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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
| [ Senate Amendment 002 ] |
92_SB1968eng SB1968 Engrossed LRB9213215ACpk 1 AN ACT concerning environmental safety. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Environmental Protection Act is amended 5 by changing Sections 57.2, 57.7, 57.8, 57.10, 58.2, 58.6, 6 58.7, and 58.11 as follows: 7 (415 ILCS 5/57.2) 8 Sec. 57.2. Definitions. As used in this Title: 9 "Audit" means a systematic inspection or examination of 10 plans, reports, records, or documents to determine the 11 completeness and accuracy of the data and conclusions 12 contained therein. 13 "Bodily injury" means bodily injury, sickness, or disease 14 sustained by a person, including death at any time, resulting 15 from a release of petroleum from an underground storage tank. 16 "Release" means any spilling, leaking, emitting, 17 discharging, escaping, leaching or disposing of petroleum 18 from an underground storage tank into groundwater, surface 19 water or subsurface soils. 20 "Fill material" means non-native or disturbed materials 21 used to bed and backfill around an underground storage tank. 22 "Fund" means the Underground Storage Tank Fund. 23 "Heating Oil" means petroleum that is No. 1, No. 2, No. 4 24 - light, No. 4 - heavy, No. 5 - light, No. 5 - heavy or No. 6 25 technical grades of fuel oil; and other residual fuel oils 26 including Navy Special Fuel Oil and Bunker C. 27 "Indemnification" means indemnification of an owner or 28 operator for the amount of any judgment entered against the 29 owner or operator in a court of law, for the amount of any 30 final order or determination made against the owner or 31 operator by an agency of State government or any subdivision SB1968 Engrossed -2- LRB9213215ACpk 1 thereof, or for the amount of any settlement entered into by 2 the owner or operator, if the judgment, order, determination, 3 or settlement arises out of bodily injury or property damage 4 suffered as a result of a release of petroleum from an 5 underground storage tank owned or operated by the owner or 6 operator. 7 "Corrective action" means activities associated with 8 compliance with the provisions of Sections 57.6 and 57.7 of 9 this Title. 10 "Occurrence" means an accident, including continuous or 11 repeated exposure to conditions, that results in a sudden or 12 nonsudden release from an underground storage tank. 13 When used in connection with, or when otherwise relating 14 to, underground storage tanks, the terms "facility", "owner", 15 "operator", "underground storage tank", "(UST)", "petroleum" 16 and "regulated substance" shall have the meanings ascribed to 17 them in Subtitle I of the Hazardous and Solid Waste 18 Amendments of 1984 (P.L. 98-616), of the Resource 19 Conservation and Recovery Act of 1976 (P.L. 94-580); provided 20 however that the term "underground storage tank" shall also 21 mean an underground storage tank used exclusively to store 22 heating oil for consumptive use on the premises where stored 23 and which serves other than a farm or residential unit. 24 "Licensed Professional Engineer" means a person, 25 corporation, or partnership licensed under the laws of the 26 State of Illinois to practice professional engineering. 27 "Licensed Professional Geologist" means a person licensed 28 under the laws of the State of Illinois to practice as a 29 professional geologist. 30 "Site" means any single location, place, tract of land or 31 parcel of property including contiguous property not 32 separated by a public right-of-way. 33 "Physical soil classification" means verification that 34 subsurface strata are as generally mapped in the publication SB1968 Engrossed -3- LRB9213215ACpk 1 Illinois Geological Survey Circular (1984) titled "Potential 2 for Contamination of Shallow Aquifers in Illinois," by Berg, 3 Richard C., et al. Such classification may include review of 4 soil borings, well logs, physical soil analyses, regional 5 geologic maps, or other scientific publications. 6 "Property damage" means physical injury to, destruction 7 of, or contamination of tangible property, including all 8 resulting loss of use of that property; or loss of use of 9 tangible property that is not physically injured, destroyed, 10 or contaminated, but has been evacuated, withdrawn from use, 11 or rendered inaccessible because of a release of petroleum 12 from an underground storage tank. 13 "Class I Groundwater" means groundwater that meets the 14 Class I: Potable Resource Groundwater criteria set forth in 15 the Board regulations adopted pursuant to the Illinois 16 Groundwater Protection Act. 17 "Class III Groundwater" means groundwater that meets the 18 Class III: Special Resource Groundwater criteria set forth 19 in the Board regulations adopted pursuant to the Illinois 20 Groundwater Protection Act. 21 (Source: P.A. 88-496; 89-428, eff. 1-1-96; 89-457, eff. 22 5-22-96.) 23 (415 ILCS 5/57.7) 24 Sec. 57.7. Leaking underground storage tanks; physical 25 soil classification, groundwater investigation, site 26 classification, and corrective action. 27 (a) Physical soil classification and groundwater 28 investigation. 29 (1) Prior to conducting any physical soil 30 classification and groundwater investigation activities 31 required by statute or regulation, the owner or operator 32 shall prepare and submit to the Agency for the Agency's 33 approval or modification: SB1968 Engrossed -4- LRB9213215ACpk 1 (A) a physical soil classification and 2 groundwater investigation plan designed to 3 determine site classification, in accordance 4 with subsection (b) of this Section, as High 5 Priority, Low Priority, or No Further Action. 6 (B) a request for payment of costs 7 associated with eligible early action costs as 8 provided in Section 57.6(b). However, for 9 purposes of payment for early action costs, 10 fill materials shall not be removed in an 11 amount in excess of 4 feet from the outside 12 dimensions of the tank. 13 (2) If the owner or operator intends to seek 14 payment from the Fund, prior to conducting any physical 15 soil classification and groundwater investigation 16 activities required by statute or regulation, the owner 17 or operator shall submit to the Agency for the Agency's 18 approval or modification a physical soil classification 19 and groundwater investigation budget which includes, but 20 is not limited to, an accounting of all costs associated 21 with the implementation and completion of the physical 22 soil classification and groundwater investigation plan. 23 (3) Within 30 days of completion of the physical 24 soil classification or groundwater investigation report 25 the owner or operator shall submit to the Agency: 26 (A) all physical soil classification and 27 groundwater investigation results; and 28 (B) a certification by a Licensed Professional 29 Engineer or Licensed Professional Geologist of the 30 site's classification as High Priority, Low 31 Priority, or No Further Action in accordance with 32 subsection (b) of this Section as High Priority, Low 33 Priority, or No Further Action. 34 (b) Site Classification. SB1968 Engrossed -5- LRB9213215ACpk 1 (1) After evaluation of the physical soil 2 classification and groundwater investigation results, 3 when required, and general site information, the site 4 shall be classified as "No Further Action", "Low 5 Priority", or "High Priority" based on the requirements 6 of this Section. Site classification shall be determined 7 by a Licensed Professional Engineer or Licensed 8 Professional Geologist in accordance with the 9 requirements of this Title and the Licensed Professional 10 Engineer or Licensed Professional Geologist shall submit 11 a certification to the Agency of the site classification. 12 The Agency has the authority to audit site 13 classifications and reject or modify any site 14 classification inconsistent with the requirements of this 15 Title. 16 (2) Sites shall be classified as No Further Action 17 if the criteria in subparagraph (A) are satisfied: 18 (A)(i) The site is located in an area 19 designated D, E, F and G on the Illinois Geological 20 Survey Circular (1984) titled "Potential for 21 Contamination of Shallow Aquifers in Illinois," by 22 Berg, Richard C., et al.; 23 (ii) A site evaluation under the direction of 24 a Licensed Professional Engineer or Licensed 25 Professional Geologist verifies the physical soil 26 classification conditions are consistent with those 27 indicated on the Illinois Geological Survey Circular 28 (1984) titled "Potential for Contamination of 29 Shallow Aquifers in Illinois," by Berg, Richard C., 30 et al.; and 31 (iii) The conditions identified in subsections 32 (b) (3)(B), (C), (D), and (E) do not exist. 33 (B) Groundwater investigation monitoring may 34 be required to confirm that a site meets the SB1968 Engrossed -6- LRB9213215ACpk 1 criteria of a No Further Action site. The Board 2 shall adopt rules setting forth the criteria under 3 which the Agency may exercise its discretionary 4 authority to require investigations and the minimum 5 field requirements for conducting investigations. 6 (3) Sites shall be classified as High Priority if 7 any of the following are met: 8 (A) The site is located in an area designated 9 A1, A2, A3, A4, A5, AX, B1, B2, BX, C1, C2, C3, C4, 10 or C5 on the Illinois Geological Survey Circular 11 (1984) titled "Potential for Contamination of 12 Shallow Aquifers in Illinois," by Berg, Richard C., 13 et al.; a site evaluation under the direction of a 14 Licensed Professional Engineer or Licensed 15 Professional Geologist verifies the physical soil 16 classifications conditions are consistent with those 17 indicated on the Illinois Geological Survey Circular 18 (1984) entitled "Potential for Contamination of 19 Shallow Aquifers in Illinois," by Berg, Richard C., 20 et al.; and the results of the physical soil 21 classification and groundwater investigation 22 indicate that an applicable indicator contaminant 23 groundwater quality standard or groundwater 24 objective has been exceeded at the property boundary 25 line or 200 feet from the excavation, whichever is 26 less as a consequence of the underground storage 27 tank release. 28 (B) The underground storage tank is within the 29 minimum or maximum setback zone of a potable water 30 supply well or regulated recharge area of a potable 31 water supply well. 32 (C) There is evidence that, through natural or 33 manmade pathways, migration of petroleum or vapors 34 threaten human health or human safety or may cause SB1968 Engrossed -7- LRB9213215ACpk 1 explosions in basements, crawl spaces, utility 2 conduits, storm or sanitary sewers, vaults or other 3 confined spaces. 4 (D) Class III special resource groundwater 5 exists within 200 feet of the excavation. 6 (E) A surface water body is adversely affected 7 by the presence of a visible sheen or free product 8 layer as the result of an underground storage tank 9 release. 10 (4) Sites shall be classified as Low Priority if 11 all of the following are met: 12 (A) The site does not meet any of the criteria 13 for classification as a High Priority Site. 14 (B) (i) The site is located in area designated 15 A1, A2, A3, A4, A5, AX, B1, B2, BX, C1, C2, C3, C4, 16 C5 on the Illinois Geological Survey Circular (1984) 17 entitled "Potential for Contamination of Shallow 18 Aquifers in Illinois," by Berg, Richard C., et al.; 19 and 20 (ii) a site evaluation under the direction of 21 a Licensed Professional Engineer or Licensed 22 Professional Geologist verifies the physical soil 23 classification conditions are consistent with those 24 indicated on the Illinois Geological Survey Circular 25 (1984) titled "Potential for Contamination of 26 Shallow Aquifers in Illinois," by Berg, Richard C., 27 et al.; and 28 (iii) the results of the physical soil 29 classification and groundwater investigation do not 30 indicate an applicable indicator contaminant 31 groundwater quality standard or groundwater 32 objective has been exceeded at the property boundary 33 line or 200 feet from the underground storage tank, 34 whichever is less. SB1968 Engrossed -8- LRB9213215ACpk 1 (5) In the event the results of the physical soil 2 classification and any required groundwater investigation 3 reveal that the actual site geologic characteristics are 4 different than those indicated by the Illinois Geological 5 Survey Circular (1984) titled "Potential for 6 Contamination of Shallow Aquifers in Illinois" by Berg, 7 Richard C., et al., classification of the site shall be 8 determined using the actual site geologic 9 characteristics. 10 (6) For purposes of physical soil classification, 11 the Board is authorized to prescribe by regulation 12 alternatives to use of the Illinois Geological Survey 13 Circular (1984) titled "Potential for Contamination of 14 Shallow Aquifers in Illinois" by Berg, Richard C., et al. 15 (c) Corrective Action. 16 (1) High Priority Site. 17 (A) Prior to performance of any corrective 18 action, beyond that required by Section 57.6 and 19 subsection (a) of Section 57.7 of this Act, the 20 owner or operator shall prepare and submit to the 21 Agency for the Agency's approval or modification a 22 corrective action plan designed to mitigate any 23 threat to human health, human safety or the 24 environment resulting from the underground storage 25 tank release. 26 (B) If the owner or operator intends to seek 27 payment from the Fund, prior to performance of any 28 corrective action beyond that required by Section 29 57.6 and subsection (a) of Section 57.7, the owner 30 or operator shall submit to the Agency for the 31 Agency's approval or modification a corrective 32 action plan budget which includes, but is not 33 limited to, an accounting of all costs associated 34 with the implementation and completion of the SB1968 Engrossed -9- LRB9213215ACpk 1 corrective action plan. 2 (C) The corrective action plan shall do all of 3 the following: 4 (i) Provide that applicable indicator 5 contaminant groundwater quality standards or 6 groundwater objectives will not be exceeded in 7 groundwater at the property boundary line or 8 200 feet from the excavation, whichever is 9 less, or other level if approved by the Agency, 10 for any contaminant identified in the 11 groundwater investigation after complete 12 performance of the corrective action plan. 13 (ii) Provide that Class III special 14 resource groundwater quality standards for 15 Class III special resource groundwater within 16 200 feet of the excavation will not be exceeded 17 as a result of the underground storage tank 18 release for any indicator contaminant 19 identified in the groundwater investigation 20 after complete performance of the corrective 21 action plan. 22 (iii) Remediate threats due to the 23 presence or migration, through natural or 24 manmade pathways, of petroleum in 25 concentrations sufficient to harm human health 26 or human safety or to cause explosions in 27 basements, crawl spaces, utility conduits, 28 storm or sanitary sewers, vaults or other 29 confined spaces. 30 (iv) Remediate threats to a potable water 31 supply. 32 (v) Remediate threats to a surface water 33 body. 34 (D) Within 30 days of completion of the SB1968 Engrossed -10- LRB9213215ACpk 1 corrective action, the owner or operator shall 2 submit to the Agency such a completion report that 3 includes a description of the corrective action plan 4 and a description of the corrective action work 5 performed and all analytical or sampling results 6 derived from performance of the corrective action 7 plan. 8 (E) The Agency shall issue to the owner or 9 operator a no further remediation letter in 10 accordance with Section 57.10 if all of the 11 following are met: 12 (i) The corrective action completion 13 report demonstrates that: (a) applicable 14 indicator contaminant groundwater quality 15 standards or groundwater objectives are not 16 exceeded at the property boundary line or 200 17 feet from the excavation, whichever is less, as 18 a result of the underground storage tank 19 release for any indicator contaminant 20 identified in the groundwater investigation; 21 (b) Class III special use resource groundwater 22 quality standards, for Class III special use 23 resource groundwater within 200 feet of the 24 underground storage tank, are not exceeded as a 25 result of the underground storage tank release 26 for any contaminant identified in the 27 groundwater investigation; (c) the underground 28 storage tank release does not threaten human 29 health or human safety due to the presence or 30 migration, through natural or manmade pathways, 31 of petroleum or hazardous substances in 32 concentrations sufficient to harm human health 33 or human safety or to cause explosions in 34 basements, crawl spaces, utility conduits, SB1968 Engrossed -11- LRB9213215ACpk 1 storm or sanitary sewers, vaults or other 2 confined spaces; (d) the underground storage 3 tank release does not threaten any surface 4 water body; and (e) the underground storage 5 tank release does not threaten any potable 6 water supply. 7 (ii) The owner or operator submits to the 8 Agency a certification from a Licensed 9 Professional Engineer that the work described 10 in the approved corrective action plan has been 11 completed and that the information presented in 12 the corrective action completion report is 13 accurate and complete. 14 (2) Low Priority Site. 15 (A) Corrective action at a low priority site 16 must include groundwater monitoring consistent with 17 part (B) of this paragraph (2). 18 (B) Prior to implementation of groundwater 19 monitoring, the owner or operator shall prepare and 20 submit to the Agency a groundwater monitoring plan 21 and, if the owner or operator intends to seek 22 payment under this Title, an associated budget which 23 includes, at a minimum, all of the following: 24 (i) Placement of groundwater monitoring 25 wells at the property line, or at 200 feet from 26 the excavation which ever is closer, designed 27 to provide the greatest likelihood of detecting 28 migration of groundwater contamination. 29 (ii) Quarterly groundwater sampling for a 30 period of one year, semi-annual sampling for 31 the second year and annual groundwater sampling 32 for one subsequent year for all indicator 33 contaminants identified during the groundwater 34 investigation. SB1968 Engrossed -12- LRB9213215ACpk 1 (iii) The annual submittal to the Agency 2 of a summary of groundwater sampling results. 3 (C) If at any time groundwater sampling 4 results indicate a confirmed exceedence of 5 applicable indicator contaminant groundwater quality 6 standards or groundwater objectives as a result of 7 the underground storage tank release, the site may 8 be reclassified as a High Priority Site by the 9 Agency at any time before the Agency's final 10 approval of a Low Priority groundwater monitoring 11 completion report. Agency review and approval shall 12 be in accordance with paragraph (4) of subsection 13 (c) of this Section. If the owner or operator elects 14 to appeal an Agency action to disapprove, modify, or 15 reject by operation of law a Low Priority 16 groundwater monitoring completion report, the Agency 17 shall indicate to the Board in conjunction with such 18 appeal whether it intends to reclassify the site as 19 High Priority. If a site is reclassified as a High 20 Priority Site, the owner or operator shall submit a 21 corrective action plan and budget to the Agency 22 within 120 days of the confirmed exceedence and 23 shall initiate compliance with all corrective action 24 requirements for a High Priority Site. 25 (D) If, throughout the implementation of the 26 groundwater monitoring plan, the groundwater 27 sampling results do not confirm an exceedence of 28 applicable indicator contaminant groundwater quality 29 standards or groundwater objectives as a result of 30 the underground storage tank release, the owner or 31 operator shall submit to the Agency a certification 32 of a Licensed Professional Engineer or Licensed 33 Professional Geologist so stating. 34 (E) Unless the Agency takes action under SB1968 Engrossed -13- LRB9213215ACpk 1 subsection (b)(2)(C) to reclassify a site as high 2 priority, upon receipt of a certification by a 3 Licensed Professional Engineer or Licensed 4 Professional Geologist submitted pursuant to 5 paragraph (2) of subsection (c) of this Section, the 6 Agency shall issue to the owner or operator a no 7 further remediation letter in accordance with 8 Section 57.10. 9 (3) No Further Action Site. 10 (A) No Further Action sites require no 11 remediation beyond that required in Section 57.6 and 12 subsection (a) of this Section if the owner or 13 operator has submitted to the Agency a certification 14 by a Licensed Professional Engineer or Licensed 15 Professional Geologist that the site meets all of 16 the criteria for classification as No Further Action 17 in subsection (b) of this Section. 18 (B) Unless the Agency takes action to reject 19 or modify a site classification under subsection (b) 20 of this Section or the site classification is 21 rejected by operation of law under item (4)(B) of 22 subsection (c) of this Section, upon receipt of a 23 certification by a Licensed Professional Engineer or 24 Licensed Professional Geologist submitted pursuant 25 to part (A) of paragraph (3) of subsection (c) of 26 this Section, the Agency shall issue to the owner or 27 operator a no further remediation letter in 28 accordance with Section 57.10. 29 (4) Agency review and approval. 30 (A) Agency approval of any plan and associated 31 budget, as described in this item (4), shall be 32 considered final approval for purposes of seeking 33 and obtaining payment from the Underground Storage 34 Tank Fund if the costs associated with the SB1968 Engrossed -14- LRB9213215ACpk 1 completion of any such plan are less than or equal 2 to the amounts approved in such budget. 3 (B) In the event the Agency fails to approve, 4 disapprove, or modify any plan or report submitted 5 pursuant to this Title in writing within 120 days of 6 the receipt by the Agency, the plan or report shall 7 be considered to be rejected by operation of law for 8 purposes of this Title and rejected for purposes of 9 payment from theLeakingUnderground Storage Tank 10 Fund. 11 (i) For purposes of those plans as 12 identified in subparagraph (E) of this 13 subsection (c)(4), the Agency's review may be 14 an audit procedure. Such review or audit shall 15 be consistent with the procedure for such 16 review or audit as promulgated by the Board 17 under item (7) of subsection (b) of Section 18 57.14. The Agency has the authority to 19 establish an auditing program to verify 20 compliance of such plans with the provisions of 21 this Title. 22 (ii) For purposes of those plans 23 submitted pursuant to Part (E) (iii) of this 24 paragraph (4) for which payment from the Fund 25 is not being sought, the Agency need not take 26 action on such plan until 120 days after it 27 receives the corrective action completion 28 report required under Section 57(c)(1)(D). In 29 the event the Agency approved the plan, it 30 shall proceed under the provisions of Section 31 57(c)(4). 32 (C) In approving any plan submitted pursuant 33 to Part (E) of this paragraph (4), the Agency shall 34 determine, by a procedure promulgated by the Board SB1968 Engrossed -15- LRB9213215ACpk 1 under item (7) of subsection (b) of Section 57.14, 2 that the costs associated with the plan are 3 reasonable, will be incurred in the performance of 4 corrective action, and will not be used for 5 corrective action activities in excess of those 6 required to meet the minimum requirements of this 7 title. 8 (D) For any plan or report received after the 9 effective date of this amendatory Act of 1993, any 10 action by the Agency to disapprove or modify a plan 11 submitted pursuant to this Title shall be provided 12 to the owner or operator in writing within 120 days 13 of the receipt by the Agency or, in the case of a 14 corrective action plan for which payment is not 15 being sought, within 120 days of receipt of the 16 corrective action completion report, and shall be 17 accompanied by: 18 (i) an explanation of the Sections of 19 this Act which may be violated if the plans 20 were approved; 21 (ii) an explanation of the provisions of 22 the regulations, promulgated under this Act, 23 which may be violated if the plan were 24 approved; 25 (iii) an explanation of the specific type 26 of information, if any, which the Agency deems 27 the applicant did not provide the Agency; and 28 (iv) a statement of specific reasons why 29 the Act and the regulations might not be met if 30 the plan were approved. 31 Any action by the Agency to disapprove or 32 modify a plan or report or the rejection of any plan 33 or report by operation of law shall be subject to 34 appeal to the Board in accordance with the SB1968 Engrossed -16- LRB9213215ACpk 1 procedures of Section 40. If the owner or operator 2 elects to incorporate modifications required by the 3 Agency rather than appeal, an amended plan shall be 4 submitted to the Agency within 35 days of receipt of 5 the Agency's written notification. 6 (E) For purposes of this Title, the term 7 "plan" shall include: 8 (i) Any physical soil classification and 9 groundwater investigation plan submitted 10 pursuant to item (1)(A) of subsection (a) of 11 this Section, or budget under item (2) of 12 subsection (a) of this Section; 13 (ii) Any groundwater monitoring plan or 14 budget submitted pursuant to subsection 15 (c)(2)(B) of this Section; 16 (iii) Any corrective action plan 17 submitted pursuant to subsection (c)(1)(A) of 18 this Section; or 19 (iv) Any corrective action plan budget 20 submitted pursuant to subsection (c)(1)(B) of 21 this Section. 22 (d) For purposes of this Title, the term "indicator 23 contaminant" shall mean, unless and until the Board 24 promulgates regulations to the contrary, the following: (i) 25 if an underground storage tank contains gasoline, the 26 indicator parameter shall be BTEX and Benzene; (ii) if the 27 tank contained petroleum products consisting of middle 28 distillate or heavy ends, then the indicator parameter shall 29 be determined by a scan of PNA's taken from the location 30 where contamination is most likely to be present; and (iii) 31 if the tank contained used oil, then the indicator 32 contaminant shall be those chemical constituents which 33 indicate the type of petroleum stored in an underground 34 storage tank. All references in this Title to groundwater SB1968 Engrossed -17- LRB9213215ACpk 1 objectives shall mean Class I groundwater standards or 2 objectives as applicable. 3 (e) (1) Notwithstanding the provisions of this Section, 4 an owner or operator may proceed to conduct physical soil 5 classification, groundwater investigation, site 6 classification or other corrective action prior to the 7 submittal or approval of an otherwise required plan. If 8 the owner or operator elects to so proceed, an applicable 9 plan shall be filed with the Agency at any time. Such 10 plan shall detail the steps taken to determine the type 11 of corrective action which was necessary at the site 12 along with the corrective action taken or to be taken, in 13 addition to costs associated with activities to date and 14 anticipated costs. 15 (2) Upon receipt of a plan submitted after 16 activities have commenced at a site, the Agency shall 17 proceed to review in the same manner as required under 18 this Title. In the event the Agency disapproves all or 19 part of the costs, the owner or operator may appeal such 20 decision to the Board. The owner or operator shall not 21 be eligible to be reimbursed for such disapproved costs 22 unless and until the Board determines that such costs 23 were eligible for payment. 24 (Source: P.A. 88-496; 88-668, eff. 9-16-94; 89-428, eff. 25 1-1-96; 89-457, eff. 5-22-96; revised 1-25-02.) 26 (415 ILCS 5/57.8) 27 Sec. 57.8. Underground Storage Tank Fund; payment; 28 options for State payment; deferred correction election to 29 commence corrective action upon availability of funds. If an 30 owner or operator is eligible to access the Underground 31 Storage Tank Fund pursuant to an Office of State Fire Marshal 32 eligibility/deductible final determination letter issued in 33 accordance with Section 57.9, the owner or operator may SB1968 Engrossed -18- LRB9213215ACpk 1 submit a complete application for final or partial payment to 2 the Agency for activities taken in response to a confirmed 3 release. An owner or operator may submit a request for 4 partial or final payment regarding a site no more frequently 5 than once every 90 days. 6 (a) Payment after completion of corrective action 7 measures. The owner or operator may submit an application for 8 payment for activities performed at a site after completion 9 of the requirements of Sections 57.6 and 57.7, or after 10 completion of any other required activities at the 11 underground storage tank site. 12 (1) In the case of any approved plan and budget for 13 which payment is being sought, the Agency shall make a 14 payment determination within 120 days of receipt of the 15 application. Such determination shall be considered a 16 final decision. The Agency's review shall be limited to 17 generally accepted auditing and accounting practices. In 18 no case shall the Agency conduct additional review of any 19 plan which was completed within the budget, beyond 20 auditing for adherence to the corrective action measures 21 in the proposal. If the Agency fails to approve the 22 payment application within 120 days, such application 23 shall be deemed approved by operation of law and the 24 Agency shall proceed to reimburse the owner or operator 25 the amount requested in the payment application. 26 However, in no event shall the Agency reimburse the owner 27 or operator an amount greater than the amount approved in 28 the plan. 29 (2) If sufficient funds are available in the 30 Underground Storage Tank Fund, the Agency shall, within 31 60 days, forward to the Office of the State Comptroller a 32 voucher in the amount approved under the payment 33 application. 34 (3) In the case of insufficient funds, the Agency SB1968 Engrossed -19- LRB9213215ACpk 1 shall form a priority list for payment and shall notify 2 persons in such priority list monthly of the availability 3 of funds and when payment shall be made. Payment shall 4 be made to the owner or operator at such time as 5 sufficient funds become available for the costs 6 associated with corrective action and costs expended for 7 activities performed where no proposal is required, if 8 applicable. Such priority list shall be available to any 9 owner or operator upon request. Priority for payment 10 shall be determined by the date the Agency receives a 11 complete request for partial or final payment. Upon 12 receipt of notification from the Agency that the 13 requirements of this Title have been met, the Comptroller 14 shall make payment to the owner or operator of the amount 15 approved by the Agency, if sufficient money exists in the 16 Fund. If there is insufficient money in the Fund, then 17 payment shall not be made. If the owner or operator 18 appeals a final Agency payment determination and it is 19 determined that the owner or operator is eligible for 20 payment or additional payment, the priority date for the 21 payment or additional payment shall be the same as the 22 priority date assigned to the original request for 23 partial or final payment. 24 (4) Any deductible, as determined pursuant to the 25 Office of the State Fire Marshal's eligibility and 26 deductibility final determination in accordance with 27 Section 57.9, shall be subtracted from any payment 28 invoice paid to an eligible owner or operator. Only one 29 deductible shall apply per underground storage tank site. 30 (5) In the event that costs are or will be incurred 31 in addition to those approved by the Agency, or after 32 payment, the owner or operator may submit successive 33 plans containing amended budgets. The requirements of 34 Section 57.7 shall apply to any amended plans. SB1968 Engrossed -20- LRB9213215ACpk 1 (6) For purposes of this Section, a complete 2 application shall consist of: 3 (A) A certification from a Licensed 4 Professional Engineer or Licensed Professional 5 Geologist as required under this Title and 6 acknowledged by the owner or operator. 7 (B) A statement of the amount approved in the 8 plan and the amount actually sought for payment 9 along with a certified statement that the amount so 10 sought shall be expended in conformance with the 11 approved budget. 12 (C) A copy of the Office of the State Fire 13 Marshal's eligibility and deductibility 14 determination. 15 (D) Proof that approval of the payment 16 requested will not result in the limitations set 17 forth in subsection (g) of this Section being 18 exceeded. 19 (E) A federal taxpayer identification number 20 and legal status disclosure certification on a form 21 prescribed and provided by the Agency. 22 (b) Commencement of corrective action upon availability 23 of funds. The Board shall adopt regulations setting forth 24 procedures based on risk to human health or the environment 25 under which the owner or operator who has received approval 26 for any budget plan submitted pursuant to Section 57.7, and 27 who is eligible for payment from the Underground Storage Tank 28 Fund pursuant to an Office of the State Fire Marshal 29 eligibility and deductibility determination, may elect to 30 defer site classification, low priority groundwater 31 monitoring, or remediation activities until funds are 32 available in an amount equal to the amount approved in the 33 budget plan. The regulations shall establish criteria based 34 on risk to human health or the environment to be used for SB1968 Engrossed -21- LRB9213215ACpk 1 determining on a site-by-site basis whether deferral is 2 appropriate. The regulations also shall establish the 3 minimum investigatory requirements for determining whether 4 the risk based criteria are present at a site considering 5 deferral and procedures for the notification of owners or 6 operators of insufficient funds, Agency review of request for 7 deferral, notification of Agency final decisions, returning 8 deferred sites to active status, and earmarking of funds for 9 payment. 10 (c) When the owner or operator requests indemnification 11 for payment of costs incurred as a result of a release of 12 petroleum from an underground storage tank, if the owner or 13 operator has satisfied the requirements of subsection (a) of 14 this Section, the Agency shall forward a copy of the request 15 to the Attorney General. The Attorney General shall review 16 and approve the request for indemnification if: 17 (1) there is a legally enforceable judgment entered 18 against the owner or operator and such judgment was 19 entered due to harm caused by a release of petroleum from 20 an underground storage tank and such judgment was not 21 entered as a result of fraud; or 22 (2) a settlement with a third party due to a 23 release of petroleum from an underground storage tank is 24 reasonable. 25 (d) Notwithstanding any other provision of this Title, 26 the Agency shall not approve payment to an owner or operator 27 from the Fund for costs of corrective action or 28 indemnification incurred during a calendar year in excess of 29 the following aggregate amounts based on the number of 30 petroleum underground storage tanks owned or operated by such 31 owner or operator in Illinois. 32 Amount Number of Tanks 33 $1,000,000............................fewer than 101 34 $2,000,000...............................101 or more SB1968 Engrossed -22- LRB9213215ACpk 1 (1) Costs incurred in excess of the aggregate 2 amounts set forth in paragraph (1) of this subsection 3 shall not be eligible for payment in subsequent years. 4 (2) For purposes of this subsection, requests 5 submitted by any of the agencies, departments, boards, 6 committees or commissions of the State of Illinois shall 7 be acted upon as claims from a single owner or operator. 8 (3) For purposes of this subsection, owner or 9 operator includes (i) any subsidiary, parent, or joint 10 stock company of the owner or operator and (ii) any 11 company owned by any parent, subsidiary, or joint stock 12 company of the owner or operator. 13 (e) Costs of corrective action or indemnification 14 incurred by an owner or operator which have been paid to an 15 owner or operator under a policy of insurance, another 16 written agreement, or a court order are not eligible for 17 payment under this Section. An owner or operator who 18 receives payment under a policy of insurance, another written 19 agreement, or a court order shall reimburse the State to the 20 extent such payment covers costs for which payment was 21 received from the Fund. Any monies received by the State 22 under this subsection (e) shall be deposited into the Fund. 23 (f) Until the Board adopts regulations pursuant to 24 Section 57.14, handling charges are eligible for payment only 25 if they are equal to or less than the amount determined by 26 the following table: 27 Subcontract or field Eligible Handling Charges 28 Purchase Cost as a Percentage of Cost 29 $0 - $5,000...........................................12% 30 $5,001 - $15,000.............$600+10% of amt. over $5,000 31 $15,001 - $50,000...........$1600+8% of amt. over $15,000 32 $50,001 - $100,000..........$4400+5% of amt. over $50,000 33 $100,001 - $1,000,000......$6900+2% of amt. over $100,000 34 (g) The Agency shall not approve any payment from the SB1968 Engrossed -23- LRB9213215ACpk 1 Fund to pay an owner or operator: 2 (1) for costs of corrective action incurred by such 3 owner or operator in an amount in excess of $1,000,000 4 per occurrence; and 5 (2) for costs of indemnification of such owner or 6 operator in an amount in excess of $1,000,000 per 7 occurrence. 8 (h) Payment of any amount from the Fund for corrective 9 action or indemnification shall be subject to the State 10 acquiring by subrogation the rights of any owner, operator, 11 or other person to recover the costs of corrective action or 12 indemnification for which the Fund has compensated such 13 owner, operator, or person from the person responsible or 14 liable for the release. 15 (i) If the Agency refuses to pay or authorizes only a 16 partial payment, the affected owner or operator may petition 17 the Board for a hearing in the manner provided for the review 18 of permit decisions in Section 40 of this Act. 19 (j) Costs of corrective action or indemnification 20 incurred by an owner or operator prior to July 28, 1989, 21 shall not be eligible for payment or reimbursement under this 22 Section. 23 (k) The Agency shall not pay costs of corrective action 24 or indemnification incurred before providing notification of 25 the release of petroleum in accordance with the provisions of 26 this Title. 27 (l) Corrective action does not include legal defense 28 costs. Legal defense costs include legal costs for seeking 29 payment under this Title unless the owner or operator 30 prevails before the Board in which case the Board may 31 authorize payment of legal fees. 32 (m) The Agency may apportion payment of costs for plans 33 submitted under Section 57.7(c)(4)(E)(iii) if: 34 (1) the owner or operator was deemed eligible to SB1968 Engrossed -24- LRB9213215ACpk 1 access the Fund for payment of corrective action costs 2 for some, but not all, of the underground storage tanks 3 at the site; and 4 (2) the owner or operator failed to justify all 5 costs attributable to each underground storage tank at 6 the site. 7 (Source: P.A. 91-357, eff. 7-29-99.) 8 (415 ILCS 5/57.10) 9 Sec. 57.10. Professional Engineer or Professional 10 Geologist certification; presumptions against liability. 11 (a) Within 120 days of the Agency's receipt of a No 12 Further Action site classification report, a Low Priority 13 groundwater monitoring report, or a High Priority corrective 14 action completion report, the Agency shall issue to the owner 15 or operator a "no further remediation letter" unless the 16 Agency has requested a modification, issued a rejection under 17 subsection (d) of this Section, or the report has been 18 rejected by operation of law. 19 (b) By certifying such a statement, a Licensed 20 Professional Engineer or Licensed Professional Geologist 21 shall in no way be liable thereon, unless the engineer or 22 geologist gave such certification despite his or her actual 23 knowledge that the performed measures were not in compliance 24 with applicable statutory or regulatory requirements or any 25 plan submitted to the Agency. 26 (c) The Agency's issuance of a no further remediation 27 letter shall signify, based on the certification of the 28 Licensed Professional Engineer, that: 29 (1) all statutory and regulatory corrective 30 action requirements applicable to the occurrence have 31 been complied with; 32 (2) all corrective action concerning the 33 remediation of the occurrence has been completed; and SB1968 Engrossed -25- LRB9213215ACpk 1 (3) no further corrective action concerning the 2 occurrence is necessary for the protection of human 3 health, safety and the environment. 4 (d) The no further remediation letter issued under this 5 Section shall apply in favor of the following parties: 6 (1) The owner or operator to whom the letter was 7 issued. 8 (2) Any parent corporation or subsidiary of such 9 owner or operator. 10 (3) Any co-owner or co-operator, either by joint 11 tenancy, right-of-survivorship, or any other party 12 sharing a legal relationship with the owner or operator 13 to whom the letter is issued. 14 (4) Any holder of a beneficial interest of a land 15 trust or inter vivos trust whether revocable or 16 irrevocable. 17 (5) Any mortgagee or trustee of a deed of trust of 18 such owner or operator. 19 (6) Any successor-in-interest of such owner or 20 operator. 21 (7) Any transferee of such owner or operator 22 whether the transfer was by sale, bankruptcy proceeding, 23 partition, dissolution of marriage, settlement or 24 adjudication of any civil action, charitable gift, or 25 bequest. 26 (8) Any heir or devisee or such owner or operator. 27 (e) If the Agency notifies the owner or operator that 28 the "no further remediation" letter has been rejected, the 29 grounds for such rejection shall be described in the notice. 30 Such a decision shall be a final determination which may be 31 appealed by the owner or operator. 32 (f) The Board shall adopt rules setting forth the 33 criteria under which the Agency may require an owner or 34 operator to conduct further investigation or remediation SB1968 Engrossed -26- LRB9213215ACpk 1 related to a release for which a no further remediation 2 letter has been issued. 3 (g) Holders of security interests in sites subject to 4 the requirements of this Title XVI shall be entitled to the 5 same protections and subject to the same responsibilities 6 provided under general regulations promulgated under Subtitle 7 I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 8 98-616) of the Resource Conservation and Recovery Act of 1976 9 (P.L. 94-580). 10 (Source: P.A. 88-496; 89-428, eff. 1-1-96; 89-457, eff. 11 5-22-96.) 12 (415 ILCS 5/58.2) 13 Sec. 58.2. Definitions. The following words and phrases 14 when used in this Title shall have the meanings given to them 15 in this Section unless the context clearly indicates 16 otherwise: 17 "Agrichemical facility" means a site on which 18 agricultural pesticides are stored or handled, or both, in 19 preparation for end use, or distributed. The term does not 20 include basic manufacturing facility sites. 21 "ASTM" means the American Society for Testing and 22 Materials. 23 "Area background" means concentrations of regulated 24 substances that are consistently present in the environment 25 in the vicinity of a site that are the result of natural 26 conditions or human activities, and not the result solely of 27 releases at the site. 28 "Brownfields site" or "brownfields" means a parcel of 29 real property, or a portion of the parcel, that has actual or 30 perceived contamination and an active potential for 31 redevelopment. 32 "Class I groundwater" means groundwater that meets the 33 Class I Potable Resource groundwater criteria set forth in SB1968 Engrossed -27- LRB9213215ACpk 1 the Board rules adopted under the Illinois Groundwater 2 Protection Act. 3 "Class III groundwater" means groundwater that meets the 4 Class III Special Resource Groundwater criteria set forth in 5 the Board rules adopted under the Illinois Groundwater 6 Protection Act. 7 "Carcinogen" means a contaminant that is classified as a 8 Category A1 or A2 Carcinogen by the American Conference of 9 Governmental Industrial Hygienists; or a Category 1 or 2A/2B 10 Carcinogen by the World Health Organizations International 11 Agency for Research on Cancer; or a "Human Carcinogen" or 12 "Anticipated Human Carcinogen" by the United States 13 Department of Health and Human Service National Toxicological 14 Program; or a Category A or B1/B2 Carcinogen by the United 15 States Environmental Protection Agency in Integrated Risk 16 Information System or a Final Rule issued in a Federal 17 Register notice by the USEPA as of the effective date of this 18 amendatory Act of 1995. 19 "Licensed Professional Engineer" (LPE) means a person, 20 corporation, or partnership licensed under the laws of this 21 State to practice professional engineering. 22 "Licensed Professional Geologist" means a person licensed 23 under the laws of the State of Illinois to practice as a 24 professional geologist. 25 "RELPEG" means a Licensed Professional Engineer or a 26 Licensed Professional Geologist engaged in review and 27 evaluation under this Title. 28 "Man-made pathway" means constructed routes that may 29 allow for the transport of regulated substances including, 30 but not limited to, sewers, utility lines, utility vaults, 31 building foundations, basements, crawl spaces, drainage 32 ditches, or previously excavated and filled areas. 33 "Municipality" means an incorporated city, village, or 34 town in this State. "Municipality" does not mean a township, SB1968 Engrossed -28- LRB9213215ACpk 1 town when that term is used as the equivalent of a township, 2 incorporated town that has superseded a civil township, 3 county, or school district, park district, sanitary district, 4 or similar governmental district. 5 "Natural pathway" means natural routes for the transport 6 of regulated substances including, but not limited to, soil, 7 groundwater, sand seams and lenses, and gravel seams and 8 lenses. 9 "Person" means individual, trust, firm, joint stock 10 company, joint venture, consortium, commercial entity, 11 corporation (including a government corporation), 12 partnership, association, State, municipality, commission, 13 political subdivision of a State, or any interstate body 14 including the United States Government and each department, 15 agency, and instrumentality of the United States. 16 "Regulated substance" means any hazardous substance as 17 defined under Section 101(14) of the Comprehensive 18 Environmental Response, Compensation, and Liability Act of 19 1980 (P.L. 96-510) and petroleum products including crude oil 20 or any fraction thereof, natural gas, natural gas liquids, 21 liquefied natural gas, or synthetic gas usable for fuel (or 22 mixtures of natural gas and such synthetic gas). 23 "Remedial action" means activities associated with 24 compliance with the provisions of Sections 58.6 and 58.7. 25 "Remediation Applicant" (RA) means any person seeking to 26 perform or performing investigative or remedial activities 27 under this Title, including the owner or operator of the site 28 or persons authorized by law or consent to act on behalf of 29 or in lieu of the owner or operator of the site. 30 "Remediation costs" means reasonable costs paid for 31 investigating and remediating regulated substances of concern 32 consistent with the remedy selected for a site. For purposes 33 of Section 58.14, "remediation costs" shall not include costs 34 incurred prior to January 1, 1998, costs incurred after the SB1968 Engrossed -29- LRB9213215ACpk 1 issuance of a No Further Remediation Letter under Section 2 58.10 of this Act, or costs incurred more than 12 months 3 prior to acceptance into the Site Remediation Program. 4 "Residential property" means any real property that is 5 used for habitation by individuals and other property uses 6 defined by Board rules such as education, health care, child 7 care and related uses. 8 "Site" means any single location, place, tract of land or 9 parcel of property, or portion thereof, including contiguous 10 property separated by a public right-of-way. 11 "Regulated substance of concern" means any contaminant 12 that is expected to be present at the site based upon past 13 and current land uses and associated releases that are known 14 to the Remediation Applicant based upon reasonable inquiry. 15 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 16 90-123, eff. 7-21-97.) 17 (415 ILCS 5/58.6) 18 Sec. 58.6. Remedial investigations and reports. 19 (a) Any RA who proceeds under this Title may elect to 20 seek review and approval for any of the remediation 21 objectives provided in Section 58.5 for any or all regulated 22 substances of concern. The RA shall conduct investigations 23 and remedial activities for regulated substances of concern 24 and prepare plans and reports in accordance with this Section 25 and rules adopted hereunder. The RA shall submit the plans 26 and reports for review and approval in accordance with 27 Section 58.7. All investigations, plans, and reports 28 conducted or prepared under this Section shall be under the 29 supervision of a Licensed Professional Engineer (LPE) or, in 30 the case of a site investigation only, a Licensed 31 Professional Geologist in accordance with the requirements of 32 this Title. 33 (b) (1) Site investigation and Site Investigation SB1968 Engrossed -30- LRB9213215ACpk 1 Report. The RA shall conduct a site investigation to 2 determine the significant physical features of the site 3 and vicinity that may affect contaminant transport and 4 risk to human health, safety, and the environment and to 5 determine the nature, concentration, direction and rate 6 of movement, and extent of the contamination at the site. 7 (2) The RA shall compile the results of the 8 investigations into a Site Investigation Report. At a 9 minimum, the reports shall include the following, as 10 applicable: 11 (A) Executive summary; 12 (B) Site history; 13 (C) Site-specific sampling methods and 14 results; 15 (D) Documentation of field activities, 16 including quality assurance project plan; 17 (E) Interpretation of results; and 18 (F) Conclusions. 19 (c) Remediation Objectives Report. 20 (1) If a RA elects to determine remediation 21 objectives appropriate for the site using the Tier II or 22 Tier III procedures under subsection (d) of Section 23 58.5, the RA shall develop such remediation objectives 24 based on site-specific information. In support of such 25 remediation objectives, the RA shall prepare a 26 Remediation Objectives Report demonstrating how the 27 site-specific objectives were calculated or otherwise 28 determined. 29 (2) If a RA elects to determine remediation 30 objectives appropriate for the site using the area 31 background procedures under subsection (b) of Section 32 58.5, the RA shall develop such remediation objectives 33 based on site-specific literature review, sampling 34 protocol, or appropriate statistical methods in SB1968 Engrossed -31- LRB9213215ACpk 1 accordance with Board rules. In support of such 2 remediation objectives, the RA shall prepare a 3 Remediation Objectives Report demonstrating how the area 4 background remediation objectives were determined. 5 (d) Remedial Action Plan. If the approved remediation 6 objectives for any regulated substance established under 7 Section 58.5 are less than the levels existing at the site 8 prior to any remedial action, the RA shall prepare a Remedial 9 Action Plan. The Remedial Action Plan shall describe the 10 selected remedy and evaluate its ability and effectiveness to 11 achieve the remediation objectives approved for the site. At 12 a minimum, the reports shall include the following, as 13 applicable: 14 (1) Executive summary; 15 (2) Statement of remediation objectives; 16 (3) Remedial technologies selected; 17 (4) Confirmation sampling plan; 18 (5) Current and projected future use of the 19 property; and 20 (6) Applicable preventive, engineering, and 21 institutional controls including long-term reliability, 22 operating, and maintenance plans, and monitoring 23 procedures. 24 (e) Remedial Action Completion Report. 25 (1) Upon completion of the Remedial Action Plan, 26 the RA shall prepare a Remedial Action Completion Report. 27 The report shall demonstrate whether the remedial action 28 was completed in accordance with the approved Remedial 29 Action Plan and whether the remediation objectives, as 30 well as any other requirements of the plan, have been 31 attained. 32 (2) If the approved remediation objectives for the 33 regulated substances of concern established under Section 34 58.5 are equal to or above the levels existing at the SB1968 Engrossed -32- LRB9213215ACpk 1 site prior to any remedial action, notification and 2 documentation of such shall constitute the entire 3 Remedial Action Completion Report for purposes of this 4 Title. 5 (f) Ability to proceed. The RA may elect to prepare and 6 submit for review and approval any and all reports or plans 7 required under the provisions of this Section individually, 8 following completion of each such activity; concurrently, 9 following completion of all activities; or in any other 10 combination. In any event, the review and approval process 11 shall proceed in accordance with Section 58.7 and rules 12 adopted thereunder. 13 (g) Nothing in this Section shall prevent an RA from 14 implementing or conducting an interim or any other remedial 15 measure prior to election to proceed under Section 58.6. 16 (h) In accordance with Section 58.11, the Agency shall 17 propose and the Board shall adopt rules to carry out the 18 purposes of this Section. 19 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96.) 20 (415 ILCS 5/58.7) 21 Sec. 58.7. Review and approvals. 22 (a) Requirements. All plans and reports that are 23 submitted pursuant to this Title shall be submitted for 24 review or approval in accordance with this Section. 25 (b) Review and evaluation by the Agency. 26 (1) Except for sites excluded under subdivision (a) 27 (2) of Section 58.1, the Agency shall, subject to 28 available resources, agree to provide review and 29 evaluation services for activities carried out pursuant 30 to this Title for which the RA requested the services in 31 writing. As a condition for providing such services, the 32 Agency may require that the RA for a site: 33 (A) Conform with the procedures of this Title; SB1968 Engrossed -33- LRB9213215ACpk 1 (B) Allow for or otherwise arrange site visits 2 or other site evaluation by the Agency when so 3 requested; 4 (C) Agree to perform the work plan as approved 5 under this Title; 6 (D) Agree to pay any reasonable costs incurred 7 and documented by the Agency in providing such 8 services; 9 (E) Make an advance partial payment to the 10 Agency for such anticipated services in an amount, 11 acceptable to the Agency, but not to exceed $5,000 12 or one-half of the total anticipated costs of the 13 Agency, whichever sum is less; and 14 (F) Demonstrate, if necessary, authority to 15 act on behalf of or in lieu of the owner or 16 operator. 17 (2) Any moneys received by the State for costs 18 incurred by the Agency in performing review or evaluation 19 services for actions conducted pursuant to this Title 20 shall be deposited in the Hazardous Waste Fund. 21 (3) An RA requesting services under subdivision (b) 22 (1) of this Section may, at any time, notify the Agency, 23 in writing, that Agency services previously requested are 24 no longer wanted. Within 180 days after receipt of the 25 notice, the Agency shall provide the RA with a final 26 invoice for services provided until the date of such 27 notifications. 28 (4) The Agency may invoice or otherwise request or 29 demand payment from a RA for costs incurred by the Agency 30 in performing review or evaluation services for actions 31 by the RA at sites only if: 32 (A) The Agency has incurred costs in 33 performing response actions, other than review or 34 evaluation services, due to the failure of the RA to SB1968 Engrossed -34- LRB9213215ACpk 1 take response action in accordance with a notice 2 issued pursuant to this Act; 3 (B) The RA has agreed in writing to the 4 payment of such costs; 5 (C) The RA has been ordered to pay such costs 6 by the Board or a court of competent jurisdiction 7 pursuant to this Act; or 8 (D) The RA has requested or has consented to 9 Agency review or evaluation services under 10 subdivision (b) (1) of this Section. 11 (5) The Agency may, subject to available resources, 12 agree to provide review and evaluation services for 13 response actions if there is a written agreement among 14 parties to a legal action or if a notice to perform a 15 response action has been issued by the Agency. 16 (c) Review and evaluation by a Licensed Professional 17 Engineer or Licensed Professional Geologist. A RA may elect 18 to contract with a Licensed Professional Engineer or, in the 19 case of a site investigation report only, a Licensed 20 Professional Geologist, who will perform review and 21 evaluation services on behalf of and under the direction of 22 the Agency relative to the site activities. 23 (1) Prior to entering into the contract with the 24 RELPEGReview and Evaluation Licensed Professional25Engineer (RELPE), the RA shall notify the Agency of the 26 RELPEGRELPEto be selected. The Agency and the RA shall 27 discuss the potential terms of the contract. 28 (2) At a minimum, the contract with the RELPEG 29RELPEshall provide that the RELPEGRELPEwill submit 30 any reports directly to the Agency, will take his or her 31 directions for work assignments from the Agency, and will 32 perform the assigned work on behalf of the Agency. 33 (3) Reasonable costs incurred by the Agency shall 34 be paid by the RA directly to the Agency in accordance SB1968 Engrossed -35- LRB9213215ACpk 1 with the terms of the review and evaluation services 2 agreement entered into under subdivision (b) (1) of 3 Section 58.7. 4 (4) In no event shall the RELPEGRELPEacting on 5 behalf of the Agency be an employee of the RA or the 6 owner or operator of the site or be an employee of any 7 other person the RA has contracted to provide services 8 relative to the site. 9 (d) Review and approval. All reviews required under 10 this Title shall be carried out by the Agency or a RELPEG 11RELPE, both under the direction of a Licensed Professional 12 Engineer or, in the case of the review of a site 13 investigation only, a Licensed Professional Geologist. 14 (1) All review activities conducted by the Agency 15 or a RELPEGRELPEshall be carried out in conformance 16 with this Title and rules promulgated under Section 17 58.11. 18 (2) Subject to the limitations in subsection (c) 19 and this subsection (d), the specific plans, reports, and 20 activities thatwhichthe Agency or a RELPEGRELPEmay 21 review include: 22 (A) Site Investigation Reports and related 23 activities; 24 (B) Remediation Objectives Reports; 25 (C) Remedial Action Plans and related 26 activities; and 27 (D) Remedial Action Completion Reports and 28 related activities. 29 (3) Only the Agency shall have the authority to 30 approve, disapprove, or approve with conditions a plan 31 or report as a result of the review process including 32 those plans and reports reviewed by a RELPEGRELPE. If 33 the Agency disapproves a plan or report or approves a 34 plan or report with conditions, the written notification SB1968 Engrossed -36- LRB9213215ACpk 1 required by subdivision (d) (4) of this Section shall 2 contain the following information, as applicable: 3 (A) An explanation of the Sections of this 4 Title that may be violated if the plan or report was 5 approved; 6 (B) An explanation of the provisions of the 7 rules promulgated under this Title that may be 8 violated if the plan or report was approved; 9 (C) An explanation of the specific type of 10 information, if any, that the Agency deems the 11 applicant did not provide the Agency; 12 (D) A statement of specific reasons why the 13 Title and regulations might not be met if the plan 14 or report were approved; and 15 (E) An explanation of the reasons for 16 conditions if conditions are required. 17 (4) Upon approving, disapproving, or approving with 18 conditions a plan or report, the Agency shall notify the 19 RA in writing of its decision. In the case of approval 20 or approval with conditions of a Remedial Action 21 Completion Report, the Agency shall prepare a No Further 22 Remediation Letter that meets the requirements of Section 23 58.10 and send a copy of the letter to the RA. 24 (5) All reviews undertaken by the Agency or a 25 RELPEGRELPEshall be completed and the decisions 26 communicated to the RA within 60 days of the request for 27 review or approval. The RA may waive the deadline upon a 28 request from the Agency. If the Agency disapproves or 29 approves with conditions a plan or report or fails to 30 issue a final decision within the 60 day period and the 31 RA has not agreed to a waiver of the deadline, the RA 32 may, within 35 days, file an appeal to the Board. 33 Appeals to the Board shall be in the manner provided for 34 the review of permit decisions in Section 40 of this Act. SB1968 Engrossed -37- LRB9213215ACpk 1 (e) Standard of review. In making determinations, the 2 following factors, and additional factors as may be adopted 3 by the Board in accordance with Section 58.11, shall be 4 considered by the Agency when reviewing or approving plans, 5 reports, and related activities, or the RELPEGRELPE, when 6 reviewing plans, reports, and related activities: 7 (1) Site Investigation Reports and related 8 activities: Whether investigations have been conducted 9 and the results compiled in accordance with the 10 appropriate procedures and whether the interpretations 11 and conclusions reached are supported by the information 12 gathered. In making the determination, the following 13 factors shall be considered: 14 (A) The adequacy of the description of the 15 site and site characteristics that were used to 16 evaluate the site; 17 (B) The adequacy of the investigation of 18 potential pathways and risks to receptors identified 19 at the site; and 20 (C) The appropriateness of the sampling and 21 analysis used. 22 (2) Remediation Objectives Reports: Whether the 23 remediation objectives are consistent with the 24 requirements of the applicable method for selecting or 25 determining remediation objectives under Section 58.5. 26 In making the determination, the following factors shall 27 be considered: 28 (A) If the objectives were based on the 29 determination of area background levels under 30 subsection (b) of Section 58.5, whether the review 31 of current and historic conditions at or in the 32 immediate vicinity of the site has been thorough and 33 whether the site sampling and analysis has been 34 performed in a manner resulting in accurate SB1968 Engrossed -38- LRB9213215ACpk 1 determinations; 2 (B) If the objectives were calculated on the 3 basis of predetermined equations using site specific 4 data, whether the calculations were accurately 5 performed and whether the site specific data reflect 6 actual site conditions; and 7 (C) If the objectives were determined using a 8 site specific risk assessment procedure, whether the 9 procedure used is nationally recognized and 10 accepted, whether the calculations were accurately 11 performed, and whether the site specific data 12 reflect actual site conditions. 13 (3) Remedial Action Plans and related activities: 14 Whether the plan will result in compliance with this 15 Title, and rules adopted under it and attainment of the 16 applicable remediation objectives. In making the 17 determination, the following factors shall be considered: 18 (A) The likelihood that the plan will result 19 in the attainment of the applicable remediation 20 objectives; 21 (B) Whether the activities proposed are 22 consistent with generally accepted engineering 23 practices; and 24 (C) The management of risk relative to any 25 remaining contamination, including but not limited 26 to, provisions for the long-term enforcement, 27 operation, and maintenance of institutional and 28 engineering controls, if relied on. 29 (4) Remedial Action Completion Reports and related 30 activities: Whether the remedial activities have been 31 completed in accordance with the approved Remedial Action 32 Plan and whether the applicable remediation objectives 33 have been attained. 34 (f) All plans and reports submitted for review shall SB1968 Engrossed -39- LRB9213215ACpk 1 include a Licensed Professional Engineer's certification that 2 all investigations and remedial activities were carried out 3 under his or her direction and, to the best of his or her 4 knowledge and belief, the work described in the plan or 5 report has been completed in accordance with generally 6 accepted engineering practices, and the information presented 7 is accurate and complete. In the case of a site investigation 8 report prepared or supervised by a Licensed Professional 9 Geologist, the required certification may be made by the 10 Licensed Professional Geologist (rather than a Licensed 11 Professional Engineer) and based upon generally accepted 12 principles of professional geology. 13 (g) In accordance with Section 58.11, the Agency shall 14 propose and the Board shall adopt rules to carry out the 15 purposes of this Section. At a minimum, the rules shall 16 detail the types of services the Agency may provide in 17 response to requests under subdivision (b) (1) of this 18 Section and the recordkeeping it will utilize in documenting 19 to the RA the costs incurred by the Agency in providing such 20 services. Until the Board adopts the rules, the Agency may 21 continue to offer services of the type offered under 22 subsections (m) and (n) of Section 22.2 of this Act prior to 23 their repeal. 24 (h) Public participation. 25 (1) The Agency shall develop guidance to assist 26 RA's in the implementation of a community relations plan 27 to address activity at sites undergoing remedial action 28 pursuant to this Title. 29 (2) The RA may elect to enter into a services 30 agreement with the Agency for Agency assistance in 31 community outreach efforts. 32 (3) The Agency shall maintain a registry listing 33 those sites undergoing remedial action pursuant to this 34 Title. SB1968 Engrossed -40- LRB9213215ACpk 1 (4) Notwithstanding any provisions of this Section, 2 the RA of a site undergoing remedial activity pursuant to 3 this Title may elect to initiate a community outreach 4 effort for the site. 5 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 6 89-626, eff. 8-9-96.) 7 (415 ILCS 5/58.11) 8 Sec. 58.11. Regulations and Site Remediation Advisory 9 Committee. 10 (a) There is hereby established a 10-member Site 11 Remediation Advisory Committee, which shall be appointed by 12 the Governor. The Committee shall include one member 13 recommended by the Illinois State Chamber of Commerce, one 14 member recommended by the Illinois Manufacturers' 15 Association, one member recommended by the Chemical Industry 16 Council of Illinois, one member recommended by the Consulting 17 Engineers Council of Illinois, one member recommended by the 18 Illinois Bankers Association, one member recommended by the 19 Community Bankers Association of Illinois, one member 20 recommended by the National Solid Waste Management 21 Association, and 3 other members as determined by the 22 Governor. Members of the Advisory Committee may organize 23 themselves as they deem necessary and shall serve without 24 compensation. 25 (b) The Committee shall: 26 (1) Review, evaluate, and make recommendations 27 regarding State laws, rules, and procedures that relate 28 to site remediations. 29 (2) Review, evaluate, and make recommendations 30 regarding the review and approval activities of the 31 Agency and Review and Evaluation Licensed Professional 32 Engineers and Geologists. 33 (3) Make recommendations relating to the State's SB1968 Engrossed -41- LRB9213215ACpk 1 efforts to implement this Title. 2 (4) Review, evaluate, and make recommendations 3 regarding the procedures for determining proportionate 4 degree of responsibility for a release of regulated 5 substances. 6 (5) Review, evaluate, and make recommendations 7 regarding the reports prepared by the Agency in 8 accordance with subsection (e) of this Section. 9 (c) Within 9 months after the effective date of this 10 amendatory Act of 1995, the Agency, after consideration of 11 the recommendations of the Committee, shall propose rules 12 prescribing procedures and standards for its administration 13 of this Title. Within 9 months after receipt of the Agency's 14 proposed rules, the Board shall adopt, pursuant to Sections 15 27 and 28 of this Act, rules that are consistent with this 16 Title, including classifications of land use and provisions 17 for the voidance of No Further Remediation Letters. 18 (d) Until such time as the rules required under this 19 Section take effect, the Agency shall administer its 20 activities under this Title in accordance with Agency 21 procedures and applicable provisions of this Act. 22 (e) By July 1, 1997 and as deemed appropriate 23 thereafter, the Agency shall prepare reports to the Governor 24 and the General Assembly concerning the status of all sites 25 for which the Agency has expended money from the Hazardous 26 Waste Fund. The reports shall include specific information 27 on the financial, technical, and cost recovery status of each 28 site. 29 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 30 89-626, eff. 8-9-96.) 31 Section 99. Effective date. This Act takes effect upon 32 becoming law.