(415 ILCS 5/57.7) Sec. 57.7. Leaking underground storage tanks; site investigation and
corrective action. (a) Site investigation. (1) 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 determine 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.
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(2) Any owner or operator intending to seek payment
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| 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.
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(3) Remediation objectives for the applicable
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| 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.
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(4) Upon the Agency's approval of a site
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| investigation plan, or as otherwise directed by the Agency, the owner or operator shall conduct a site investigation in accordance with the plan.
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(5) Within 30 days after completing the site
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| 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:
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(A) Executive summary.
(B) Site history.
(C) Site-specific sampling methods and results.
(D) Documentation of all field activities,
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| including quality assurance.
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(E) Documentation regarding the development of
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| proposed remediation objectives.
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(F) Interpretation of results.
(G) Conclusions.
(b) Corrective action.
(1) If the site investigation confirms none of the
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| 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.
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(2) If any of the applicable indicator contaminants
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| exceed the remediation objectives approved for the site, within 30 days after the Agency approves the site investigation completion report the owner or operator shall submit to the Agency for approval a corrective action plan designed to mitigate any threat to human health, human safety, or the environment resulting from the underground storage tank release. 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:
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(A) Executive summary.
(B) Statement of remediation objectives.
(C) Remedial technologies selected.
(D) Confirmation sampling plan.
(E) Current and projected future use of the
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(F) Applicable preventive, engineering, and
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| institutional controls including long-term reliability, operating, and maintenance plans, and monitoring procedures.
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(G) A schedule for implementation and completion
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(3) Any owner or operator intending to seek payment
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| from the Fund shall 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 corrective action plan.
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(4) Upon the Agency's approval of a corrective action
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| plan, or as otherwise directed by the Agency, the owner or operator shall proceed with corrective action in accordance with the plan.
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(5) Within 30 days after the completion of a
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| corrective action plan that achieves applicable remediation objectives the owner or operator shall submit to the Agency for approval a corrective action completion report. The report shall demonstrate whether corrective action was completed in accordance with the approved corrective action plan and whether the remediation objectives approved for the site, as well as any other requirements of the plan, have been achieved.
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(6) If within 4 years after the approval of any
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| corrective action plan the applicable remediation objectives have not been achieved and the owner or operator has not submitted a corrective action completion report, the owner or operator must submit a status report for Agency review. The status report must include, but is not limited to, a description of the remediation activities taken to date, the effectiveness of the method of remediation being used, the likelihood of meeting the applicable remediation objectives using the current method of remediation, and the date the applicable remediation objectives are expected to be achieved.
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(7) If the Agency determines any approved corrective
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| action plan will not achieve applicable remediation objectives within a reasonable time, based upon the method of remediation and site specific circumstances, the Agency may require the owner or operator to submit to the Agency for approval a revised corrective action plan. If the owner or operator intends to seek payment from the Fund, the owner or operator must also submit a revised budget.
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(c) Agency review and approval.
(1) Agency approval of any plan and associated
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| 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 if the costs associated with the completion of any such plan are less than or equal to the amounts approved in such budget.
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(2) In the event the Agency fails to approve,
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| 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 the Underground Storage Tank Fund.
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(A) For purposes of those plans as identified in
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| 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.
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(B) For purposes of corrective action plans
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| submitted pursuant to subsection (b) of this Section for which payment from the Fund 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).
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(3) In approving any plan submitted pursuant to
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| 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. The Agency shall also determine, pursuant to the Project Labor Agreements Act, whether the corrective action shall include a project labor agreement if payment from the Underground Storage Tank Fund is to be requested.
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(A) For purposes of payment from the Fund,
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| corrective action activities required to meet the minimum requirements of this Title shall include, but not be limited to, the following use of the Board's Tiered Approach to Corrective Action Objectives rules adopted under Title XVII of this Act:
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(i) For the site where the release occurred,
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| the use of Tier 2 remediation objectives that are no more stringent than Tier 1 remediation objectives.
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(ii) The use of industrial/commercial
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| property remediation objectives, unless the owner or operator demonstrates that the property being remediated is residential property or being developed into residential property.
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(iii) The use of groundwater ordinances as
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| institutional controls in accordance with Board rules.
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(iv) The use of on-site groundwater use
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| restrictions as institutional controls in accordance with Board rules.
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(B) Any bidding process adopted under Board rules
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| to determine the reasonableness of costs of corrective action must provide for a publicly-noticed, competitive, and sealed bidding process that includes, at a minimum, the following:
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(i) The owner or operator must issue
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| invitations for bids that include, at a minimum, a description of the work being bid and applicable contractual terms and conditions. The criteria on which the bids will be evaluated must be set forth in the invitation for bids. The criteria may include, but shall not be limited to, criteria for determining acceptability, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Criteria that will affect the bid price and be considered in the evaluation of a bid, such as discounts, shall be objectively measurable.
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(ii) At least 14 days prior to the date set
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| in the invitation for the opening of bids, public notice of the invitation for bids must be published in a local paper of general circulation for the area in which the site is located.
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(iii) Bids must be opened publicly in the
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| presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder, the amount of each bid, and other relevant information as specified in Board rules must be recorded and submitted to the Agency in the applicable budget. After selection of the winning bid, the winning bid and the record of each unsuccessful bid shall be open to public inspection.
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(iv) Bids must be unconditionally accepted
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| without alteration or correction. Bids must be evaluated based on the requirements set forth in the invitation for bids, which may include criteria for determining acceptability, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Criteria that will affect the bid price and be considered in the evaluation of a bid, such as discounts, shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used.
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(v) Correction or withdrawal of inadvertently
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| erroneous bids before or after selection of the winning bid, or cancellation of winning bids based on bid mistakes, shall be allowed in accordance with Board rules. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the owner or operator or fair competition shall be allowed. All decisions to allow the correction or withdrawal of bids based on bid mistakes shall be supported by a written determination made by the owner or operator.
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(vi) The owner or operator shall select the
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| winning bid with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. The winning bid and other relevant information as specified in Board rules must be recorded and submitted to the Agency in the applicable budget.
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(vii) All bidding documentation must be
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| retained by the owner or operator for a minimum of 3 years after the costs bid are submitted in an application for payment, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. All bidding documentation must be made available to the Agency for inspection and copying during normal business hours.
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(C) Any bidding process adopted under Board rules
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| to determine the reasonableness of costs of corrective action shall (i) be optional and (ii) allow bidding only if the owner or operator demonstrates that corrective action cannot be performed for amounts less than or equal to maximum payment amounts adopted by the Board.
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(4) For any plan or report received after June 24,
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| 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:
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(A) an explanation of the Sections of this Act
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| which may be violated if the plans were approved;
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(B) an explanation of the provisions of the
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| regulations, promulgated under this Act, which may be violated if the plan were approved;
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(C) an explanation of the specific type of
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| information, if any, which the Agency deems the applicant did not provide the Agency; and
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(D) a statement of specific reasons why the Act
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| and the regulations might not be met if the plan were approved.
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Any action by the Agency to disapprove or modify a
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| 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 receipt of the Agency's written notification.
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(5) For purposes of this Title, the term "plan" shall
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(A) Any site investigation plan submitted
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| pursuant to subsection (a) of this Section;
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(B) Any site investigation budget submitted
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| pursuant to subsection (a) of this Section;
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(C) Any corrective action plan submitted pursuant
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| to subsection (b) of this Section; or
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(D) Any corrective action plan budget submitted
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| pursuant to subsection (b) of this Section.
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(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 Benzene; (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 storage tank.
All references in this Title to groundwater objectives shall mean Class I
groundwater standards or objectives as applicable.
(e) (1) Notwithstanding the provisions of this Section,
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| 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.
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(2) Upon receipt of a plan submitted after activities
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| 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.
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(f) 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.
(Source: P.A. 98-109, eff. 7-25-13.)
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(415 ILCS 5/57.8)
Sec. 57.8. Underground Storage Tank Fund; payment; options for State payment;
deferred correction election to commence corrective action upon availability of
funds. If an owner or operator is eligible to access the Underground Storage
Tank Fund pursuant to an Office of State Fire Marshal eligibility/deductible
final determination letter issued in accordance with Section 57.9, the owner or
operator may submit a complete application for final or partial payment to the
Agency for activities taken in response to a confirmed release. An owner or
operator may submit a request for partial or final payment regarding a site no
more frequently than once every 90 days.
(a) Payment after completion of corrective action measures.
The owner or operator may submit an application for payment for
activities performed at a site after completion of the requirements of Sections
57.6 and 57.7, or after completion of any other required activities at the
underground storage tank site.
(1) In the case of any approved plan and budget for |
| which payment is being sought, the Agency shall make a payment determination within 120 days of receipt of the application. Such determination shall be considered a final decision. The Agency's review shall be limited to generally accepted auditing and accounting practices. In no case shall the Agency conduct additional review of any plan which was completed within the budget, beyond auditing for adherence to the corrective action measures in the proposal. If the Agency fails to approve the payment application within 120 days, such application shall be deemed approved by operation of law and the Agency shall proceed to reimburse the owner or operator the amount requested in the payment application. However, in no event shall the Agency reimburse the owner or operator an amount greater than the amount approved in the plan.
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(2) If sufficient funds are available in the
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| Underground Storage Tank Fund, the Agency shall, within 60 days, forward to the Office of the State Comptroller a voucher in the amount approved under the payment application.
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(3) In the case of insufficient funds, the Agency
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| shall form a priority list for payment and shall notify persons in such priority list monthly of the availability of funds and when payment shall be made. Payment shall be made to the owner or operator at such time as sufficient funds become available for the costs associated with site investigation and corrective action and costs expended for activities performed where no proposal is required, if applicable. Such priority list shall be available to any owner or operator upon request. Priority for payment shall be determined by the date the Agency receives a complete request for partial or final payment. Upon receipt of notification from the Agency that the requirements of this Title have been met, the Comptroller shall make payment to the owner or operator of the amount approved by the Agency, if sufficient money exists in the Fund. If there is insufficient money in the Fund, then payment shall not be made. If the owner or operator appeals a final Agency payment determination and it is determined that the owner or operator is eligible for payment or additional payment, the priority date for the payment or additional payment shall be the same as the priority date assigned to the original request for partial or final payment.
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(4) Any deductible, as determined pursuant to the
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| Office of the State Fire Marshal's eligibility and deductibility final determination in accordance with Section 57.9, shall be subtracted from any payment invoice paid to an eligible owner or operator. Only one deductible shall apply per underground storage tank site.
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(5) In the event that costs are or will be incurred
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| in addition to those approved by the Agency, or after payment, the owner or operator may submit successive plans containing amended budgets. The requirements of Section 57.7 shall apply to any amended plans.
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(6) For purposes of this Section, a complete
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| application shall consist of:
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(A) A certification from a Licensed Professional
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| Engineer or Licensed Professional Geologist as required under this Title and acknowledged by the owner or operator.
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(B) A statement of the amounts approved in the
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| budget and the amounts actually sought for payment along with a certified statement by the owner or operator that the amounts so sought were expended in conformance with the approved budget.
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(C) A copy of the Office of the State Fire
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| Marshal's eligibility and deductibility determination.
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(D) Proof that approval of the payment requested
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| will not result in the limitations set forth in subsection (g) of this Section being exceeded.
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(E) A federal taxpayer identification number and
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| legal status disclosure certification on a form prescribed and provided by the Agency.
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(F) If the Agency determined under subsection
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| (c)(3) of Section 57.7 of this Act that corrective action must include a project labor agreement, a certification from the owner or operator that the corrective action was (i) performed under a project labor agreement that meets the requirements of Section 25 of the Project Labor Agreements Act and (ii) implemented in a manner consistent with the terms and conditions of the Project Labor Agreements Act and in full compliance with all statutes, regulations, and Executive Orders as required under that Act and the Prevailing Wage Act.
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(b) Commencement of site investigation or corrective action upon
availability of funds.
The Board shall adopt regulations setting forth procedures based on risk to
human health or the environment under which the owner or operator who has
received approval for any budget plan submitted pursuant to Section
57.7, and who is eligible for payment from the Underground Storage Tank Fund
pursuant to an Office of the State Fire Marshal eligibility and deductibility
determination, may elect to defer site investigation or corrective action activities until funds are available
in
an amount equal to the amount approved in the budget. The regulations
shall establish criteria based on risk to human health or the environment to be
used for determining on a site-by-site basis whether deferral is appropriate.
The regulations also shall establish the minimum investigatory requirements for
determining whether the risk based criteria are present at a site considering
deferral and procedures for the notification of owners or operators of
insufficient funds, Agency review of request for deferral, notification of
Agency final decisions, returning deferred sites to active status, and
earmarking of funds for payment.
(c) When the owner or operator requests indemnification for payment of costs
incurred as a result of a release of petroleum from an underground storage
tank, if the owner or operator has satisfied the requirements of subsection (a)
of this Section, the Agency shall forward a copy of the request to the Attorney
General. The Attorney General shall review and approve the request for
indemnification if:
(1) there is a legally enforceable judgment entered
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| against the owner or operator and such judgment was entered due to harm caused by a release of petroleum from an underground storage tank and such judgment was not entered as a result of fraud; or
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(2) a settlement with a third party due to a release
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| of petroleum from an underground storage tank is reasonable.
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(d) Notwithstanding any other provision of this Title, the Agency shall not
approve payment to an owner or operator from the Fund for costs of corrective
action or indemnification incurred during a calendar year in excess of the
following aggregate amounts based on the number of petroleum underground
storage tanks owned or operated by such owner or operator in Illinois.
Amount
Number of Tanks
$2,000,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
fewer than 101
$3,000,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
101 or more
(1) Costs incurred in excess of the aggregate amounts
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| set forth in paragraph (1) of this subsection shall not be eligible for payment in subsequent years.
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(2) For purposes of this subsection, requests
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| submitted by any of the agencies, departments, boards, committees or commissions of the State of Illinois shall be acted upon as claims from a single owner or operator.
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(3) For purposes of this subsection, owner or
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| operator includes (i) any subsidiary, parent, or joint stock company of the owner or operator and (ii) any company owned by any parent, subsidiary, or joint stock company of the owner or operator.
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(e) Costs of corrective action or indemnification incurred by an owner or
operator which have been paid to an owner or operator under a policy of
insurance, another written agreement, or a court order are not eligible for
payment under this Section. An owner or operator who receives payment under a
policy of insurance, another written agreement, or a court order shall
reimburse the State to the extent such payment covers costs for which payment
was received from the Fund. Any monies received by the State under this
subsection (e) shall be deposited into the Fund.
(f) (Blank.)
(g) The Agency shall not approve any payment from the Fund to pay an owner
or operator:
(1) for costs of corrective action incurred by such
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| owner or operator in an amount in excess of $1,500,000 per occurrence; and
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(2) for costs of indemnification of such owner or
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| operator in an amount in excess of $1,500,000 per occurrence.
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(h) Payment of any amount from the Fund for corrective action or
indemnification shall be subject to the State acquiring by subrogation the
rights of any owner, operator, or other person to recover the costs of
corrective action or indemnification for which the Fund has compensated such
owner, operator, or person from the person responsible or liable for the
release.
(i) If the Agency refuses to pay or authorizes only
a partial payment, the affected owner or operator may petition the Board for a
hearing in the manner provided for the review of permit decisions in Section 40
of this Act.
(j) Costs of corrective action or indemnification incurred by an owner or
operator prior to July 28, 1989, shall not be eligible for payment or
reimbursement under this Section.
(k) The Agency shall not pay costs of corrective action or
indemnification incurred before providing notification of the release of
petroleum in accordance with the provisions of this Title.
(l) Corrective action does not include legal defense costs. Legal defense
costs include legal costs for seeking payment under this Title unless the owner
or operator prevails before the Board in which case the Board may authorize
payment of legal fees.
(m) The Agency may apportion payment of costs for plans submitted under
Section 57.7 if:
(1) the owner or operator was deemed eligible to
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| access the Fund for payment of corrective action costs for some, but not all, of the underground storage tanks at the site; and
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(2) the owner or operator failed to justify all costs
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| attributable to each underground storage tank at the site.
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(n) The Agency shall not pay costs associated with a corrective action
plan incurred after the Agency provides
notification to the owner or operator pursuant to item (7) of subsection (b) of
Section 57.7 that a revised corrective action plan
is required. Costs associated with any subsequently approved corrective action
plan shall be eligible for reimbursement if they
meet the requirements of this Title.
(Source: P.A. 98-109, eff. 7-25-13.)
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(415 ILCS 5/57.9)
Sec. 57.9. Underground Storage Tank Fund; eligibility and deductibility.
(a) The Underground Storage Tank Fund shall be accessible by owners and
operators who have a confirmed release from an underground storage tank or
related tank system of a substance listed in this Section. The owner or
operator is eligible to access the Underground Storage Tank Fund if the
eligibility requirements of this Title are satisfied and:
(1) Neither the owner nor the operator is the United |
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(2) The tank does not contain fuel which is exempt
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| from the Motor Fuel Tax Law.
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(3) The costs were incurred as a result of a
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| confirmed release of any of the following substances:
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(A) "Fuel", as defined in Section 1.19 of the
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(B) Aviation fuel.
(C) Heating oil.
(D) Kerosene.
(E) Used oil which has been refined from crude
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| oil used in a motor vehicle, as defined in Section 1.3 of the Motor Fuel Tax Law.
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(4) The owner or operator registered the tank and
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| paid all fees in accordance with the statutory and regulatory requirements of the Gasoline Storage Act.
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(5) The owner or operator notified the Illinois
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| Emergency Management Agency of a confirmed release, the costs were incurred after the notification and the costs were a result of a release of a substance listed in this Section. Costs of corrective action or indemnification incurred before providing that notification shall not be eligible for payment.
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(6) The costs have not already been paid to the owner
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| or operator under a private insurance policy, other written agreement, or court order.
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(7) The costs were associated with "corrective
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If the underground storage tank which experienced a
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| release of a substance listed in this Section was installed after July 28, 1989, the owner or operator is eligible to access the Underground Storage Tank Fund if it is demonstrated to the Office of the State Fire Marshal the tank was installed and operated in accordance with Office of the State Fire Marshal regulatory requirements. Office of the State Fire Marshal certification is prima facie evidence the tank was installed pursuant to the Office of the State Fire Marshal regulatory requirements.
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(b) For releases reported prior to the effective date of this amendatory Act of the 96th General Assembly, an owner or operator may access the Underground Storage Tank Fund for
costs associated with an Agency approved plan and the Agency shall approve the
payment of costs associated with corrective action after the
application of a $10,000 deductible, except in the following situations:
(1) A deductible of $100,000 shall apply when none of
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| the underground storage tanks were registered prior to July 28, 1989, except in the case of underground storage tanks used exclusively to store heating oil for consumptive use on the premises where stored and which serve other than farms or residential units, a deductible of $100,000 shall apply when none of these tanks were registered prior to July 1, 1992.
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(2) A deductible of $50,000 shall apply if any of the
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| underground storage tanks were registered prior to July 28, 1989, and the State received notice of the confirmed release prior to July 28, 1989.
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(3) A deductible of $15,000 shall apply when one or
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| more, but not all, of the underground storage tanks were registered prior to July 28, 1989, and the State received notice of the confirmed release on or after July 28, 1989.
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For releases reported on or after the effective date of this amendatory Act of the 96th General Assembly, an owner or operator may access the Underground Storage Tank Fund for costs associated with an Agency approved plan, and the Agency shall approve the payment of costs associated with corrective action after the application of a $5,000 deductible.
A deductible shall apply annually for each site at which costs were incurred
under a claim submitted pursuant to this Title, except that if corrective
action in response to an occurrence takes place over a period of more than one
year, in subsequent years, no deductible shall apply for costs incurred in
response to such occurrence.
(c) Eligibility and deductibility determinations shall be made by the Office
of the State Fire Marshal.
(1) When an owner or operator reports a confirmed
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| release of a regulated substance, the Office of the State Fire Marshal shall provide the owner or operator with an "Eligibility and Deductibility Determination" form. The form shall either be provided on-site or within 15 days of the Office of the State Fire Marshal receipt of notice indicating a confirmed release. The form shall request sufficient information to enable the Office of the State Fire Marshal to make a final determination as to owner or operator eligibility to access the Underground Storage Tank Fund pursuant to this Title and the appropriate deductible. The form shall be promulgated as a rule or regulation pursuant to the Illinois Administrative Procedure Act by the Office of the State Fire Marshal. Until such form is promulgated, the Office of State Fire Marshal shall use a form which generally conforms with this Act.
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(2) Within 60 days of receipt of the "Eligibility and
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| Deductibility Determination" form, the Office of the State Fire Marshal shall issue one letter enunciating the final eligibility and deductibility determination, and such determination or failure to act within the time prescribed shall be a final decision appealable to the Illinois Pollution Control Board.
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(Source: P.A. 96-908, eff. 6-8-10.)
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(415 ILCS 5/57.11) Sec. 57.11. Underground Storage Tank Fund; creation. (a) There is hereby created in the State Treasury a special fund
to be known as the Underground Storage Tank Fund. There shall be deposited
into the Underground Storage Tank Fund all moneys received by the Office of the
State Fire Marshal as fees for underground storage tanks under Sections 4 and 5
of the Gasoline Storage Act, fees pursuant to the Motor Fuel Tax Law, and beginning July 1, 2013, payments pursuant to the Use Tax Act, the Service Use Tax Act, the Service Occupation Tax Act, and the Retailers' Occupation Tax Act.
All amounts held in the Underground Storage Tank Fund shall be invested at
interest by the State Treasurer. All income earned from the investments shall
be deposited into the Underground Storage Tank Fund no less frequently than
quarterly. In addition to any other transfers that may be provided for by law, beginning on July 1, 2018 and on the first day of each month thereafter during fiscal years 2019 through 2024 only, the State Comptroller shall direct and the State Treasurer shall transfer an amount equal to 1/12 of $10,000,000 from the Underground Storage Tank Fund to the General Revenue Fund. Moneys in the Underground Storage Tank Fund, pursuant to
appropriation, may be used by the Agency and the Office of the State Fire
Marshal for the following purposes: (1) To take action authorized under Section 57.12 to |
| recover costs under Section 57.12.
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(2) To assist in the reduction and mitigation of
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| damage caused by leaks from underground storage tanks, including but not limited to, providing alternative water supplies to persons whose drinking water has become contaminated as a result of those leaks.
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(3) To be used as a matching amount towards federal
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| assistance relative to the release of petroleum from underground storage tanks.
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(4) For the costs of administering activities of the
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| Agency and the Office of the State Fire Marshal relative to the Underground Storage Tank Fund.
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(5) For payment of costs of corrective action
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| incurred by and indemnification to operators of underground storage tanks as provided in this Title.
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(6) For a total of 2 demonstration projects in
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| amounts in excess of a $10,000 deductible charge designed to assess the viability of corrective action projects at sites which have experienced contamination from petroleum releases. Such demonstration projects shall be conducted in accordance with the provision of this Title.
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(7) Subject to appropriation, moneys in the
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| Underground Storage Tank Fund may also be used by the Department of Revenue for the costs of administering its activities relative to the Fund and for refunds provided for in Section 13a.8 of the Motor Fuel Tax Law.
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(b) Moneys in the Underground Storage Tank Fund may, pursuant to
appropriation, be used by the Office of the State Fire Marshal or the Agency to
take whatever emergency action is necessary or appropriate to assure that the
public health or safety is not threatened whenever there is a release or
substantial threat of a release of petroleum from an underground storage tank
and for the costs of administering its activities relative to the Underground
Storage Tank Fund.
(c) Beginning July 1, 1993, the Governor shall certify to the State
Comptroller and State Treasurer the monthly amount necessary to pay debt
service on State obligations issued pursuant to Section 6 of the General
Obligation Bond Act. On the last day of each month, the Comptroller shall order
transferred and the Treasurer shall transfer from the Underground Storage Tank
Fund to the General Obligation Bond Retirement and Interest Fund the amount
certified by the Governor, plus any cumulative deficiency in those transfers
for prior months.
(d) Except as provided in subsection (c) of this Section, the Underground Storage Tank Fund is not subject to administrative charges authorized under Section 8h of the State Finance Act that would in any way transfer any funds from the Underground Storage Tank Fund into any other fund of the State.
(e) Each fiscal year, subject to appropriation, the Agency may commit up to $10,000,000 of the moneys in the Underground Storage Tank Fund to the payment of corrective action costs for legacy sites that meet one or more of the following criteria as a result of the underground storage tank release: (i) the presence of free product, (ii) contamination within a regulated recharge area, a wellhead protection area, or the setback zone of a potable water supply well, (iii) contamination extending beyond the boundaries of the site where the release occurred, or (iv) such other criteria as may be adopted in Agency rules.
(1) Fund moneys committed under this subsection (e)
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| shall be held in the Fund for payment of the corrective action costs for which the moneys were committed.
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(2) The Agency may adopt rules governing the
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| commitment of Fund moneys under this subsection (e).
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(3) This subsection (e) does not limit the use of
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| Fund moneys at legacy sites as otherwise provided under this Title.
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(4) For the purposes of this subsection (e), the term
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| "legacy site" means a site for which (i) an underground storage tank release was reported prior to January 1, 2005, (ii) the owner or operator has been determined eligible to receive payment from the Fund for corrective action costs, and (iii) the Agency did not receive any applications for payment prior to January 1, 2010.
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(f) Beginning July 1, 2013, if the amounts deposited into the Fund from moneys received by the Office of the State Fire Marshal as fees for underground storage tanks under Sections 4 and 5 of the Gasoline Storage Act and as fees pursuant to the Motor Fuel Tax Law during a State fiscal year are sufficient to pay all claims for payment by the fund received during that State fiscal year, then the amount of any payments into the fund pursuant to the Use Tax Act, the Service Use Tax Act, the Service Occupation Tax Act, and the Retailers' Occupation Tax Act during that State fiscal year shall be deposited as follows: 75% thereof shall be paid into the State treasury and 25% shall be reserved in a special account and used only for the transfer to the Common School Fund as part of the monthly transfer from the General Revenue Fund in accordance with Section 8a of the State Finance Act.
(Source: P.A. 102-16, eff. 6-17-21; 102-699, eff. 4-19-22; 103-8, eff. 6-7-23.)
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(415 ILCS 5/57.12A)
Sec. 57.12A.
Lender liability; definitions.
(a) Notwithstanding any other provision or rule of law, the term "owner"
or "operator" does not include a holder who, without participating in the
management of a facility, underground storage tank, or underground storage tank
system, holds any indicia of ownership primarily to protect its
security interest in the facility, underground storage tank, or underground
storage tank system.
(b) As used in this Section, and notwithstanding any other provision or rule
of law:
(1) "Underground Storage Tank technical standards" |
| refers to the underground storage tank preventative and operating requirements under the rules promulgated under subsection (a) of Section 57.1 of this Title.
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|
(2) Petroleum production, refining, and marketing.
(A) "Petroleum production" means the production
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| of crude oil or other forms of petroleum as well as the production of petroleum products from purchased materials.
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(B) "Petroleum refining" means the cracking,
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| distillation, separation, conversion, upgrading, and finishing of refined petroleum or petroleum products.
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|
(C) "Petroleum marketing" means the distribution,
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| transfer, or sale of petroleum or petroleum products for wholesale or retail purposes.
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|
(3) "Indicia of ownership" means evidence of a
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| secured interest, evidence of an interest in a security interest, or evidence of an interest in real or personal property securing a loan or other obligation, including any legal or equitable title to real or personal property acquired incident to foreclosure or its equivalents. Evidence of such interests includes, but is not limited to, mortgages, deeds of trust, liens, surety bonds, and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased property (lease financing transaction), legal or equitable title obtained pursuant to foreclosure, and their equivalents. Evidence of such interests also includes assignments, pledges, or other rights to or other forms of encumbrance against property that are held primarily to protect a security interest. A person is not required to hold title or a security interest in order to maintain indicia of ownership.
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(4) A "holder" is a person who maintains indicia of
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| ownership (as defined in item (3) of subsection (b)) primarily to protect a security interest (as defined in item (6)(A) of subsection (b)) in a petroleum underground storage tank or underground storage tank system. "Holder" includes the initial holder; any subsequent holder; a guarantor of an obligation; a surety; any other person who holds ownership indicia primarily to protect a security interest; or a receiver or other person who acts on behalf or for the benefit of a holder.
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(5) A "borrower", "debtor", or "obligor" is a person
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| whose underground storage tank or underground storage tank system is encumbered by a security interest. These terms may be used interchangeably.
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(6) "Primarily to protect a security interest" means
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| that the holder's indicia of ownership are held primarily for the purpose of securing payment or performance of an obligation.
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(A) "Security interest" means an interest in a
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| petroleum underground storage tank or underground storage tank system or in the facility or property on which the underground storage tank or underground storage tank system is located, created, or established for the purpose of securing a loan or other obligation. Security interests include but are not limited to mortgages, deeds of trusts, liens, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, and consignments, if the transaction creates or establishes an interest in an underground storage tank or underground storage tank system or in the facility or property on which the underground storage tank or underground storage tank system is located, for the purpose of securing a loan or other obligation.
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|
(B) "Primarily to protect a security interest",
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| as used in this Section, does not include indicia of ownership held primarily for investment purposes, nor ownership indicia held primarily for purposes other than as protection for a security interest. A holder may have other, secondary reasons for maintaining indicia of ownership, but the primary reason why ownership indicia are held must be as protection for a security interest.
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|
(c) Participation in management.
The term "participating in the management
of an underground storage tank or underground storage tank system" means that
the holder is engaging in acts of petroleum underground storage tank or
underground storage tank system management, as defined herein.
(1) Actions that are participation in management
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|
Participation in the management of an underground
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| storage tank or underground storage tank system means, for purposes of this Section, actual participation in the management or control of decision making related to the underground storage tank or underground storage tank system by the holder and does not include the mere capacity or ability to influence or the unexercised right to control underground storage tank or underground storage tank system operations. A holder is participating in management, while the borrower is still in possession of the underground storage tank or underground storage tank system encumbered by the security interest, only if the holder either:
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(A) exercises decision making control over the
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| borrower's environmental compliance, such that the holder has undertaken responsibility for the borrower's underground storage tank or underground storage tank system management; or
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(B) exercises control at a level comparable to
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| that of a manager of the borrower's enterprise, such that the holder has assumed or manifested responsibility for the overall management of the enterprise encompassing the day-to-day decision making of the enterprise with respect to (i) environmental compliance, or (ii) all, or substantially all, of the operational (as opposed to financial or administrative) aspects of the enterprise other than environmental compliance.
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(2) Actions that are not participation in management
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(A) Actions at the inception of the loan or other
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| transaction. No act or omission prior to the time that indicia of ownership are held primarily to protect a security interest constitutes evidence of participation in management within the meaning of this Section. A prospective holder who undertakes or requires an environmental investigation of the underground storage tank or underground storage tank system in which indicia of ownership are to be held or requires a prospective borrower to clean up contamination from the underground storage tank or underground storage tank system or to comply or come into compliance with any applicable law or regulation is not by that action considered to be participating in the management of the underground storage tank or underground storage tank system.
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|
(B) Loan policing and workout. Actions that are
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| consistent with holding ownership indicia primarily to protect a security interest do not constitute participation in management for purposes of this Section. The authority for the holder to take such actions may, but need not, be contained in contractual or other documents specifying requirements for financial, environmental, and other warranties, covenants, conditions, representations, or promises from the borrower. Loan policing and workout activities cover and include all such activities up to foreclosure or its equivalents, exclusive of any activities that constitute participation in management.
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(i) Policing the security interest or loan. A
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| holder who engages in policing activities prior to foreclosure shall remain within the exemption provided that the holder does not by such actions participate in the management of the underground storage tank or underground storage tank system as provided in item (1) of subsection (c). Such actions include, but are not limited to, requiring the borrower to clean up contamination from the underground storage tank or underground storage tank system during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, State, and local environmental and other laws, rules, and regulations during the term of the security interest; securing or exercising authority to monitor or inspect the underground storage tank or underground storage tank system in which indicia of ownership are maintained or the borrower's business or financial condition during the term of the security interest; or taking other actions to adequately police the loan or security interest (such as requiring a borrower to comply with any warranties, covenants, conditions, representation, or promises from the borrower).
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(ii) Loan workout. A holder who engages in
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| workout activities prior to foreclosure or its equivalents will remain within the exemption of this Section provided that the holder does not by such action participate in the management of the underground storage tank or underground storage tank system as provided in item (1) of subsection (c). For purposes of this Section, "workout" refers to those actions by which a holder, at any time prior to foreclosure or its equivalents, seeks to prevent, cure, or mitigate a default by the borrower or obligor; or to preserve, or prevent the diminution of, the value of the security. Workout activities include, but are not limited to, restructuring or renegotiating the terms of the security interest; requiring payment of additional rent or interest; exercising forbearance; requiring or exercising rights under an assignment of accounts or other amounts owing to an obligor; requiring or exercising rights under an escrow agreement pertaining to amounts owing to an obligor; providing specific or general financial or other advice, suggestions, counseling, or guidance; and exercising any right or remedy the holder is entitled to by law or under any warranties, covenants, conditions, representations, or promises from the borrower.
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|
(3) Foreclosure on an underground storage tank or
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| underground storage tank system and participation in management activities; post-foreclosure.
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|
(A) Foreclosure. Indicia of ownership that are
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| held primarily to protect a security interest include legal or equitable title acquired through or incident to foreclosure or its equivalents. For purposes of this Section, the term foreclosure or its equivalents includes purchase at foreclosure sale; acquisition or assignment of title in lieu of foreclosure; termination of a lease or other repossession; acquisition of a right to title or possession; an agreement in satisfaction of the obligation; or any other formal or informal manner by which the holder acquires title to or possession of the secured underground storage tank or underground storage tank system. The indicia of ownership held after foreclosure continues to be maintained primarily as protection for a security interest provided that the holder undertakes to sell, re-lease an underground storage tank or underground storage tank system held pursuant to a lease financing transaction, or otherwise divest itself or the underground storage tank or underground storage tank system in a reasonably expeditious manner, using whatever commercially reasonable means are relevant or appropriate with respect to the underground storage tank or underground storage tank system, taking all facts and circumstances into consideration, and provided that the holder did not participate in management, as defined in item (1) of subsection (c), prior to foreclosure or its equivalents. For purposes of establishing that a holder is seeking to sell, re-lease an underground storage tank or underground storage tank system held pursuant to a lease financing transaction, or divest an underground storage tank or underground storage tank system in a reasonably expeditious manner, the holder may use whatever commercially reasonable means as are relevant or appropriate with respect to the underground storage tank or underground storage tank system, or may employ the means specified in item (3)(B) of subsection (c). A holder that outbids, rejects, or fails to act upon a written bona fide, firm offer of fair consideration for the underground storage tank or underground storage tank system, as provided in item (3)(B) of subsection (b), is not considered to hold indicia of ownership primarily to protect a security interest.
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|
(B) Holding foreclosed property for disposition and
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| liquidation. A holder who did not participate in management prior to foreclosure or its equivalents may sell, re-lease an underground storage tank or underground storage tank system held pursuant to a lease financing transaction, liquidate, wind up operations, and take measures to preserve, protect, or prepare the secured underground storage tank or underground storage tank system prior to sale or other disposition. The holder may conduct these activities without voiding the exemption, subject to the requirements of this Section.
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|
(i) A holder establishes that the ownership
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| indicia maintained following foreclosure or its equivalents continue to be held primarily to protect a security interest by listing, within 12 months from the time that the holder acquires marketable title, the underground storage tank or underground storage tank system or the facility or property on which the underground storage tank or underground storage tank system is located, with a broker, dealer, or agent who deals with the type of property in question or by advertising the underground storage tank or underground storage tank system as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the underground storage tank or underground storage tank system in question, or a newspaper of general circulation (defined as one with a circulation over 10,000, or one suitable under any applicable federal, State, or local rules of court for publication required by court order or rules of civil procedure) covering the area in which the underground storage tank or underground storage tank system is located.
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|
If the holder fails to act diligently to acquire
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| marketable title, the 12 month period begins to run on the date of the judgment of foreclosure or its equivalents.
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(ii) A holder that outbids, rejects, or fails to
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| act upon an offer of fair consideration for the underground storage tank or underground storage tank system or the facility or property on which the underground storage tank or underground storage tank system is located establishes by such outbidding, rejection, or failure to act, that the ownership indicia in the secured underground storage tank or underground storage tank system are not held primarily to protect the security interest, unless the holder is required, in order to avoid liability under federal or State law, to make a higher bid, to obtain a higher offer, or to seek or obtain an offer in a different manner.
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|
(A) "Fair consideration", in the case of a holder
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| maintaining indicia of ownership primarily to protect a senior security interest in the underground storage tank or underground storage tank system, is the value of the security interest as defined in this item (3)(B)(iii)(A) of subsection (c). The value of the security interest is calculated as an amount equal to or in excess of the sum of the outstanding principal, or comparable amount in the case of a lease that constitutes a security interest, owed to the holder immediately preceding the acquisition of full title (or possession in the case of an underground storage tank or underground storage tank system subject to a lease financing transaction) pursuant to foreclosure or its equivalents, plus any unpaid interest, rent, or penalties (whether arising before or after foreclosure or its equivalents), plus all reasonable and necessary costs, fees, or other charges incurred by the holder incident to workout, foreclosure or its equivalent, retention, preserving, protecting, and preparing the underground storage tank or underground storage tank system prior to sale, re-lease of an underground storage tank or underground storage tank system held pursuant to a lease financing transaction or other disposition plus environmental investigation and corrective action costs incurred under any federal, State or local rule or regulation less any amounts received by the holder in connection with any partial disposition of the property and any amounts paid by the borrower subsequent to the acquisition of full title (or possession in the case of an underground storage tank or underground storage tank system subject to a lease financing transaction) pursuant to foreclosure or its equivalents. In the case of a holder maintaining indicia of ownership primarily to protect a junior security interest, fair consideration is the value of all outstanding higher priority security interests plus the value of the security interest held by the junior holder, each calculated as set forth in the preceding sentence.
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|
(B) "Outbids, rejects, or fails to act upon an offer
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| of fair consideration" means that the holder outbids, rejects, or fails to act upon within 90 days of receipt of a written, bona fide, firm offer of fair consideration for the underground storage tank or underground storage tank system received at any time after 6 months following foreclosure or its equivalents. A "written, bona fide, firm offer" means a legally enforceable, commercially reasonable, cash offer solely for foreclosed underground storage tank or underground storage tank system, including all material terms of the transaction, from a ready, willing, and able purchaser who demonstrates to the holder's satisfaction the ability to perform. For purposes of this provision, the 6 month period begins to run from the time that the holder acquires marketable title; otherwise, provided that the holder, after the expiration of any redemption or other waiting period provided by law, acted diligently to acquire marketable title; otherwise, the 6 month period begins to run on the date of foreclosure or its equivalents.
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|
(d) Ownership of an underground storage tank and underground storage tank
system.
(1) Ownership of an underground storage tank or
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| underground storage tank system for purposes of corrective action. A holder is not an "owner" of a petroleum underground storage tank or underground storage tank system for purposes of compliance with the corrective action requirements of Section 57.12 of this Act, provided the person:
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|
(A) does not participate in the management of the
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| underground storage tank or underground storage tank system as defined in subsection (c); and
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|
(B) does not engage in petroleum production,
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|
(2) Ownership of an underground storage tank or
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| underground storage tank system for purposes of the underground storage tank technical standards. A holder is not an owner of a petroleum underground storage tank or underground storage tank system for purposes of the underground storage tank technical standards provided that the holder:
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|
(A) does not participate in the management of the
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| underground storage tank or underground storage tank system as defined in subsection (c); and
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|
(B) does not engage in petroleum production,
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|
(e) Operating an underground storage tank or underground storage tank
system.
(1) Operating an underground storage tank or
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| underground storage tank system prior to foreclosure. A holder, prior to foreclosure or its equivalents, is not an operator of a petroleum underground storage tank or underground storage tank system for purposes of compliance with the corrective action requirements of Section 57.12 of this Act, or any other provision of this Act or of State or federal law, provided the holder is not in control of or does not have responsibility for the daily operation of the underground storage tank or underground storage tank system.
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|
(2) Operating an underground storage tank or
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| underground storage tank system after foreclosure.
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|
(A) A holder who has not participated in management
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| prior to foreclosure and who acquires a petroleum underground storage tank or underground storage tank system through foreclosure or its equivalents is not an operator of the underground storage tank or underground storage tank system for purposes of compliance with the corrective action requirements under Section 57.12 of this Act, or any other provision of this Act or of State or federal law, provided that the holder within 15 days following foreclosure or its equivalents, empties all of its underground storage tanks and underground storage tank systems so that no more than 2.5 centimeters (one inch) of residue, or 0.3% by weight of the total capacity of the underground storage tank system, remains in the system; leaves vent lines open and functioning; and caps and secures all other lines, pumps, manways, and ancillary equipment.
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|
(B) In addition, the holder shall either:
(i) "permanently" close the underground storage
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| tank or underground storage tank system in accordance with the regulations of the Office of the State Fire Marshal (41 Illinois Administrative Code Part 170, as amended); or
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|
(ii) "temporarily" close the underground storage
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| tank or underground storage tank system in accordance with the applicable provisions of the regulations of the Office of the State Fire Marshal (41 Illinois Administrative Code Part 170.620 and 170.670, as amended).
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|
(C) A holder who acquires a petroleum underground
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| storage tank or underground storage tank system through foreclosure or its equivalents is not an "operator" of the underground storage tank or underground storage tank system for purposes of this Act, the first 15 days following foreclosure or its equivalents, provided the holder complies with item (2) of Section (e).
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|
(f) Actions taken to protect human health and the environment. A holder is
not considered to be an operator of an underground storage tank
or underground storage tank system or to be participating in the management of
an underground storage tank or underground storage tank system solely on the
basis of undertaking actions under a federal or State law or regulation,
provided that the holder does not otherwise participate in the management or
daily operation of the underground storage tank or underground storage tank
system. Such actions include, but are not limited to, release reporting,
release response and corrective action, temporary or permanent closure of an
underground storage tank or underground storage tank system, underground
storage tank upgrading or replacement, and maintenance of corrosion
protection. A holder who undertakes these
actions must do so in compliance with the applicable requirements of this Act.
(g) Financial responsibility. A holder is exempt from the requirement to
demonstrate financial responsibility under any State law or rule, provided the
holder:
(1) does not participate in the management of the
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| underground storage tank or underground storage tank system as defined in subsection (c);
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|
(2) does not engage in petroleum production,
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| refining, and marketing as defined in item (2) of subsection (b); and
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|
(3) complies with the requirements of subsection (e).
(Source: P.A. 89-200, eff. 1-1-96; 89-626, eff. 8-9-96.)
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