for
seeking payment under this Part unless the owner or operator prevails
before the Board and the Board authorizes payment of such costs;
7)
Amounts associated with activities that violate any provision of the Act or
Board, OSFM, or Agency regulations;
8)
Amounts associated with investigative action, preventive action,
corrective action, or enforcement action taken by the State of Illinois if the
owner or operator failed, without sufficient cause, to respond to a release
or substantial threat of a release upon, or in accordance with, a notice
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issued by the Agency pursuant to Section 732.105 of this Part and Section
57.12 of the Act;
9)
Amounts associated with a release that has not been reported to IEMA or
is not required to be reported to IEMA;
10)
Amounts incurred on or after the date the owner or operator enters the Site
Remediation Program under Title XVII of the Act and 35 Ill. Adm. Code
740 to address the UST release; and
11)
Amounts incurred after the effective date of the owner’s or operator’s
election to proceed in accordance with 35 Ill. Adm. Code 734.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.612
Determination and Collection of Excess Payments
a)
If, for any reason, the Agency determines that an excess payment has been paid
from the Fund, the Agency may take steps to collect the excess amount pursuant
to subsection (c) of this Section.
1)
Upon identifying an excess payment, the Agency shall notify the owner or
operator receiving the excess payment by certified or registered mail,
return receipt requested.
2)
The notification letter shall state the amount of the excess payment and the
basis for the Agency's determination that the payment is in error.
3)
The Agency's determination of an excess payment shall be subject to
appeal to the Board in the manner provided for the review of permit
decisions in Section 40 of the Act.
b)
An excess payment from the Fund includes, but is not limited to:
1)
Payment for a non-corrective action cost;
2)
Payment in excess of the limitations on payments set forth in Sections
732.604 and 732.607 and Subpart H
of this Part;
3)
Payment received through fraudulent means;
4)
Payment calculated on the basis of an arithmetic error;
5)
Payment calculated by the Agency in reliance on incorrect information; or
.
6)
Payment of costs that are not eligible for payment.
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c)
Excess payments may be collected using any of the following procedures:
1)
Upon notification of the determination of an excess payment in
accordance with subsection (a) of this Section or pursuant to a Board order
affirming such determination upon appeal, the Agency may attempt to
negotiate a payment schedule with the owner or operator. Nothing in this
subsection (c)(1) of this Section shall prohibit the Agency from exercising
at any time its options at subsection (c)(2) or (c)(3) of this Section or any
other collection methods available to the Agency by law.
2)
If an owner or operator submits a subsequent claim for payment after
previously receiving an excess payment from the Fund, the Agency may
deduct the excess payment amount from any subsequently approved
payment amount. If the amount subsequently approved is insufficient to
recover the entire amount of the excess payment, the Agency may use the
procedures in this Section or any other collection methods available to the
Agency by law to collect the remainder.
3)
The Agency may deem an excess payment amount to be a claim or debt
owed the Agency, and the Agency may use the Comptroller's Setoff
System for collection of the claim or debt in accordance with Section 10.5
of the "State Comptroller Act." [15 ILCS 405/10.05] (1993).
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.614
Audits and Access to Records; Records Retention
a)
Owners or operators that submit a report, plan, budget, application for payment,
or any other data or document under this Part must maintain all books, records,
documents, and other evidence directly pertinent to the report, plan, budget,
application for payment, data, or document, including but not limited to all
financial information and data used in the preparation or support of applications
for payment. All books, records, documents, and other evidence must be
maintained in accordance with accepted business practices and appropriate
accounting procedures and practices.
b)
The Agency or any of its duly authorized representatives must have access to the
books, records, documents, and other evidence set forth in subsection (a) of this
Section during normal business hours for the purpose of inspection, audit, and
copying. Owners or operators must provide proper facilities for such access and
inspection.
c)
Owners, or operators must maintain the books, records, documents, and other
evidence set forth in subsection (a) of this Section and make them available to the
Agency or its authorized representative until the latest of the following:
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1)
The expiration of 4 years after the date the Agency issues a No Further
Remediation Letter pursuant to Subpart G of this Part;
2)
For books, records, documents, or other evidence relating to an appeal,
litigation, or other dispute or claim, the expiration of 3 years after the date
of the final disposition of the appeal, litigation, or other dispute or claim;
or
3)
The expiration of any other applicable record retention period.
(Source: Added at 30 Ill. Reg._______, effective _____________)
SUBPART G: NO FURTHER REMEDIATION LETTERS
AND RECORDING REQUIREMENTS
Section 732.701
Issuance of a No Further Remediation Letter
a)
Upon approval by the Agency of a report submitted pursuant to Section
732.202(h)(3) of this Part, a No Further Action site classification report, a Low
Priority groundwater monitoring completion report, or a High Priority corrective
action completion report, the Agency shall issue to the owner or operator a No
Further Remediation Letter. The No Further Remediation Letter shall have the
legal effect prescribed in Section 57.10 of the Act. The No Further Remediation
Letter shall be denied if the Agency rejects or requires modification of the
applicable report.
b)
The Agency shall have 120 days after the date of receipt of a complete report to
issue a No Further Remediation Letter and may include the No Further
Remediation Letter as part of the notification of approval of the applicable report
in accordance with Subpart E of this Part. If the Agency fails to send the No
Further Remediation Letter within 120 days, it shall be deemed denied by
operation of law.
c)
The notice of denial of a No Further Remediation Letter by the Agency may be
included with the notification of rejection or modification of the applicable report.
The reasons for the denial shall be stated in the notification. The denial shall be
considered a final determination appealable 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. If any request for a No Further Remediation Letter is
denied by operation of law, in lieu of an immediate repeal to the Board the owner
or operator may either resubmit the request and applicable report to the Agency or
file a joint request for a 90 day extension in the manner provided for extensions of
permit decision in Section 40 of the Act.
130
d)
The Agency shall mail the No Further Remediation Letter by registered or
certified mail, postmarked with a date stamp and with return receipt requested.
Final action shall be deemed to have taken place on the postmarked date that the
letter is mailed.
e)
The Agency at any time may correct errors in No Further Remediation Letters
that arise from oversight, omission or clerical mistake. Upon correction of the No
Further Remediation Letter, the Agency shall mail the corrected letter to the
owner or operator as set forth in subsection (d)
(c) of this Section. The corrected
letter shall be perfected by recording in accordance with the requirements of
Section 732.703 of this Part
.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.702
Contents of a No Further Remediation Letter
A No Further Remediation Letter issued pursuant to this Part shall include all of the following:
a)
An acknowledgment that the requirements of the applicable report were satisfied;
b)
A description of the location of the affected property by adequate legal
description or by reference to a plat showing its boundaries, or, for purposes of
Section 732.703(d) of this Part, other means sufficient to identify site location
with particularity;
c)
A statement that the The remediation objectives were determined in accordance
with 35 Ill. Adm. Code 742, and the identification of any land use limitation, as
applicable, required by 35 Ill. Adm. Code 742 as a condition of the remediation
objectives;
d)
A statement that the Agency's issuance of the No Further Remediation Letter
signifies that:
1)
All corrective action requirements
under Title XVI of the Act
and this Part
732
applicable to the occurrence have been complied with;
2)
All corrective action concerning the remediation of the occurrence has
been completed; and
3)
No further corrective action concerning the occurrence is necessary for
the protection of human health, safety and the environment
[415 ILCS
5/57.10(c)(1)-(3)], or, if the No Further Remediation Letter is issued
pursuant to Section 732.411(e) of this Part, that the owner or operator has
demonstrated to the Agency’s satisfaction an inability to obtain access to
an off-site property despite best efforts and therefore is not required to
perform corrective action on the off-site property in order to satisfy the
131
corrective action requirements of this Part, but is not relieved of
responsibility to clean up portions of the release that have migrated off-
site;
e)
The prohibition under Section 732.703(e) of this Part against the use of any site in
a manner inconsistent with any applicable land use limitation, without additional
appropriate remedial activities;
f)
A description of any approved preventive, engineering, and institutional controls
identified in the plan or report and notification that failure to manage the controls
in full compliance with the terms of the plan or report may result in voidance of
the No Further Remediation Letter;
g)
The recording obligations pursuant to Section 732.703 of this Part;
h)
The opportunity to request a change in the recorded land use pursuant to Section
732.703(e) 732.704(e) of this Part;
i)
Notification that further information regarding the site can be obtained from the
Agency through a request under the Freedom of Information Act [5 ILCS 140];
and
j)
Any other provisions agreed to by the Agency and the owner or operator.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.703
Duty to Record a No Further Remediation Letter
a)
Except as provided in subsections (c) and (d) of this Section, an owner or operator
receiving a No Further Remediation Letter from the Agency pursuant to this
Subpart G shall submit the letter, with a copy of any applicable institutional
controls (as set forth in 35 Ill. Adm. Code 742, Subpart J) proposed as part of a
corrective action completion report, to the office of the recorder or the registrar of
titles Office of the Recorder or the Registrar of Titles of the county in which the
site is located within 45 days after receipt of the letter. The letter and any
attachments shall be filed in accordance with Illinois law so that they form it
forms a permanent part of the chain of title for the site. Upon the lapse of the 45-
day period for recording, pursuant to Section 732.704(a)(5) of this Part, the
Agency may void an unrecorded No Further Remediation Letter for failure to
record it in a timely manner.
b)
Except as provided in subsections (c) and (d) of this Section, a No Further
Remediation Letter shall be perfected upon the date of the official recording of
such letter. The owner or operator shall obtain and submit to the Agency, within
30 days after the official recording date, a certified or otherwise accurate and
official copy of the letter and any attachments as recorded. An unperfected No
132
Further Remediation Letter is effective only as between the Agency and the
owner or operator. The Agency may, pursuant to Section 732.704(a)(5) of this
Part, void a No Further Remediation Letter for failure to perfect in a timely
manner in accordance with subsection (a) of this Section.
c)
For sites located in a highway authority right-of-way
an Illinois Department of
Transportation (IDOT) right-of-way, the following requirements shall apply:
1)
In order for the No Further Remediation Letter to be perfected, the
highway authority with jurisdiction over the right-of-way IDOT must
enter into a Memorandum of Agreement (MOA) with the Agency. The
MOA must include, but is not limited to:
A)
The name of the site, if any, and any highway authority
IDOT or
Agency identifiers (e.g., incident number, Illinois inventory
identification number);
B)
The address of the site (or other description sufficient to identify
the location of the site with certainty);
C)
A copy of the No Further Remediation Letter for each site subject
to the MOA;
D)
Procedures for tracking sites subject to the MOA so that all
highway authority offices and personnel
IDOT bureaus whose
responsibilities (e.g., land acquisition, maintenance, construction,
utility permits) may affect land use limitations will have notice of
any environmental concerns and land use limitations applicable to
a site;
E)
Provisions addressing future conveyances (including title or any
lesser form of interest) or jurisdictional transfers of the site to any
other agency, private person or entity and the steps that will be
taken to ensure the long-term integrity of any land use limitations
including, but not limited to, the following:
i)
Upon creation of a deed, the recording of the No Further
Remediation Letter and any other land use limitations
requiring recording under 35 Ill. Adm. Code 742, with
copies of the recorded instruments sent to the Agency
within 30 days after recording;
ii)
Any other arrangements necessary to ensure that property
that is conveyed or transferred remains subject to any land
use limitations approved and implemented as part of the
133
corrective action plan and the No Further Remediation
Letter; and
iii)
Notice to the Agency at least 60 days prior to any such
intended conveyance or transfer indicating the
mechanism(s) to be used to ensure that any land use
limitations will be operated or maintained as required in the
corrective action plan and No Further Remediation Letter;
and
F)
Provisions for notifying the Agency if any actions taken by the
highway authority IDOT or its permittees at the site result in the
failure or inability to restore the site to meet the requirements of
the corrective action plan and the No Further Remediation Letter.
2)
Failure to comply with the requirements of this subsection (c) may result
in voidance of the No Further Remediation Letter pursuant to Section
732.704 of this Part as well as any other penalties that may be available.
d)
For sites located on Federally Owned Property for which the Federal Landholding
Entity does not have the authority under federal law to record institutional
controls on the chain of title, the following requirements shall apply:
1)
To perfect a No Further Remediation Letter containing any restriction on
future land use(s), the Federal Landholding Entity or Entities responsible
for the site must enter into a Land Use Control Memorandum of
Agreement (LUC MOA) with the Agency that requires the Federal
Landholding Entity to do, at a minimum, the following:
A)
Identify the location on the Federally Owned Property of the site
subject to the No Further Remediation Letter. Such identification
shall be by means of common address, notations in any available
facility master land use plan, site specific GIS or GPS coordinates,
plat maps, or any other means that identify the site in question with
particularity;
B)
Implement periodic site inspection procedures that ensure
oversight by the Federal Landholding Entities of any land use
limitations or restrictions imposed pursuant to the No Further
Remediation Letter;
C)
Implement procedures for the Federal Landholding Entities to
periodically advise the Agency of continued compliance with all
maintenance and inspection requirements set forth in the LUC
MOA;
134
D)
Implement procedures for the Federal Landholding Entities to
notify the Agency of any planned or emergency changes in land
use that may adversely impact land use limitations or restrictions
imposed pursuant to the No Further Remediation Letter;
E)
Notify the Agency at least 60 days in advance of a conveyance by
deed or fee simple title, by the Federal Landholding Entities, of the
site or sites subject to the No Further Remediation Letter, to any
entity that will not remain or become a Federal Landholding
Entity, and provide the Agency with information about how the
Federal Landholding Entities will ensure the No Further
Remediation Letter is recorded on the chain of title upon transfer
of the property; and
F)
Attach to the LUC MOA a copy of the No Further Remediation
Letter for each site subject to the LUC MOA.
2)
To perfect a No Further Remediation letter containing no restriction(s) on
future land use, the Federal Landholding Entity shall submit the letter to
the Office of the Recorder or the Registrar of Titles of the county in which
the site is located within 45 days after receipt of the letter. The letter shall
be filed in accordance with Illinois law so it forms a permanent part of the
chain of title. The Federal Landholding Entity shall obtain and submit to
the Agency, within 30 days after recording, a copy of the letter
demonstrating that the recording requirements have been satisfied.
3)
Failure to comply with the requirements of this subsection (d) and the
LUC MOA may result in voidance of the No Further Remediation Letter
as well as any other penalties that may be available.
e)
At no time shall any site for which a land use limitation has been imposed as a
result of corrective action under this Part be used in a manner inconsistent with
the land use limitation set forth in the No Further Remediation Letter. The land
use limitation specified in the No Further Remediation Letter may be revised only
by the perfecting of a subsequent No Further Remediation Letter, issued pursuant
to Title XVII of the Act and regulations thereunder, following further
investigation or remediation that demonstrates the attainment of objectives
appropriate for the new land use.
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.704
Voidance of a No Further Remediation Letter
a)
The No Further Remediation Letter shall be voidable if site activities are not
carried out in full compliance with the provisions of this Part, and 35 Ill. Adm.
Code 742 where applicable, or the remediation objectives upon which the
135
issuance of the No Further Remediation Letter was based. Specific acts or
omissions that may result in voidance of the No Further Remediation Letter
include, but shall not be limited to:
1)
Any violations of institutional controls or land use restrictions, if
applicable;
2)
The failure of the owner or operator or any subsequent transferee to
operate and maintain preventive, engineering and institutional controls or
comply with a groundwater monitoring plan, if applicable;
3)
Obtaining the No Further Remediation Letter by fraud or
misrepresentation;
4)
Subsequent discovery of indicator contaminants related to the occurrence
upon which the No Further Remediation Letter was based which:
A)
were not identified as part of the investigative or remedial
activities upon which the issuance of the No Further Remediation
Letter was based;
B)
results in the following:
i)
the site no longer satisfying the criteria of a No Further
Action site classification;
ii)
the site no longer satisfying the criteria of a Low Priority
site classification;
iii)
failing to meet the remediation remedial objectives
established for a High Priority site; and
C)
pose a threat to human health or the environment;
5)
Upon the
lapse of the 45 day period for recording perfection of the No
Further Remediation Letter for recording, the failure to record and thereby
perfect the No Further Remediation Letter in a timely manner;
6)
The disturbance
Disturbance or removal of contamination left in place
under an approved plan;
7)
The failure to comply with the requirements of Section 732.703(c) and the
Memorandum of Agreement entered in accordance with Section
732.703(c) for a site that is located in a highway authority right-of-way an
IDOT right-of-way;
136
8)
The failure to comply with the requirements of Section 732.703(d) and the
LUC MOA entered in accordance with Section 732.703(d) for a site
located on Federally Owned Property for which the Federal Landholding
Entity does not have the authority under federal law to record institutional
controls on the chain of title;
9)
The failure to comply with the requirements of Section 732.703(d) of this
Part or the failure to record a No Further Remediation Letter perfected in
accordance with Section 732.703(d) within 45 days following the transfer
of the Federally Owned Property subject to the No Further Remediation
Letter to any entity that will not remain or become a Federal Landholding
Entity; or
10)
The failure to comply with the notice or confirmation requirements of 35
Ill. Adm. Code 742.1015(b)(5) and (c).
b)
If the Agency seeks to void a No Further Remediation Letter, it shall provide
Notice of Voidance notice to the current title holder of the site and the owner or
operator at his or her last known address.
1)
The Notice of Voidance notice shall specify the cause for the voidance and
describe the facts in support of the cause.
2)
The Agency shall mail Notices of Voidance by registered or certified mail,
date stamped with return receipt requested.
c)
Within 35 days after receipt of the Notice of Voidance, the current title holder and
owner or operator of the site at the time the No Further Remediation Letter was
issued may appeal the Agency's decision to the Board in the manner provided for
the review of permit decisions in Section 40 of the Act.
d)
If the Board fails to take final action within 120 days, unless such time period is
waived by the petitioner, the petition shall be deemed denied and the petitioner
shall be entitled to an appellate court order pursuant to subsection (d) of Section
41 of the Act. The Agency shall have the burden of proof in such action.
1)
If the Agency's action is appealed, the action shall not become effective
until the appeal process has been exhausted and a final decision is reached
by the Board or courts.
A)
Upon receiving a notice of appeal, the Agency shall file a Notice
of lis pendens with the office of the recorder or the registrar of
titles Office of the Recorder or the Registrar of Titles for the
county in which the site is located. The notice shall be filed in
accordance with Illinois law so that it becomes a part of the chain
of title for the site.
137
B)
If the Agency's action is not upheld on appeal, the Notice of lis
pendens shall be removed in accordance with Illinois law within 45
days after receipt of the final decision of the Board or the courts.
2)
If the Agency's action is not appealed or is upheld on appeal, the Agency
shall submit the Notice of Voidance to the office of the recorder or the
registrar of titles Office of the Recorder or the Registrar of Titles for the
county in which the site is located. The Notice shall be filed in
accordance with Illinois law so that it forms a permanent part of the chain
of title for the site.
(Source: Amended at 30 Ill. Reg._______, effective _____________)
SUBPART H: MAXIMUM PAYMENT AMOUNTS
Section 732.800
Applicability
a)
Methods for Determining Maximum Amounts. This Subpart H provides three
methods for determining the maximum amounts that can be paid from the Fund
for eligible corrective action costs. All costs associated with conducting
corrective action are grouped into the tasks set forth in Sections 732.810 through
732.850 of this Part.
1)
The first method for determining the maximum amount that can be paid
for each task is to use the maximum amounts for each task set forth in
those Sections, and in Section 732.870. In some cases the maximum
amounts are specific dollar amounts, and in other cases the maximum
amounts are determined on a site-specific basis.
2)
As an alternative to using the amounts set forth in Sections 732.810
through 732.850 of this Part, the second method for determining the
maximum amounts that can be paid for one or more tasks is bidding in
accordance with Section 732.855 of this Part. As stated in that Section,
when bidding is used, if the lowest bid for a particular task is less than the
amount set forth in Sections 732.810 through 732.850, the amount in
Sections 732.810 through 732.850 of this Part may be used instead of the
lowest bid.
3)
The third method for determining maximum amounts that can be paid
from the Fund applies to unusual or extraordinary circumstances. The
maximum amounts for such circumstances can be determined in
accordance with Section 732.860 of this Part.
b)
The costs listed under each task set forth in Sections 732.810 through 732.850 of
this Part identify only some of the costs associated with each task. They are not
138
intended as an exclusive list of all costs associated with each task for the purposes
of payment from the Fund.
c)
This Subpart H sets forth only the methods that can be used to determine the
maximum amounts that can be paid from the Fund for eligible corrective action
costs. Whether a particular cost is eligible for payment must be determined in
accordance with Subpart F of this Part.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.810
UST Removal or Abandonment Costs
Payment for costs associated with UST removal or abandonment of each UST must not exceed
the amounts set forth in this Section. Such costs must include, but are not limited to, those
associated with the excavation, removal, disposal, and abandonment of UST systems.
UST Volume
Maximum Total Amount per UST
110 – 999 gallons
$2,100
1,000 – 14,999 gallons
$3,150
15,000 or more gallons
$4,100
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.815
Free Product or Groundwater Removal and Disposal
Payment for costs associated with the removal and disposal of free product or groundwater must
not exceed the amounts set forth in this Section. Such costs must include, but are not limited to,
those associated with the removal, transportation, and disposal of free product or groundwater,
and the design, construction, installation, operation, maintenance, and closure of free product or
groundwater removal systems.
a)
Payment for costs associated with each round of free product or groundwater
removal via hand bailing or a vacuum truck must not exceed a total of $0.68 per
gallon or $200, whichever is greater.
b)
Payment for costs associated with the removal of free product or groundwater via
a method other than hand bailing or vacuum truck must be determined on a time
and materials basis and must not exceed the amounts set forth in Section 732.850
of this Part. Such costs must include, but are not limited to, those associated with
the design, construction, installation, operation, maintenance, and closure of free
product and groundwater removal systems.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.820
Drilling, Well Installation, and Well Abandonment
139
Payment for costs associated with drilling, well installation, and well abandonment must not
exceed the amounts set forth in this Section.
a)
Payment for costs associated with each round of drilling must not exceed the
following amounts. Such costs must include, but not be limited to, those
associated with mobilization, drilling labor, decontamination, and drilling for the
purposes of soil sampling or well installation.
Type of Drilling
Maximum Total Amount
Hollow-stem auger
greater of $23 per foot or $1,500
Direct-push platform
- for sampling or other
greater of $18 per foot or $1,200
non-injection purposes
- for injection purposes
greater of $15 per foot or $1,200
b)
Payment for costs associated with the installation of monitoring wells, excluding
drilling, must not exceed the following amounts. Such costs must include, but are
not limited to, those associated with well construction and development.
Type of Borehole
Maximum Total Amount
Hollow-stem auger
$16.50/foot (well length)
Direct-push platform
$12.50/foot (well length)
c)
Payment for costs associated with the installation of recovery wells, excluding
drilling, must not exceed the following amounts. Such costs must include, but are
not limited to, those associated with well construction and development.
Well Diameter
Maximum Total Amount
4 or 6 inches
$25/foot (well length)
8 inches or greater
$41/foot (well length)
d)
Payment for costs associated with the abandonment of monitoring wells must not
exceed $10 per foot of well length.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.825
Soil Removal and Disposal
Payment for costs associated with soil removal, transportation, and disposal must not exceed the
amounts set forth in this Section. Such costs must include, but are not limited to, those
associated with the removal, transportation, and disposal of contaminated soil exceeding the
applicable remediation objectives or visibly contaminated fill removed pursuant to Section
140
732.202(f) of this Part, and the purchase, transportation, and placement of material used to
backfill the resulting excavation.
a)
Payment for costs associated with the removal, transportation, and disposal of
contaminated soil exceeding the applicable remediation objectives, visibly
contaminated fill removed pursuant to Section 732.202(f) of this Part, and
concrete, asphalt, or paving overlying such contaminated soil or fill must not
exceed a total of $57 per cubic yard.
1)
Except as provided in subsection (a)(2) of this Section, the volume of soil
removed and disposed of must be determined by the following equation
using the dimensions of the resulting excavation: (Excavation Length x
Excavation Width x Excavation Depth) x 1.05. A conversion factor of 1.5
tons per cubic yard must be used to convert tons to cubic yards.
2)
The volume of soil removed from within four feet of the outside
dimension of the UST and disposed of pursuant to Section 732.202(f) of
this Part must be determined in accordance with Section Appendix C of
this Part.
b)
Payment for costs associated with the purchase, transportation, and placement of
material used to backfill the excavation resulting from the removal and disposal of
soil must not exceed a total of $20 per cubic yard.
1)
Except as provided in subsection (b)(2) of this Section, the volume of
backfill material must be determined by the following equation using the
dimensions of the backfilled excavation:
(Excavation Length x Excavation Width x Excavation Depth) x 1.05.
A conversion factor of 1.5 tons per cubic yard must be used to convert
tons to cubic yards.
2)
The volume of backfill material used to replace soil removed from within
four feet of the outside dimension of the UST and disposed of pursuant to
Section 732.202(f) of this Part must be determined in accordance with
Section Appendix C of this Part.
c)
Payment for costs associated with the removal and subsequent return of soil that
does not exceed the applicable remediation objectives but whose removal is
required in order to conduct corrective action must not exceed a total of $6.50 per
cubic yard. The volume of soil removed and returned must be determined by the
following equation using the dimensions of the excavation resulting from the
removal of the soil:
(Excavation Length x Excavation Width x Excavation Depth).
141
A conversion factor of 1.5 tons per cubic yard must be used to convert tons to
cubic yards.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.830
Drum Disposal
Payment for costs associated with the purchase, transportation, and disposal of 55-gallon drums
containing waste generated as a result of corrective action (e.g., boring cuttings, water bailed for
well development or sampling, hand-bailed free product) must not exceed the following amounts
or a total of $500, whichever is greater.
Drum Contents
Maximum Total Amount per Drum
Solid waste
$250
Liquid waste
$150
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.835
Sample Handling and Analysis
Payment for costs associated with sample handling and analysis must not exceed the amounts set
forth in Section Appendix D of this Part. Such costs must include, but are not limited to, those
associated with the transportation, delivery, preparation, and analysis of samples, and the
reporting of sample results. For laboratory analyses not included in this Section, the Agency
may determine reasonable maximum payment amounts on a site-specific basis.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.840
Concrete, Asphalt, and Paving; Destruction or Dismantling and
Reassembly of Above Grade Structures
a)
Payment for costs associated with concrete, asphalt, and paving installed as an
engineered barrier, other than replacement concrete, asphalt, and paving, must not exceed
the following amounts. Costs associated with the replacement of concrete, asphalt, and
paving used as an engineered barrier are subject to the maximum amounts set forth in
subsection (b) of this Section instead of this subsection (a).
142
Depth of Material
Maximum Total Amount
per Square Foot
Asphalt and paving – 2 inches
$1.65
3 inches
$1.86
4 inches
$2.38
Concrete –
any depth
$2.38
b)
Payment for costs associated with the replacement of concrete, asphalt, and
paving must not exceed the following amounts:
Depth of Material
Maximum Total Amount
per Square Foot
Asphalt and paving – 2 inches
$1.65
3 inches
$1.86
4 inches
$2.38
6 inches
$3.08
Concrete –
2 inches
$2.45
3 inches
$2.93
4 inches
$3.41
5 inches
$3.89
6 inches
$4.36
8 inches
$5.31
For depths other than those listed in this subsection, the Agency must determine
reasonable maximum payment amounts on a site-specific basis.
c)
Payment for costs associated with the destruction or the dismantling and
reassembly of above grade structures must not exceed the time and material
amounts set forth in Section 732.850 of this Part. The total cost for the
destruction or the dismantling and reassembly of above grade structures must not
exceed $10,000 per site.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.845
Professional Consulting Services
Payment for costs associated with professional consulting will be reimbursed on a time and
materials basis pursuant to Section 732.850. Such costs must include, but are not limited to,
those associated with project planning and oversight; field work; field oversight; travel; per
diem; mileage; transportation; vehicle charges; lodging; meals; and the preparation, review,
certification, and submission of all plans, budget plans, reports, applications for payment, and
other documentation.
143
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.850
Payment on Time and Materials Basis
This Section sets forth the maximum amounts that may be paid when payment is allowed on a
time and materials basis.
a)
Payment for costs associated with activities that have a maximum payment
amount set forth in other Sections of this Subpart H (e.g, sample handling and
analysis, drilling, well installation and abandonment, or drum disposal must not
exceed the amounts set forth in those Sections, unless payment is made pursuant
to Section 732.860 of this Part.
b)
Maximum payment amounts for costs associated with activities that do not have a
maximum payment amount set forth in other Sections of this Subpart H must be
determined by the Agency on a site-specific basis, provided, however, that
personnel costs must not exceed the amounts set forth in Section Appendix E of
this Part. Personnel costs must be based upon the work being performed,
regardless of the title of the person performing the work. Owners and operators
seeking payment must demonstrate to the Agency that the amounts sought are
reasonable.
BOARD NOTE: Alternative technology costs in excess of the costs of conventional
technology are ineligible for payment from the Fund. See Sections 732.407(b) and
732.606(bb) of this Part.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.855
Bidding
As an alternative to the maximum payment amounts set forth in this Subpart H, one or more
maximum payment amounts may be determined via bidding in accordance with this Section.
Each bid must cover all costs included in the maximum payment amount that the bid is
replacing.
a)
A minimum of three written bids must be obtained. The bids must be based upon
the same scope of work and must remain valid for a period of time that will allow
the owner or operator to accept them upon the Agency’s approval of the
associated budget. Bids must be obtained only from persons qualified and able to
perform the work being bid. Bids must not be obtained from persons in which the
owner or operator, or the owner’s or operator’s primary contractor, has a financial
interest.
b)
The bids must be summarized on forms prescribed and provided by the Agency.
The bid summary form, along with copies of the bid requests and the bids
144
obtained, must be submitted to the Agency in the associated budget. If more than
the minimum three bids are obtained, summaries and copies of all bids must be
submitted to the Agency.
c)
The maximum payment amount for the work bid must be the amount of the
lowest bid, unless the lowest bid is less than the maximum payment amount set
forth in this Subpart H in which case the maximum payment amount set forth in
this Subpart H must be allowed. The owner or operator is not required to use the
lowest bidder to perform the work, but instead may use another person qualified
and able to perform the work, including, but not limited to, a person in which the
owner or operator, or the owner’s or operator’s primary consultant, has a direct or
indirect financial interest. However, regardless of who performs the work, the
maximum payment amount will remain the amount of the lowest bid.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.860
Unusual or Extraordinary Circumstances
If, as a result of unusual or extraordinary circumstances, an owner or operator incurs or will incur
eligible costs that exceed the maximum payment amounts set forth in this Subpart H, the Agency
may determine maximum payment amounts for the costs on a site-specific basis. Owners and
operators seeking to have the Agency determine maximum payment amounts pursuant to this
Section must demonstrate to the Agency that the costs for which they are seeking a
determination are eligible for payment from the Fund, exceed the maximum payment amounts
set forth in this Subpart H, are the result of unusual or extraordinary circumstances, are
unavoidable, are reasonable, and are necessary in order to satisfy the requirements of this Part.
Examples of unusual or extraordinary circumstances may include, but are not limited to, an
inability to obtain a minimum of three bids pursuant to Section 732.855 of this Part due to a
limited number of persons providing the service needed.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.865
Handling Charges
Payment of handling charges must not exceed the amounts set forth in Section 732.607 of this
Part.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.870
Increase in Maximum Payment Amounts
The maximum payment amounts set forth in this Subpart H must be adjusted annually by an
inflation factor determined by the annual Implicit Price Deflator for Gross National Product as
published by the U.S. Department of Commerce in its Survey of Current Business.
145
a)
The inflation factor must be calculated each year by dividing the latest published
annual Implicit Price Deflator for Gross National Product by the annual Implicit
Price Deflator for Gross National Product for the previous year. The inflation
factor must be rounded to the nearest 1/100
th
. In no case must the inflation factor
be more than five percent in a single year.
b)
Adjusted maximum payment amounts must become effective on July 1 of each
year and must remain in effect through June 30 of the following year. The first
adjustment must be made on July 1, 2006 by multiplying the maximum payment
amounts set forth in this Subpart H by the applicable inflation factor. Subsequent
adjustments must be made by multiplying the latest adjusted maximum payment
amounts by the latest inflation factor.
c)
The Agency must post the inflation factors on its website no later than the date
they become effective. The inflation factors must remain posted on the website in
subsequent years to aid in the calculation of adjusted maximum payment amounts.
d)
Adjusted maximum payment amounts must be applied as follows:
1)
For costs approved by the Agency in writing prior to the date the costs are
incurred, the applicable maximum payment amounts must be the amounts
in effect on the date the Agency received the budget in which the costs
were proposed. Once the Agency approves a cost, the applicable
maximum payment amount for the cost must not be increased (e.g, by
proposing the cost in a subsequent budget).
2)
For costs not approved by the Agency in writing prior to the date the costs
are incurred, including but not limited to early action costs, the applicable
maximum payments amounts must be the amounts in effect on the date the
costs were incurred.
3)
Owners and operators must have the burden of requesting the appropriate
adjusted maximum payment amounts in budgets and applications for
payment.
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.875
Agency Review of Payment Amounts
At least every three years, the Agency must review the amounts set forth in this Subpart H and
submit a report to the Board on whether the amounts are consistent with the prevailing market
rates. The report must identify amounts that are not consistent with the prevailing market rates
and suggest changes needed to make the amounts consistent with the prevailing market rates.
The Board must publish notice of receipt of the report in the Environmental Register and on the
Board’s web page.
146
(Source: Added at 30 Ill. Reg._______, effective _____________)
Section 732.APPENDIX A Indicator Contaminants
TANK CONTENTS
INDICATOR CONTAMINANTS
GASOLINE
leaded(1), unleaded, premium, and gasohol
Benzene benzene
Ethylbenzene ethylbenzene
Toluene toluene
Xylene xylene
Methyl tertiary butyl ether (MTBE)
MIDDLE DISTILLATE AND HEAVY ENDS
aviation turbine fuels(1)
jet fuels
Benzene benzene
Ethylbenzene ethylbenzene
Toluene toluene
Xylene xylene
diesel fuels
Acenaphthene
gas turbine fuel oils
Anthracene
heating fuel oils
Benzo benzo(a)anthracene
illuminating oils
Benzo benzo (a)pyrene
kerosene
Benzo benzo (b)fluoranthene
lubricants
Benzo benzo (k)fluoranthene
liquid asphalt and dust laying oils
Chrysene
cable oils
dibenzo(a,h)anthracene
crude oil, crude oil fractions
Fluoranthene
petroleum feedstocks
Fluorene
petroleum fractions
Indeno indeno(1,2,3-c,d)pyrene
heavy oils
Naphthalene Napthalene
transformer oils(2)
Pyrene
hydraulic fluids(3)
Acenaphthylene
petroleum spirits(4)
Benzo(g,h,i)perylene
mineral spirits(4), Stoddard solvents(4)
Phenanthrene
high-flash aromatic naphthas(4)
other non-carcinogenic PNAs (total) (6)
VM&P naphthas(4)
moderately volatile hydrocarbon solvents(4)
petroleum extender oils(4)
USED OIL
Screening screening sample(5)
(1)
lead is also an indicator contaminant
(2)
the polychlorinated biphenyl parameters listed in Appendix B are also indicator
contaminants
(3)
barium is also an indicator contaminant
147
(4)
the volatile, base/neutral and polynuclear aromatic parameters listed in Appendix B are
also indicator contaminants
(5)
used oil indicator contaminants shall be based on the results of a used oil soil sample
analysis - refer to Section 732.310(g)
(6)
acenaphthylene, benzo(g,h,i)perylene and phenanthrene
(Source: Amended at 30 Ill. Reg._______, effective _____________)
Section 732.APPENDIXAppendix
B Additional Parameters
Volatiles
1.
Benzene
2.
Bromoform
3.
Carbon tetrachloride
4.
Chlorobenzene
5.
Chloroform
6.
Dichlorobromomethane
7.
1,2-Dichloroethane
8.
1,1-Dichloroethene
9.
cis-1,2-Dichloroethylene
10.
trans-1,2-Dichloroethylene
11.
Dichloromethane (Methylene chloride)
12.
1,2-Dichloropropane
13.
1,3-Dichloropropylene (cis + trans)
14.
Ethylbenzene
15.
Styrene
16.
Tetrachloroethylene
17.
Toluene
18.
1,1,1-Trichloroethane
19.
1,1,2-Trichloroethane
20.
Trichloroethylene
21.
Vinyl chloride
22.
Xylenes (total)
Base/Neutrals
1.
Bis(2-chloroethyl)ether
2.
Bis(2-ethylhexyl)phthalate
3.
1,2-Dichlorobenzene
4.
1,4-Dichlorobenzene
5.
Hexachlorobenzene
6.
Hexachlorocyclopentadiene
7.
n
-Nitrosodi-
n
-propylamine
8.
n
-Nitrosodiphenylamine
9.
1,2,4-Trichlorobenzene
148
Polynuclear Aromatics
1.
Acenaphthene
2.
Anthracene
3.
Benzo(a)anthracene
4.
Benzo(a)pyrene
5.
Benzo(b)fluoranthene
6.
Benzo(k)fluoranthene
7.
Chrysene
8.
Dibenzo(a,h)anthracene
9.
Fluoranthene
10.
Fluorene
11.
Indeno(1,2,3-c,d)pyrene
12.
Naphthalene
13.
Pyrene
14.
Acenaphthylene
15.
Benzo(g,h,i)perylene
16.
Phenanthrene
17.
Other Non-Carcinogenic PNAs (total)
Metals (total inorganic and organic forms)
1.
Arsenic
2.
Barium
3.
Cadmium
4.
Chromium (total)
5.
Lead
6.
Mercury
7.
Selenium
Acids
1.
Pentachlorophenol
2.
Phenol (total)
3.
2,4,6-Trichlorophenol
Pesticides
1.
Aldrin
2.
alpha-BHC
3.
Chlordane
4.
4,4'-DDD
5.
4,4'-DDE
6.
4,4-DDT
7.
Dieldrin
8.
Endrin
9.
Heptachlor
10.
Heptachlor epoxide
11.
Lindane (gamma-BHC)
12.
Toxaphene
149
Polychlorinated Biphenyls
1.
Polychlorinated Biphenyls
(as Decachlorobiphenyl)
(Source: Amended at
30 Ill. Reg._______, effective _____________)
Section 732.APPENDIXAppendix C Backfill Volumes and Weights
Volume of Tank in Gallons
Maximum amount of backfill
material to be removed in:
Cubic yards
tons
Maximum amount of backfill
material to be replaced in:
Cubic yards tons
<285
285 to 299
300 to 559
560 to 999
1000 to 1049
1050 to 1149
1150 to 1999
2000 to 2499
2500 to 2999
3000 to 3999
4000 to 4999
5000 to 5999
6000 to 7499
7500 to 8299
8300 to 9999
10,000 to 11,999
12,000 to 14,999
>15,000
54
55
56
67
81
89
94
112
128
143
175
189
198
206
219
252
286
345
91
92
94
113
136
150
158
188
215
240
294
318
333
346
368
423
480
580
56
57
58
70
87
96
101
124
143
161
198
219
235
250
268
312
357
420
94
96
97
118
146
161
170
208
240
270
333
368
395
420
450
524
600
706
A conversion factor of 1.5 tons per cubic yard must be used to convert tons to cubic yards.
Site specific information may be used to determine the weight of backfill material if site
conditions such as backfill material, soil moisture content, and soil conditions differ significantly
from the default values.
BOARD NOTE: The weight of backfill material is calculated by using the default bulk density
values listed in the TACO regulations at 35 Ill. Adm. Code 742, Appendix C, Table B. The
weight of backfill material to be removed is based on a dry bulk density value of 1.8 g/cm
3
for
sand and a moisture content of 10 percent, which equals 1.98 g/cm
3
. The Board has rounded the
removed backfill density to 2.0 g/cm
3
. The weight of backfill material to be replaced is based on
a dry bulk density value of 2.0 g/cm
3
for gravel.
(Source: Amended at 30 Ill. Reg.
, effective
)
150
Section 732.APPENDIX D Sample Handling and Analysis
Max. Total Amount
per Sample
Chemical
BETX Soil with MTBE
$85
BETX Water with MTBE
$81
COD (Chemical Oxygen Demand)
$30
Corrosivity
$15
Flash Point or Ignitability Analysis EPA 1010
$33
FOC (Fraction Organic Carbon)
$38
Fat, Oil, & Grease (FOG)
$60
LUST Pollutants Soil - analysis must include all volatile,
base/neutral, polynuclear aromatic, and metal parameters listed
in Section 732.AppendixB of this Part
$693
Organic Carbon (ASTM-D 2974-87)
$33
Dissolved Oxygen (DO)
$24
Paint Filter (Free Liquids)
$14
PCB / Pesticides (combination)
$222
PCBs
$111
Pesticides
$140
PH
$14
Phenol
$34
Polynuclear Aromatics PNA, or PAH SOIL
$152
Polynuclear Aromatics PNA, or PAH WATER
$152
Reactivity
$68
SVOC - Soil (Semi-volatile Organic Compounds)
$313
SVOC - Water (Semi-volatile Organic Compounds)
$313
TKN (Total Kjeldahl) "nitrogen"
$44
TOC (Total Organic Carbon) EPA 9060A
$31
TPH (Total Petroleum Hydrocarbons)
$122
VOC (Volatile Organic Compound) - Soil (Non-Aqueous)
$175
VOC (Volatile Organic Compound) - Water
$169
Geo-Technical
Bulk Density ASTM D4292 / D2937
$22
Ex-Situ Hydraulic Conductivity / Permeability
$255
Moisture Content ASTM D2216-90 / D4643-87
$12
Porosity
$30
Rock Hydraulic Conductivity Ex-Situ
$350
Sieve / Particle Size Analysis ASTM D422-63 / D1140-54
$145
Soil Classification ASTM D2488-90 / D2487-90
$68
151
Metals
Arsenic TCLP Soil
$16
Arsenic Total Soil
$16
Arsenic Water
$18
Barium TCLP Soil
$10
Barium Total Soil
$10
Barium Water
$12
Cadmium TCLP Soil
$16
Cadmium Total Soil
$16
Cadmium Water
$18
Chromium TCLP Soil
$10
Chromium Total Soil
$10
Chromium Water
$12
Cyanide TCLP Soil
$28
Cyanide Total Soil
$34
Cyanide Water
$34
Iron TCLP Soil
$10
Iron Total Soil
$10
Iron Water
$12
Lead TCLP Soil
$16
Lead Total Soil
$16
Lead Water
$18
Mercury TCLP Soil
$19
Mercury Total Soil
$10
Mercury Water
$26
Selenium TCLP Soil
$16
Selenium Total Soil
$16
Selenium Water
$15
Silver TCLP Soil
$10
Silver Total Soil
$10
Silver Water
$12
Metals TCLP Soil (a combination of all RCRA metals)
$103
Metals Total Soil (a combination of all RCRA metals)
$94
Metals Water (a combination of all RCRA metals)
$119
Soil preparation for Metals TCLP Soil (one fee per sample)
$79
Soil preparation for Metals Total Soil (one fee per sample)
$16
Water preparation for Metals Water (one fee per sample)
$11
Other
En Core® Sampler, purge-and-trap sampler, or equivalent
sampling device
$10
Sample Shipping (*maximum total amount for shipping all
samples collected in a calendar day)
$50*
152
(Source: Added at 30 Ill. Reg.
, effective
)
Section 732.APPENDIX E Personnel Titles and Rates
Title
Degree Required
Ill.
License
Req’d.
Min. Yrs.
Experience
Max.
Hourly
Rate
Engineer I
Engineer II
Engineer III
Professional Engineer
Senior Prof. Engineer
Bachelor’s in Engineering
Bachelor’s in Engineering
Bachelor’s in Engineering
Bachelor’s in Engineering
Bachelor’s in Engineering
None
None
None
P.E.
P.E.
0
2
4
4
8
$75
$85
$100
$110
$130
Geologist I
Geologist II
Geologist III
Professional Geologist
Senior Prof. Geologist
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
None
None
None
P.G.
P.G.
0
2
4
4
8
$70
$75
$88
$92
$110
Scientist I
Scientist II
Scientist III
Scientist IV
Senior Scientist
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
None
None
None
None
None
0
2
4
6
8
$60
$65
$70
$75
$85
Project Manager
Senior Project Manager
None
None
None
None
8
1
12
1
$90
$100
Technician I
Technician II
Technician III
Technician IV
Senior Technician
None
None
None
None
None
None
None
None
None
None
0
2
1
4
1
6
1
8
1
$45
$50
$55
$60
$65
Account Technician I
Account Technician II
Account Technician III
Account Technician IV
Senior Acct. Technician
None
None
None
None
None
None
None
None
None
None
0
2
2
4
2
6
2
8
2
$35
$40
$45
$50
$55
Administrative Assistant I
Administrative Assistant II
Administrative Assistant III
Administrative Assistant IV
Senior Admin. Assistant
None
None
None
None
None
None
None
None
None
None
0
2
3
4
3
6
3
8
3
$25
$30
$35
$40
$45
Draftperson/CAD I
Draftperson/CAD II
Draftperson/CAD III
Draftperson/CAD IV
Senior Draftperson/CAD
None
None
None
None
None
None
None
None
None
None
0
2
4
4
4
6
4
8
4
$40
$45
$50
$55
$60
153
1
Equivalent work-related or college level education with significant coursework in the physical, life,
or environmental sciences can be substituted for all or part of the specified experience requirements.
2
Equivalent work-related or college level education with significant coursework in accounting or
business can be substituted for all or part of the specified experience requirements.
3
Equivalent work-related or college level education with significant coursework in administrative or
secretarial services can be substituted for all or part of the specified experience requirements.
4
Equivalent work-related or college level education with significant coursework in drafting or
computer aided design (“CAD”) can be substituted for all or part of the specified experience
requirements.
(Source: Added at 30 Ill. Reg.
, effective
)
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE G: WASTE DISPOSAL
CHAPTER I: POLLUTION CONTROL BOARD
SUBCHAPTER d: UNDERGROUND INJECTION CONTROL AND UNDERGROUND
STORAGE TANK PROGRAMS
PART 734
PETROLEUM UNDERGROUND STORAGE TANKS
(RELEASES REPORTED ON OR AFTER JUNE 24, 2002)
SUBPART A: GENERAL
Section
734.100
Applicability
734.105
Election to Proceed under Part 734
734.110
Severability
734.115
Definitions
734.120
Incorporations by Reference
734.125
Agency Authority to Initiate Investigative, Preventive, or Corrective
Action
734.130
Licensed Professional Engineer or Licensed Professional Geologist
Supervision
734.135
Form and Delivery of Plans, Budgets, and Reports; Signatures and
Certifications
734.140
Development of Remediation Objectives
734.145
Notification of Field Activities
734.150
LUST Advisory Committee
SUBPART B: EARLY ACTION
Section
734.200
General
734.205
Agency Authority to Initiate
734.210
Early Action
734.215
Free Product Removal
734.220
Application for Payment of Early Action Costs
154
SUBPART C: SITE INVESTIGATION AND CORRECTIVE ACTION
Section
734.300
General
734.305
Agency Authority to Initiate
734.310
Site Investigation – General
734.315
Stage 1 Site Investigation
734.320
Stage 2 Site Investigation
734.325
Stage 3 Site Investigation
734.330
Site Investigation Completion Report
734.335
Corrective Action Plan
734.340
Alternative Technologies
734.345
Corrective Action Completion Report
734.350
Off-site Access
734.355
Status Report
SUBPART D: MISCELLANEOUS PROVISIONS
Section
734.400
General
734.405
Indicator Contaminants
734.410
Remediation Objectives
734.415
Data Quality
734.420
Laboratory Certification
734.425
Soil Borings
734.430
Monitoring Well Construction and Sampling
734.435
Sealing of Soil Borings and Groundwater Monitoring Wells
734.440
Site Map Requirements
734.445
Water Supply Well Survey
734.450
Deferred Site Investigation or Corrective Action; Priority List for Payment
SUBPART E: REVIEW OF PLANS, BUDGETS, AND REPORTS
Section
734.500
General
734.505
Review of Plans, Budgets, or Reports
734.510
Standards for Review of Plans, Budgets, or Reports
SUBPART F: PAYMENT FROM THE FUND
Section
734.600
General
734.605
Applications for Payment
734.610
Review of Applications for Payment
734.615
Authorization for Payment; Priority List
734.620
Limitations on Total Payments
155
734.625
Eligible Corrective Action Costs
734.630
Ineligible Corrective Action Costs
734.635
Payment for Handling Charges
734.640
Apportionment of Costs
734.645
Subrogation of Rights
734.650
Indemnification
734.655
Costs Covered by Insurance, Agreement, or Court Order
734.660
Determination and Collection of Excess Payments
734.665
Audits and Access to Records; Records Retention
SUBPART G: NO FURTHER REMEDIATION LETTERS
AND RECORDING REQUIREMENTS
Section
734.700
General
734.705
Issuance of a No Further Remediation Letter
734.710
Contents of a No Further Remediation Letter
734.715
Duty to Record a No Further Remediation Letter
734.720
Voidance of a No Further Remediation Letter
SUBPART H: MAXIMUM PAYMENT AMOUNTS
Section
734.800
Applicability
734.810
UST Removal or Abandonment Costs
734.815
Free Product or Groundwater Removal and Disposal
734.820
Drilling, Well Installation, and Well Abandonment
734.825
Soil Removal and Disposal
734.830
Drum Disposal
734.835
Sample Handling and Analysis
734.840
Concrete, Asphalt, and Paving; Destruction or Dismantling and
Reassembly of Above Grade Structures
734.845
Professional Consulting Services
734.850
Payment on Time and Materials Basis
734.855
Bidding
734.860
Unusual or Extraordinary Circumstances
734.865
Handling Charges
734.870
Increase in Maximum Payment Amounts
734.875
Agency Review of Payment Amounts
734.APPENDIX A
Indicator Contaminants
734.APPENDIX B
Additional Parameters
734.APPENDIX C
Backfill Volumes
734.APPENDIX D
Sample Handling and Analysis
734.APPENDIX E
Personnel Titles and Rates
156
AUTHORITY: Implementing Sections 22.12 and 57 - 57.17 and authorized by Sections 5, 22,
27, and 57.14A of the Environmental Protection Act [415 ILCS 5/5, 22, 22.12, 27, and 57 -
57.17]
SOURCE: Adopted in R04-22/23 at 30 Ill. Reg.____________, effective March 1, 2006.
NOTE: Italics denotes statutory language.
SUBPART A: GENERAL
Section 734.100
Applicability
a)
This Part applies to owners or operators of any underground storage tank system
used to contain petroleum and for which a release is reported to Illinois
Emergency Management Agency (IEMA) on or after March 1, 2006 in
accordance with the Office of State Fire Marshal (OSFM) regulations. This Part
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 [415
ILCS 5/57.5].
1)
For releases reported on or after June 24, 2002, but prior to March 1, 2006,
and for owners and operators electing prior to March 1, 2006 to proceed in
accordance with Title XVI of the Act as amended by P.A. 92-0554, the
Agency may deem that one or more requirements of this Part have been
satisfied, based upon activities conducted prior to March 1, 2006, even
though the activities were not conducted in strict accordance with the
requirements of this Part. For example, an owner or operator that
adequately defined the extent of on-site contamination prior to March 1,
2006 may be deemed to have satisfied Sections 734.210(h) and 734.315
even though sampling was not conducted in strict accordance with those
Sections.
2)
Costs incurred pursuant to a budget approved prior to March 1, 2006 must
be reimbursed in accordance with the amounts approved in the budget and
must not be subject to the maximum payment amounts set forth in Subpart
H of this Part.
b)
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 prior
to June 24, 2002, may elect to proceed in accordance with this Part pursuant to
Section 734.105 of this Part.
c)
Upon the receipt of a corrective action order issued by the OSFM on or after June
24, 2002, and pursuant to Section 57.5(g) of the Act [415 ILCS 5/57.5(g)], where
the OSFM has determined that a release poses a threat to human health or the
157
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, must conduct corrective action in accordance with this Part.
d)
Owners or operators subject to this Part by law or by election must 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 734.125 of this Part to expedite investigative, preventive, or
corrective action by an owner or operator or to initiate such action.
e)
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 USC 1251
et seq
. (1972)].
6)
Any UST system holding hazardous waste listed or identified under
Subtitle C of the Solid Waste Disposal Act [42 USC 3251
et seq
.] or a
mixture of such hazardous waste or other regulated substances.
Section 734.105
Election to Proceed under Part 734
a)
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 prior
to June 24, 2002, 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 must be submitted on forms prescribed and provided by
the Agency and, if specified by the Agency in writing, in an electronic format.
Corrective action must then follow the requirements of this Part. The election
158
must be effective upon receipt by the Agency and must not be withdrawn once
made.
b)
Except as provided in Section 734.100(c) of this Part, owners or operators of
underground storage tanks used exclusively to store heating oil for consumptive
use on the premises where stored and that serve other than a farm or residential
unit 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 must be submitted on forms prescribed and provided by the Agency
and, if specified by the Agency in writing, in an electronic format. Corrective
action must then follow the requirements of this Part. The election must be
effective upon receipt by the Agency and must not be withdrawn once made.
c)
Owners and operators electing pursuant to this Section to proceed in accordance
with this Part must submit with their election a summary of the activities
conducted to date and a proposed starting point for compliance with this Part.
The Agency must review and approve, reject, or modify the submission in
accordance with the procedures contained in Subpart E of this Part. The Agency
may deem a requirement of this Part to have been met, based upon activities
conducted prior to an owner’s or operator’s election, even though the activities
were not conducted in strict accordance with the requirement. For example, an
owner or operator that adequately defined the extent of on-site contamination
prior to the election may be deemed to have satisfied Sections 734.210(h) and
734.315 even though sampling was not conducted in strict accordance with those
Sections.
d)
If the owner or operator elects to proceed pursuant to this Part, corrective action
costs incurred in connection with the release and prior to the notification of
election must be payable from the Underground Storage Tank Fund in the same
manner as was allowable under the law applicable to the owner or operator prior
to the notification of election. Corrective action costs incurred after the
notification of election must be payable from the Fund in accordance with this
Part.
e)
This Section does not apply to any release for which the Agency has issued a No
Further Remediation Letter.
Section 734.110
Severability
If any provision of this Part or its application to any person or under any circumstances is
adjudged invalid, such adjudication must not affect the validity of this Part as a whole or of any
portion not adjudged invalid.
159
Section 734.115
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 must be the same as those 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].
“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].
“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].
160
“Environmental Land Use Control” means Environmental Land Use Control as
defined in 35 Ill. Adm. Code 742.200.
“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
[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].
“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.
161
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
734.405 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”
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].
162
"Man-made Pathway" means a constructed route 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 a natural route 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 must 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 734.715(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
163
venture, consortium, commercial entity, corporation (including a government
corporation), partnership, association, State, municipality, commission, political
subdivision of a State, or any interstate body and must 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)
“Potable”
means generally fit for human consumption in accordance with
accepted water supply principles and practices
[415 ILCS 5/3.340].
"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
734.120 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 734.120 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
164
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,
[35 Ill. Adm. Code Subtitle F]
the geology of which renders a potable
resource groundwater particularly susceptible to contamination
[415 ILCS
5/3.390].
“Regulated Substance” means any substance defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980 [42 USC 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. (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
[415
ILCS 5/14.1, 5/14.2, 5/14.3]
or 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].
“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].
165
“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.
“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
166
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.
Section 734.120
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 2487-93, Standard Test Method for Classification of Soils for
Engineering Purposes, approved September 15, 1993.
NTIS. National Technical Information Service, 5285 Port Royal Road,
Springfield, VA 22161 (703) 605-6000 or (800) 553-6847
“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, 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);
167
“Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods,”
EPA Publication No. SW-846, Third Edition (September 1986), as
amended by Updates I, IIA, III, and IIIA (Final Update IIIA dated April
1998), Doc. No. 955-001-00000-1.
b)
This Section incorporates no later editions or amendments.
Section 734.125
Agency Authority to Initiate Investigative, Preventive, or Corrective
Action
a)
The Agency has the authority to do either of the following:
1)
Provide notice to the owner or operator, or both, of an underground
storage tank whenever there is a release or substantial threat of a release
of petroleum from such tank. Such notice shall include the identified
investigation or response action and an opportunity for the owner or
operator, or both, to perform the response action.
2)
Undertake investigative, preventive or corrective action whenever there is
a release or a substantial threat of a release of petroleum from an
underground storage tank
[415 ILCS 5/57.12(c)].
b)
If notice has been provided under this Section, the Agency has the authority to
require the owner or operator, or both, of an underground storage tank to
undertake preventive or corrective action whenever there is a release or
substantial threat of a release of petroleum from such tank
[415 ILCS 5/57.12(d)].
Section 734.130
Licensed Professional Engineer or Licensed Professional Geologist
Supervision
All investigations, plans, budgets, and reports conducted or prepared under this Part, excluding
Corrective Action Completion Reports submitted pursuant to Section 734.345 of this Part, must
be conducted or prepared under the supervision of a Licensed Professional Engineer or Licensed
Professional Geologist. Corrective Action Completion Reports submitted pursuant to Section
734.345 of this Part must be prepared under the supervision of a Licensed Professional Engineer.
Section 734.135
Form and Delivery of Plans, Budgets, and Reports; Signatures and
Certifications
a)
All plans, budgets, 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.
b)
All plans, budgets, 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
168
deemed conclusive unless a contrary date is proven by a dated, signed receipt
executed by Agency personnel acknowledging receipt of documents by hand
delivery or messenger or from certified or registered mail.
c)
All plans, budgets, and reports must be signed by the owner or operator and list
the owner’s or operator’s full name, address, and telephone number.
d)
All plans, budgets, and reports submitted pursuant to this Part, excluding
Corrective Action Completion Reports submitted pursuant to Section 734.345 of
this Part, must contain the following certification from a Licensed Professional
Engineer or Licensed Professional Geologist. Corrective Action Completion
Reports submitted pursuant to Section 734.345 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, 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, 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, or report has been completed in accordance
with the Environmental Protection Act [415 ILCS 5], 35 Ill. Adm. Code
734, 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 734.715(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.
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Section 734.140
Development of Remediation Objectives
The owner or operator must propose remediation objectives for the applicable indicator
contaminants in accordance with 35 Ill. Adm. Code 742.
BOARD NOTE: Several provisions of this Part require the owner or operator to determine
whether contamination exceeds the most stringent Tier 1 remediation objectives of 35 Ill. Adm.
Code 742. Please note that these requirements do not limit the owner’s or operator’s ability to
use Tier 2 or Tier 3 remediation objectives in accordance with 35 Ill. Adm. Code 742.
a)
The owner or operator may develop remediation objectives at any time during site
investigation or corrective action. Prior to developing Tier 2 or Tier 3
remediation objectives the owner or operator must propose the development of
remediation objectives in the appropriate site investigation plan or corrective
action plan. Documentation of the development of remediation objectives must
be included as a part of the appropriate plan or report.
b)
Any owner or operator intending to seek payment from the Fund shall, prior to the
development of Tier 2 or Tier 3 remediation objectives, propose the costs for such
activities in the appropriate budget. The costs should be consistent with the
eligible and ineligible costs listed at Sections 734.625 and 734.630 of this Part
and the maximum payment amounts set forth in Subpart H of this Part.
c)
Upon the Agency’s approval of a plan that includes the development of
remediation objectives, the owner or operator must proceed to develop
remediation objectives in accordance with the plan.
d)
If, following the approval of any plan or associated budget that includes the
development of remediation objectives, an owner or operator determines that a
revised plan or budget is necessary, the owner or operator must submit, as
applicable, an amended plan or associated budget to the Agency for review. The
Agency must review and approve, reject, or require modification of the amended
plan or budget in accordance with Subpart E of this Part.
e)
Notwithstanding any requirement under this Part for the submission of a plan or
budget that includes the development of remediation objectives, an owner or
operator may proceed to develop remediation objectives prior to the submittal or
approval of an otherwise required plan or budget. However, any such plan or
budget 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 receiving payment for any related costs or the issuance of a No
Further Remediation Letter.
BOARD NOTE: Owners or operators proceeding under subsection (e) of this Section are
advised that they may not be entitled to full payment. Furthermore, applications for payment
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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.
Section 734.145
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
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.
Section 734.150
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, two members 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.
SUBPART B: EARLY ACTION
Section 734.200
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(a)]. No work plan or corresponding budget must
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.
Section 734.205
Agency Authority to Initiate
Pursuant to Sections 734.100 or 734.125 of this Part, the Agency must have the authority to
require or initiate early action activities in accordance with the remainder of this Subpart B.
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Section 734.210
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, must
perform the following initial response actions within 24 hours after the release:
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, the
owner or operator must 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 must 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 must 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
removal of free product as soon as practicable and in accordance with
Section 734.215 of this Part.
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c)
Within 20 days after initial notification to IEMA of a release plus 14 days, the
owner or operator must submit a report to the Agency summarizing the initial
abatement steps taken under subsection (b) of this Section and any resulting
information or data.
d)
Within 45 days after initial notification to IEMA of a release plus 14 days, the
owner or operator must 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 must 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 734.215 of this Part.
e)
Within 45 days after initial notification to IEMA of a release plus 14 days, the
owner or operator must 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.
f)
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 of 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
[415 ILCS 5/57.6(b)]
.
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.
g)
For purposes of payment from the Fund, the activities set forth in subsection (f) of
this Section must be performed within 45 days after initial notification to IEMA
of a release plus 14 days, unless special circumstances, approved by the Agency
in writing, warrant continuing such activities beyond 45 days plus 14 days. The
173
owner or operator must notify the Agency in writing of such circumstances within
45 days after initial notification to IEMA of a release plus 14 days. Costs
incurred beyond 45 days plus 14 days must be eligible if the Agency determines
that they are consistent with early action.
BOARD NOTE: Owners or operators seeking payment from the Fund are to first
notify IEMA of a suspected release and then confirm the release within 14 days to
IEMA pursuant to regulations promulgated by the OSFM. See 41 Ill. Adm. Code
170.560 and 170.580. The Board is setting the beginning of the payment period
at subsection (g) to correspond to the notification and confirmation to IEMA.
h)
The owner or operator must 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.
1)
At a minimum, for each UST that is removed, the owner or operator must
collect and analyze soil samples as indicated in subsections (h)(1)(A). 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.
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
174
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
734.405(g) of this Part to determine the indicator contaminants for
used oil. The remaining samples collected pursuant to subsections
(h)(1)(A) and (B) 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
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
175
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)
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) of this Section
are met, within 30 days after the completion of early action activities the
owner or operator must submit a 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:
176
i)
A site map meeting the requirements of Section 734.440 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
734.440 of this Part.
4)
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, the owner or operator must
continue 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 734.215 of this Part; or
C)
There is evidence that contaminated soils may be or may have
been in contact with groundwater, unless:
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.
Section 734.215
Free Product Removal
a)
Under any circumstance in which conditions at a site indicate the presence of free
product, owners or operators must remove, to the maximum extent practicable,
free product exceeding one-eighth of an inch in depth as measured in a
177
groundwater monitoring well, or present as a sheen on groundwater in the tank
removal excavation or on surface water, 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 must:
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.
The report must, at a minimum, provide the following:
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;
G)
The disposition of the recovered free product;
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
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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
(c) and (d) of this Section; and
5)
If free product removal activities are conducted more than 45 days after
confirmation of the presence of free product, submit free product removal
reports quarterly or in accordance with a schedule established by the
Agency.
b)
For purposes of payment from the Fund, owners or operators are not required to
obtain Agency approval for free product removal activities conducted within 45
days after the confirmation of the presence of free product.
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
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 with the corresponding free product removal plan. The budget
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 should be consistent with the eligible
and ineligible costs listed in Sections 734.625 and 734.630 of this Part and the
maximum payment amounts set forth in Subpart H of this Part. As part of the
budget 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, 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. However, any such removal 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.
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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, an
owner or operator determines that a revised plan or budget 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 to the Agency for
review. The Agency must review and approve, reject, or require modification of
the amended removal plan and 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 budgets submitted by
an owner or operator must not exceed the amounts set forth in Subpart H of this
Part.
Section 734.220
Application for Payment of Early Action Costs
Owners or operators intending to seek payment 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. 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.
SUBPART C: SITE INVESTIGATION AND CORRECTIVE ACTION
Section 734.300
General
Unless the owner or operator submits a report pursuant to Section 734.210(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 must investigate the
site, conduct corrective action, and prepare plans, budgets, and reports in accordance with the
requirements of this Subpart C.
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Section 734.305
Agency Authority to Initiate
Pursuant to Section 734.100 or 734.125 of this Part, the Agency has the authority to require or
initiate site investigation and corrective action activities in accordance with the remainder of this
Subpart C.
Section 734.310
Site Investigation – General
The investigation of the release must proceed in three stages as set forth in this Part. If, after the
completion of any stage, the extent of the soil and groundwater contamination exceeding the
most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants as a result of the release has been defined, the owner or operator must
cease investigation and proceed with the submission of a site investigation completion report in
accordance with Section 734.330 of this Part.
a)
Prior to conducting site investigation activities pursuant to Section 734.315,
734.320, or 734.325 of this Part, the owner or operator must submit to the Agency
for review a site investigation plan. The plan must be designed to satisfy the
minimum requirements set forth in the applicable Section and to collect the
information required to be reported in the site investigation plan for the next stage
of the site investigation, or in the site investigation completion report, whichever
is applicable.
b)
Any owner or operator intending to seek payment from the Fund must, prior to
conducting any site investigation activities, submit to the Agency a site
investigation budget with the corresponding site investigation plan. The budget
must include, but not be limited to, a copy of the eligibility and deductibility
determination of the OSFM and an estimate of all costs associated with the
development, implementation, and completion of the site investigation plan,
excluding handling charges and costs associated with monitoring well
abandonment. Costs associated with monitoring well abandonment must be
included in the corrective action budget. Site investigation budgets should be
consistent with the eligible and ineligible costs listed at Sections 734.625 and
734.630 of this Part and the maximum payment amounts set forth in Subpart H of
this Part. A budget for a Stage 1 site investigation must consist of a certification
signed by the owner or operator, and by a Licensed Professional Engineer or
Licensed Professional Geologist, that the costs of the Stage 1 site investigation
will not exceed the amounts set forth in Subpart H of this Part.
c)
Upon the Agency’s approval of a site investigation plan, or as otherwise directed
by the Agency, the owner or operator shall conduct a site investigation in
accordance with the plan
[415 ILCS 5/57.7(a)(4)].
d)
If, following the approval of any site investigation plan or associated budget, an
owner or operator determines that a revised plan or budget is necessary in order to
determine, within the area addressed in the applicable stage of the investigation,
181
the nature, concentration, direction of movement, rate of movement, and extent of
the contamination, or the significant physical features of the site and surrounding
area that may affect contaminant transport and risk to human health and safety
and the environment, the owner or operator must submit, as applicable, an
amended site investigation plan or associated budget to the Agency for review.
The Agency must review and approve, reject, or require modification of the
amended plan or budget in accordance with Subpart E of this Part.
BOARD NOTE: Owners and operators are advised that the total payment from
the Fund for all site investigation plans and associated budgets submitted by an
owner or operator must not exceed the amounts set forth in Subpart H of this Part.
e)
Notwithstanding any requirement under this Part for the submission of a site
investigation plan or budget, an owner or operator may proceed to conduct site
investigation activities in accordance with this Subpart C prior to the submittal or
approval of an otherwise required site investigation plan or budget. However, any
such plan or budget 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 receiving payment for any related costs or the issuance of a
No Further Remediation Letter.
BOARD NOTE: Owners or operators proceeding under subsection (e) of this
Section are advised that they may not be entitled to full payment. 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.
Section 734.315
Stage 1 Site Investigation
The Stage 1 site investigation must be designed to gather initial information regarding the extent
of on-site soil and groundwater contamination that, as a result of the release, exceeds the most
stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the applicable indicator
contaminants.
a)
The Stage 1 site investigation must consist of the following:
1)
Soil investigation.
A)
Up to four borings must be drilled around each independent UST
field where one or more UST excavation samples collected
pursuant to 734.210(h), excluding backfill samples, exceed the
most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code
742 for the applicable indicator contaminants. One additional
boring must be drilled as close as practicable to each UST field if a
groundwater investigation is not required under subsection (a)(2)
of this Section. The borings must be advanced through the entire
vertical extent of contamination, based upon field observations and
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field screening for organic vapors, provided that borings must be
drilled below the groundwater table only if site- specific conditions
warrant.
B)
Up to two borings must be drilled around each UST piping run
where one or more piping run samples collected pursuant to
Section 734.210(h) exceed the most stringent Tier 1 remediation
objectives of 35 Ill. Adm. Code 742 for the applicable indicator
contaminants. One additional boring must be drilled as close as
practicable to each UST piping run if a groundwater investigation
is not required under subsection (a)(2) of this Section. The borings
must be advanced through the entire vertical extent of
contamination, based upon field observations and field screening
for organic vapors, provided that borings must be drilled below the
groundwater table only if site-specific conditions warrant.
C)
One soil sample must be collected from each five-foot interval of
each boring drilled pursuant to subsections (a)(1)(A) and (B) 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. All samples must be
analyzed for the applicable indicator contaminants.
2)
Groundwater investigation.
A)
A groundwater investigation is required under the following
circumstances:
i)
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;
ii)
Free product that may impact groundwater is found to need
recovery in compliance with Section 734.215 of this Part;
or
iii)
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
183
investigation, unless the Agency’s review reveals that
further groundwater investigation is necessary.
B)
If a groundwater investigation is required, the owner or operator
must install five groundwater monitoring wells. One monitoring
well must be installed in the location where groundwater
contamination is most likely to be present. The four remaining
wells must be installed at the property boundary line or 200 feet
from the UST system, whichever is less, in opposite directions
from each other. The wells must be installed in locations where
they are most likely to detect groundwater contamination resulting
from the release and provide information regarding the
groundwater gradient and direction of flow.
C)
One soil sample must be collected from each five-foot interval of
each monitoring well installation boring drilled pursuant to
subsection (a)(2)(B) 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.
All soil samples exhibiting signs of contamination must be
analyzed for the applicable indicator contaminants. For borings
that do not exhibit any signs of soil contamination, samples from
the following intervals must be analyzed for the applicable
indicator contaminants, provided that the samples must not be
analyzed if other soil sampling conducted to date indicates that soil
contamination does not extend to the location of the monitoring
well installation boring:
i)
The five-foot intervals intersecting the elevations of soil
samples collected pursuant to Section 734.210(h),
excluding backfill samples, that exceed the most stringent
Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for
the applicable indicator contaminants.
ii)
The five-foot interval immediately above each five-foot
interval identified in subsection (a)(2)(C)(i) of this Section;
and
iii)
The five-foot interval immediately below each five-foot
interval identified in subsection (a)(2)(C)(i) of this Section.
D)
Following the installation of the groundwater monitoring wells,
groundwater samples must be collected from each well and
analyzed for the applicable indicator contaminants.
184
E)
As a part of the groundwater investigation an in-situ hydraulic
conductivity test must 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 must be
performed on each such unit.
i)
Wells used for hydraulic conductivity testing must be
constructed in a manner that ensures the most accurate
results.
ii)
The screen must be contained within the saturated zone.
3)
An initial water supply well survey in accordance with Section 734.445(a)
of this Part.
b)
The Stage 1 site investigation plan must consist of a certification signed by the
owner or operator, and by a Licensed Professional Engineer or Licensed
Professional Geologist, that the Stage 1 site investigation will be conducted in
accordance with this Section.
c)
If none of the samples collected as part of the Stage 1 site investigation exceed the
most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the
applicable indicator contaminants, the owner or operator must cease site
investigation and proceed with the submission of a site investigation completion
report in accordance with Section 734.330 of this Part. If one or more of the
samples collected as part of the Stage 1 site investigation exceed the most
stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the
applicable indicator contaminants, within 30 days after completing the Stage 1
site investigation the owner or operator must submit to the Agency for review a
Stage 2 site investigation plan in accordance with Section 734.320 of this Part.
Section 734.320
Stage 2 Site Investigation
The Stage 2 site investigation must be designed to complete the identification of the extent of
soil and groundwater contamination at the site that, as a result of the release, exceeds the most
stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the applicable indicator
contaminants. The investigation of any off-site contamination must be conducted as part of the
Stage 3 site investigation.
a)
The Stage 2 site investigation must consist of the following:
1)
The additional drilling of soil borings and collection of soil samples
necessary to identify the extent of soil contamination at the site that
exceeds the most stringent Tier 1 remediation objectives of 35 Ill. Adm.
Code 742 for the applicable indicator contaminants. Soil samples must be
185
collected in appropriate locations and at appropriate depths, based upon
the results of the soil sampling and other investigation activities conducted
to date, provided, however, that soil samples must not be collected below
the groundwater table. All samples must be analyzed for the applicable
indicator contaminants; and
2)
The additional installation of groundwater monitoring wells and collection
of groundwater samples necessary to identify the extent of groundwater
contamination at the site that exceeds the most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants. If soil samples are collected from a monitoring
well boring, the samples must be collected in appropriate locations and at
appropriate depths, based upon the results of the soil sampling and other
investigation activities conducted to date, provided, however, that soil
samples must not be collected below the groundwater table. All samples
must be analyzed for the applicable indicator contaminants.
b)
The Stage 2 site investigation plan must include, but not be limited to, the
following:
1)
An executive summary of Stage 1 site investigation activities and actions
proposed in the Stage 2 site investigation plan to complete the
identification of the extent of soil and groundwater contamination at the
site that exceeds the most stringent Tier 1 remediation objectives of 35 Ill.
Adm. Code 742 for the applicable indicator contaminants;
2)
A characterization of the site and surrounding area, including, but not
limited to, the following:
A)
The current and projected post-remediation uses of the site and
surrounding properties; and
B)
The physical setting of the site and surrounding area including, but
not limited to, features relevant to environmental, geographic,
geologic, hydrologic, hydrogeologic, and topographic conditions;
3)
The results of the Stage 1 site investigation, including but not limited to
the following:
A)
One or more site maps meeting the requirements of Section
734.440 that show the locations of all borings and groundwater
monitoring wells completed to date, and the groundwater flow
direction;
186
B)
One or more site maps meeting the requirements of Section
734.440 that show the locations of all samples collected to date and
analyzed for the applicable indicator contaminants;
C)
One or more site maps meeting the requirements of Section
734.440 that show the extent of soil and groundwater
contamination at the site that exceeds the most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants;
D)
One or more cross-sections of the site that show the geology of the
site and the horizontal and vertical extent of soil and groundwater
contamination at the site that exceeds the most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants;
E)
Analytical results, chain of custody forms, and laboratory
certifications for all samples analyzed for the applicable indicator
contaminants as part of the Stage 1 site investigation;
F)
One or more tables comparing the analytical results of the samples
collected to date to the most stringent Tier 1 remediation objectives
of 35 Ill. Adm. Code 742 for the applicable indicator contaminants;
G)
Water supply well survey documentation required pursuant to
Section 734.445(d) of this Part for water supply well survey
activities conducted as part of the Stage 1 site investigation; and
H)
For soil borings and groundwater monitoring wells installed as part
of the Stage 1 site investigation, soil boring logs and monitoring
well construction diagrams meeting the requirements of Sections
734.425 and 734.430 of this Part; and
4)
A Stage 2 sampling plan that includes, but is not limited to, the following:
A)
A narrative justifying the activities proposed as part of the Stage 2
site investigation;
B)
A map depicting the location of additional soil borings and
groundwater monitoring wells proposed to complete the
identification of the extent of soil and groundwater contamination
at the site that exceeds the most stringent Tier 1 remediation
objectives of 35 Ill. Adm. Code 742 for the applicable indicator
contaminants; and
187
C)
The depth and construction details of the proposed soil borings and
groundwater monitoring wells.
c)
If the owner or operator proposes no site investigation activities in the Stage 2 site
investigation plan and none of the applicable indicator contaminants that exceed
the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 as a
result of the release extend beyond the site’s property boundaries, upon
submission of the Stage 2 site investigation plan the owner or operator must cease
site investigation and proceed with the submission of a site investigation
completion report in accordance with Section 734.330 of this Part. If the owner
or operator proposes no site investigation activities in the Stage 2 site
investigation plan and applicable indicator contaminants that exceed the most
stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 as a result of the
release extend beyond the site’s property boundaries, within 30 days after the
submission of the Stage 2 site investigation plan the owner or operator must
submit to the Agency for review a Stage 3 site investigation plan in accordance
with Section 734.325 of this Part.
d)
If the results of a Stage 2 site investigation indicate that none of the applicable
indicator contaminants that exceed the most stringent Tier 1 remediation
objectives of 35 Ill. Adm. Code 742 as a result of the release extend beyond the
site’s property boundaries, upon completion of the Stage 2 site investigation the
owner or operator must cease site investigation and proceed with the submission
of a site investigation completion report in accordance with Section 734.330 of
this Part. If the results of the Stage 2 site investigation indicate that applicable
indicator contaminants that exceed the most stringent Tier 1 remediation
objectives of 35 Ill. Adm. Code 742 as a result of the release extend beyond the
site’s property boundaries, within 30 days after the completion of the Stage 2 site
investigation the owner or operator must submit to the Agency for review a Stage
3 site investigation plan in accordance with Section 734.325 of this Part.
Section 734.325
Stage 3 Site Investigation
The Stage 3 site investigation must be designed to identify the extent of off-site soil and
groundwater contamination that, as a result of the release, exceeds the most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable indicator contaminants.
a)
The Stage 3 site investigation must consist of the following:
1)
The drilling of soil borings and collection of soil samples necessary to
identify the extent of soil contamination beyond the site’s property
boundaries that exceeds the most stringent Tier 1 remediation objectives
of 35 Ill. Adm. Code 742 for the applicable indicator contaminants. Soil
samples must be collected in appropriate locations and at appropriate
depths, based upon the results of the soil sampling and other investigation
activities conducted to date, provided, however, that soil samples must not
188
be collected below the groundwater table. All samples must be analyzed
for the applicable indicator contaminants; and
2)
The installation of groundwater monitoring wells and collection of
groundwater samples necessary to identify the extent of groundwater
contamination beyond the site’s property boundaries that exceeds the most
stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the
applicable indicator contaminants. If soil samples are collected from a
monitoring well boring, the samples must be collected in appropriate
locations and at appropriate depths, based upon the results of the soil
sampling and other investigation activities conducted to date, provided,
however, that soil samples must not be collected below the groundwater
table. All samples must be analyzed for the applicable indicator
contaminants.
b)
The Stage 3 site investigation plan must include, but is not limited to, the
following:
1)
An executive summary of Stage 2 site investigation activities and actions
proposed in the Stage 3 site investigation plan to identify the extent of soil
and groundwater contamination beyond the site’s property boundaries that
exceeds the most stringent Tier 1 remediation objectives of 35 Ill. Adm.
Code 742 for the applicable indicator contaminants;
2)
The results of the Stage 2 site investigation, including but not limited to
the following:
A)
One or more site maps meeting the requirements of Section
734.440 that show the locations of all borings and groundwater
monitoring wells completed as part of the Stage 2 site
investigation;
B)
One or more site maps meeting the requirements of Section
734.440 that show the locations of all groundwater monitoring
wells completed to date, and the groundwater flow direction;
C)
One or more site maps meeting the requirements of Section
734.440 that show the extent of soil and groundwater
contamination at the site that exceeds the most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants;
D)
One or more cross-sections of the site that show the geology of the
site and the horizontal and vertical extent of soil and groundwater
contamination at the site that exceeds the most stringent Tier 1
189
remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants;
E)
Analytical results, chain of custody forms, and laboratory
certifications for all samples analyzed for the applicable indicator
contaminants as part of the Stage 2 site investigation;
F)
One or more tables comparing the analytical results of the samples
collected to date to the most stringent Tier 1 remediation objectives
of 35 Ill. Adm. Code 742 for the applicable indicator contaminants;
and
G)
For soil borings and groundwater monitoring wells installed as part
of the Stage 2 site investigation, soil boring logs and monitoring
well construction diagrams meeting the requirements of Sections
734.425 and 734.430 of this Part; and
3)
A Stage 3 sampling plan that includes, but is not limited to, the following:
A)
A narrative justifying the activities proposed as part of the Stage 3
site investigation;
B)
A map depicting the location of soil borings and groundwater
monitoring wells proposed to identify the extent of soil and
groundwater contamination beyond the site’s property boundaries
that exceeds the most stringent Tier 1 remediation objectives of 35
Ill. Adm. Code 742 for the applicable indicator contaminants; and
C)
The depth and construction details of the proposed soil borings and
groundwater monitoring wells.
c)
Upon completion of the Stage 3 site investigation the owner or operator must
proceed with the submission of a site investigation completion report that meets
the requirements of Section 734.330 of this Part.
Section 734.330
Site Investigation Completion Report
Within 30 days after completing the site investigation, the owner or operator shall submit to the
Agency for approval a site investigation completion report
[415 ILCS 5/57.7(a)(5)]. At a
minimum, a site investigation completion report must contain the following:
a)
A history of the site with respect to the release;
b)
A description of the site, including but not limited to the following:
190
1)
General site information, including but not limited to the site’s and
surrounding area’s regional location; geography, hydrology, geology,
hydrogeology, and topography; existing and potential migration pathways
and exposure routes; and current and projected post-remediation uses;
2)
One or more maps meeting the requirements of Section 734.440 that show
the locations of all borings and groundwater monitoring wells completed
as part of site investigation, and the groundwater flow direction;
3)
One or more maps showing the horizontal extent of soil and groundwater
contamination exceeding the most stringent Tier 1 remediation objectives
of 35 Ill. Adm. Code 742 for the applicable indicator contaminants;
4)
One or more map cross-sections showing the horizontal and vertical extent
of soil and groundwater contamination exceeding the most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable
indicator contaminants;
5)
Soil boring logs and monitoring well construction diagrams meeting the
requirements of Sections 734.425 and 734.430 of this Part for all borings
drilled and all groundwater monitoring wells installed as part of site
investigation;
6)
Analytical results, chain of custody forms, and laboratory certifications for
all samples analyzed for the applicable indicator contaminants as part of
site investigation;
7)
A table comparing the analytical results of samples collected as part of site
investigation to the most stringent Tier 1 remediation objectives of 35 Ill.
Adm. Code 742 for the applicable indicator contaminants; and
8)
The water supply well survey documentation required pursuant to Section
734.445(d) of this Part for water supply well survey activities conducted
as part of site investigation; and
c)
A conclusion that includes, but is not limited to, an assessment of the sufficiency
of the data in the report.
Section 734.335
Corrective Action Plan
a)
If any of the applicable indicator contaminants exceed the
most stringent Tier 1
remediation objectives of 35 Ill. Adm. Code 742 for the applicable indicator
contaminants
, within 30 days after the Agency approves the site investigation
completion report
,
the owner or operator shall submit to the Agency for approval
a corrective action plan designed to mitigate any threat to human health, human
safety, or the environment resulting from the underground storage tank release.
191
[415 ILCS 5/57.7(b)(2)]. The corrective action plan must address all media
impacted by the UST release and must contain, at a minimum, the following
information:
1)
An executive summary that identifies the objectives of the corrective
action plan and the technical approach to be utilized to meet such
objectives. At a minimum, the summary must include the following
information:
A)
The major components (e.g., treatment, containment, removal) of
the corrective action plan;
B)
The scope of the problems to be addressed by the proposed
corrective action, including but not limited to the specific indicator
contaminants and the physical area; and
C)
A schedule for implementation and completion of the plan;
2)
A statement of the remediation objectives proposed for the site;
3)
A description of the remedial technologies selected and how each fits into
the overall corrective action strategy, including but not limited to the
following:
A)
The feasibility of implementing the remedial technologies;
B)
Whether the remedial technologies will perform satisfactorily and
reliably until the remediation objectives are achieved;
C)
A schedule of when the remedial technologies are expected to
achieve the applicable remediation objectives and a rationale for
the schedule; and
D)
For alternative technologies, the information required under
Section 734.340 of this Part;
4)
A confirmation sampling plan that describes how the effectiveness of the
corrective action activities will be monitored or measured during their
implementation and after their completion;
5)
A description of the current and projected future uses of the site;
6)
A description of any engineered barriers or institutional controls proposed
for the site that will be relied upon to achieve remediation objectives. The
description must include, but not be limited to, an assessment of their
long-term reliability and operating and maintenance plans;
192
7)
A description of water supply well survey activities required pursuant to
Sections 734.445(b) and (c) of this Part that were conducted as part of site
investigation; and
8)
Appendices containing references and data sources relied upon in the
report that are organized and presented logically, including but not limited
to field logs, well logs, and reports of laboratory analyses.
b)
Any owner or operator intending to seek payment from the Fund must, prior to
conducting any corrective action activities beyond site investigation, submit to the
Agency a corrective action budget with the corresponding corrective action plan.
The budget must include, but is not limited to, a copy of the eligibility and
deductibility determination of the OSFM and an estimate of all costs associated
with the development, implementation, and completion of the corrective action
plan, excluding handling charges. The budget should be consistent with the
eligible and ineligible costs listed at Sections 734.625 and 734.630 of this Part
and the maximum payment amounts set forth in Subpart H of this Part. As part of
the budget the Agency may require a comparison between the costs of the
proposed method of remediation and other methods of remediation.
c)
Upon the Agency’s approval of a corrective action plan, or as otherwise directed
by the Agency, the owner or operator shall proceed with corrective action in
accordance with the plan
[415 ILCS 5/57.7(b)(4)].
d)
Notwithstanding any requirement under this Part for the submission of a
corrective action plan or corrective action budget, except as provided at Section
734.340 of this Part, an owner or operator may proceed to conduct corrective
action activities in accordance with this Subpart C prior to the submittal or
approval of an otherwise required corrective action plan or budget. However, any
such plan and budget 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 (d) 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.
e)
If, following approval of any corrective action plan or associated budget, an
owner or operator determines that a revised plan or budget is necessary in order to
mitigate any threat to human health, human safety, or the environment resulting
from the underground storage tank release, the owner or operator must submit, as
applicable, an amended corrective action plan or associated budget to the Agency
193
for review. The Agency must review and approve, reject, or require modification
of the amended plan or budget in accordance with Subpart E of this Part.
BOARD NOTE: Owners and operators are advised that the total payment from
the Fund for all corrective action plans and associated budgets submitted by an
owner or operator must not exceed the amounts set forth in Subpart H of this Part.
Section 734.340
Alternative Technologies
a)
An owner or operator may choose to use an alternative technology for corrective
action in response to a release. Corrective action plans proposing the use of
alternative technologies must be submitted to the Agency in accordance with
Section 734.335 of this Part. In addition to the requirements for corrective action
plans contained in Section 734.335, the owner or operator who seeks approval of
an alternative technology must submit documentation along with the corrective
action plan demonstrating that:
1)
The proposed alternative technology has a substantial likelihood of
successfully achieving compliance with all applicable regulations and
remediation objectives necessary to comply with the Act and regulations
and to protect human health and safety and the environment;
2)
The proposed alternative technology will not adversely affect human
health and safety or the environment;
3)
The owner or operator will obtain all Agency permits necessary to legally
authorize use of the alternative technology;
4)
The owner or operator will implement a program to monitor whether the
requirements of subsection (a)(1) of this Section have been met; and
5)
Within one year from the date of Agency approval the owner or operator
will provide to the Agency monitoring program results establishing
whether the proposed alternative technology will successfully achieve
compliance with the requirements of subsection (a)(1) of this Section and
any other applicable regulations. The Agency may require interim reports
as necessary to track the progress of the alternative technology. The
Agency will specify in the approval when those interim reports must be
submitted to the Agency.
b)
An owner or operator intending to seek payment for costs associated with the use
of an alternative technology must submit a corresponding budget in accordance
with Section 734.335 of this Part. In addition to the requirements for a corrective
action budget at Section 734.335 of this Part, the budget 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
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technologies. The budget plan must compare the costs of at least two other
available alternative technologies to the costs of the proposed alternative
technology, if other alternative technologies are available and are technically
feasible.
c)
If an owner or operator has received approval of a corrective action plan and
associated budget from the Agency prior to implementing the plan and the
alternative technology fails to satisfy the requirements of subsection (a)(1) or
(a)(2) of this Section, such failure must not make the owner or operator ineligible
to seek payment for the activities associated with the subsequent performance of a
corrective action using conventional technology. However, in no case must the
total payment for the site exceed the statutory maximums. Owners or operators
implementing alternative technologies without obtaining pre-approval must be
ineligible to seek payment for the subsequent performance of a corrective action
using conventional technology.
d)
The Agency may require remote monitoring of an alternative technology. The
monitoring may include, but is not limited to, monitoring the alternative
technology’s operation and progress in achieving the applicable remediation
objectives.
Section 734.345
Corrective Action Completion Report
a)
Within 30 days after the completion of a corrective action plan that achieves
applicable remediation objectives the owner or operator shall submit to the
Agency for approval a corrective action completion report. The report shall
demonstrate whether corrective action was completed in accordance with the
approved corrective action plan and whether the remediation objectives approved
for the site, as well as any other requirements of the plan, have been achieved
[415 ILCS 5/57.7(b)(5)]. At a minimum, the report must contain the following
information:
1)
An executive summary that identifies the overall objectives of the
corrective action and the technical approach utilized to meet those
objectives. At a minimum, the summary must contain the following
information:
A)
A brief description of the site, including but not limited to a
description of the release, the applicable indicator contaminants,
the contaminated media, and the extent of soil and groundwater
contamination that exceeded the most stringent Tier 1 remediation
objectives of 35 Ill. Adm. Code 742 for the applicable indicator
contaminants;
B)
The major components (e.g., treatment, containment, removal) of
the corrective action;
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C)
The scope of the problems corrected or mitigated by the corrective
action; and
D)
The anticipated post-corrective action uses of the site and areas
immediately adjacent to the site;
2)
A description of the corrective action activities conducted, including but
not limited to the following:
A)
A narrative description of the field activities conducted as part of
corrective action;
B)
A narrative description of the remedial actions implemented at the
site and the performance of each remedial technology utilized;
C)
Documentation of sampling activities conducted as part of
corrective action, including but not limited to the following:
i)
Sample collection information, including but not limited to
the sample collector’s name, the date and time of sample
collection, the collection method, and the sample location;
ii)
Sample preservation and shipment information, including
but not limited to field quality control;
iii)
Analytical procedure information, including but not limited
to the method detection limits and the practical quantitation
limits;
iv)
Chain of custody and control; and
v)
Field and lab blanks; and
D)
Soil boring logs and monitoring well construction diagrams
meeting the requirements of Sections 734.425 and 734.430 of this
Part for all borings drilled and all groundwater monitoring wells
installed as part of corrective action;
3)
A narrative description of any special conditions relied upon as part of
corrective action, including but not limited to information regarding the
following:
A)
Engineered barriers utilized in accordance with 35 Ill. Adm. Code
742 to achieve the approved remediation objectives;
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B)
Institutional controls utilized in accordance with 35 Ill. Adm. Code
742 to achieve the approved remediation objectives, including but
not limited to a legible copy of any such controls;
C)
Other conditions, if any, necessary for protection of human health
and safety and the environment that are related to the issuance of a
No Further Remediation Letter; and
D)
Any information required pursuant to Section 734.350 of this Part
regarding off-site access;
4)
An analysis of the effectiveness of the corrective action that compares the
confirmation sampling results to the remediation objectives approved for
the site. The analysis must present the remediation objectives in an
appropriate format (e.g., tabular and graphical displays) such that the
information is organized and presented logically and the relationships
between the different investigations for each medium are apparent;
5)
A conclusion that identifies the success in meeting the remediation
objectives approved for the site, including but not limited to an assessment
of the accuracy and completeness of the data in the report;
6)
Appendices containing references and data sources relied upon in the
report that are organized and presented logically, including but not limited
to field logs, well logs, and reports of laboratory analyses;
7)
The water supply well survey documentation required pursuant to Section
734.445(d) of this Part for water supply well survey activities conducted
as part of corrective action; and
8)
A site map containing only the information required under Section
734.440 of this Part. The site map must also show any engineered barriers
utilized to achieve remediation objectives.
b)
The owner or operator is not required to perform remedial action on an off-site
property, even where complete performance of a corrective action plan 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 734.350 of this Part.
Section 734.350
Off-site Access
a)
An owner or operator seeking to comply with the best efforts requirements of
Section 734.345(b) of this Part must demonstrate compliance with the
requirements of this Section.
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b)
In conducting best efforts to obtain off-site access, an owner or operator must, at a
minimum, send a letter by certified mail to the owner of any off-site property to
which access is required, stating:
1)
Citation to Title XVI of the Act stating the legal responsibility of the
owner or operator to remediate the contamination caused by the release;
2)
That, if the property owner denies access to the owner or operator, the
owner or operator may seek to gain entry by a court order pursuant to
Section 22.2c of the Act;
3)
That, in performing the requested investigation, the owner or operator will
work so as to minimize any disruption on the property, will maintain, or
its consultant will maintain, appropriate insurance and will repair any
damage caused by the investigation;
4)
If contamination results from a release by the owner or operator, the
owner or operator will conduct all associated remediation at its own
expense;
5)
That threats to human health and the environment and diminished property
value may result from failure to remediate contamination from the release;
and
6)
A reasonable time to respond to the letter, not less than 30 days.
c)
An owner or operator, in demonstrating that the requirements of this Section have
been met, must provide to the Agency, as part of the corrective action completion
report, the following documentation:
1)
A sworn affidavit, signed by the owner or operator, identifying the
specific off-site property involved by address, the measures proposed in
the corrective action plan that require off-site access, and the efforts taken
to obtain access, and stating that the owner or operator has been unable to
obtain access despite the use of best efforts; and
2)
A copy of the certified letter sent to the owner of the off-site property
pursuant to subsection (b) of this Section.
d)
In determining whether the efforts an owner or operator has made constitute best
efforts to obtain access, the Agency must consider the following factors:
1)
The physical and chemical characteristics, including toxicity, persistence
and potential for migration, of applicable indicator contaminants at the
property boundary line;
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2)
The hydrogeological characteristics of the site and the surrounding area,
including the attenuation capacity and saturation limits of the soil at the
property boundary line;
3)
The nature and extent of known contamination at the site, including the
levels of applicable indicator contaminants at the property boundary line;
4)
The potential effects of residual contamination on nearby surface water
and groundwater;
5)
The proximity, quality and current and future uses of nearby surface water
and groundwater, including regulated recharge areas, wellhead protection
areas, and setback zones of potable water supply wells;
6)
Any known or suspected natural or man-made migration pathways
existing in or near the suspected area of off-site contamination;
7)
The nature and use of the part of the off-site property that is the suspected
area of contamination;
8)
Any existing on-site engineered barriers or institutional controls that might
have an impact on the area of suspected off-site contamination, and the
nature and extent of such impact; and
9)
Any other applicable information assembled in compliance with this Part.
e)
The Agency must issue a No Further Remediation Letter to an owner or operator
subject to this Section and otherwise entitled to such issuance only if the owner or
operator has, in accordance with this Section, either completed any requisite off-
site corrective action or demonstrated to the Agency’s satisfaction an inability to
obtain off-site access despite best efforts.
f)
The owner or operator is not relieved of responsibility to clean up a release that
has migrated beyond the property boundary even where off-site access is denied.
Section 734.355
Status Report
a)
If within 4 years after the approval of any corrective action plan the applicable
remediation objectives have not been achieved and the owner or operator has not
submitted a corrective action completion report, the owner or operator shall
submit a status report for Agency review. The status report shall include, but is
not limited to, a description of the remediation activities taken to date, the
effectiveness of the method of remediation being used, the likelihood of meeting
the applicable remediation objectives using the current method of remediation,
and the date the applicable remediation objectives are expected to be achieved
[415 ILCS 5/57.7(b)(6)].
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b)
If the Agency determines any approved corrective action plan will not achieve
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 to the Agency for approval a revised corrective
action plan. If the owner or operator intends to seek payment from the Fund, the
owner or operator shall also submit a revised budget
[415 ILCS 5/57.7(b)(7)].
The revised corrective action plan and any associated budget must be submitted in
accordance with Section 734.335 of this Part.
c)
Any action by the Agency to require a revised corrective action plan pursuant to
subsection (b) of this Section must 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.
SUBPART D: MISCELLANEOUS PROVISIONS
Section 734.400
General
This Subpart D applies to all activities conducted under this Part and all plans, budgets, reports,
and other documents submitted under this Part.
Section 734.405
Indicator Contaminants
a)
For purposes of this Part, the term “indicator contaminants” must mean the
parameters identified in subsections (b) through (i) of this Section.
b)
For gasoline, including but not limited to leaded, unleaded, premium and gasohol,
the indicator contaminants must 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 must 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 must be benzene,
ethylbenzene, toluene, total xylenes, and the polynuclear aromatics listed in
Appendix B of this Part. For leaded aviation turbine fuels, lead must also be an
indicator contaminant.
d)
For transformer oils the indicator contaminants must be benzene, ethylbenzene,
toluene, total xylenes, and the polynuclear aromatics and the polychlorinated
biphenyl parameters listed in Appendix B of this Part.
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e)
For hydraulic fluids the indicator contaminants must be benzene, ethylbenzene,
toluene, total xylenes, the polynuclear aromatics listed in 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 must be the volatile, base/neutral and polynuclear
aromatic parameters listed in 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 must be determined by the results of a
used oil soil sample analysis. In accordance with Section 734.210(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:
1)
All volatile, base/neutral, polynuclear aromatic, and metal parameters
listed at 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 must be those volatile, base/neutral,
and metal parameters listed at 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 Appendix B of
this Part.
3)
If none of the parameters exceed their remediation objective, the used oil
indicator contaminants must be benzene, ethylbenzene, toluene, total
xylenes, and the polynuclear aromatics listed in Appendix B of this Part.
h)
Unless an owner or operator elects otherwise pursuant to subsection (i) of this
Section, the term “indicator contaminants” must 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).
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i)
An owner or operator 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). 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; or
2)
If the Agency has issued a No Further Remediation Letter for the release
and the release has caused off-site groundwater contamination exceeding
the remediation objective for MTBE set forth in 35 Ill. Adm. Code 742.
Section 734.410
Remediation Objectives
The owner or operator must propose remediation objectives for applicable indicator
contaminants in accordance with 35 Ill. Adm. Code 742. Owners and operators seeking payment
from the Fund that perform on-site corrective action in accordance with Tier 2 remediation
objectives of 35 Ill. Adm. Code 742 must determine the following parameters on a site-specific
basis:
Hydraulic conductivity (K)
Soil bulk density (ρ
b
)
Soil particle density (ρ
s
)
Moisture content (w)
Organic carbon content (f
oc
)
Board Note: Failure to use site-specific remediation objectives on-site and to utilize available
groundwater ordinances as institutional controls may result in certain corrective action costs
being ineligible for payment from the Fund. See Section 734.630(aaa) and (bbb) of this Part.
Section 734.415
Data Quality
a)
The following activities must be conducted in accordance with “Test Methods for
Evaluating Solid Wastes, Physical/Chemical Methods,” EPA Publication No.
SW-846, incorporated by reference at Section 734.120 of this Part, or other
procedures as approved by the Agency:
1)
All field sampling activities, including but not limited to activities relative
to sample collection, documentation, preparation, labeling, storage and
202
shipment, security, quality assurance and quality control, acceptance
criteria, corrective action, and decontamination procedures;
2)
All field measurement activities, including but not limited to activities
relative to equipment and instrument operation, calibration and
maintenance, corrective action, and data handling; and
3)
All quantitative analysis of samples to determine concentrations of
indicator contaminants, including but not limited to activities relative to
facilities, equipment and instrumentation, operating procedures, sample
management, test methods, equipment calibration and maintenance,
quality assurance and quality control, corrective action, data reduction and
validation, reporting, and records management. Analyses of samples that
require more exacting detection limits than, or that cannot be analyzed by
standard methods identified in, “Test Methods for Evaluating Solid
Wastes, Physical/Chemical Methods,” EPA Publication No. SW-846,
must be conducted in accordance with analytical protocols developed in
consultation with and approved by the Agency.
b)
The analytical methodology used for the analysis of indicator contaminants must
have a practical quantitation limit at or below the most stringent objectives or
detection levels set forth in 35 Ill. Adm. Code 742 or determined by the Agency
pursuant to Section 734.140 of this Part.
c)
All field or laboratory measurements of samples to determine physical or
geophysical characteristics must be conducted in accordance with applicable
ASTM standards incorporated by reference at 35 Ill. Adm. Code 742.210, or other
procedures as approved by the Agency.
Section 734.420
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 must 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 must 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 must be deemed invalid.
Section 734.425
Soil Borings
a)
Soil borings must be continuously sampled to ensure that no gaps appear in the
sample column.
b)
Any water bearing unit encountered must be protected as necessary to prevent
cross-contamination during drilling.
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c)
Soil boring logs must be kept for all soil borings. The logs must be submitted in
the corresponding site investigation plan, site investigation completion report, or
corrective action completion report on forms prescribed and provided by the
Agency and, if specified by the Agency in writing, in an electronic format. At a
minimum, soil boring logs must contain the following information:
1)
Sampling device, sample number, and amount of recovery;
2)
Total depth of boring to the nearest 6 inches;
3)
Detailed field observations describing materials encountered in boring,
including but not limited to 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;
4)
Petroleum hydrocarbon vapor readings (as determined by continuous
screening of borings with field instruments capable of detecting such
vapors);
5)
Locations of sample(s) used for physical or chemical analysis;
6)
Groundwater levels while boring and at completion; and
7)
Unified Soil Classification System (USCS) soil classification group
symbols in accordance with ASTM Standard D 2487-93, “Standard Test
Method for Classification of Soils for Engineering Purposes,”
incorporated by reference in Section 734.120 of this Part, or other Agency
approved method.
Section 734.430
Monitoring Well Construction and Sampling
a)
At a minimum, all monitoring well construction must satisfy the following
requirements:
1)
Wells must be constructed in a manner that will enable the collection of
representative groundwater samples;
2)
Wells must be cased in a manner that maintains the integrity of the
borehole. Casing material must be inert so as not to affect the water
sample. Casing requiring solvent-cement type couplings must not be
used;
3)
Wells must be screened to allow sampling only at the desired interval.
Annular space between the borehole wall and well screen section must be
packed with clean, well-rounded and uniform material sized to avoid
204
clogging by the material in the zone being monitored. The slot size of the
screen must be designed to minimize clogging. Screens must be
fabricated from material that is inert with respect to the constituents of the
groundwater to be sampled;
4)
Annular space above the well screen section must be sealed with a
relatively impermeable, expandable material such as cement/bentonite
grout that does not react with or in any way affect the sample, in order to
prevent contamination of groundwater samples and groundwater and avoid
interconnections. The seal must extend to the highest known seasonal
groundwater level;
5)
The annular space must 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;
6)
Wells must be covered with vented caps and equipped with devices to
protect against tampering and damage. Locations of wells must be clearly
marked and protected against damage from vehicular traffic or other
activities associated with expected site use; and
7)
Wells must be developed to allow free entry of groundwater, minimize
turbidity of the sample, and minimize clogging.
b)
Monitoring well construction diagrams must be completed for each monitoring
well. The well construction diagrams must be submitted in the corresponding site
investigation plan, site investigation completion report, or corrective action
completion report on forms prescribed and provided by the Agency and, if
specified by the Agency in writing, in an electronic format.
c)
Static groundwater elevations in each well must be determined and recorded
following well construction and prior to each sample collection to determine the
gradient of the groundwater table, and must be reported in the corresponding site
investigation plan, site investigation completion report or corrective action
completion report.
Section 734.435
Sealing of Soil Borings and Groundwater Monitoring Wells
Boreholes and monitoring wells must be abandoned pursuant to regulations promulgated by the
Illinois Department of Public Health at 77 Ill. Adm. Code 920.120.
Section 734.440
Site Map Requirements
At a minimum, all site maps submitted to the Agency must meet the following requirements:
a)
The maps must be of sufficient detail and accuracy to show required information;
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b)
The maps must contain the map scale, an arrow indicating north orientation, and
the date the map was created; and
c)
The maps must show the following:
1)
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;
2)
The uses of the site, properties adjacent to the site, and other properties
that are, or may be, adversely affected by the release;
3)
The locations of all current and former USTs at the site, and the contents
of each UST; and
4)
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.
Section 734.445
Water Supply Well Survey
a)
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 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:
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.
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b)
In addition to the potable water supply wells identified pursuant to subsection (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
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 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:
1)
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
2)
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 (a) or (b) of this Section. The additional investigation
may include, but is not 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.).
d)
Documentation of the water supply well survey conducted pursuant to this
Section 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 this Section, and
the setback zone for each well;
207
B)
The location and extent of regulated recharge areas and wellhead
protection areas identified pursuant to this Section;
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)(1)(D) is not required to be shown in a site investigation 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 potable water supply wells identified pursuant to
this Section;
3)
A narrative that, at a minimum, identifies each entity contacted to identify
potable water supply wells pursuant to 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
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 this Section and that the
documentation submitted pursuant to subsection (d) of this Section
includes the information obtained as a result of the survey.
Section 734.450
Deferred Site Investigation or Corrective Action; Priority List for Payment
a)
An owner or operator who has received approval for any budget submitted
pursuant to this Part and who is eligible for payment from the Fund may elect to
defer site investigation or corrective action activities until funds are available in
an amount equal to the amount approved in the budget if the requirements of
subsection (b) of this Section are met.
1)
Approvals of budgets must be pursuant to Agency review in accordance
with Subpart E of this Part.
2)
The Agency must monitor the availability of funds and must provide
notice of insufficient funds to owners or operators in accordance with
Section 734.505(g) of this Part.
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3)
Owners and operators must submit elections to defer site investigation or
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 site investigation or 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, 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 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)
Upon approval of an election to defer site investigation or corrective
action activities until funds are available, the Agency must place the site
on a priority list for payment and notification of availability of sufficient
funds. Sites must enter the priority list for payment based solely on the
date the Agency receives a complete written election of deferral, with the
earliest dates having the highest priority.
6)
As funds become available the Agency must encumber funds for each site
in the order of priority in an amount equal to the total of the approved
budget for which deferral was sought. The Agency must 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 must
commence site investigation or corrective action activities.
7)
Authorization of payment of encumbered funds for deferred site
investigation or corrective action activities must be approved in
accordance with the requirements of Subpart F of this Part.
209
b)
An owner or operator who elects to defer site investigation or corrective action
activities under subsection (a) of this Section must 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 investigation
budget or corrective action budget;
2)
The owner or operator has been determined eligible to seek payment from
the Fund;
3)
The early action requirements of Subpart B of this Part have been met;
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
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 734.445 of this Part.
c)
An owner or operator may, at any time, withdraw the election to defer site
investigation or corrective action activities. The Agency must be notified in
writing of the withdrawal. Upon such withdrawal, the owner or operator must
proceed with site investigation or corrective action, as applicable, in accordance
with the requirements of this Part.
SUBPART E: REVIEW OF PLANS, BUDGETS, AND REPORTS
Section 734.500
General
The Agency has the authority to review any plan, budget, or report, including any amended plan,
budget, or report, submitted pursuant to this Part. All such reviews are subject to the procedures
set forth in the Act and this Subpart E.
Section 734.505
Review of Plans, Budgets, or Reports
210
a)
The Agency may review any or all technical or financial information, or both,
relied upon by the owner or operator or the Licensed Professional Engineer or
Licensed Professional Geologist in developing any plan, budget, or report selected
for review. The Agency may also review any other plans, budgets, or reports
submitted in conjunction with the site.
b)
The Agency has the authority to approve, reject, or require modification of any
plan, budget, or report it reviews. The Agency must notify the owner or operator
in writing of its final action on any such plan, budget, or report, except in the case
of 20 day, 45 day, or free product removal reports, in which case no notification is
necessary. Except as provided in subsections (c) and (d) of this Section, if the
Agency fails to notify the owner or operator of its final action on a plan, budget,
or report within 120 days after the receipt of a plan, budget, or report, the owner
or operator may deem the plan, budget, or report rejected by operation of law. If
the Agency rejects a plan, budget, or report or requires modifications, the written
notification must contain the following information, as applicable:
1)
An explanation of the specific type of information, if any, that the Agency
needs to complete its review;
2)
An explanation of the Sections of the Act or regulations that may be
violated if the plan, budget, or report is approved; and
3)
A statement of specific reasons why the cited Sections of the Act or
regulations may be violated if the plan, budget, or report is approved.
c)
For corrective action plans submitted by owners or operators not seeking payment
from the Fund, the Agency may delay final action on such plans until 120 days
after it receives the corrective action completion report required pursuant to
Section 734.345 of this Part.
d)
An owner or operator may waive the right to a final decision within 120 days after
the submittal of a complete plan, budget, or report by submitting written notice to
the Agency prior to the applicable deadline. Any waiver must be for a minimum
of 60 days.
e)
The Agency must mail notices of final action on plans, budgets, or reports 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.
f)
Any action by the Agency to reject or require modifications, or rejection by
failure to act, of a plan, budget, or report must 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.
211
g)
In accordance with Section 734.450 of this Part, upon the approval of any budget
by the Agency, the Agency must include as part of the final notice to the owner or
operator a notice of insufficient funds if the Fund does not contain sufficient
funds to provide payment of the total costs approved in the budget.
Section 734.510
Standards for Review of Plans, Budgets, or Reports
a)
A technical review must consist of a detailed review of the steps proposed or
completed to accomplish the goals of the plan and to achieve compliance with the
Act and regulations. Items to be reviewed, if applicable, must include, but not be
limited to, number and placement of wells and borings, number and types of
samples and analysis, results of sample analysis, and protocols to be followed in
making determinations. The overall goal of the technical review for plans must
be to determine if the plan is sufficient to satisfy the requirements of the Act and
regulations and has been prepared in accordance with generally accepted
engineering practices or principles of professional geology. The overall goal of
the technical review for reports must be to determine if the plan has been fully
implemented in accordance with generally accepted engineering practices or
principles of professional geology, if the conclusions are consistent with the
information obtained while implementing the plan, and if the requirements of the
Act and regulations have been satisfied.
b)
A financial review must consist of a detailed review of the costs associated with
each element necessary to accomplish the goals of the plan as required pursuant to
the Act and regulations. Items to be reviewed must include, but are not limited to,
costs associated with any materials, activities, or services that are included in the
budget. The overall goal of the financial review must be to assure that costs
associated with materials, activities, and services must be reasonable, must be
consistent with the associated technical plan, must be incurred in the performance
of corrective action activities, must not be used for corrective action activities in
excess of those necessary to meet the minimum requirements of the Act and
regulations, and must not exceed the maximum payment amounts set forth in
Subpart H of this Part.
SUBPART F: PAYMENT FROM THE FUND
Section 734.600
General
The Agency has the authority to review any application for payment or reimbursement and to
authorize payment or reimbursement from the Fund or such other funds as the legislature directs
for corrective action activities conducted pursuant to the Act and this Part. For purposes of this
Part and unless otherwise provided, the use of the word “payment” must include reimbursement.
The submittal and review of applications for payment and the authorization for payment must be
in accordance with the procedures set forth in the Act and this Subpart F.
212
Section 734.605
Applications for Payment
a)
An owner or operator seeking payment from the Fund must submit to the Agency
an application for payment on forms prescribed and provided by the Agency and,
if specified by the Agency by written notice, in an electronic format. The owner
or operator may submit an application for partial payment or final payment. Costs
for which payment is sought must be approved in a budget, provided, however,
that no budget must be required for early action activities conducted pursuant to
Subpart B of this Part other than free product removal activities conducted more
than 45 days after confirmation of the presence of free product.
b)
A complete application for payment must consist of the following elements:
1)
A certification from a Licensed Professional Engineer or a Licensed
Professional Geologist acknowledged by the owner or operator that the
work performed has been in accordance with a technical plan approved by
the Agency or, for early action activities, in accordance with Subpart B of
this Part;
2)
A statement of the amounts approved in the corresponding budget and the
amounts actually sought for payment along with a certified statement by
the owner or operator that the amounts so sought have been expended in
conformance with the elements of a budget approved by the Agency;
3)
A copy of the OSFM or Agency eligibility and deductibility
determination;
4)
Proof that approval of the payment requested will not exceed the
limitations set forth in the Act and Section 734.620 of this Part;
5)
A federal taxpayer identification number and legal status disclosure
certification;
6)
Private insurance coverage form(s);
7)
A minority/women's business form;
8)
Designation of the address to which payment and notice of final action on
the application for payment are to be sent;
9)
An accounting of all costs, including but not limited to, invoices, receipts,
and supporting documentation showing the dates and descriptions of the
work performed; and
213
10)
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.
c)
The address designated on the application for payment may be changed only by
subsequent notification to the Agency, on a form provided by the Agency, of a
change in address.
d)
Applications for payment and change of address 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.
e)
Applications for partial or final payment may be submitted no more frequently
than once every 90 days.
f)
Except for applications for payment for costs of early action conducted pursuant
to Subpart B of this Part, other than costs associated with free product removal
activities conducted more than 45 days after confirmation of the presence of free
product, in no case must the Agency review an application for payment unless
there is an approved budget on file corresponding to the application for payment.
g)
In no case must the Agency authorize payment to an owner or operator in
amounts greater than the amounts approved by the Agency in a corresponding
budget. Revised cost estimates or increased costs resulting from revised
procedures must be submitted to the Agency for review in accordance with
Subpart E of this Part using amended budgets plans as required under this Part.
h)
Applications for payment of costs associated with a Stage 1, Stage 2, or Stage 3
site investigation may not be submitted prior to the approval or modification of a
site investigation plan for the next stage of the site investigation or the site
investigation completion report, whichever is applicable.
i)
Applications for payment of costs associated with site investigation or corrective
action that was deferred pursuant to Section 734.450 of this Part may not be
submitted prior to approval or modification of the corresponding site investigation
plan, site investigation completion report, or corrective action completion report.
j)
All applications for payment of corrective action costs must be submitted no later
than one year after the date the Agency issues a No Further Remediation Letter
pursuant to Subpart G of this Part. For releases for which the Agency issued a No
Further Remediation Letter prior to March 1, 2006, all applications for payment
must be submitted no later than March 1, 2007.
Section 734.610
Review of Applications for Payment
214
a)
At a minimum, the Agency must review each application for payment submitted
pursuant to this Part to determine the following:
1)
Whether the application contains all of the elements and supporting
documentation required by Section 734.605(b) of this Part;
2)
For costs incurred pursuant to Subpart B of this Part, other than free
product removal activities conducted more than 45 days after confirmation
of the presence of free product, whether the amounts sought are
reasonable, and whether there is sufficient documentation to demonstrate
that the work was completed in accordance with the requirements of this
Part;
3)
For costs incurred pursuant to Subpart C of this Part and free product
removal activities conducted more than 45 days after confirmation of the
presence of free product, whether the amounts sought exceed the amounts
approved in the corresponding budget, and whether there is sufficient
documentation to demonstrate that the work was completed in accordance
with the requirements of this Part and a plan approved by the Agency; and
4)
Whether the amounts sought are eligible for payment.
b)
When conducting a review of any application for payment, the Agency may
require the owner or operator to submit a full accounting supporting all claims as
provided in subsection (c) of this Section.
c)
The Agency’s review may include a review of any or all elements and supporting
documentation relied upon by the owner or operator in developing the application
for payment, including but not limited to a review of invoices or receipts
supporting all claims. The review also may include the review of any plans,
budgets, or reports previously submitted for the site to ensure that the application
for payment is consistent with work proposed and actually performed in
conjunction with the site.
d)
Following a review, the Agency has the authority to approve, deny or require
modification of applications for payment or portions thereof. The Agency must
notify the owner or operator in writing of its final action on any such application
for payment. Except as provided in subsection (e) of this Section, if the Agency
fails to notify the owner or operator of its final action on an application for
payment within 120 days after the receipt of a complete application for payment,
the owner or operator may deem the application for payment approved by
operation of law. If the Agency denies payment for an application for payment or
for a portion thereof or requires modification, the written notification must
contain the following information, as applicable:
215
1)
An explanation of the specific type of information, if any, that the Agency
needs to complete the review;
2)
An explanation of the Sections of the Act or regulations that may be
violated if the application for payment is approved; and
3)
A statement of specific reasons why the cited Sections of the Act or
regulations may be violated if the application for payment is approved.
e)
An owner or operator may waive the right to a final decision within 120 days after
the submittal of a complete application for payment by submitting written notice
to the Agency prior to the applicable deadline. Any waiver must be for a
minimum of 30 days.
f)
The Agency must mail notices of final action on applications for payment 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. The Agency must mail notices of final action on
applications for payment, and direct the Comptroller to mail payments to the
owner or operator, at the address designated for receipt of payment in the
application for payment or on a change of address form, provided by the Agency,
submitted subsequent to submittal of the application for payment.
g)
Any action by the Agency to deny payment for an application for payment or
portion thereof or to require modification must 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.
Section 734.615
Authorization for Payment; Priority List
a)
Within 60 days after notification to an owner or operator that the application for
payment or a portion thereof has been approved by the Agency or by operation of
law, the Agency must forward to the Office of the State Comptroller in
accordance with subsection (d) or (e) of this Section a voucher in the amount
approved. If the owner or operator has filed an appeal with the Board of the
Agency's final decision on an application for payment, the Agency must have 60
days after the final resolution of the appeal to forward to the Office of the State
Comptroller a voucher in the amount ordered as a result of the appeal.
Notwithstanding the time limits imposed by this Section, the Agency must not
forward vouchers to the Office of the State Comptroller until sufficient funds are
available to issue payment.
216
b)
The following rules must apply regarding deductibles:
1)
Any deductible, as determined by the OSFM or the Agency, must be
subtracted from any amount approved for payment by the Agency or by
operation of law, or ordered by the Board or courts;
2)
Only one deductible must apply per occurrence;
3)
If multiple incident numbers are issued for a single site in the same
calendar year, only one deductible must apply for those incidents, even if
the incidents relate to more than one occurrence; and
4)
Where more than one deductible determination is made, the higher
deductible must apply.
c)
The Agency must instruct the Office of the State Comptroller to issue payment to
the owner or operator at the address designated in accordance with Section
734.605(b)(8) or (c) of this Part. In no case must the Agency authorize the Office
of the State Comptroller to issue payment to an agent, designee, or entity that has
conducted corrective action activities for the owner or operator.
d)
For owners or operators who have deferred site classification or corrective action
in accordance with Section 734.450 of this Part, payment must be authorized from
funds encumbered pursuant to Section 734.450(a)(6) of this Part upon approval of
the application for payment by the Agency or by operation of law.
e)
For owners or operators not electing to defer site investigation or corrective action
in accordance with Section 734.450 of this Part, the Agency must form a priority
list for payment for the issuance of vouchers pursuant to subsection (a) of this
Section.
1)
All such applications for payment must be assigned a date that is the date
upon which the complete application for partial or final payment was
received by the Agency. This date must determine the owner’s or
operator's priority for payment in accordance with subsection (e)(2) of this
Section, with the earliest dates receiving the highest priority.
2)
Once payment is approved by the Agency or by operation of law or
ordered by the Board or courts, the application for payment must be
assigned priority in accordance with subsection (e)(1) of this Section. The
assigned date must be the only factor determining the priority for payment
for those applications approved for payment.
Section 734.620
Limitations on Total Payments
a)
Limitations per occurrence:
217
1)
The Agency shall not approve any payment from the Fund to pay an owner
or operator for costs of corrective action incurred by such owner or
operator in an amount in excess of $1,500,000 per occurrence
[415 ILCS
5/57.8(g)(1)]; and
2)
The Agency shall not approve any payment from the Fund to pay an owner
or operator for costs of indemnification of such owner or operator in an
amount in excess of $1,500,000 per occurrence
[415 ILCS 5/57.8(g)(2)].
b)
Aggregate limitations:
1)
Notwithstanding any other provision of this
Part
, the Agency shall not
approve payment to an owner or operator from the Fund for costs of
corrective action or indemnification incurred during a calendar year in
excess of the following amounts based on the number of petroleum
underground storage tanks owned or operated by such owner or operator
in Illinois:
A)
For calendar years prior to 2002:
Amount
Number of Tanks
$1,000,000
fewer than 101
$2,000,000
101 or more
B)
For calendar years 2002 and later:
Amount
Number of Tanks
$2,000,000
fewer than 101
$3,000,000
101 or more
[415 ILCS 5/57.8(d)]
2)
Costs incurred in excess of the aggregate amounts set forth in
subsection
(b)(1) of this Section
shall not be eligible for payment in subsequent years.
[415 ILCS 5/57.8(d)(1)]
c)
For purposes of
subsection (b) of this Section,
requests submitted by any of the
agencies, departments, boards, committees or commissions of the State of Illinois
shall be acted upon as claims from a single owner or operator.
[415 ILCS
5/57.8(d)(2)]
d)
For purposes of
subsection (b) of this Section,
owner or operator includes
;
218
1)
any subsidiary, parent, or joint stock company of the owner or operator
;
and
2)
any company owned by any parent, subsidiary, or joint stock company of
the owner or operator.
[415 ILCS 5/57.8(d)(3)]
Section 734.625
Eligible Corrective Action Costs
a)
Types of costs that may be eligible for payment from the Fund include those for
corrective action activities and for materials or services provided or performed in
conjunction with corrective action activities. Such activities and services may
include, but are not limited to, reasonable costs for:
1)
Early action activities conducted pursuant to Subpart B of this Part;
2)
Engineer or geologist oversight services;
3)
Remedial investigation and design;
4)
Laboratory services necessary to determine site investigation and whether
the established remediation objectives have been met;
5)
The installation and operation of groundwater investigation and
groundwater monitoring wells;
6)
The removal, treatment, transportation, and disposal of soil contaminated
by petroleum at levels in excess of the established remediation objectives;
7)
The removal, treatment, transportation, and disposal of water
contaminated by petroleum at levels in excess of the established
remediation objectives;
8)
The placement of clean backfill to grade to replace excavated soil
contaminated by petroleum at levels in excess of the established
remediation objectives;
9)
Groundwater corrective action systems;
10)
Alternative technology, including but not limited to feasibility studies
approved by the Agency;
11)
Recovery of 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;
219
12)
The removal and disposal of any UST if a release of petroleum from the
UST was identified and IEMA was notified prior to its removal, with the
exception of any UST deemed ineligible by the OSFM;
13)
Costs incurred as a result of a release of petroleum because of vandalism,
theft, or fraudulent activity by a party other than an owner or operator or
agent of an owner or operator;
14)
Engineer or geologist costs associated with seeking payment from the
Fund, including but not limited to completion of an application for partial
or final payment;
15)
Costs associated with obtaining an Eligibility and Deductibility
Determination from the OSFM or the Agency;
16)
Costs for destruction and replacement of concrete, asphalt, or paving to
the extent necessary to conduct corrective action if the concrete, asphalt,
or paving was installed prior to the initiation of corrective action activities,
the destruction and replacement has been certified as necessary to the
performance of corrective action by a Licensed Professional Engineer, and
the destruction and replacement and its costs are approved by the Agency
in writing prior to the destruction and replacement. The destruction and
replacement of concrete, asphalt, and paving must not be paid more than
once. Costs associated with the replacement of concrete, asphalt, or
paving must not be paid in excess of the cost to install, in the same area
and to the same depth, the same material that was destroyed (e.g.,
replacing four inches of concrete with four inches of concrete);
17)
The destruction or dismantling and reassembly of above grade structures
in response to a release of petroleum if such activity has been certified as
necessary to the performance of corrective action by a Licensed
Professional Engineer and such activity and its costs are approved by the
Agency in writing prior to the destruction or dismantling and re-assembly.
Such costs must not be paid in excess of a total of $10,000 per occurrence.
For purposes of this subsection (a)(17), destruction, dismantling, or
reassembly of above grade structures does not include costs associated
with replacement of pumps, pump islands, buildings, wiring, lighting,
bumpers, posts, or canopies;
18)
Preparation of reports submitted pursuant to Section 734.210(h)(3) of this
Part, free product removal plans and associated budgets, free product
removal reports, site investigation plans and associated budgets, site
investigation completion reports, corrective action plans and associated
budgets, and corrective action completion reports;
220
19)
Costs associated with the removal or abandonment of a potable water
supply well, and replacement of the well or connection to a public water
supply, whichever is less, if a Licensed Professional Engineer or Licensed
Professional Geologist certifies that such activity is necessary to the
performance of corrective action and that the property served by the well
cannot receive an adequate supply of potable water from an existing
source other than the removed or abandoned well, and the Agency
approves such activity in writing. If the well being removed or abandoned
is a public water supply well, the Licensed Professional Engineer or
Licensed Professional Geologist is required to certify only that the
removal or abandonment of the well is necessary to the performance of
corrective action; and
20)
Costs associated with the repair or replacement of potable water supply
lines damaged to the point of requiring repair or replacement as a direct
result of the release, if such activity is certified by a Licensed Professional
Engineer or Licensed Professional Geologist as necessary for the
protection of the potable water supply and approved by the Agency in
writing.
b)
An owner or operator may submit a budget or application for partial or final
payment that includes an itemized accounting of costs associated with activities,
materials, or services not identified in subsection (a) of this Section if the owner
or operator submits detailed information demonstrating that the activities,
materials, or services not identified in subsection (a) of this Section are essential
to the completion of the minimum corrective action requirements of the Act and
this Part.
Section 734.630
Ineligible Corrective Action Costs
Costs ineligible for payment from the Fund include but are not limited to:
a)
Costs for the removal, treatment, transportation, and disposal of more than four
feet of fill material from the outside dimensions of the UST, as set forth in
Appendix C of this Part, during early action activities conducted pursuant to
Section 734.210(f) of this Part, and costs for the replacement of contaminated fill
materials with clean fill materials in excess of the amounts set forth in Appendix
C of this Part during early action activities conducted pursuant to Section
734.210(f) of this Part;
b)
Costs or losses resulting from business interruption;
c)
Costs incurred as a result of vandalism, theft, or fraudulent activity by the owner
or operator or agent of an owner or operator, including the creation of spills,
leaks, or releases;
221
d)
Costs associated with the replacement of above grade structures such as pumps,
pump islands, buildings, wiring, lighting, bumpers, posts, or canopies, including
but not limited, to those structures destroyed or damaged during corrective action
activities;
e)
Costs of corrective action incurred by an owner or operator prior to July 28,
1989
[415 ILCS 5/57.8(j)];
f)
Costs associated with the procurement of a generator identification number;
g)
Legal fees or costs, including but not limited to legal fees or costs for seeking
payment under this Part unless the owner or operator prevails before the Board
and the Board authorizes payment of such costs;
h)
Purchase costs of non-expendable materials, supplies, equipment, or tools, except
that a reasonable rate may be charged for the usage of such materials, supplies,
equipment, or tools;
i)
Costs associated with activities that violate any provision of the Act or Board,
OSFM, or Agency regulations;
j)
Costs associated with investigative action, preventive action, corrective action, or
enforcement action taken by the State of Illinois if the owner or operator failed,
without sufficient cause, to respond to a release or substantial threat of a release
upon, or in accordance with, a notice issued by the Agency pursuant to Section
734.125 of this Part and Section 57.12 of the Act;
k)
Costs for removal, disposal, or abandonment of a UST if the tank was removed or
abandoned, or permitted for removal or abandonment, by the OSFM before the
owner or operator provided notice to IEMA of a release of petroleum;
l)
Costs associated with the installation of new USTs, the repair of existing USTs,
and removal and disposal of USTs determined to be ineligible by the OSFM;
m)
Costs exceeding those contained in a budget or amended budget approved by the
Agency;
n)
Costs of corrective action incurred before providing notification of the release of
petroleum to IEMA in accordance with Section 734.210 of this Part;
o)
Costs for corrective action activities and associated materials or services
exceeding the minimum requirements necessary to comply with the Act;
p)
Costs associated with improperly installed sampling or monitoring wells;
222
q)
Costs associated with improperly collected, transported, or analyzed laboratory
samples;
r)
Costs associated with the analysis of laboratory samples not approved by the
Agency;
s)
Costs for any corrective activities, services, or materials unless accompanied by a
letter from OSFM or the Agency confirming eligibility and deductibility in
accordance with Section 57.9 of the Act;
t)
Interest or finance costs charged as direct costs;
u)
Insurance costs charged as direct costs;
v)
Indirect corrective action costs for personnel, materials, service, or equipment
charged as direct costs;
w)
Costs associated with the compaction and density testing of backfill material;
x)
Costs associated with sites that have not reported a release to IEMA or are not
required to report a release to IEMA;
y)
Costs related to activities, materials, or services not necessary to stop, minimize,
eliminate, or clean up a release of petroleum or its effects in accordance with the
minimum requirements of the Act and regulations;
z)
Costs of alternative technology that exceed the costs of conventional technology;
aa)
Costs for activities and related services or materials that are unnecessary,
inconsistent with generally accepted engineering practices or principles of
professional geology, or unreasonable costs for justifiable activities, materials, or
services;
bb)
Costs requested that are based on mathematical errors;
cc)
Costs that lack supporting documentation;
dd)
Costs proposed as part of a budget that are unreasonable;
ee)
Costs incurred during early action that are unreasonable;
ff)
Costs incurred on or after the date the owner or operator enters the Site
Remediation Program under Title XVII of the Act and 35 Ill. Adm. Code 740 to
address the UST release;
223
gg)
Costs incurred after receipt of a No Further Remediation Letter for the occurrence
for which the No Further Remediation Letter was received. This subsection (gg)
does not apply to the following:
1)
Costs incurred for MTBE remediation pursuant to Section 734.405(i)(2) of
this Part;
2)
Monitoring well abandonment costs;
3)
County recorder or registrar of titles fees for recording the No Further
Remediation Letter;
4)
Costs associated with seeking payment from the Fund; and
5)
Costs associated with remediation to Tier 1 remediation objectives on-site
if a court of law voids or invalidates a No Further Remediation Letter and
orders the owner or operator to achieve Tier 1 remediation objectives in
response to the release;
hh)
Handling charges for subcontractor costs that have been billed directly to the
owner or operator;
ii)
Handling charges for subcontractor costs when the contractor has not submitted
proof of payment of the subcontractor costs;
jj)
Costs associated with standby and demurrage;
kk)
Costs associated with a corrective action plan incurred after the Agency notifies
the owner or operator, pursuant to Section 734.355(b) of this Part, that a revised
corrective action plan is required, provided, however, that costs associated with
any subsequently approved corrective action plan will be eligible for payment if
they meet the requirements of this Part;
ll)
Costs incurred prior to the effective date of an owner’s or operator’s election to
proceed in accordance with this Part, unless such costs were incurred for activities
approved as corrective action under this Part;
mm) Costs associated with the preparation of free product removal reports not
submitted in accordance with the schedule established in Section 734.215(a)(5) of
this Part;
nn)
Costs submitted more than one year after the date the Agency issues a No Further
Remediation Letter pursuant to Subpart G of this Part;
oo)
Costs for the destruction and replacement of concrete, asphalt, or paving, except
as otherwise provided in Section 734.625(a)(16) of this Part;
224
pp)
Costs incurred as a result of the destruction of, or damage to, any equipment,
fixtures, structures, utilities, or other items during corrective action activities,
except as otherwise provided in Sections 734.625(a)(16) or (17) of this Part;
qq)
Costs associated with oversight by an owner or operator;
rr)
Handling charges charged by persons other than the owner’s or operator’s
primary contractor;
ss)
Costs associated with the installation of concrete, asphalt, or paving as an
engineered barrier to the extent they exceed the cost of installing an engineered
barrier constructed of asphalt four inches in depth. This subsection does not apply
if the concrete, asphalt, or paving being used as an engineered barrier was
replaced pursuant to Section 734.625(a)(16) of this Part;
tt)
The treatment or disposal of soil that does not exceed the applicable remediation
objectives for the release, unless approved by the Agency in writing prior to the
treatment or disposal;
uu)
Costs associated with the removal or abandonment of a potable water supply well,
or the replacement of such a well or connection to a public water supply, except
as otherwise provided in Section 734.625(a)(19) of this Part;
vv)
Costs associated with the repair or replacement of potable water supply lines,
except as otherwise provided in Section 734.625(a)(20) of this Part;
ww) Costs associated with the replacement of underground structures or utilities,
including but not limited to septic tanks, utility vaults, sewer lines, electrical lines,
telephone lines, cable lines, or water supply lines, except as otherwise provided in
Sections 734.625(a)(19) or (20) of this Part;
xx)
For sites electing under Section 734.105 of this Part to proceed in accordance with
this Part, costs incurred pursuant to Section 734.210 of this Part;
yy)
Costs associated with the maintenance, repair, or replacement of leased or
subcontracted equipment, other than costs associated with routine maintenance
that are approved in a budget;
zz)
Costs that exceed the maximum payment amounts set forth in Subpart H of this
Part;
aaa)
Costs associated with on-site corrective action to achieve remediation objectives
that are more stringent than the Tier 2 remediation objectives developed in
accordance with 35 Ill. Adm. Code 742. This subsection (aaa) does not apply if
Karst geology prevents the development of Tier 2 remediation objectives for on-
225
site remediation, or if a court of law voids or invalidates a No Further
Remediation Letter and orders the owner or operator to achieve Tier 1
remediation objectives on-site in response to the release.
bbb) Costs associated with groundwater remediation if a groundwater ordinance
already approved by the Agency for use as an institutional control in accordance
with 35 Ill. Adm. Code 742 can be used as an institutional control for the release
being remediated.
Section 734.635
Payment for Handling Charges
Handling charges are eligible for payment only if they are equal to or less than the amount
determined by the following table:
Subcontract or Field
Eligible Handling Charges
Purchase Cost:
as a Percentage of Cost:
$0 - $5,000..............................12%
$5,001 - $15,000.....................$600 + 10% of amt. over $5,000
$15,001 - $50,000...................$1,600 + 8% of amt. over $15,000
$50,001 - $100,000.................$4,400 + 5% of amt. over $50,000
$100,001 - $1,000,000...........$6,900 + 2% of amt. over $100,000
Section 734.640
Apportionment of Costs
a)
The Agency may apportion payment of costs if:
1)
The owner or operator was deemed eligible to access the Fund for
payment of corrective action costs for some, but not all, of the
underground storage tanks at the site; and
2)
The owner or operator failed to justify all costs attributable to each
underground storage tank at the site
. [415 ILCS 5/57.8(m)]
b)
The Agency will determine, based on volume or number of tanks, which method
of apportionment will be most favorable to the owner or operator. The Agency
will notify the owner or operator of such determination in writing.
Section 734.645
Subrogation of Rights
Payment of any amount from the fund for corrective action or indemnification shall be subject to
the State acquiring by subrogation the rights of any owner, operator, or other person to recover
the costs of corrective action or indemnification for which the fund has compensated such owner,
operator, or person from the person responsible or liable for the release
[415 ILCS 5/57.8(h)].
226
Section 734.650
Indemnification
a)
An owner or operator seeking indemnification from the Fund for payment of costs
incurred as a result of a release of petroleum from an underground storage tank
must submit to the Agency a request for payment on forms prescribed and
provided by the Agency and, if specified by the Agency by written notice, in an
electronic format.
1)
A complete application for payment must contain the following:
A)
A certified statement by the owner or operator of the amount
sought for payment;
B)
Proof of the legally enforceable judgment, final order, or
determination against the owner or operator, or the legally
enforceable settlement entered into by the owner or operator, for
which indemnification is sought. The proof must include, but not
be limited to, the following:
i)
A copy of the judgment certified by the court clerk as a true
and correct copy, a copy of the final order or determination
certified by the issuing agency of State government or
subdivision thereof as a true and correct copy, or a copy of
the settlement certified by the owner or operator as a true
and correct copy; and
ii)
Documentation demonstrating that the judgment, final
order, determination, or settlement arises out of bodily
injury or property damage suffered as a result of a release
of petroleum from the UST for which the release was
reported, and that the UST is owned or operated by the
owner or operator;
C)
A copy of the OSFM or Agency eligibility and deductibility
determination;
D)
Proof that approval of the indemnification requested will not
exceed the limitations set forth in the Act and Section 734.620 of
this Part;
E)
A federal taxpayer identification number and legal status
disclosure certification;
F)
A private insurance coverage form; and
227
G)
Designation of the address to which payment and notice of final
action on the request for indemnification are to be sent to the
owner or operator.
2)
The owner’s or operator’s address designated on the application for
payment may be changed only by subsequent notification to the Agency,
on a form provided by the Agency, of a change of address.
3)
Applications for payment 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.
b)
The Agency must review applications for payment in accordance with this
Subpart F. In addition, the Agency must review each application for payment to
determine the following:
1)
Whether the application contains all of the information and supporting
documentation required by subsection (a) of this Section;
2)
Whether there is sufficient documentation of a legally enforceable
judgment entered against the owner or operator in a court of law, final
order or determination made against the owner or operator by an agency of
State government or any subdivision thereof, or settlement entered into by
the owner or operator;
3)
Whether there is sufficient documentation that the judgment, final 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; and
4)
Whether the amounts sought for indemnification are eligible for payment.
c)
If the application for payment of the costs of indemnification is deemed complete
and otherwise satisfies all applicable requirements of this Subpart F, the Agency
must forward the request for indemnification to the Office of the Attorney
General for review and approval in accordance with Section 57.8(c) of the Act.
The owner or operator’s request for indemnification must not be placed on the
priority list for payment until the Agency has received the written approval of the
Attorney General. The approved application for payment must then enter the
priority list established at Section 734.615(e)(1) of this Part based on the date the
complete application was received by the Agency in accordance with Section
57.8(c) of the Act.
d)
Costs ineligible for indemnification from the Fund include, but are not limited to:
228
1)
Amounts an owner or operator is not legally obligated to pay pursuant to a
judgment entered against the owner or operator in a court of law, a final
order or determination made against the owner or operator by an agency of
State government or any subdivision thereof, or any settlement entered
into by the owner or operator;
2)
Amounts of a judgment, final order, determination, or settlement that do
not arise 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;
3)
Amounts incurred prior to July 28, 1989;
4)
Amounts incurred prior to notification of the release of petroleum to
IEMA in accordance with Section 734.210 of this Part;
5)
Amounts arising out of bodily injury or property damage suffered as a
result of a release of petroleum from an underground storage tank for
which the owner or operator is not eligible to access the Fund;
6)
Legal fees or costs, including but not limited to, legal fees or costs for
seeking payment under this Part, unless the owner or operator prevails
before the Board and the Board authorizes payment of such costs;
7)
Amounts associated with activities that violate any provision of the Act or
Board, OSFM, or Agency regulations;
8)
Amounts associated with investigative action, preventive action,
corrective action, or enforcement action taken by the State of Illinois if the
owner or operator failed, without sufficient cause, to respond to a release
or substantial threat of a release upon, or in accordance with, a notice
issued by the Agency pursuant to Section 734.125 of this Part and Section
57.12 of the Act;
9)
Amounts associated with a release that has not been reported to IEMA or
is not required to be reported to IEMA;
10)
Amounts incurred on or after the date the owner or operator enters the Site
Remediation Program under Title XVII of the Act and 35 Ill. Adm. Code
740 to address the UST release; and
11)
Amounts incurred prior to the effective date of the owner’s or operator’s
election to proceed in accordance with this Part.
Section 734.655
Costs Covered by Insurance, Agreement, or Court Order
229
Costs of corrective action or indemnification incurred by an owner or operator which have been
paid to an owner or operator under a policy of insurance, another written agreement, or a court
order are not eligible for payment
from the Fund.
An owner or operator who receives payment
under a policy of insurance, another written agreement, or a court order shall reimburse the
State to the extent such payment covers costs for which payment was received from the Fund
[415 ILCS 5/57.8(e)].
Section 734.660
Determination and Collection of Excess Payments
a)
If, for any reason, the Agency determines that an excess payment has been paid
from the Fund, the Agency may take steps to collect the excess amount pursuant
to subsection (c) of this Section.
1)
Upon identifying an excess payment, the Agency must notify the owner or
operator receiving the excess payment by certified or registered mail,
return receipt requested.
2)
The notification letter must state the amount of the excess payment and the
basis for the Agency's determination that the payment is in error.
3)
The Agency's determination of an excess payment must be subject to
appeal to the Board in the manner provided for the review of permit
decisions in Section 40 of the Act.
b)
An excess payment from the Fund includes, but is not limited to:
1)
Payment for a non-corrective action cost;
2)
Payment in excess of the limitations on payments set forth in Sections
734.620 and 734.635 and Subpart H of this Part;
3)
Payment received through fraudulent means;
4)
Payment calculated on the basis of an arithmetic error;
5)
Payment calculated by the Agency in reliance on incorrect information; or
6)
Payment of costs that are not eligible for payment.
c)
Excess payments may be collected using any of the following procedures:
1)
Upon notification of the determination of an excess payment in
accordance with subsection (a) of this Section or pursuant to a Board order
affirming such determination upon appeal, the Agency may attempt to
negotiate a payment schedule with the owner or operator. Nothing in this
subsection (c)(1) of this Section must prohibit the Agency from exercising
230
at any time its options at subsection (c)(2) or (c)(3) of this Section or any
other collection methods available to the Agency by law.
2)
If an owner or operator submits a subsequent claim for payment after
previously receiving an excess payment from the Fund, the Agency may
deduct the excess payment amount from any subsequently approved
payment amount. If the amount subsequently approved is insufficient to
recover the entire amount of the excess payment, the Agency may use the
procedures in this Section or any other collection methods available to the
Agency by law to collect the remainder.
3)
The Agency may deem an excess payment amount to be a claim or debt
owed the Agency, and the Agency may use the Comptroller's Setoff
System for collection of the claim or debt in accordance with Section 10.5
of the "State Comptroller Act." [15 ILCS 405/10.05]
Section 734.665
Audits and Access to Records; Records Retention
a)
Owners or operators that submit a report, plan, budget, application for payment,
or any other data or document under this Part must maintain all books, records,
documents, and other evidence directly pertinent to the report, plan, budget,
application for payment, data, or document, including but not limited to all
financial information and data used in the preparation or support of applications
for payment. All books, records, documents, and other evidence must be
maintained in accordance with accepted business practices and appropriate
accounting procedures and practices.
b)
The Agency or any of its duly authorized representatives must have access to the
books, records, documents, and other evidence set forth in subsection (a) of this
Section during normal business hours for the purpose of inspection, audit, and
copying. Owners or operators must provide proper facilities for such access and
inspection.
c)
Owners or operators must maintain the books, records, documents, and other
evidence set forth in subsection (a) of this Section and make them available to the
Agency or its authorized representative until the latest of the following:
1)
The expiration of 4 years after the date the Agency issues a No Further
Remediation Letter pursuant to Subpart G of this Part;
2)
For books, records, documents, or other evidence relating to an appeal,
litigation, or other dispute or claim, the expiration of 3 years after the date
of the final disposition of the appeal, litigation, or other dispute or claim;
or
3)
The expiration of any other applicable record retention period.
231
SUBPART G: NO FURTHER REMEDIATION LETTERS
AND RECORDING REQUIREMENTS
Section 734.700
General
Subpart G provides the procedures for the issuance of No Further Remediation Letters under
Title XVI and this Part. Subpart G also sets forth the recording requirements and the
circumstances under which the letter may be voidable.
Section 734.705
Issuance of a No Further Remediation Letter
a)
Upon approval by the Agency of a report submitted pursuant to Section
734.210(h)(3) of this Part or a corrective action completion report, the Agency
must issue to the owner or operator a No Further Remediation Letter. The No
Further Remediation Letter must have the legal effect prescribed in Section 57.10
of the Act. The No Further Remediation Letter must be denied if the Agency
rejects or requires modification of the applicable report.
b)
The Agency must have 120 days after the date of receipt of the applicable report
to issue a No Further Remediation Letter and may include the No Further
Remediation Letter as part of the notification of approval of the report in
accordance with Subpart E of this Part. If the Agency fails to send the No Further
Remediation Letter within 120 days, it must be deemed denied by operation of
law.
c)
The notice of denial of a No Further Remediation Letter by the Agency may be
included with the notification of rejection or modification of the applicable report.
The reasons for the denial of the letter must be stated in the notification. The
denial must be considered a final determination appealable 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. If any request for a No Further
Remediation Letter is denied by operation of law in lieu of an immediate repeal to
the Board the owner or operator may either resubmit the request and applicable
report to the Agency or file a joint request for a 90 day extension in the manner
provided for extensions of permit decision in Section 40 of the Act.
d)
The Agency must mail the No Further Remediation Letter 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 the
letter is mailed.
e)
The Agency at any time may correct errors in No Further Remediation Letters
that arise from oversight, omission, or clerical mistake. Upon correction of the
No Further Remediation Letter, the Agency must mail the corrected letter to the
owner or operator as set forth in subsection (d) of this Section. The corrected
232
letter must be perfected by recording in accordance with the requirements of
Section 734.715 of this Part.
Section 734.710
Contents of a No Further Remediation Letter
A No Further Remediation Letter issued pursuant to this Part must include all of the following:
a)
An acknowledgment that the requirements of the applicable report were satisfied;
b)
A description of the location of the affected property by adequate legal
description or by reference to a plat showing its boundaries, or, for the purposes
of Section 734.715(d) of this Part, other means sufficient to identify the site
location with particularity;
c)
A statement that the remediation objectives were determined in accordance with
35 Ill. Adm. Code 742, and the identification of any land use limitation, as
applicable, required by 35 Ill. Adm. Code 742 as a condition of the remediation
objectives;
d)
A statement that the Agency's issuance of the No Further Remediation Letter
signifies that:
1)
All statutory and regulatory corrective action requirements applicable to
the occurrence have been complied with;
2)
All corrective action concerning the remediation of the occurrence has
been completed; and
3)
No further corrective action concerning the occurrence is necessary for
the protection of human health, safety and the environment
[415 ILCS
5/57.10(c)(1)-(3)], or, if the No Further Remediation Letter is issued
pursuant to Section 734.350(e) of this Part, that the owner or operator has
demonstrated to the Agency’s satisfaction an inability to obtain access to
an off-site property despite best efforts and therefore is not required to
perform corrective action on the off-site property in order to satisfy the
corrective action requirements of this Part, but is not relieved of
responsibility to clean up portions of the release that have migrated off-
site;
e)
The prohibition under Section 734.715(e) of this Part against the use of any site in
a manner inconsistent with any applicable land use limitation, without additional
appropriate remedial activities;
f)
A description of any approved preventive, engineering, and institutional controls
identified in the plan or report and notification that failure to manage the controls
233
in full compliance with the terms of the plan or report may result in voidance of
the No Further Remediation Letter;
g)
The recording obligations pursuant to Section 734.715 of this Part;
h)
The opportunity to request a change in the recorded land use pursuant to Section
734.715(e) of this Part;
i)
Notification that further information regarding the site can be obtained from the
Agency through a request under the Freedom of Information Act [5 ILCS 140];
and
j)
Any other provisions agreed to by the Agency and the owner or operator.
Section 734.715
Duty to Record a No Further Remediation Letter
a)
Except as provided in subsections (c) and (d) of this Section, an owner or operator
receiving a No Further Remediation Letter from the Agency pursuant to this
Subpart G must submit the letter, with a copy of any applicable institutional
controls (as set forth in 35 Ill. Adm. Code 742, Subpart J) proposed as part of a
corrective action completion report, to the office of the recorder or the registrar of
titles of the county in which the site is located within 45 days after receipt of the
letter. The letter and any attachments must be filed in accordance with Illinois
law so that they form a permanent part of the chain of title for the site. Upon the
lapse of the 45 day period for recording, pursuant to Section 734.720(a)(5) of this
Part the Agency may void an unrecorded No Further Remediation Letter for
failure to record it in a timely manner.
b)
Except as provided in subsections (c) and (d) of this Section, a No Further
Remediation Letter must be perfected upon the date of the official recording of
such letter. The owner or operator must obtain and submit to the Agency, within
30 days after the official recording date, a certified or otherwise accurate and
official copy of the letter and any attachments as recorded. An unperfected No
Further Remediation Letter is effective only as between the Agency and the
owner or operator.
c)
For sites located in a highway authority right-of-way, the following requirements
must apply:
1)
In order for the No Further Remediation Letter to be perfected, the
highway authority with jurisdiction over the right-of-way must enter into a
Memorandum of Agreement (MOA) with the Agency. The MOA must
include, but is not limited to:
234
A)
The name of the site, if any, and any highway authority or Agency
identifiers (e.g., incident number, Illinois inventory identification
number);
B)
The address of the site (or other description sufficient to identify
the location of the site with certainty);
C)
A copy of the No Further Remediation Letter for each site subject
to the MOA;
D)
Procedures for tracking sites subject to the MOA so that all
highway authority offices and personnel whose responsibilities
(e.g., land acquisition, maintenance, construction, utility permits)
may affect land use limitations will have notice of any
environmental concerns and land use limitations applicable to a
site;
E)
Provisions addressing future conveyances (including title or any
lesser form of interest) or jurisdictional transfers of the site to any
other agency, private person or entity and the steps that will be
taken to ensure the long-term integrity of any land use limitations
including, but not limited to, the following:
i)
Upon creation of a deed, the recording of the No Further
Remediation Letter and any other land use limitations
requiring recording under 35 Ill. Adm. Code 742, with
copies of the recorded instruments sent to the Agency
within 30 days after recording;
ii)
Any other arrangements necessary to ensure that property
that is conveyed or transferred remains subject to any land
use limitations approved and implemented as part of the
corrective action plan and the No Further Remediation
Letter; and
iii)
Notice to the Agency at least 60 days prior to any such
intended conveyance or transfer indicating the
mechanism(s) to be used to ensure that any land use
limitations will be operated or maintained as required in the
corrective action plan and No Further Remediation Letter;
and
F)
Provisions for notifying the Agency if any actions taken by the
highway authority or its permittees at the site result in the failure or
inability to restore the site to meet the requirements of the
corrective action plan and the No Further Remediation Letter.
235
2)
Failure to comply with the requirements of this subsection (c) may result
in voidance of the No Further Remediation Letter pursuant to Section
734.720 of this Part as well as any other penalties that may be available.
d)
For sites located on Federally Owned Property for which the Federal Landholding
Entity does not have the authority under federal law to record institutional
controls on the chain of title, the following requirements must apply:
1)
To perfect a No Further Remediation Letter containing any restriction on
future land use(s), the Federal Landholding Entity or Entities responsible
for the site must enter into a Land Use Control Memorandum of
Agreement (LUC MOA) with the Agency that requires the Federal
Landholding Entity to do, at a minimum, the following:
A)
Identify the location on the Federally Owned Property of the site
subject to the No Further Remediation Letter. Such identification
must be by means of common address, notations in any available
facility master land use plan, site specific GIS or GPS coordinates,
plat maps, or any other means that identify the site in question with
particularity;
B)
Implement periodic site inspection procedures that ensure
oversight by the Federal Landholding Entities of any land use
limitations or restrictions imposed pursuant to the No Further
Remediation Letter;
C)
Implement procedures for the Federal Landholding Entities to
periodically advise the Agency of continued compliance with all
maintenance and inspection requirements set forth in the LUC
MOA;
D)
Implement procedures for the Federal Landholding Entities to
notify the Agency of any planned or emergency changes in land
use that may adversely impact land use limitations or restrictions
imposed pursuant to the No Further Remediation Letter;
E)
Notify the Agency at least 60 days in advance of a conveyance by
deed or fee simple title, by the Federal Landholding Entities, of the
site or sites subject to the No Further Remediation Letter, to any
entity that will not remain or become a Federal Landholding
Entity, and provide the Agency with information about how the
Federal Landholding Entities will ensure the No Further
Remediation Letter is recorded on the chain of title upon transfer
of the property; and
236
F)
Attach to the LUC MOA a copy of the No Further Remediation
Letter for each site subject to the LUC MOA.
2)
To perfect a No Further Remediation letter containing no restriction(s) on
future land use, the Federal Landholding Entity must submit the letter to
the Office of the Recorder or the Registrar of Titles of the county in which
the site is located within 45 days after receipt of the letter. The letter must
be filed in accordance with Illinois law so it forms a permanent part of the
chain of title. The Federal Landholding Entity must obtain and submit to
the Agency, within 30 days after recording, a copy of the letter
demonstrating that the recording requirements have been satisfied.
3)
Failure to comply with the requirements of this subsection (d) and the
LUC MOA may result in voidance of the No Further Remediation Letter
as well as any other penalties that may be available.
e)
At no time must any site for which a land use limitation has been imposed as a
result of corrective action under this Part be used in a manner inconsistent with
the land use limitation set forth in the No Further Remediation Letter. The land
use limitation specified in the No Further Remediation Letter may be revised only
by the perfecting of a subsequent No Further Remediation Letter, issued pursuant
to Title XVII of the Act and regulations thereunder, following further
investigation or remediation that demonstrates the attainment of objectives
appropriate for the new land use.
Section 734.720
Voidance of a No Further Remediation Letter
a)
The No Further Remediation Letter must be voidable if site activities are not
carried out in full compliance with the provisions of this Part, and 35 Ill. Adm.
Code 742 where applicable, or the remediation objectives upon which the
issuance of the No Further Remediation Letter was based. Specific acts or
omissions that may result in voidance of the No Further Remediation Letter
include, but not be limited to:
1)
Any violations of institutional controls or land use restrictions, if
applicable;
2)
The failure of the owner or operator or any subsequent transferee to
operate and maintain preventive, engineering, and institutional controls;
3)
Obtaining the No Further Remediation Letter by fraud or
misrepresentation;
4)
Subsequent discovery of indicator contaminants related to the occurrence
upon which the No Further Remediation Letter was based that:
237
A)
were not identified as part of the investigative or remedial
activities upon which the issuance of the No Further Remediation
Letter was based;
B)
results in the failure to meet the remediation objectives established
for the site; and
C)
pose a threat to human health or the environment;
5)
Upon the lapse of the 45 day period for recording the No Further
Remediation Letter, the failure to record and thereby perfect the No
Further Remediation Letter in a timely manner;
6)
The disturbance or removal of contamination left in place under an
approved plan;
7)
The failure to comply with the requirements of Section 734.715(c) of this
Part and the Memorandum of Agreement entered in accordance with
Section 734.715(c) of this Part for a site that is located in a highway
authority right-of-way;
8)
The failure to comply with the requirements of Section 734.715(d) of this
Part and the LUC MOA entered in accordance with Section 734.715(d) of
this Part for a site located on Federally Owned Property for which the
Federal Landholding Entity does not have the authority under federal law
to record institutional controls on the chain of title;
9)
The failure to comply with the requirements of Section 734.715(d) of this
Part or the failure to record a No Further Remediation Letter perfected in
accordance with Section 734.715(d) of this Part within 45 days following
the transfer of the Federally Owned Property subject to the No Further
Remediation Letter to any entity that will not remain or become a Federal
Landholding Entity; or
10)
The failure to comply with the notice or confirmation requirements of 35
Ill. Adm. Code 742.1015(b)(5) and (c).
b)
If the Agency seeks to void a No Further Remediation Letter, it must provide a
Notice of Voidance to the current title holder of the site and the owner or operator
at his or her last known address.
1)
The Notice of Voidance must specify the cause for the voidance and
describe the facts in support of the cause.
2)
The Agency must mail Notices of Voidance by registered or certified mail,
date stamped with return receipt requested.
238
c)
Within 35 days after receipt of the Notice of Voidance, the current title holder and
owner or operator of the site at the time the No Further Remediation Letter was
issued may appeal the Agency's decision to the Board in the manner provided for
the review of permit decisions in Section 40 of the Act.
d)
If the Board fails to take final action within 120 days, unless such time period is
waived by the petitioner, the petition must be deemed denied and the petitioner
must be entitled to an appellate court order pursuant to subsection (d) of Section
41 of the Act. The Agency must have the burden of proof in such action.
1)
If the Agency's action is appealed, the action must not become effective
until the appeal process has been exhausted and a final decision is reached
by the Board or courts.
A)
Upon receiving a notice of appeal, the Agency must file a Notice
of lis pendens with the office of the recorder or the registrar of
titles for the county in which the site is located. The notice must
be filed in accordance with Illinois law so that it becomes a part of
the chain of title for the site.
B)
If the Agency's action is not upheld on appeal, the Notice of lis
pendens must be removed in accordance with Illinois law within
45 days after receipt of the final decision of the Board or the
courts.
2)
If the Agency's action is not appealed or is upheld on appeal, the Agency
must submit the Notice of Voidance to the office of the recorder or the
registrar of titles for the county in which the site is located. The Notice
must be filed in accordance with Illinois law so that it forms a permanent
part of the chain of title for the site.
SUBPART H: MAXIMUM PAYMENT AMOUNTS
Section 734.800
Applicability
a)
Methods for Determining Maximum Amounts. This Subpart H provides three
methods for determining the maximum amounts that can be paid from the Fund
for eligible corrective action costs. All costs associated with conducting
corrective action are grouped into the tasks set forth in Sections 734.810 through
734.850 of this Part.
1)
The first method for determining the maximum amount that can be paid
for each task is to use the maximum amounts for each task set forth in
those Sections, and Section 734.870. In some cases the maximum
239
amounts are specific dollar amounts, and in other cases the maximum
amounts are determined on a site-specific basis.
2)
As an alternative to using the amounts set forth in Sections 734.810
through 734.850 of this Part, the second method for determining the
maximum amounts that can be paid for one or more tasks is bidding in
accordance with Section 734.855 of this Part. As stated in that Section,
when bidding is used, if the lowest bid for a particular task is less than the
amount set forth in Sections 734.810 through 734.850, the amount in
Sections 734.810 through 734.850 of this Part may be used instead of the
lowest bid.
3)
The third method for determining maximum amounts that can be paid
from the Fund applies to unusual or extraordinary circumstances. The
maximum amounts for such circumstances can be determined in
accordance with Section 734.860 of this Part.
b)
The costs listed under each task set forth in Sections 734.810 through 734.850 of
this Part identify only some of the costs associated with each task. They are not
intended as an exclusive list of all costs associated with each task for the purposes
of payment from the Fund.
c)
This Subpart H sets forth only the methods that can be used to determine the
maximum amounts that can be paid from the Fund for eligible corrective action
costs. Whether a particular cost is eligible for payment must be determined in
accordance with Subpart F of this Part.
Section 734.810
UST Removal or Abandonment Costs
Payment for costs associated with UST removal or abandonment of each UST must not exceed
the amounts set forth in this Section. Such costs must include, but not be limited to, those
associated with the excavation, removal, disposal, and abandonment of UST systems.
UST Volume
Maximum Total Amount per UST
110 – 999 gallons
$2,100
1,000 – 14,999 gallons
$3,150
15,000 or more gallons
$4,100
Section 734.815
Free Product or Groundwater Removal and Disposal
Payment for costs associated with the removal and disposal of free product or groundwater must
not exceed the amounts set forth in this Section. Such costs must include, but not be limited to,
those associated with the removal, transportation, and disposal of free product or groundwater,
and the design, construction, installation, operation, maintenance, and closure of free product or
groundwater removal systems.
240
a)
Payment for costs associated with each round of free product or groundwater
removal via hand bailing or a vacuum truck must not exceed a total of $0.68 per
gallon or $200, whichever is greater.
b)
Payment for costs associated with the removal of free product or groundwater via
a method other than hand bailing or vacuum truck must be determined on a time
and materials basis and must not exceed the amounts set forth in Section 734.850
of this Part. Such costs must include, but are not limited to, those associated with
the design, construction, installation, operation, maintenance, and closure of free
product and groundwater removal systems.
Section 734.820
Drilling, Well Installation, and Well Abandonment
Payment for costs associated with drilling, well installation, and well abandonment must not
exceed the amounts set forth in this Section.
a)
Payment for costs associated with each round of drilling must not exceed the
following amounts. Such costs must include, but are not limited to, those
associated with mobilization, drilling labor, decontamination, and drilling for the
purposes of soil sampling or well installation.
Type of Drilling
Maximum Total Amount
Hollow-stem auger
greater of $23 per foot or $1,500
Direct-push platform
- for sampling or other
greater of $18 per foot or $1,200
non-injection purposes
- for injection purposes
greater of $15 per foot or $1,200
b)
Payment for costs associated with the installation of monitoring wells, excluding
drilling, must not exceed the following amounts. Such costs must include, but are
not limited to, those associated with well construction and development.
Type of Borehole
Maximum Total Amount
Hollow-stem auger
$16.50/foot (well length)
Direct-push platform
$12.50/foot (well length)
c)
Payment for costs associated with the installation of recovery wells, excluding
drilling, must not exceed the following amounts. Such costs must include, but not
be limited to, those associated with well construction and development.
Well Diameter
Maximum Total Amount
4 or 6 inches
$25.00/foot (well length)
8 inches or greater
$41.00/foot (well length)
241
d)
Payment for costs associated with the abandonment of monitoring wells must not
exceed $10 per foot of well length.
Section 734.825
Soil Removal and Disposal
Payment for costs associated with soil removal, transportation, and disposal must not exceed the
amounts set forth in this Section. Such costs must include, but are not limited to, those
associated with the removal, transportation, and disposal of contaminated soil exceeding the
applicable remediation objectives or visibly contaminated fill removed pursuant to Section
734.210(f) of this Part, and the purchase, transportation, and placement of material used to
backfill the resulting excavation.
a)
Payment for costs associated with the removal, transportation, and disposal of
contaminated soil exceeding the applicable remediation objectives, visibly
contaminated fill removed pursuant to Section 734.210(f) of this Part, and
concrete, asphalt, or paving overlying such contaminated soil or fill must not
exceed a total of $57 per cubic yard.
1)
Except as provided in subsection (a)(2) of this Section, the volume of soil
removed and disposed must be determined by the following equation
using the dimensions of the resulting excavation:
(Excavation Length x Excavation Width x Excavation Depth) x 1.05.
A conversion factor of 1.5 tons per cubic yard must be used to convert
tons to cubic yards.
2)
The volume of soil removed from within four feet of the outside
dimension of the UST and disposed of pursuant to Section 734.210(f) of
this Part must be determined in accordance with Appendix C of this Part.
b)
Payment for costs associated with the purchase, transportation, and placement of
material used to backfill the excavation resulting from the removal and disposal of
soil must not exceed a total of $20 per cubic yard.
1)
Except as provided in subsection (b)(2) of this Section, the volume of
backfill material must be determined by the following equation using the
dimensions of the backfilled excavation:
(Excavation Length x Excavation Width x Excavation Depth) x 1.05.
A conversion factor of 1.5 tons per cubic yard must be used to convert
tons to cubic yards.
2)
The volume of backfill material used to replace soil removed from within
four feet of the outside dimension of the UST and disposed of pursuant to
242
Section 734.210(f) of this Part must be determined in accordance with
Appendix C of this Part.
c)
Payment for costs associated with the removal and subsequent return of soil that
does not exceed the applicable remediation objectives but whose removal is
required in order to conduct corrective action must not exceed a total of $6.50 per
cubic yard. The volume of soil removed and returned must be determined by the
following equation using the dimensions of the excavation resulting from the
removal of the soil:
(Excavation Length x Excavation Width x Excavation Depth).
A conversion factor of 1.5 tons per cubic yard must be used to convert tons to
cubic yards.
Section 734.830
Drum Disposal
Payment for costs associated with the purchase, transportation, and disposal of 55-gallon drums
containing waste generated as a result of corrective action (e.g., boring cuttings, water bailed for
well development or sampling, hand-bailed free product) must not exceed the following amounts
or a total of $500, whichever is greater.
Drum Contents
Maximum Total Amount per Drum
Solid waste
$250
Liquid waste
$150
Section 734.835
Sample Handling and Analysis
Payment for costs associated with sample handling and analysis must not exceed the amounts set
forth in Section 734.Appendix D of this Part. Such costs must include, but are not limited to,
those associated with the transportation, delivery, preparation, and analysis of samples, and the
reporting of sample results. For laboratory analyses not included in this Section, the Agency
may determine reasonable maximum payment amounts on a site-specific basis.
Section 734.840
Concrete, Asphalt, and Paving; Destruction or Dismantling and
Reassembly of Above Grade Structures
a)
Payment for costs associated with concrete, asphalt, and paving installed as an engineered
barrier, other than replacement concrete, asphalt, and paving, must not exceed the
following amounts. Costs associated with the replacement of concrete, asphalt, and
paving used as an engineered barrier are subject to the maximum amounts set forth in
subsection (b) of this Section instead of this subsection (a).
243
Depth of Material
Maximum Total Amount
per Square Foot
Asphalt and paving – 2 inches
$1.65
3 inches
$1.86
4 inches
$2.38
Concrete –
any depth
$2.38
b)
Payment for costs associated with the replacement of concrete, asphalt, and paving must
not exceed the following amounts:
Depth of Material
Maximum Total Amount
per Square Foot
Asphalt and paving – 2 inches
$1.65
3 inches
$1.86
4 inches
$2.38
6 inches
$3.08
Concrete –
2 inches
$2.45
3 inches
$2.93
4 inches
$3.41
5 inches
$3.89
6 inches
$4.36
8 inches
$5.31
For depths other than those listed in this subsection, the Agency must determine
reasonable maximum payment amounts on a site-specific basis.
c)
Payment for costs associated with the destruction or the dismantling and reassembly of
above grade structures must not exceed the time and material amounts set forth in Section
734.850 of this Part. The total cost for the destruction or the dismantling and reassembly
of above grade structures must not exceed $10,000 per site.
Section 734.845
Professional Consulting Services
Payment for costs associated with professional consulting services will be reimbursed on a time
and materials basis pursuant to Section 734.850. Such costs must include, but are not limited to,
those associated with project planning and oversight; field work; field oversight; travel; per
diem; mileage; transportation; vehicle charges; lodging; meals; and the preparation, review,
certification, and submission of all plans, budgets, reports, applications for payment, and other
documentation.
Section 734.850
Payment on Time and Materials Basis
244
This Section sets forth the maximum amounts that may be paid when payment is allowed on a
time and materials basis.
a)
Payment for costs associated with activities that have a maximum payment
amount set forth in other sections of this Subpart H (e.g., sample handling and
analysis, drilling, well installation and abandonment, or drum disposal) must not
exceed the amounts set forth in those Sections, unless payment is made pursuant
to Section 734.860 of this Part.
b)
Maximum payment amounts for costs associated with activities that do not have a
maximum payment amount set forth in other Sections of this Subpart H must be
determined by the Agency on a site-specific basis, provided, however, that
personnel costs must not exceed the amounts set forth in Appendix E of this Part.
Personnel costs must be based upon the work being performed, regardless of the
title of the person performing the work. Owners and operators seeking payment
must demonstrate to the Agency that the amounts sought are reasonable.
BOARD NOTE: Alternative technology costs in excess of the costs of conventional technology
are ineligible for payment from the Fund. See Sections 734.340(b) and 734.630(z) of this Part.
Section 734.855
Bidding
As an alternative to the maximum payment amounts set forth in this Subpart H, one or more
maximum payment amounts may be determined via bidding in accordance with this Section.
Each bid must cover all costs included in the maximum payment amount that the bid is
replacing.
a)
A minimum of three written bids must be obtained. The bids must be based upon
the same scope of work and must remain valid for a period of time that will allow
the owner or operator to accept them upon the Agency’s approval of the
associated budget. Bids must be obtained only from persons qualified and able to
perform the work being bid. Bids must not be obtained from persons in which the
owner or operator, or the owner’s or operator’s primary contractor, has a financial
interest.
b)
The bids must be summarized on forms prescribed and provided by the Agency.
The bid summary form, along with copies of the bid requests and the bids
obtained, must be submitted to the Agency in the associated budget. If more than
the minimum three bids are obtained, summaries and copies of all bids must be
submitted to the Agency.
c)
The maximum payment amount for the work bid must be the amount of the
lowest bid, unless the lowest bid is less than the maximum payment amount set
forth in this Subpart H, in which case the maximum payment amount set forth in
this Subpart H must be allowed. The owner or operator is not required to use the
lowest bidder to perform the work, but instead may use another person qualified
245
and able to perform the work, including, but not limited to, a person in which the
owner or operator, or the owner’s or operator’s primary consultant, has a direct or
indirect financial interest. However, regardless of who performs the work, the
maximum payment amount will remain the amount of the lowest bid.
Section 734.860
Unusual or Extraordinary Circumstances
If, as a result of unusual or extraordinary circumstances, an owner or operator incurs or will incur
eligible costs that exceed the maximum payment amounts set forth in this Subpart H, the Agency
may determine maximum payment amounts for the costs on a site-specific basis. Owners and
operators seeking to have the Agency determine maximum payment amounts pursuant to this
Section must demonstrate to the Agency that the costs for which they are seeking a
determination are eligible for payment from the Fund, exceed the maximum payment amounts
set forth in this Subpart H, are the result of unusual or extraordinary circumstances, are
unavoidable, are reasonable, and are necessary in order to satisfy the requirements of this Part.
Examples of unusual or extraordinary circumstances include, but are not limited to, an inability
to obtain a minimum of three bids pursuant to Section 734.855 of this Part due to a limited
number of persons providing the service needed.
Section 734.865
Handling Charges
Payment of handling charges must not exceed the amounts set forth in Section 734.635 of this
Part.
Section 734.870
Increase in Maximum Payment Amounts
The maximum payment amounts set forth in this Subpart H must be adjusted annually by an
inflation factor determined by the annual Implicit Price Deflator for Gross National Product as
published by the U.S. Department of Commerce in its Survey of Current Business.
a)
The inflation factor must be calculated each year by dividing the latest published
annual Implicit Price Deflator for Gross National Product by the annual Implicit
Price Deflator for Gross National Product for the previous year. The inflation
factor must be rounded to the nearest 1/100th. In no case must the inflation factor
be more than five percent in a single year.
b)
Adjusted maximum payment amounts must become effective on July 1 of each
year and must remain in effect through June 30 of the following year. The first
adjustment must be made on July 1, 2006, by multiplying the maximum payment
amounts set forth in this Subpart H by the applicable inflation factor. Subsequent
adjustments must be made by multiplying the latest adjusted maximum payment
amounts by the latest inflation factor.
c)
The Agency must post the inflation factors on its website no later than the date
they become effective. The inflation factors must remain posted on the website in
subsequent years to aid in the calculation of adjusted maximum payment amounts.
246
d)
Adjusted maximum payment amounts must be applied as follows:
1)
For costs approved by the Agency in writing prior to the date the costs are
incurred, the applicable maximum payment amounts must be the amounts
in effect on the date the Agency received the budget in which the costs
were proposed. Once the Agency approves a cost, the applicable
maximum payment amount for the cost must not be increased (e.g, by
proposing the cost in a subsequent budget).
2)
For costs not approved by the Agency in writing prior to the date the costs
are incurred, including, but not limited to, early action costs, the
applicable maximum payment amounts must be the amounts in effect on
the date the costs were incurred.
3)
Owners and operators must have the burden of requesting the appropriate
adjusted maximum payment amounts in budgets and applications for
payment.
Section 734.875
Agency Review of Payment Amounts
No less than every three years the Agency must review the amounts set forth in this Subpart H
and submit a report to the Board on whether the amounts are consistent with the prevailing
market rates. The report must identify amounts that are not consistent with the prevailing market
rates and suggest changes needed to make the amounts consistent with the prevailing market
rates. The Board must publish notice of receipt of the report in the Environmental Register and
on the Board’s web page.
Section 734.APPENDIX A Indicator Contaminants
TANK CONTENTS
INDICATOR CONTAMINANTS
GASOLINE
leaded
1
, unleaded, premium and gasohol
Benzene
Ethylbenzene
Toluene
Xylene
Methyl tertiary butyl ether (MTBE)
MIDDLE DISTILLATE AND HEAVY ENDS
aviation turbine fuels
1
jet fuels
Benzene
Ethylbenzene
Toluene
Xylene
diesel fuels
Acenaphthene
gas turbine fuel oils
Anthracene
247
heating fuel oils
Benzo(a)anthracene
illuminating oils
Benzo(a)pyrene
Kerosene
Benzo (b)fluoranthene
Lubricants
Benzo (k)fluoranthene
liquid asphalt and dust laying oils
Chrysene
cable oils
Dibenzo(a,h)anthracene
crude oil, crude oil fractions
Fluoranthene
petroleum feedstocks
Fluorene
petroleum fractions
Indeno(1,2,3-c,d)pyrene
heavy oils
Naphthalene
transformer oils
2
Pyrene
hydraulic fluids
3
Acenaphthylene
petroleum spirits
4
Benzo(g,h,i)perylene
mineral spirits
4
, Stoddard solvents
4
Phenanthrene
high-flash aromatic naphthas
4
VM&P naphthas
4
moderately volatile hydrocarbon solvents
4
petroleum extender oils
4
USED OIL
Screening sample
5
1
lead is also an indicator contaminant
2
the polychlorinated biphenyl parameters listed in Appendix B are also indicator
contaminants
3
barium is also an indicator contaminant
4
the volatile, base/neutral and polynuclear aromatic parameters listed in Appendix B are
also indicator contaminants
5
used oil indicator contaminants must be based on the results of a used oil soil sample
analysis - refer to Section 734.405(g) of this Part
Section 734.APPENDIX B Additional Parameters
Volatiles
1.
Benzene
2.
Bromoform
3.
Carbon tetrachloride
4.
Chlorobenzene
5.
Chloroform
6.
Dichlorobromomethane
7.
1,2-Dichloroethane
8.
1,1-Dichloroethene
9.
cis-1,2-Dichloroethylene
10.
Trans-1,2-Dichloroethylene
11.
Dichloromethane (Methylene chloride)
12.
1,2-Dichloropropane
248
13.
1,3-Dichloropropylene (cis + trans)
14.
Ethylbenzene
15.
Styrene
16.
Tetrachloroethylene
17.
Toluene
18.
1,1,1-Trichloroethane
19.
1,1,2-Trichloroethane
20.
Trichloroethylene
21.
Vinyl chloride
22.
Xylenes (total)
Base/Neutrals
1.
Bis(2-chloroethyl)ether
2.
Bis(2-ethylhexyl)phthalate
3.
1,2-Dichlorobenzene
4.
1,4-Dichlorobenzene
5.
Hexachlorobenzene
6.
Hexachlorocyclopentadiene
7.
n
-Nitrosodi-
n
-propylamine
8.
n
-Nitrosodiphenylamine
9.
1,2,4-Trichlorobenzene
Polynuclear Aromatics
1.
Acenaphthene
2.
Anthracene
3.
Benzo(a)anthracene
4.
Benzo(a)pyrene
5.
Benzo(b)fluoranthene
6.
Benzo(k)fluoranthene
7.
Chrysene
8.
Dibenzo(a,h)anthracene
9.
Fluoranthene
10.
Fluorene
11.
Indeno(1,2,3-c,d)pyrene
12.
Naphthalene
13.
Pyrene
14.
Acenaphthylene
15.
Benzo(g,h,i)perylene
16.
Phenanthrene
Metals (total inorganic and organic forms)
1.
Arsenic
2.
Barium
3.
Cadmium
4.
Chromium (total)
5.
Lead
249
6.
Mercury
7.
Selenium
Polychlorinated Biphenyls
1.
Polychlorinated Biphenyls
(as Decachlorobiphenyl)
Section 734.APPENDIX C Backfill Volumes
Volume of Tank in Gallons
Maximum amount of backfill
material to be removed:
Cubic yards
Maximum amount of backfill
material to be replaced:
Cubic yards
<285
285 to 299
300 to 559
560 to 999
1000 to 1049
1050 to 1149
1150 to 1999
2000 to 2499
2500 to 2999
3000 to 3999
4000 to 4999
5000 to 5999
6000 to 7499
7500 to 8299
8300 to 9999
10,000 to 11,999
12,000 to 14,999
>15,000
54
55
56
67
81
89
94
112
128
143
175
189
198
206
219
252
286
345
56
57
58
70
87
96
101
124
143
161
198
219
235
250
268
312
357
420
A conversion factor of 1.5 tons per cubic yard must be used to convert tons to cubic yards.
Section 734.APPENDIX D Sample Handling and Analysis
Max. Total Amount
per Sample
Chemical
BETX Soil with MTBE
$85
BETX Water with MTBE
$81
COD (Chemical Oxygen Demand)
$30
Corrosivity
$15
Flash Point or Ignitability Analysis EPA 1010
$33
FOC (Fraction Organic Carbon)
$38
250
Fat, Oil, & Grease (FOG)
$60
LUST Pollutants Soil - analysis must include all volatile,
base/neutral, polynuclear aromatic, and metal parameters listed
in Section 734.AppendixB of this Part
$693
Organic Carbon (ASTM-D 2974-87)
$33
Dissolved Oxygen (DO)
$24
Paint Filter (Free Liquids)
$14
PCB / Pesticides (combination)
$222
PCBs
$111
Pesticides
$140
PH
$14
Phenol
$34
Polynuclear Aromatics PNA, or PAH SOIL
$152
Polynuclear Aromatics PNA, or PAH WATER
$152
Reactivity
$68
SVOC - Soil (Semi-volatile Organic Compounds)
$313
SVOC - Water (Semi-volatile Organic Compounds)
$313
TKN (Total Kjeldahl) "nitrogen"
$44
TOC (Total Organic Carbon) EPA 9060A
$31
TPH (Total Petroleum Hydrocarbons)
$122
VOC (Volatile Organic Compound) - Soil (Non-Aqueous)
$175
VOC (Volatile Organic Compound) - Water
$169
Geo-Technical
Bulk Density ASTM D4292 / D2937
$22
Ex-Situ Hydraulic Conductivity / Permeability
$255
Moisture Content ASTM D2216-90 / D4643-87
$12
Porosity
$30
Rock Hydraulic Conductivity Ex-Situ
$350
Sieve / Particle Size Analysis ASTM D422-63 / D1140-54
$145
Soil Classification ASTM D2488-90 / D2487-90
$68
Metals
Arsenic TCLP Soil
$16
Arsenic Total Soil
$16
Arsenic Water
$18
Barium TCLP Soil
$10
Barium Total Soil
$10
Barium Water
$12
Cadmium TCLP Soil
$16
Cadmium Total Soil
$16
Cadmium Water
$18
Chromium TCLP Soil
$10
Chromium Total Soil
$10
251
Chromium Water
$12
Cyanide TCLP Soil
$28
Cyanide Total Soil
$34
Cyanide Water
$34
Iron TCLP Soil
$10
Iron Total Soil
$10
Iron Water
$12
Lead TCLP Soil
$16
Lead Total Soil
$16
Lead Water
$18
Mercury TCLP Soil
$19
Mercury Total Soil
$10
Mercury Water
$26
Selenium TCLP Soil
$16
Selenium Total Soil
$16
Selenium Water
$15
Silver TCLP Soil
$10
Silver Total Soil
$10
Silver Water
$12
Metals TCLP Soil (a combination of all RCRA metals)
$103
Metals Total Soil (a combination of all RCRA metals)
$94
Metals Water (a combination of all RCRA metals)
$119
Soil preparation for Metals TCLP Soil (one fee per sample)
$79
Soil preparation for Metals Total Soil (one fee per sample)
$16
Water preparation for Metals Water (one fee per sample)
$11
Other
En Core® Sampler, purge-and-trap sampler, or equivalent
sampling device
$10
Sample Shipping (*maximum total amount for shipping all
samples collected in a calendar day)
$50*
Section 734.APPENDIX E Personnel Titles and Rates
Title
Degree Required
Ill.
License
Req’d.
Min. Yrs.
Experience
Max.
Hourly
Rate
Engineer I
Engineer II
Engineer III
Professional Engineer
Senior Prof. Engineer
Bachelor’s in Engineering
Bachelor’s in Engineering
Bachelor’s in Engineering
Bachelor’s in Engineering
Bachelor’s in Engineering
None
None
None
P.E.
P.E.
0
2
4
4
8
$75
$85
$100
$110
$130
Geologist I
Geologist II
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
None
None
0
2
$70
$75
252
Geologist III
Professional Geologist
Senior Prof. Geologist
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
Bachelor’s in Geology or Hydrogeology
None
P.G.
P.G.
4
4
8
$88
$92
$110
Scientist I
Scientist II
Scientist III
Scientist IV
Senior Scientist
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
Bachelor’s in a Natural or Physical Science
None
None
None
None
None
0
2
4
6
8
$60
$65
$70
$75
$85
Project Manager
Senior Project Manager
None
None
None
None
8
1
12
1
$90
$100
Technician I
Technician II
Technician III
Technician IV
Senior Technician
None
None
None
None
None
None
None
None
None
None
0
2
1
4
1
6
1
8
1
$45
$50
$55
$60
$65
Account Technician I
Account Technician II
Account Technician III
Account Technician IV
Senior Acct. Technician
None
None
None
None
None
None
None
None
None
None
0
2
2
4
2
6
2
8
2
$35
$40
$45
$50
$55
Administrative Assistant I
Administrative Assistant II
Administrative Assistant III
Administrative Assistant IV
Senior Admin. Assistant
None
None
None
None
None
None
None
None
None
None
0
2
3
4
3
6
3
8
3
$25
$30
$35
$40
$45
Draftperson/CAD I
Draftperson/CAD II
Draftperson/CAD III
Draftperson/CAD IV
Senior Draftperson/CAD
None
None
None
None
None
None
None
None
None
None
0
2
4
4
4
6
4
8
4
$40
$45
$50
$55
$60
1
Equivalent work-related or college level education with significant coursework in the physical, life,
or environmental sciences can be substituted for all or part of the specified experience requirements.
2
Equivalent work-related or college level education with significant coursework in accounting or
business can be substituted for all or part of the specified experience requirements.
3
Equivalent work-related or college level education with significant coursework in administrative or
secretarial services can be substituted for all or part of the specified experience requirements.
4
Equivalent work-related or college level education with significant coursework in drafting or
computer aided design (“CAD”) can be substituted for all or part of the specified experience
requirements.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on February 16, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
