PRIME LOCATION PROPERTIES, ,LLC,

Petitioner,

V.

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,.

Respondent.

John Therriault, Acting Clerk

Illinois

Pollution

Control Board

James

R.

Thompson

Center

100

West

Randolph

Street, Suite

11-500

Chicago, IL 60601

Fred

C. Prillaman

Patrick Shaw

Möhan,

Alewelt, Prillaman & Adami

1 North Old Capitol Plaza, Suite 325

Springfield,

IL

62701-1323

ED

JUL

Li

6

2009

STATE

OF

ILLINOIS

PUtIø

Control

Bo,d

PCB No. 09-67

(IJST

Appeal)

Carol

Webb, Hearing Officer

Illinois

Pollution Control

Board

1021 North Grand Avenue

East

P.O.

Box. 19274

Springfield, IL 62

794-9274

Prime Location Properties,

LLC

Attn: Joe

Keebler

P.O. Box 242

Carbondale, IL 62903

PLEASE TAKE

NOTICE

that I have today filed

with

the

office

of

the Clerk of

the Pollution

Control

Board a RESPONSE TO PETITIONER’S

POST-HEARING BRIEF, copies of which

are herewith

served

upon

you.

Respectiilly submitted,

ILLINOIS

ENVIRONMENTAL PROTECTION

AGENCY,

Respondent

Thomas

t)avis,

Chief

EnvIronmental

Bureau

Office of the Illinois

Attorney

General

500 South Second Street

Springfield,

Illinois

62706

217/782-7968

Pated:

July 6,

2009

BEFORE THE

POLLUTION CONTROL

BOARD

OF THE STATE

OF

ILLINOIS

)

)

),

)

)

)

NOTICE

---

BEFORE

THE

POLLUTION

CONTROL

BOAR])

OF

TUE

STATE

OF

ILLINOIS

PRIME

LOCATION

PROPERTIES,

LLC,

)

Petitioner,

)

v.

)

PCB

No. 09-67

ILLENOIS

ENVIRONMENTAL

)

(UST Appeal)

PROTECTION

AGENCY,

)

Respondent.

)

RESPONSE

TO PETITIONER’S

POST-HEARING

BRIEF

NOW,

COMES

the

Respondent,

the

Illinois Environmental

Protection

Agency

(“Illinois

EPA”),

by

its

counsel Thomas

Davis,

Assistant

Attorney

General,

and hereby

submits

its Response

to

the Petitioner’s

Post-Hearing

Brief

to the Illinois

Pollution

Control

Board

(“Board”),

I. BURDEN

OF PROOF

Section

105.112(a)

of the Board’s

procedural

rules

(35

Iii.

Adm. Code

105.112(a))

provides

that

the

burden

of

proof shall

be

on

the

petitioner.

The

primary

focus

of the

Board

must

remain

on the

adequacy

of the

permit

application

(or, as is

the case

here,

the

Nigh

Priority

Corrective

Action Plan

and

Budget)

and the information

submitted

by.

the

applicant

to the

Illinois EPA.

John

Sexton

Contractors

Company

v. illinois

EPA, PCJ3

88-139

(February

23,

1989), p.5,

Further,

the

ultimate

burden

of

proof

remains

on

the

prty initiating

an appeal

of an

Illinois EPA

final decision.

John

Sexton Contractors

Company

v. Illinois

Pollution

ControlBoard,

201

III. App.

3d

415,

425-426,

558 N.E.2d

1222,

1229

(1st

Dist,

1990).

Thus

Prime

Locations

(“Petitioner”)

must

demonstrate

to thc

Board

that

it has satisfied

its

burden

before

the

Board can

enter

an order

reversing

or

modifying

the

Illinois

EPA’s

decision

under

review.

At

hearing

the Petitioner

placed documents

into

evidence

but did

not

call

any witnesses.

The

case

is

based

upon

the

record

at the

time the

decision

was made

by

the Illinois

EPA.

The record

in

1.

---

front

of

the

Board

clearly

supports

the

Illinois

EPA

decision.

In

this

case,

Petitioner

simply

failed

to

meet their

burden

of

proof.

II.

STANDARD

OF

REVIEW

Section

57.8(i)

of

the Environmental

Proteôtion

Act

(“Act”)

grants

an

individual

the right

to

appeal

a

determination

of

the

Illinois

EPA

to

the

Board

pursuant

to Section

40 of

the Act

(415

ILCS

5/57.8(i)).

Section

40

of the

Act

(415

ILCS

5/40)

is

the

general

appeal

section

for

permits

and

has

been used

by

the

legislature

as

the

basis

for

this type

of

appeal

to

the

Board.

When

reviewing

an

Illinois

EPA

decision

on a

submitted

corrective

action

plan andlor

budget,

the

Board

must

decide

whether

or not

the

proposals,

as

submitted

to

the

Illinois

EPA,

demonstrate

compliance

with

the

Act

and Board

regulations.

Broderick

Teaming

Company

v.

Illinois

EPA,

PCB

00l

87

(December 7,

2000).

The

Board

will

not

consider

new

information

not

before

the

Illinois

EPA

prior

to its

determination

on appeal.

The

Illinois

EPA’s

final

decision

frames

the

issues

on

appeal.

Todd’s

Service

Station

y..jllinois

EPA,

PCB

0-2

(January

22,

2004),

p.

4.

In

deciding

whether

the

Illinois

EPA’s

decision

under

appeal

here

was

appropriate,

the

Board

must therefore

look

to

the

documents

within

the

Administrative

Record

(“Record”).’

Normally,

relevant

testimony

presented

at

bearing

would

also

be

considered;

however, no testimony

was

given

at the

hearing

on June

17,

2009.

Based

on.

the

information

within

the

Record,

along

with

the

relevant

law,

the

Illinois

EPA

respectfully

requests

that

the

Board

enter an

order

affirming

the

Illinois

EPA’s

decision.

Citations

to the

Administrative

Record

will

hereinafter

be

madc as,

“AR,

p.

.“ Refercnce

to

the

transcrpt

of

the

hearing

will

be

made

as,

“TR,

p

.“ References

to the

Supplemental

Administrative

Record

will be

made as

“Supp.

AR,

2

---

IlL

INTRODUCTION

The information

submitted

to

the Illinois

EPA

by Petitioner

that

led

to the

issuance

of

the final

decision

under

appeal

fully

supports

the

content

and

conclusion

of

the final

decision,

in that the

Petitioner

failed to

demonstrate

that the information

they

submitted

to the

Illinois

EPA and

upon

which

the

Illinois

EPA

based

its

decision supported

any other

conclusion

than

that reached

by the. Illinois

EPA

when

it

issued

its January

27,

2009

decision

letter.

The

Board’s

review

of the

Administrative

Record

should

yield

the same

conclusion

as that

reached

by the

Illinois

EPA.

The

Illinois

EPA

relies

upon

the

owner/operator

and

their

consultants

to

provIde

full information

regarding

the on-site

conditions

and rernediation

activities.

It is this

information

that

the

Illinois

EPA relies

upon

to form

its

decisions.

In this case,

the

information

submitted

by the

Petitioner

supports

the

decision

of

the

Illinois

EPA.

It is

important

to

point out that

what information

the Illinois

EPA

reviews

is totally

within

the

control

of the

owner/operator

and

their

consultant.

Simply,

if it

is not

submitted to

the

Illinois

EPA,

the Illinois

EPA

cannot

review

it.

IV. STATEMENT

OF

FACTS

The facts

in the

Illinois

EPA

record

supporting

this motion

are as

follows:

1.

Metropolis

Tire

and Oil

Company,

Inc.

transferred

the

property

located

at 600

W.

1

0

th

Street

in

Metropolis,

Illinois

to Prime

Location

Properties,

LLC

via quitclaim

deed

for

the

consideration

of $10.00

on

March

20, 2006.

(Petition,

Exhibit

4)

2.

Metropolis

Tire and

‘Oil Company,

Inc. was

the

owner

of

tanks

located at

a

gasoline

service

station

located

at 600

W. 10”

Street

in Metropolis,

Illinois

prior

to the

execution

of

the quit claim

deed.

The

underground

storage

tanks

at issue

‘were

located

on

the

3

---

property

which

stored gasoline and

kerosene.

(December, 2001,

45-Day Report

Addendum, Appendix’

0)

(Record

Exhibit

#5)

3.

Metropolis Tire and

Oil

Company,

Inc. had

retained

CW3M

to conduct

remediation

activities at the site. (December,

2001, ‘45-Day Report

Acldenduni)(Reeord

Exhibit

#5)

4.

Once

deeded

to

Prime Locations, Environmental

Management,

Inc. was

hired to

conduct remediation activities

at the site. (Record Exhibit #28)

5.

LUST Incident

Number

20011314

was issued to

Metropolis

Tire and Oil Company

for

an August

1, 2001

incident.

(August

1, 2001

HazMat Report Incident)

6.

In

the

45-Day

Report Addendum

submitted

to the

Illinois

EPA by the Petitioner

in

December 2001, the

Petitioner

stated that

they

could

not

locate

all the USTs.

(Record

Exhibit

#5)

7.

For

this initial incident

a High Priority

Corrective Action Plan was submitted

on

August

22,

2005

and approved

with

modifications

on

November 23, 2005.

Petitioner

submitted

a

proposed

excavation area map dated

August

2, 2005 in its

High

Priority

Corrective

Action Plan

that showed the delineation of the excavation

area and

‘that there

were clean

borings surrounding the

area. (Record

Exhibit

23 & #24) See Attachment

B.

8.

In Attachment A of the November

23, 2005

Illinois

EPA decision

letter, it was

noted in

Section

1 as

follows:

“The following items listed below are

in

excess

of thc ‘minimum

requirements

necessary to comply

with

Title

XVI and/or

35 Iii. Adm,

COde.

For the purpose

of

reimbursement,

since these

activities

are in excess of those necessary

to meet

the

minimum

requirements

of the Title XVI of

the Act, costs for

such activities are

4

---

not

reimbursable

(Sections

57.5(a)

and

57.7(c)(4)(C)

of

the

Act,

35

Iii.

Adm.

Code

732,505(c)

and

732.06(o)).

A)

Any

activities

that

are not

associated

with

the

proposed

excavation

as shown

on the

proposed excavation

area

map

dated

August

2,

2005.

Please

note

only

UST#2

and

#3

have

shown

evidence

of’

a possible

release;

and

therefore,

are

associated with

Incident

#20011314.

Furthermore,

any

additional

USTs

that

are

found

on-site

and

contamination

that

may

be

associated

with

these

USTs

must

be

reported

as

a

new

release

and açldressed accordingly.”

2

(Record

Exhibit

#24)

9.

In

2006.

LUST

Incident

Number 20061558

was

issued

to

Prime

Locations

for

the same

site.

(Record

Exhibit

#33)

10.

An

amended

Corrective Action

Plan

and

Budget

was

submitted

for

the

site on

November

10, 2008

and

received

November 14,

2008.

(Record

Exhibit

#36)

11.

This

Corrective

Action

Plan

was

rejected

on January

27,

2009,

for the

following

reasons:

“A)

Luring

the

investigations

actIvities

associated with

Incident #20011314

soil

and

groundwater contamination

were

not

identified

in

the

vicinity

of USTs#3

tbrough

#7,

However, three

years

later

during

the

removal

of

these

USTs,

soil

contamination

was

identified

in

these

areas,

Therefore,

Incident

#2006

1558

is a

new

release

and is

not

considered

a

re-reporting

of Incident

12001

1314.

2

Please

note

that

the

consultants

that

worked

on the

site

numbered

the

tanks

differently.

The

quoted

language

from the

2005

documents

list

the

2001

incident

tanks

as

tanks

#2

and

#3

in the

same’

manner

as CW3M

listed

them.

EMI,

the

subsequent consultant,

numbered

those

tanks

#1

and

#2

and

thcrcforo

tho

2009

correspondence also

refers

to them

in

that

manner:

For clarity

of this

brief,

except

when

quoting

exact

language,

the

tanks

shall

be referred

to

in the

same

way

as the

Petitioner’s

current

consultant

as

tanks

#1

and #2.

5

---

B)

Pursuant

to

35

111.

Adm.

Code

734.210(c)

and

734.210(e),

the

20-and

45-day

reporting

requirements

must

be

fulfilled,

C)

In

addition,

pursuant

to

35 111.

Adm. Code

734.310(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

rcsriew

a

site

investigation

plan.” (Record

Exhibit

#38)

12.

The

plan

budget

was

rejected

for

the

following

reason:

“Pursuant

to

Section

57.7(c)

of

the

Act

and

35

111.

Adm,

Code

734.505(b),

the

associated budget

is

rejected

for

the

following

reason:

The

Illinois

EPA

has

not

approved the

plan

with

which

the

budget

is

associated.

Until

such

time

as

the

plan

is

approved,

a

determination

regarding

the

associated

• budget

—

i.e..

a

determination

as

to

whether

costs

associated

with

materials,

activities,

and

services are

reasonable;

whether costs

are

consistent

with

the

associated

technical

plan;

whether

costs

will

be

incurred

in

the

performance

of

corrective

action

activities;

whether

costs

will

not

be

used

for

corrective

action

activities

in

excess

of

those

necessary

to

meet

the

minimum

requirements

of

the

Act

and

regulations,

and

whether costs

exceed

the

maximum

payment

ainormts

set

forth

in

Subpart

H

of

35

Iii.

Adm.

Code

734

—

cannotbe

made (Section

57.7(c)(3)

of

the

Act

and

35

III.

Adni.

Code

734.5

10(b)).

In

addition,

please

note

most

of

the

costs

in

the

proposed

budget

will have

to

be

submitted as

Early

Action

costs.” (Record

Exhibit

#3)

6

---

V. ISSUE

The issue

before

the

Board is

framed by

the Illinois

EPA

decision

letter

and is

as

follows:

WHETHER

Incident

# 20061558

is

a

new incident

under

the

Act

and regulations

thereunder

requiring

a

new deductible;

0-

and

45-day

report;

and

a site

investigation

plan?

VI.

ARGUMENT

On

November

10,

2008,

the Petitioner

filed

its amended

Corrective

Action

Plan,

and

Budget.

The

Illinois

EPA

issued

a decision

letter

on

January

27, 2009

rejecting

this

submittal.

The Illinois

EPA’s

denial

letter

frames,

the issues

on appeal.

Pulitzer

Conzrnun,t’v

Newspapers.

Inc.

v.

EPA,

PCB

90-142

(Dec.

20, 1990).

In

the January

27,

2009

decision

letter,

the

Illinois

EPA cited

to

the

requirements

of

the

Act and regulations

that the

Petitioner

did not comply

with.

ISS!J

WHETHER

INCIDENT

# 20061558

IS

‘A NEW

INCIDENT

UNDER

THE

ACT

AND

REGULATIONS

THEREUNDER

REQUIRING

A

NEW DEDUCTIBLE;

20-

AND 45.

DAY REPORTS;

AND

A

SITE

INVESTIGATION PLAN.

The question

before

the

Board

is

whether Incident

# 20061558

is

a

new

incident

under

the

Act and

regulations

thereunder

requiring

a

new deductible;

20-

and

45-day

reports;

and

a site

investigation

plan.

It is clear from

the record

that Incident

#20011314

was called

into

IEMA

on

August

1,

2001

and

that

20-day and

45-day

reports

were submitted

to

the Illinois

EPA.

Also

submitted

were

a Site

Classification

Plan

and

a Corrective

Action

Plan

and

Budget.

These

documents

clearly show

that the

release

was

centered around

tanks

#1

and 2

and

that tanks

#3

through

#7 were

not

included

in the

release,

Indeed,

the reports

submitted

to the

Illinois EPA

show

that

not only

were

there

clean borings

around

the

plume

associated

with

tanks

#1

and #2, but

that

three

out of the

remaining

five

tanks could

not

be

located.

The

45-Day

Report

Addendum

states

there

were seven

USTs

registered.

However,

currently

the

existence

and

locations

of all tanks

have

not been

identified.

While

the location

of four

7

---

USTs

was

later confirmed;

the

potential location of two additional USTs

has, merely been

speculated.

Further, nothing

about

the location

of the seventh UST was ever ‘mentioned.

The 45-Day Report

Addendum also

states

that once

all

tank locations have been identified, their exact location

and status

would be forwarded to the JEPA. It should be noted

that

the

locations

of the three unknown tanks

were

discovered

during the excavation activities that were approved

for Incident #2001 1314. The

four

additional

USTs

were

not in

the defIned contamination plume,

they

were tanks the Petitioner

just

wanted to remove.

Further, site

investigation

activities

(borings

MW-i,

SB-i

and P1-I)

performed during April

23,

2002 and May

14, 2003 for Incident. l20011314

did not show any contamination near the tanks

that

were

outside

of the defined contamination plume. This indicates a release did

not

occur

in this area

prior to

the

dates of this sampling.

A map

submitted at the time clearly

shows the area of excavation and the clean

borings

surrounding that area.

In

an Illinois EPA

decision letter, dated November 23, 2005, the Illinois

EPA

noted that

“any activities that are not associated with the proposed’ excavation

as shown on

the

proposed

excavation area map dated August

2,

2005” would be “in

excess of the

minimum

requirements necessary to comply

with

Title

XVI

and/or

35

Ill. Mm. Code”

and therefore

were nat

reimbursable.

This final decision was not appealed.

The Petitioner in its brief

contends that

the decisions made by the illinois EPA regarding

this

site prior to

2006 were in error. The Petitioner actually lists all of the decisions that it now

disagrees’

with,

However,

it is important to,

note none

of these decisions were appealed when the decision

was

rendered.

The

Board has held that a

condition

imposed in a permit, not

appealed to the Board under

Section 40(a)(1), may not be

appealed

in a

subsequent’

permit. Panhandle Eastern Pipe Line

Co. v.

IEPA, PCB

98-102,

slip op. at 30 (Jan 21, 1999). Further, the Illinois

EPA is not

authorized

under

8.

---

Illinois

law

to

change

its

final

decision.

This

principle

is

well-established.

Reichhokl

Chemicals,

Inc.

v. PCB,

204

Ill.

App.

3d

674,

561

N.E.2d

1343

(3d

fist.

1990).

The

Illinois

EPA

is

bound

to

its

November

23,2005

final

decision.

Mick’s

Garage

v.

JEPA, PCB

03-126

(Dec. 18,2003).

Further,

in

its

brief,

the

Petitioner

makes

quite,

a

few

assumptions

regarding

the

actions

of

the

prior

consultant,

assuming

what

their

actions

meant

on

several

occasions.

(Pet.

Brief,

p.5).

Such

assumptions

and

assigmnent

of

motives

after

the

fact

are

just

attempts

to

muddy the

record.

The

Petitioner

had

an

opportunity

to

call

the

former

consultants

during

hearing,

but

failed

to

do

so.

The

Illinois

EPA

would

request

that

such

assumptions

be

disregarded

by

the

Board

in

their

review

of

the

case

because none

of

these

assumptions

were

before

the

Illinois

EPA

at

the

time

of

the

decisions

the

Petitioner

now

contests,

The

Administrative

Record

stands

for

itself,

especially

when

no

testimony

claritying

motives

or

actions

taken

over

four

years

ago

was

presented.

The

Petitioner also

secrns

to

contend

that

the

Office

of

State

Fire

Marshal

(OFSM)

should

determine

the

applicable

deductible.

The

law

is well settled

that

the

OSFM’s

decisions

do

not

determine

the

applicable

deductible.

Section 22.1

8b(d)(3)(G)

of

the

Act

provides

that

the

deductible

application

must

be

submitted

to

the

illinois

EPA and

that

the

Illinois

EPA

makes

the

deductible

determination.

Mick’s Garage

v.

IEP,

PCJ3

03-126

(Dec.

18,

2003).

The

Petitioner

also

casts

aspersions

in

its

brief

by

stating

that

the

Illinois

EPA

is

trying

to

protect

a

fund

over

the

clean-up

obligations

of

the

site.

That

is

a

ridiculotis

statement.

The

Illinois

EPA

is a

creature

of

statute

and

the

LUST fund

and

its

remediations

are

very

highly

regulated

by

Statc

law

and

Board

regulations.

The

Illinois

EPA

can

only

approve

that

which is

allowed

for

under

the

Act

and

regulations.

If

following

the

law

and

regulations

prohibits

someone

from

accessing

money

improperly

from

the

LUST

fund, then

that,

is

exactly what

the

Illinois

EPA

has

been

tasked

to

do.

Further

the

Petitioner

States

that

it is

“frustrated”

and

that

this

issue

has

already

been

decided

by

the

9

---

Board

4

’over

the

Agency’s

continual

disagreement”.

(Pet.

Brief

p.

11)

It

is

interesting

to

note

that

the

Petitioner

then

goes

on

to

site

a

case

brought

against

OESM,

not

Illinois

EPA,

Mac Investmenj

OFSM,

PCB

01-129 (Dec.

19,

2002).

Then

it

states

the

Illinois

EPA

directly

challenged

that

case

in

Swif-T-Food

Mart

v.

IEPA, .PCB

03-1

85(May

20;

2004). It

should,

however,

be

apparent

that

those

two

cases

were

about

different

issues

and

how

different

State

agencies,

tasked

with

different

duties

under

Illinois

law,

handled

those

issues.

It

is

also important

to

note

that

the

facts

in

this

case and

the

facts

in

Swif-T

Food

Mart

are

distinguishable.

In

SwifT

Food Mart,

the

second incident

number

was

issued

prior

to

any

site

classification

or

other

work

performed

on

the

site.

This

case

has

had

site

investigation

performed

at

the

site

and

maps

were

submitted

to

the

Illinois

EPA

that

clearly

shows

that

there

were

clean

borings

around

the

area

of

contamination

and

that

the

plume had

been

defined

for

Incident

#20011314.

To

summarize,

the

Petitioner

purchased

a

property

and

is

now

stuck with

decisions

that

the

prior

owner

and

consultant

made. The

Petitioner

is

trying

at

this.

late

date

to

change

those decisions

by

creating

a

controversy

in

order

to

get

the

November

23,

2005 decision

before

the

Board

in

the

hopes

of

getting that

decision

overturned.

However,

as

noted

above, the

Board

has

already

ruled

in

such

eases

that

a

condition

imposed

in

a

permit,

not

appealed

to the

Board

under

Section 40(a)(1),

may

not

be

appealed in

a

subsequent

permit.

Panhandle

Eastern

Iipe

Line

Co.

v.

JEPA, PCB

98-102,

slip

op.

at

30

(Jan

21,

1999).

As

stated

above argumcnt,

the

Petitioner’s

brief

fails

to

present any

tangible

or

persuasive

argument

on

which

the

Board

could

rely

in

reversing

the

Illinois

EPA’s

final

decision.

The

Petitioner

fails

to

meet

its

burden

of

proof.

10

---

ADDITONAL

ARGUMENT:

REJECTION

OF

BUDGET

In

regards

to

the

rejection

of

the

budget,

a

proposed

budget

may

not

be

approved

unless

the

corresponding

plan

is

approved.

The

corresponding

plan

has

not

been

approved.

The

Administrative

Record,

along

with

the

Act

and

the

Board’s

regulations,

supports

the

final

decision

of

the

Illinois

EPA

in

denying

the

budget.

ADDITIONAL

ARGUMENT

FILING

OF

ADMINISTRATIVE

RECORD

The Petitionçr

argues

that

the

Illinois

EPA

should

be

barred

from

filing any

other

pleading

or

document

in

this

matter

or

that

the

Board

should immediately

award

the

Petitioner

the

result

it

seeks.

(Pet.

Brief,

p.

12).

The

Petitioner

has

not

shown

any

hardship

due

to

the

lateness

of

the

record.

The

Board has

not

sua

sponte disallowed

the

record

and in fact accepted

its

filing.

A

motion

was

made

at

hearing to

allow

thc

filing

of

the

record

and

such filing

was

allowed.

Further, Petitioner’s

counsel

was

permitted

to

proffer

several

documents

at

the

hearing to

which

the

illinois EPA had

little

to

no

objection

to

allowing

into

the

record.

Counsel

was

also

allowed

a

full

hearing

by

which

to

present

any

evidence

he

chose

and

failed

to

present

any

witnesses.

The Petitioner

has

not

shown

how

it

was

prejudiced

by

the

late

filing

of

the

record;

therefore

their request should

be

denied,

VIL

CONCLUSION

For

all

the

reasons

and

arguments

included

herein, the

Illinois

EPA

respectfully

requests

that

the

Board affirm

the

Illinois

EPA’s

January

27,

2009

final

decision.

The

Petitioner

has

not

met

even

its

prima facie

burden of

proof, and

certainly

has

not

met

its

ultimate

burden of

proof

For

these

reasons,

the

Illinois

EPA respectfully

requests

that

theBoard

affirm

the

Illinois

EPA’s final

decision.

11

---

Respectfully

submitted,

ILLINOIS

ENVIRONMENTAL PROTECTION

AGENCY,

Respondent

Thomas

Davis, Chief

Environmental

Bureau

Office

of the

Illinois

Attorney

General

500

South

Second Street

Springfield,

Illinois

62706

217/782-7968

Dated: July

6, 2009

This

fluuig

submitted on

reycId

papcr

12

---

ATTACHMENT

A

Relevant

Law

415

ILCS

5/57.7,

Leaking

underground

storage

tanks;

site

investigation

and

corrective

action.

(a)

Site

investigation.

(I)

For

any site

investigation

activities

required

by

statute

or

rule,

the

owner

or

operator

shall

submit

to the

Agency

for

approval

a site

investigation

plan

designed

to

dewrmine

the nature,

concentration,

direction

of movement,

rate

of movement,

and

extent

of

the

contamination

as

well

as

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.

(2)

Any

owner

or

operator

intending

to

seek

payment

from

the Fund

shall submit

to the

Agency

for

approval

a

site investigation

budget

that

includes,

but

is

not limited

to, an

accounting

of all

costs

associated

with

the

implementation and

completion

of the

site

investigation

plan.

(3)

Remediation objectives

for

the

applicable

indicator

contaminants

shall

be determined

using

the tiered

approach

to

corrective

action

objectives

rules adopted

by the

Board

pursuant

to this

Title

and

Title

XVII

of

this

Act.

For the

purposes

of

this

Title,

“Contaminant

of

Concern”

or

“Regulated

Substance

of Concern”

in

the rules

means

the

applicable

indicator

contaminants

set

forth

in subsection

(d) of

this

Section

and

the

rules

adopted

thereunder.

(4)

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.

(5)

Within

30

days

after

completing

the site

investigation,

the

owner

or

operator

shall

submit

to the

Agency

for

approval

a

site

investigation

completion

report.

At

a minimum

the

report shall

include

all

of the

following:

(A)

Executive

summary.

(B)

Site

history.

(C)

Site-specific

sampling

methods

and

results,

(B)

Documentation

of

all field

activities,

inöluding

quality

assurance.

(E)

Documentation

regarding

the

development

of

proposed

remediation

objectives.

(F)

Interpretation

of

results.

.

.

(G)

Conclusions.

---

(b)

Corrective action.

(1)

If the site investigation confirms

none of the

applicable indicator

contaminants

exceed

the proposed remediation

objectives, within 30

days after completing

the site

investigation the owner

or

operator shall submit

to

the

Agency for

approval a

corrective

action completion report in accordance

with this Section.

(2)

If

any

of the applicable indicator

contaminants exceed

the

remediation

objectives

approved

for the site, within 30

days

aftôr

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. The

plan shall

describe the

selected

remedy

and

evaluate its ability and effectiveness

to achieve

the

remediation objectives approved for the site. At a minimum, the report

shall include

all

of

the following:

(A)

Executive summary.

(B)

Statement

of remediation objectives.

(C)

Remedial

technologies

selected.

(D)

Confirmation

sampling plan.

(E)

Current and projected future

use of the property.

V

(F)

Applicable

preventive,

engineering, and

institutional

controls

including

long

term

reliability,

operating, and maintenance plans,

and monitoring procedures.

(G)

A schedule for

implementation

and

completion of

the plan.

(3)

Any owner or

operator

intending

to

seek

payment

from the

Fund

shal,l submit

to the

Agency for approval

a

corrective

action budget that includes, but is not

limited to,

an

accounting of all costs associated with the implementation

and

completion

of the

coxiective action plan,

V

(4)

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.

V

(5)

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

V

cprreotive

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,

(6)

If within 4 years after

the

approval of

any corrective action plan the

applicable

remediation

objectives

have not been

V

achieved and the owner

or operator

has not

submitted a

corrective

action completion report, the owner or operator

must submit

a

status report

for

Agency review.

The

status report

must

include,

but is notVlimited

to, a

description of the remediation activities taken to

date, the effectiveness of

the method of

V

2

---

remediation

being

used,

the

likelihood

of

meeting

the applicable

rernediation

objectives

using the current

method

of

remediation,

and

the date

the

applicable

remediation

objectives

are expected to

be achieved.

(7)

If the Agency

determines

any approved

correótive 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

operat9r

intends to seek payment

from

the

Fund,

the

owner or

operator must

also

submit

a

revised

budget.

(c)

Agency

review

and

approval.

(1)

Agency

approval

of any

plan

and

associated

budget,

as described in

this

subsection

(c),

shall be considered

final approval for

purposes

of

seeking

and

obtaining

payment

from

the

Underground

Storage Tank Fund

lithe

cost

associated

with the completion

of any

such plan are less than

or equal

to

the

amounts

approved

in such

budget.

(2)

In

the event

the Agency fails to

approve,

disapprove, or

modify any plan

or

report

submitted

pursuant

to

this

Title.in writing within

120 days of

the receipt

by

the Agency,

the plan or

report shall be

considered

to be rejected by operation

of

law

for purposes of

this Title

and

rejected

for

purposes of

payment from

tlie

Underground

Storage

Tank

Fund.

(A)

For purposes of

those

plans as identified

in paragraph

(5) of

this

subsection

(c),

the

Agency’s

review may be an audit

procedure.

Such

review

or audit

shall be

consistent with the

procedure

for such

review

or audit as

promulgated by the

Board

under

Section

57.14. The

Agency

has

the authority

to

establish

an

auditing

program to verify

compliance

of such

plans

with

the provisions

of this

Title.’

(B)

For

purposes

of corrective

action plans submitted

pursuant

to subsection (b) of

this Section

for

which payment

from the

1und

is not being

sought,

the

Agency

need not

take action on such

plan

until

120 days after

it

receives the

corrective

action

completion

report

required under subsection

(b) of this Section,

In the

event the

Agency approved

the

plan, it

shall

proceed

under

the

provisions

of this

subsection

(c).

(3)

In

approving any

plan

submitted pursuant

to subsection

(a) or (b) of this

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.

3

---

(4)

For

any

plan or

report

received

after

June

24, 2002,

any

action

by

the

Agency

to

disapprove

or modify

a

plan

submitted

pursuant

to

this

Title

shall be

provided

to

the

owner

or

operator

in

writing

within

120 days

of the

receipt

by the

Agency

or, in

the case

of

a site

investigation

plan

or

corrective

action

plan

for which

payment

is

not

being

sought,

within

120

days

of

receipt

of

the

site

investigation

completion

report

or

corrective

action

completion

report,

respectively,

and

shall

be accompanied by:

(A)

an

explanation

of the

Sections

of this

Act which

may

be

violated

if

the

plans

were

approved;

(B)

an

explanation

of the

provisions

of the

regulations,

promulgated

under

this

Act,

which may

be

violated

if

the

plan

were

approved;

(C)

an

explanation

of’

the

specific

type

of

information,

if any,

which

the

Agency

deems

the

applicant

did not

provide

the Agency;

and

(D)

a

statement

of

specific

reasons

why

the

Act and

the

regulations

might

not

be

met

if the

plan

were

approved.

Any

action

by

the

Agency

to

disapprove

or modify

a

plan or

report

or

the

rejection

of

any

plan or

report

by operation

of law

shall

be

subject

to

appeal

to the

Board

in

accordance

with

the

procedures

of

Section

40.

If

the owner

or

operator

elects

to

incorporate modifications

required

by

the Agency

rather

than

appeal,

an amended

plan

shall be

submitted

to

the

Agency

within

35 days

of

rcccipt

of

the

Agency’s

written

notification

(5)

For

purposes

of

this

Title,

the

term

“plan”

shall

include:

(A).

Any

site

investigation

plan

submitted

pursuant

to

subsection

(a)

of

this

Section;

(B)

Any

site

investigation

budget

submitted

pursuant

to

subsection

(a)

of

this

Section;

(C)

Any

corrective

action

plan

submitted

pursuant

to

subsection

(b)

of this

Section;

Or

(1))

Any

corrective

action

plan

budget

submitted

pursuant

to

subsection

(b) of

this

Section.

(d)

For

purposes

of this

Title,

the

term

“indicator

contaminant”

shall

mean,

unless

and

until

the

Board

promulgates

regulations

to

the

contrary,

the following:

(i) if

an underground

storage

tank

contains

gasoline,

the

indicator

parameter

shall

be

BTEX

and

Beuzene;

(ii)

if the

tank

contained

petroleum

products

consisting

of

middle

distillate

or heavy

ends,

then

the indicator

parameter

shall

be

determined

by

a scan

of

PNA’s

taken

from

the

location

where

contamination

is

most

likely

to be

present;

and

(iii)

if the

tank contained

used

oil,

then

the

indicator

contaminant

shall

be

those

chemical

constituents

which

indicate

the

type of

petroleum

stored

in

an

underground

4

---

storage tank. All

references

in

this Title

to

groundwater

objectives

shall mean

Class I

groundwater

standards

or objectiveS as applicable.

(e)(l)

Notwithstanding

the provisions of this

Section,

an

owner

or operator

may proceed

to conduct

site

investigation or corrective

action

prior to the submittal

or

approval

of an

otherwise

required

plan.

If the

owner

or operator

elects to

so proceed, an

applicable

plan

shall

be filed

with

the

Agency

at

any time.

Such

plan

shall

detail

the

steps

taken

to determine the

type

of site

investigation

or

corrective action

which

was

necessary at the

site along with

the site

investigation

or

corrective action

taken

or

to be taken,

in addition

to

costs associated

with

activities to date

and anticipated

costs.

(2) Upon

receipt

of a plan

submitted

after

activities

have

commenced at

a

site, the

Agency

shall

•

proceed

to review in the same

manner as

required under

this Title. In the

event

the Agency

disapproves

all or part of the costs,

the

owner

or

operator

may

appeal such

decision to the

Board.

The

owner or

operator shall not be

eligible

to be

reimbursed for

such disapproved

costs

unless

and

until

the Board

determines that such

costs

were

eligible for payment,

(1)

All investigations,

plans,

and

reports

conducted or prepared

under

this Section

shall be

conducted

or prepared

under the supervision

of a licensed

professional

engineer and

in

accordance with

the

requirements

of

this Title.

35111.

Adm. Code 734.210,

Early Action,

states as follows:

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:

V

1)

Report

the release to IEMA

(e.g., by telephone

or electronic mail);

V

2)

Take immediate action

to

prevent

any

further

release of the

regulated

substance

to

the

environment;

and

V

V

3)

Identify

and mitigate fire,

explosion

and

vapor hazards.

V

b)

Within 20 days

after

initial

notification to IEMA

of a release

pIus 14 days, the

owner or

operator must perform

the following

initial

abatement

measures:

V

1)

Remove

as much

of the petroleum

from the UST

system as

is

necessary

to

V

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;

V

V

V

V

V

5

---

3)

Continue to monitor and

mitigate any additionai 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 arid 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.

e)

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

surnma.rizing

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

JEMA

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

7342l5 of this Part.

6

---

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

ta

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

41111. 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

ofpayment ofearly

action costs,

however,

fill

material shall

not be removed in an amount in excess

of4’feet

from the outside dimensions of the tank

1415

ILCS

5/57.6(b)1.

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 TEMA 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

owner or

operator must

notify

the’ Agency in

writing of such circumstances within

45

days

after initial

notification

to JEMA 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.

Acim. Code

170.560

and

170.580. The ‘Boardis setting the beginning

of the payment

period

at subsection

(g)

to

correspond to the notification

and

cénfirmation

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 liSTs 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

7

---

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 wail 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

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.

0)

If backfill

is returned

to

the

excavation,

onç

representative

sample

of the

backfill

must

be

collected

tbr

each 100

cubic yards

of

backfill

returned

to

the

excavation.

B)

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

o1,

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’operátormust

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

8

---

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

riot

more

than five

feet

from,

the locations

of

suspected

piping

releases.

If no release

is suspected

witixin

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)(l)(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

dut-ing drilling

of the

boring

in

the

alternate

location,

drilling

of the

boring

must cease

and the soil

samples

collected

frpm

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,

hpwever,

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

Ticr

1

remediation

objectives

of

35111. 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

9

---

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

remecliation

objectives

of

35 111. 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

734.440

of this

Part that shows

the locations

of all samples collected

pursuant

to

this

subsection (Ii);

ii)

Analytical

results, chain of

custody forms,

and laboratory

certifications

for

all

samples collected

pursuant

to

this

subsection

(Ii);

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

contaming

only

the

information required

under

Section 734.440

of this Part.

4)

If

the

most stringent

Tier I

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

remecliation

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.

10

---

35 III. Adm. Code

734.310, Site Investigation

— General,

states

as

follows:

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

35 111. 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

ôoxnpietion

report in accordance

with

Section

734.330

of this Part.

a)

Prior

to

conducting

site investigation

activities

pursuant

to Section

734,31

5

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, stibmit

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

pian, 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

consitent

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 I site investigation

will

not

exceed

the

amounts

set forth in Subpart

H of this

Part.

c)

Upon the Agency

‘s approval ofa 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

budgets

an owner

or

operator

determines that a revised

plan

or

budget

is

necessary

in

order to

determine,

within the area

addresse4 in the

applicable

stage

of

the

investigation,

the

nature,

concentration,

direction

of

movement,

rate of

movement,

and extent

of

the

contamination,

or the significant

physicai

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

opôrator 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

F

of this Part.

H

---

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.

V

V

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

subh-ütted

no

later than

one

year

after

the

date

the

Agency

issues

a No

Further

Remediation

Letter.

See

Subpart F

of this Part.

35111.

Adm.

Code

734.315,

Stage

1 Sfte

Inyestigation,

states

as

follows:

V V

The

Stage

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

I remediation

objectives

of 35 Iii.

Adm. Code

742

for the

applicable

indicator

contaminants.

a)

The

Stage

1 site investigation

must

consist

of the following:

1)

Soil investigation.

V

V

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 field

screening

for

organic

vapors,

provided

that

borings

must be

drilled

below

the groundwater

table only

if site-

specific

conditions

warrant.

V

B)

Up

to two borings

must

be

drilled

around

each

UST

piping

run

where

one or

more piping

run samples

collected

pursuant to

Section

734.2 10(h)

exceed

the most

stringent

Tier 1

remediation

objectives

of 35

111. Adm.

12

---

•

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

V

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)(l)(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

fivefootV

interval.

All

samples

must

be

analyzed

for

the

applicable

indicator

contaminants.

2)

Groundwater

investigation.

A)

A groundwater investigation

is

required

under

the

following

circumstances:

V

V

V

i)

lbere is

evidence

that groundwater

wells

have

been

impacted

by

the release

above the

most

tringent

Tier I

remediation

objectives

of 35

Iii. Adm.

Code

742

for

the

applicable

indicator

contaminants;

V

V

V

V

ii)

Free product

that

may

impact

groundwater

is

found

to

need

recovery

in

compliance

with

Section

734.215

of

this

Part;

or

V

V

V

iii)

There

is

evidence

that

contaminated

soils

may

be or may

have

V

V

been in

contact

with

groundwater,

except

that,

if the

owner

or

V

V

operator

pumps

the

excavation

or tank

cavity

dry,

properly

V

disposes

of

V

all

contaminated

water,

and

demonstrates

to

the

Agency

that

no

recharge

is evident

duringthe

24

hours

following

pumping,

the

owner

or

operator

does

not

have

to complete

a

V

groundwater

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

V

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

iri

locations

where

they

are

most

likely

to

detect groundwater

contamination

13

---

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

nat

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

pursuan

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)

Eollowing

the

installation

of the

groundwater

monitoring

wells,

groundwater

samples

must

be

collected

from each

well

and analyzed

for

the

applicable

indicator

contaminants.

13)

As a

part of

the

groundwater investigation

an in-situ

hydraulic

conductivity

tcst 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.

14

V

---

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

734.3 30

of this

Pait 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

35 111.

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.

3$

Dl. Adm,

Code

734.320,

Stage 2 Site

Investigation,

states

as follows:

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

I

remediation

objectives

of. 35 III.

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

I

remediation

objectives

of

35

Ill.

Adm. Code

742,

for the

applicablç

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 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

35 111. 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:

15

---

1)

An

executive

summary

of

Stage

I 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.

I

remediation

objectives

of

35 Iii.

Adm.

Code

742

for

the

applicable

indicator

contaminants;

2)

A

characterization

of

the

site

and

surrounding

area,

inckiding,

but

not limited

to,

the

following’:

A)

The

current

and

projected

post-rernediation

uses

of

the

site

and

surrounding

properties;

and

B)

The

physióai

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

I site

investigation,

including

but

not

limited

to

the

following:

A)

‘

One

or more

site

maps

meeting

the

requirements

of

Section

734A40

that

show the

locations

of all

borings

and

groundwater

monitoring

wells

completed

to

date,

and

the

groundwater

flow

direction;

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

I

rcmcdiation objectives

of

35

IlL

Adm,

Code

742

for

the

applicable

indicator

contaminants;

ID)

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

I

remediation

objectives

of

35

Ill.

Adni.

Code

742

for

the

applicable

indicator

contaminants;

16

---

0)

Water

supply

well

survey

documentation required pursuant

to

Section

734.445(d)

of

this

Part

far

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

justiiing

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

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 Iii. Adnz,

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

I remediation

objectives

of 35

111.

Adni.

Code 742

as

a result of

the

release

extend

beyond

the

sit&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

cxceed

the

most

stringent

Tier I

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

I

rernediation

objectives

of

35

111.

Adm.

Code

742 as a

result

of the

release

extend

beyond

the

site’s

property

boundaries,

within

30 • days

after

the

17

---

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

734325

of this Part.

35 111 Adm.

Code734.325,

Stage 3 Site

Investigation, states as follows:

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 35 111. 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

m’st stringent Tier 1 remediation objectives

of 35 III. Adm. Code

742

for

the

applicable indicator contaminants. Soil samples

must

be collected

in

appropriate

locations

and

at appropriate

depths,

based

up6n 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

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

søIl

samples must