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92_HB5846eng HB5846 Engrossed LRB9213131ACcd 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, 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) 8 Sec. 57. Intent and purpose. This Title shall be known 9 and may be cited as the Leaking Underground Storage Tank 10 Program (LUST). The purpose of this Title is, in accordance 11 with the requirements of the Hazardous and Solid Waste 12 Amendments of 1984 of the Resource Conservation and Recovery 13 Act of 1976 and in accordance with the State's interest in 14 the protection of Illinois' land and water resources: (1) to 15 adopt procedures for the remediation of underground storage 16 tank sites due to the release of petroleum and other 17 substances regulated under this Title from certain 18 underground storage tanks or related tank systems; (2) to 19 establish and provide procedures for a Leaking Underground 20 Storage Tank Program which will oversee and review any 21 remediation required for leaking underground storage tanks, 22 and administer the Underground Storage Tank Fund; (3) to 23 establish an Underground Storage Tank Fund intended to be a 24 State fund by which persons who qualify for access to the 25 Underground Storage Tank Fund may satisfy the financial 26 responsibility requirements under applicable State law and 27 regulations; (4) to establish requirements for eligible 28 owners and operators of underground storage tanks to seek 29 payment for any costs associated with physical soil 30 classification, groundwater investigation, site 31 classification and corrective action from the Underground HB5846 Engrossed -2- LRB9213131ACcd 1 Storage Tank Fund; and (5) to audit and approve corrective 2 action efforts performed by Licensed Professional Engineers 3 and Licensed Professional Geologists. 4 (Source: P.A. 91-357, eff. 7-29-99.) 5 (415 ILCS 5/57.2) 6 Sec. 57.2. Definitions. As used in this Title: 7 "Audit" means a systematic inspection or examination of 8 plans, reports, records, or documents to determine the 9 completeness and accuracy of the data and conclusions 10 contained therein. 11 "Bodily injury" means bodily injury, sickness, or disease 12 sustained by a person, including death at any time, resulting 13 from a release of petroleum from an underground storage tank. 14 "Release" means any spilling, leaking, emitting, 15 discharging, escaping, leaching or disposing of petroleum 16 from an underground storage tank into groundwater, surface 17 water or subsurface soils. 18 "Fill material" means non-native or disturbed materials 19 used to bed and backfill around an underground storage tank. 20 "Fund" means the Underground Storage Tank Fund. 21 "Heating Oil" means petroleum that is No. 1, No. 2, No. 4 22 - light, No. 4 - heavy, No. 5 - light, No. 5 - heavy or No. 6 23 technical grades of fuel oil; and other residual fuel oils 24 including Navy Special Fuel Oil and Bunker C. 25 "Indemnification" means indemnification of an owner or 26 operator for the amount of any judgment entered against the 27 owner or operator in a court of law, for the amount of any 28 final order or determination made against the owner or 29 operator by an agency of State government or any subdivision 30 thereof, or for the amount of any settlement entered into by 31 the owner or operator, if the judgment, order, determination, 32 or settlement arises out of bodily injury or property damage 33 suffered as a result of a release of petroleum from an HB5846 Engrossed -3- LRB9213131ACcd 1 underground storage tank owned or operated by the owner or 2 operator. 3 "Corrective action" means activities associated with 4 compliance with the provisions of Sections 57.6 and 57.7 of 5 this Title. 6 "Occurrence" means an accident, including continuous or 7 repeated exposure to conditions, that results in a sudden or 8 nonsudden release from an underground storage tank. 9 When used in connection with, or when otherwise relating 10 to, underground storage tanks, the terms "facility", "owner", 11 "operator", "underground storage tank", "(UST)", "petroleum" 12 and "regulated substance" shall have the meanings ascribed to 13 them in Subtitle I of the Hazardous and Solid Waste 14 Amendments of 1984 (P.L. 98-616), of the Resource 15 Conservation and Recovery Act of 1976 (P.L. 94-580); provided 16 however that the term "underground storage tank" shall also 17 mean an underground storage tank used exclusively to store 18 heating oil for consumptive use on the premises where stored 19 and which serves other than a farm or residential unit. 20 "Licensed Professional Engineer" means a person, 21 corporation, or partnership licensed under the laws of the 22 State of Illinois to practice professional engineering. 23 "Licensed Professional Geologist" means a person licensed 24 under the laws of the State of Illinois to practice as a 25 professional geologist. 26 "Site" means any single location, place, tract of land or 27 parcel of property including contiguous property not 28 separated by a public right-of-way. 29 "Physical soil classification" means verification that 30 subsurface strata are as generally mapped in the publication 31 Illinois Geological Survey Circular (1984) titled "Potential 32 for Contamination of Shallow Aquifers in Illinois," by Berg, 33 Richard C., et al. Such classification may include review of 34 soil borings, well logs, physical soil analyses, regional HB5846 Engrossed -4- LRB9213131ACcd 1 geologic maps, or other scientific publications. 2 "Property damage" means physical injury to, destruction 3 of, or contamination of tangible property, including all 4 resulting loss of use of that property; or loss of use of 5 tangible property that is not physically injured, destroyed, 6 or contaminated, but has been evacuated, withdrawn from use, 7 or rendered inaccessible because of a release of petroleum 8 from an underground storage tank. 9 "Class I Groundwater" means groundwater that meets the 10 Class I: Potable Resource Groundwater criteria set forth in 11 the Board regulations adopted pursuant to the Illinois 12 Groundwater Protection Act. 13 "Class III Groundwater" means groundwater that meets the 14 Class III: Special Resource Groundwater criteria set forth 15 in the Board regulations adopted pursuant to the Illinois 16 Groundwater Protection Act. 17 (Source: P.A. 88-496; 89-428, eff. 1-1-96; 89-457, eff. 18 5-22-96.) 19 (415 ILCS 5/57.7) 20 Sec. 57.7. Leaking underground storage tanks; physical 21 soil classification, groundwater investigation, site 22 classification, and corrective action. 23 (a) Physical soil classification and groundwater 24 investigation. 25 (1) Prior to conducting any physical soil 26 classification and groundwater investigation activities 27 required by statute or regulation, the owner or operator 28 shall prepare and submit to the Agency for the Agency's 29 approval or modification: 30 (A) a physical soil classification and 31 groundwater investigation plan designed to 32 determine site classification, in accordance 33 with subsection (b) of this Section, as High HB5846 Engrossed -5- LRB9213131ACcd 1 Priority, Low Priority, or No Further Action. 2 (B) a request for payment of costs 3 associated with eligible early action costs as 4 provided in Section 57.6(b). However, for 5 purposes of payment for early action costs, 6 fill materials shall not be removed in an 7 amount in excess of 4 feet from the outside 8 dimensions of the tank. 9 (2) If the owner or operator intends to seek 10 payment from the Fund, prior to conducting any physical 11 soil classification and groundwater investigation 12 activities required by statute or regulation, the owner 13 or operator shall submit to the Agency for the Agency's 14 approval or modification a physical soil classification 15 and groundwater investigation budget which includes, but 16 is not limited to, an accounting of all costs associated 17 with the implementation and completion of the physical 18 soil classification and groundwater investigation plan. 19 (3) Within 30 days of completion of the physical 20 soil classification or groundwater investigation report 21 the owner or operator shall submit to the Agency: 22 (A) all physical soil classification and 23 groundwater investigation results; and 24 (B) a certification by a Licensed Professional 25 Engineer or Licensed Professional Geologist of the 26 site's classification as High Priority, Low 27 Priority, or No Further Action in accordance with 28 subsection (b) of this Section as High Priority, Low 29 Priority, or No Further Action. 30 (b) Site Classification. 31 (1) After evaluation of the physical soil 32 classification and groundwater investigation results, 33 when required, and general site information, the site 34 shall be classified as "No Further Action", "Low HB5846 Engrossed -6- LRB9213131ACcd 1 Priority", or "High Priority" based on the requirements 2 of this Section. Site classification shall be determined 3 by a Licensed Professional Engineer or Licensed 4 Professional Geologist in accordance with the 5 requirements of this Title and the Licensed Professional 6 Engineer or Licensed Professional Geologist shall submit 7 a certification to the Agency of the site classification. 8 The Agency has the authority to audit site 9 classifications and reject or modify any site 10 classification inconsistent with the requirements of this 11 Title. 12 (2) Sites shall be classified as No Further Action 13 if the criteria in subparagraph (A) are satisfied: 14 (A)(i) The site is located in an area 15 designated D, E, F and G on the Illinois Geological 16 Survey Circular (1984) titled "Potential for 17 Contamination of Shallow Aquifers in Illinois," by 18 Berg, Richard C., et al.; 19 (ii) A site evaluation under the direction of 20 a Licensed Professional Engineer or Licensed 21 Professional Geologist verifies the physical soil 22 classification conditions are consistent with those 23 indicated on the Illinois Geological Survey Circular 24 (1984) titled "Potential for Contamination of 25 Shallow Aquifers in Illinois," by Berg, Richard C., 26 et al.; and 27 (iii) The conditions identified in subsections 28 (b) (3)(B), (C), (D), and (E) do not exist. 29 (B) Groundwater investigation monitoring may 30 be required to confirm that a site meets the 31 criteria of a No Further Action site. The Board 32 shall adopt rules setting forth the criteria under 33 which the Agency may exercise its discretionary 34 authority to require investigations and the minimum HB5846 Engrossed -7- LRB9213131ACcd 1 field requirements for conducting investigations. 2 (3) Sites shall be classified as High Priority if 3 any of the following are met: 4 (A) The site is located in an area designated 5 A1, A2, A3, A4, A5, AX, B1, B2, BX, C1, C2, C3, C4, 6 or C5 on the Illinois Geological Survey Circular 7 (1984) titled "Potential for Contamination of 8 Shallow Aquifers in Illinois," by Berg, Richard C., 9 et al.; a site evaluation under the direction of a 10 Licensed Professional Engineer or Licensed 11 Professional Geologist verifies the physical soil 12 classifications conditions are consistent with those 13 indicated on the Illinois Geological Survey Circular 14 (1984) entitled "Potential for Contamination of 15 Shallow Aquifers in Illinois," by Berg, Richard C., 16 et al.; and the results of the physical soil 17 classification and groundwater investigation 18 indicate that an applicable indicator contaminant 19 groundwater quality standard or groundwater 20 objective has been exceeded at the property boundary 21 line or 200 feet from the excavation, whichever is 22 less as a consequence of the underground storage 23 tank release. 24 (B) The underground storage tank is within the 25 minimum or maximum setback zone of a potable water 26 supply well or regulated recharge area of a potable 27 water supply well. 28 (C) There is evidence that, through natural or 29 manmade pathways, migration of petroleum or vapors 30 threaten human health or human safety or may cause 31 explosions in basements, crawl spaces, utility 32 conduits, storm or sanitary sewers, vaults or other 33 confined spaces. 34 (D) Class III special resource groundwater HB5846 Engrossed -8- LRB9213131ACcd 1 exists within 200 feet of the excavation. 2 (E) A surface water body is adversely affected 3 by the presence of a visible sheen or free product 4 layer as the result of an underground storage tank 5 release. 6 (4) Sites shall be classified as Low Priority if 7 all of the following are met: 8 (A) The site does not meet any of the criteria 9 for classification as a High Priority Site. 10 (B) (i) The site is located in area designated 11 A1, A2, A3, A4, A5, AX, B1, B2, BX, C1, C2, C3, C4, 12 C5 on the Illinois Geological Survey Circular (1984) 13 entitled "Potential for Contamination of Shallow 14 Aquifers in Illinois," by Berg, Richard C., et al.; 15 and 16 (ii) a site evaluation under the direction of 17 a Licensed Professional Engineer or Licensed 18 Professional Geologist verifies the physical soil 19 classification conditions are consistent with those 20 indicated on the Illinois Geological Survey Circular 21 (1984) titled "Potential for Contamination of 22 Shallow Aquifers in Illinois," by Berg, Richard C., 23 et al.; and 24 (iii) the results of the physical soil 25 classification and groundwater investigation do not 26 indicate an applicable indicator contaminant 27 groundwater quality standard or groundwater 28 objective has been exceeded at the property boundary 29 line or 200 feet from the underground storage tank, 30 whichever is less. 31 (5) In the event the results of the physical soil 32 classification and any required groundwater investigation 33 reveal that the actual site geologic characteristics are 34 different than those indicated by the Illinois Geological HB5846 Engrossed -9- LRB9213131ACcd 1 Survey Circular (1984) titled "Potential for 2 Contamination of Shallow Aquifers in Illinois" by Berg, 3 Richard C., et al., classification of the site shall be 4 determined using the actual site geologic 5 characteristics. 6 (6) For purposes of physical soil classification, 7 the Board is authorized to prescribe by regulation 8 alternatives to use of the Illinois Geological Survey 9 Circular (1984) titled "Potential for Contamination of 10 Shallow Aquifers in Illinois" by Berg, Richard C., et al. 11 (c) Corrective Action. 12 (1) High Priority Site. 13 (A) Prior to performance of any corrective 14 action, beyond that required by Section 57.6 and 15 subsection (a) of Section 57.7 of this Act, the 16 owner or operator shall prepare and submit to the 17 Agency for the Agency's approval or modification a 18 corrective action plan designed to mitigate any 19 threat to human health, human safety or the 20 environment resulting from the underground storage 21 tank release. 22 (B) If the owner or operator intends to seek 23 payment from the Fund, prior to performance of any 24 corrective action beyond that required by Section 25 57.6 and subsection (a) of Section 57.7, the owner 26 or operator shall submit to the Agency for the 27 Agency's approval or modification a corrective 28 action plan budget which includes, but is not 29 limited to, an accounting of all costs associated 30 with the implementation and completion of the 31 corrective action plan. 32 (C) The corrective action plan shall do all of 33 the following: 34 (i) Provide that applicable indicator HB5846 Engrossed -10- LRB9213131ACcd 1 contaminant groundwater quality standards or 2 groundwater objectives will not be exceeded in 3 groundwater at the property boundary line or 4 200 feet from the excavation, whichever is 5 less, or other level if approved by the Agency, 6 for any contaminant identified in the 7 groundwater investigation after complete 8 performance of the corrective action plan. 9 (ii) Provide that Class III special 10 resource groundwater quality standards for 11 Class III special resource groundwater within 12 200 feet of the excavation will not be exceeded 13 as a result of the underground storage tank 14 release for any indicator contaminant 15 identified in the groundwater investigation 16 after complete performance of the corrective 17 action plan. 18 (iii) Remediate threats due to the 19 presence or migration, through natural or 20 manmade pathways, of petroleum in 21 concentrations sufficient to harm human health 22 or human safety or to cause explosions in 23 basements, crawl spaces, utility conduits, 24 storm or sanitary sewers, vaults or other 25 confined spaces. 26 (iv) Remediate threats to a potable water 27 supply. 28 (v) Remediate threats to a surface water 29 body. 30 (D) Within 30 days of completion of the 31 corrective action, the owner or operator shall 32 submit to the Agency such a completion report that 33 includes a description of the corrective action plan 34 and a description of the corrective action work HB5846 Engrossed -11- LRB9213131ACcd 1 performed and all analytical or sampling results 2 derived from performance of the corrective action 3 plan. 4 (E) The Agency shall issue to the owner or 5 operator a no further remediation letter in 6 accordance with Section 57.10 if all of the 7 following are met: 8 (i) The corrective action completion 9 report demonstrates that: (a) applicable 10 indicator contaminant groundwater quality 11 standards or groundwater objectives are not 12 exceeded at the property boundary line or 200 13 feet from the excavation, whichever is less, as 14 a result of the underground storage tank 15 release for any indicator contaminant 16 identified in the groundwater investigation; 17 (b) Class III special use resource groundwater 18 quality standards, for Class III special use 19 resource groundwater within 200 feet of the 20 underground storage tank, are not exceeded as a 21 result of the underground storage tank release 22 for any contaminant identified in the 23 groundwater investigation; (c) the underground 24 storage tank release does not threaten human 25 health or human safety due to the presence or 26 migration, through natural or manmade pathways, 27 of petroleum or hazardous substances in 28 concentrations sufficient to harm human health 29 or human safety or to cause explosions in 30 basements, crawl spaces, utility conduits, 31 storm or sanitary sewers, vaults or other 32 confined spaces; (d) the underground storage 33 tank release does not threaten any surface 34 water body; and (e) the underground storage HB5846 Engrossed -12- LRB9213131ACcd 1 tank release does not threaten any potable 2 water supply. 3 (ii) The owner or operator submits to the 4 Agency a certification from a Licensed 5 Professional Engineer or Licensed Professional 6 Geologist that the work described in the 7 approved corrective action plan has been 8 completed and that the information presented in 9 the corrective action completion report is 10 accurate and complete. 11 (2) Low Priority Site. 12 (A) Corrective action at a low priority site 13 must include groundwater monitoring consistent with 14 part (B) of this paragraph (2). 15 (B) Prior to implementation of groundwater 16 monitoring, the owner or operator shall prepare and 17 submit to the Agency a groundwater monitoring plan 18 and, if the owner or operator intends to seek 19 payment under this Title, an associated budget which 20 includes, at a minimum, all of the following: 21 (i) Placement of groundwater monitoring 22 wells at the property line, or at 200 feet from 23 the excavation which ever is closer, designed 24 to provide the greatest likelihood of detecting 25 migration of groundwater contamination. 26 (ii) Quarterly groundwater sampling for a 27 period of one year, semi-annual sampling for 28 the second year and annual groundwater sampling 29 for one subsequent year for all indicator 30 contaminants identified during the groundwater 31 investigation. 32 (iii) The annual submittal to the Agency 33 of a summary of groundwater sampling results. 34 (C) If at any time groundwater sampling HB5846 Engrossed -13- LRB9213131ACcd 1 results indicate a confirmed exceedence of 2 applicable indicator contaminant groundwater quality 3 standards or groundwater objectives as a result of 4 the underground storage tank release, the site may 5 be reclassified as a High Priority Site by the 6 Agency at any time before the Agency's final 7 approval of a Low Priority groundwater monitoring 8 completion report. Agency review and approval shall 9 be in accordance with paragraph (4) of subsection 10 (c) of this Section. If the owner or operator elects 11 to appeal an Agency action to disapprove, modify, or 12 reject by operation of law a Low Priority 13 groundwater monitoring completion report, the Agency 14 shall indicate to the Board in conjunction with such 15 appeal whether it intends to reclassify the site as 16 High Priority. If a site is reclassified as a High 17 Priority Site, the owner or operator shall submit a 18 corrective action plan and budget to the Agency 19 within 120 days of the confirmed exceedence and 20 shall initiate compliance with all corrective action 21 requirements for a High Priority Site. 22 (D) If, throughout the implementation of the 23 groundwater monitoring plan, the groundwater 24 sampling results do not confirm an exceedence of 25 applicable indicator contaminant groundwater quality 26 standards or groundwater objectives as a result of 27 the underground storage tank release, the owner or 28 operator shall submit to the Agency a certification 29 of a Licensed Professional Engineer or Licensed 30 Professional Geologist so stating. 31 (E) Unless the Agency takes action under 32 subsection (b)(2)(C) to reclassify a site as high 33 priority, upon receipt of a certification by a 34 Licensed Professional Engineer or Licensed HB5846 Engrossed -14- LRB9213131ACcd 1 Professional Geologist submitted pursuant to 2 paragraph (2) of subsection (c) of this Section, the 3 Agency shall issue to the owner or operator a no 4 further remediation letter in accordance with 5 Section 57.10. 6 (3) No Further Action Site. 7 (A) No Further Action sites require no 8 remediation beyond that required in Section 57.6 and 9 subsection (a) of this Section if the owner or 10 operator has submitted to the Agency a certification 11 by a Licensed Professional Engineer or Licensed 12 Professional Geologist that the site meets all of 13 the criteria for classification as No Further Action 14 in subsection (b) of this Section. 15 (B) Unless the Agency takes action to reject 16 or modify a site classification under subsection (b) 17 of this Section or the site classification is 18 rejected by operation of law under item (4)(B) of 19 subsection (c) of this Section, upon receipt of a 20 certification by a Licensed Professional Engineer or 21 Licensed Professional Geologist submitted pursuant 22 to part (A) of paragraph (3) of subsection (c) of 23 this Section, the Agency shall issue to the owner or 24 operator a no further remediation letter in 25 accordance with Section 57.10. 26 (4) Agency review and approval. 27 (A) Agency approval of any plan and associated 28 budget, as described in this item (4), shall be 29 considered final approval for purposes of seeking 30 and obtaining payment from the Underground Storage 31 Tank Fund if the costs associated with the 32 completion of any such plan are less than or equal 33 to the amounts approved in such budget. 34 (B) In the event the Agency fails to approve, HB5846 Engrossed -15- LRB9213131ACcd 1 disapprove, or modify any plan or report submitted 2 pursuant to this Title in writing within 120 days of 3 the receipt by the Agency, the plan or report shall 4 be considered to be rejected by operation of law for 5 purposes of this Title and rejected for purposes of 6 payment from the Leaking Underground Storage Tank 7 Fund. 8 (i) For purposes of those plans as 9 identified in subparagraph (E) of this 10 subsection (c)(4), the Agency's review may be 11 an audit procedure. Such review or audit shall 12 be consistent with the procedure for such 13 review or audit as promulgated by the Board 14 under item (7) of subsection (b) of Section 15 57.14. The Agency has the authority to 16 establish an auditing program to verify 17 compliance of such plans with the provisions of 18 this Title. 19 (ii) For purposes of those plans 20 submitted pursuant to Part (E) (iii) of this 21 paragraph (4) for which payment from the Fund 22 is not being sought, the Agency need not take 23 action on such plan until 120 days after it 24 receives the corrective action completion 25 report required under Section 57(c)(1)(D). In 26 the event the Agency approved the plan, it 27 shall proceed under the provisions of Section 28 57(c)(4). 29 (C) In approving any plan submitted pursuant 30 to Part (E) of this paragraph (4), the Agency shall 31 determine, by a procedure promulgated by the Board 32 under item (7) of subsection (b) of Section 57.14, 33 that the costs associated with the plan are 34 reasonable, will be incurred in the performance of HB5846 Engrossed -16- LRB9213131ACcd 1 corrective action, and will not be used for 2 corrective action activities in excess of those 3 required to meet the minimum requirements of this 4 title. 5 (D) For any plan or report received after the 6 effective date of this amendatory Act of 1993, any 7 action by the Agency to disapprove or modify a plan 8 submitted pursuant to this Title shall be provided 9 to the owner or operator in writing within 120 days 10 of the receipt by the Agency or, in the case of a 11 corrective action plan for which payment is not 12 being sought, within 120 days of receipt of the 13 corrective action completion report, and shall be 14 accompanied by: 15 (i) an explanation of the Sections of 16 this Act which may be violated if the plans 17 were approved; 18 (ii) an explanation of the provisions of 19 the regulations, promulgated under this Act, 20 which may be violated if the plan were 21 approved; 22 (iii) an explanation of the specific type 23 of information, if any, which the Agency deems 24 the applicant did not provide the Agency; and 25 (iv) a statement of specific reasons why 26 the Act and the regulations might not be met if 27 the plan were approved. 28 Any action by the Agency to disapprove or 29 modify a plan or report or the rejection of any plan 30 or report by operation of law shall be subject to 31 appeal to the Board in accordance with the 32 procedures of Section 40. If the owner or operator 33 elects to incorporate modifications required by the 34 Agency rather than appeal, an amended plan shall be HB5846 Engrossed -17- LRB9213131ACcd 1 submitted to the Agency within 35 days of receipt of 2 the Agency's written notification. 3 (E) For purposes of this Title, the term 4 "plan" shall include: 5 (i) Any physical soil classification and 6 groundwater investigation plan submitted 7 pursuant to item (1)(A) of subsection (a) of 8 this Section, or budget under item (2) of 9 subsection (a) of this Section; 10 (ii) Any groundwater monitoring plan or 11 budget submitted pursuant to subsection 12 (c)(2)(B) of this Section; 13 (iii) Any corrective action plan 14 submitted pursuant to subsection (c)(1)(A) of 15 this Section; or 16 (iv) Any corrective action plan budget 17 submitted pursuant to subsection (c)(1)(B) of 18 this Section. 19 (d) For purposes of this Title, the term "indicator 20 contaminant" shall mean, unless and until the Board 21 promulgates regulations to the contrary, the following: (i) 22 if an underground storage tank contains gasoline, the 23 indicator parameter shall be BTEX and Benzene; (ii) if the 24 tank contained petroleum products consisting of middle 25 distillate or heavy ends, then the indicator parameter shall 26 be determined by a scan of PNA's taken from the location 27 where contamination is most likely to be present; and (iii) 28 if the tank contained used oil, then the indicator 29 contaminant shall be those chemical constituents which 30 indicate the type of petroleum stored in an underground 31 storage tank. All references in this Title to groundwater 32 objectives shall mean Class I groundwater standards or 33 objectives as applicable. 34 (e) (1) Notwithstanding the provisions of this Section, HB5846 Engrossed -18- LRB9213131ACcd 1 an owner or operator may proceed to conduct physical soil 2 classification, groundwater investigation, site 3 classification or other corrective action prior to the 4 submittal or approval of an otherwise required plan. If 5 the owner or operator elects to so proceed, an applicable 6 plan shall be filed with the Agency at any time. Such 7 plan shall detail the steps taken to determine the type 8 of corrective action which was necessary at the site 9 along with the corrective action taken or to be taken, in 10 addition to costs associated with activities to date and 11 anticipated costs. 12 (2) Upon receipt of a plan submitted after 13 activities have commenced at a site, the Agency shall 14 proceed to review in the same manner as required under 15 this Title. In the event the Agency disapproves all or 16 part of the costs, the owner or operator may appeal such 17 decision to the Board. The owner or operator shall not 18 be eligible to be reimbursed for such disapproved costs 19 unless and until the Board determines that such costs 20 were eligible for payment. 21 (Source: P.A. 88-496; 88-668, eff. 9-16-94; 89-428, eff. 22 1-1-96; 89-457, eff. 5-22-96.) 23 (415 ILCS 5/57.8) 24 Sec. 57.8. Underground Storage Tank Fund; payment; 25 options for State payment; deferred correction election to 26 commence corrective action upon availability of funds. If an 27 owner or operator is eligible to access the Underground 28 Storage Tank Fund pursuant to an Office of State Fire Marshal 29 eligibility/deductible final determination letter issued in 30 accordance with Section 57.9, the owner or operator may 31 submit a complete application for final or partial payment to 32 the Agency for activities taken in response to a confirmed 33 release. An owner or operator may submit a request for HB5846 Engrossed -19- LRB9213131ACcd 1 partial or final payment regarding a site no more frequently 2 than once every 90 days. 3 (a) Payment after completion of corrective action 4 measures. The owner or operator may submit an application for 5 payment for activities performed at a site after completion 6 of the requirements of Sections 57.6 and 57.7, or after 7 completion of any other required activities at the 8 underground storage tank site. 9 (1) In the case of any approved plan and budget for 10 which payment is being sought, the Agency shall make a 11 payment determination within 120 days of receipt of the 12 application. Such determination shall be considered a 13 final decision. The Agency's review shall be limited to 14 generally accepted auditing and accounting practices. In 15 no case shall the Agency conduct additional review of any 16 plan which was completed within the budget, beyond 17 auditing for adherence to the corrective action measures 18 in the proposal. If the Agency fails to approve the 19 payment application within 120 days, such application 20 shall be deemed approved by operation of law and the 21 Agency shall proceed to reimburse the owner or operator 22 the amount requested in the payment application. 23 However, in no event shall the Agency reimburse the owner 24 or operator an amount greater than the amount approved in 25 the plan. 26 (2) If sufficient funds are available in the 27 Underground Storage Tank Fund, the Agency shall, within 28 60 days, forward to the Office of the State Comptroller a 29 voucher in the amount approved under the payment 30 application. 31 (3) In the case of insufficient funds, the Agency 32 shall form a priority list for payment and shall notify 33 persons in such priority list monthly of the availability 34 of funds and when payment shall be made. Payment shall HB5846 Engrossed -20- LRB9213131ACcd 1 be made to the owner or operator at such time as 2 sufficient funds become available for the costs 3 associated with corrective action and costs expended for 4 activities performed where no proposal is required, if 5 applicable. Such priority list shall be available to any 6 owner or operator upon request. Priority for payment 7 shall be determined by the date the Agency receives a 8 complete request for partial or final payment. Upon 9 receipt of notification from the Agency that the 10 requirements of this Title have been met, the Comptroller 11 shall make payment to the owner or operator of the amount 12 approved by the Agency, if sufficient money exists in the 13 Fund. If there is insufficient money in the Fund, then 14 payment shall not be made. If the owner or operator 15 appeals a final Agency payment determination and it is 16 determined that the owner or operator is eligible for 17 payment or additional payment, the priority date for the 18 payment or additional payment shall be the same as the 19 priority date assigned to the original request for 20 partial or final payment. 21 (4) Any deductible, as determined pursuant to the 22 Office of the State Fire Marshal's eligibility and 23 deductibility final determination in accordance with 24 Section 57.9, shall be subtracted from any payment 25 invoice paid to an eligible owner or operator. Only one 26 deductible shall apply per underground storage tank site. 27 (5) In the event that costs are or will be incurred 28 in addition to those approved by the Agency, or after 29 payment, the owner or operator may submit successive 30 plans containing amended budgets. The requirements of 31 Section 57.7 shall apply to any amended plans. 32 (6) For purposes of this Section, a complete 33 application shall consist of: 34 (A) A certification from a Licensed HB5846 Engrossed -21- LRB9213131ACcd 1 Professional Engineer or Licensed Professional 2 Geologist as required under this Title and 3 acknowledged by the owner or operator. 4 (B) A statement of the amount approved in the 5 plan and the amount actually sought for payment 6 along with a certified statement that the amount so 7 sought shall be expended in conformance with the 8 approved budget. 9 (C) A copy of the Office of the State Fire 10 Marshal's eligibility and deductibility 11 determination. 12 (D) Proof that approval of the payment 13 requested will not result in the limitations set 14 forth in subsection (g) of this Section being 15 exceeded. 16 (E) A federal taxpayer identification number 17 and legal status disclosure certification on a form 18 prescribed and provided by the Agency. 19 (b) Commencement of corrective action upon availability 20 of funds. The Board shall adopt regulations setting forth 21 procedures based on risk to human health or the environment 22 under which the owner or operator who has received approval 23 for any budget plan submitted pursuant to Section 57.7, and 24 who is eligible for payment from the Underground Storage Tank 25 Fund pursuant to an Office of the State Fire Marshal 26 eligibility and deductibility determination, may elect to 27 defer site classification, low priority groundwater 28 monitoring, or remediation activities until funds are 29 available in an amount equal to the amount approved in the 30 budget plan. The regulations shall establish criteria based 31 on risk to human health or the environment to be used for 32 determining on a site-by-site basis whether deferral is 33 appropriate. The regulations also shall establish the 34 minimum investigatory requirements for determining whether HB5846 Engrossed -22- LRB9213131ACcd 1 the risk based criteria are present at a site considering 2 deferral and procedures for the notification of owners or 3 operators of insufficient funds, Agency review of request for 4 deferral, notification of Agency final decisions, returning 5 deferred sites to active status, and earmarking of funds for 6 payment. 7 (c) When the owner or operator requests indemnification 8 for payment of costs incurred as a result of a release of 9 petroleum from an underground storage tank, if the owner or 10 operator has satisfied the requirements of subsection (a) of 11 this Section, the Agency shall forward a copy of the request 12 to the Attorney General. The Attorney General shall review 13 and approve the request for indemnification if: 14 (1) there is a legally enforceable judgment entered 15 against the owner or operator and such judgment was 16 entered due to harm caused by a release of petroleum from 17 an underground storage tank and such judgment was not 18 entered as a result of fraud; or 19 (2) a settlement with a third party due to a 20 release of petroleum from an underground storage tank is 21 reasonable. 22 (d) Notwithstanding any other provision of this Title, 23 the Agency shall not approve payment to an owner or operator 24 from the Fund for costs of corrective action or 25 indemnification incurred during a calendar year in excess of 26 the following aggregate amounts based on the number of 27 petroleum underground storage tanks owned or operated by such 28 owner or operator in Illinois. 29 Amount Number of Tanks 30 $1,000,000............................fewer than 101 31 $2,000,000...............................101 or more 32 (1) Costs incurred in excess of the aggregate 33 amounts set forth in paragraph (1) of this subsection 34 shall not be eligible for payment in subsequent years. HB5846 Engrossed -23- LRB9213131ACcd 1 (2) For purposes of this subsection, requests 2 submitted by any of the agencies, departments, boards, 3 committees or commissions of the State of Illinois shall 4 be acted upon as claims from a single owner or operator. 5 (3) For purposes of this subsection, owner or 6 operator includes (i) any subsidiary, parent, or joint 7 stock company of the owner or operator and (ii) any 8 company owned by any parent, subsidiary, or joint stock 9 company of the owner or operator. 10 (e) Costs of corrective action or indemnification 11 incurred by an owner or operator which have been paid to an 12 owner or operator under a policy of insurance, another 13 written agreement, or a court order are not eligible for 14 payment under this Section. An owner or operator who 15 receives payment under a policy of insurance, another written 16 agreement, or a court order shall reimburse the State to the 17 extent such payment covers costs for which payment was 18 received from the Fund. Any monies received by the State 19 under this subsection (e) shall be deposited into the Fund. 20 (f) Until the Board adopts regulations pursuant to 21 Section 57.14, handling charges are eligible for payment only 22 if they are equal to or less than the amount determined by 23 the following table: 24 Subcontract or field Eligible Handling Charges 25 Purchase Cost as a Percentage of Cost 26 $0 - $5,000...........................................12% 27 $5,001 - $15,000.............$600+10% of amt. over $5,000 28 $15,001 - $50,000...........$1600+8% of amt. over $15,000 29 $50,001 - $100,000..........$4400+5% of amt. over $50,000 30 $100,001 - $1,000,000......$6900+2% of amt. over $100,000 31 (g) The Agency shall not approve any payment from the 32 Fund to pay an owner or operator: 33 (1) for costs of corrective action incurred by such 34 owner or operator in an amount in excess of $1,000,000 HB5846 Engrossed -24- LRB9213131ACcd 1 per occurrence; and 2 (2) for costs of indemnification of such owner or 3 operator in an amount in excess of $1,000,000 per 4 occurrence. 5 (h) Payment of any amount from the Fund for corrective 6 action or indemnification shall be subject to the State 7 acquiring by subrogation the rights of any owner, operator, 8 or other person to recover the costs of corrective action or 9 indemnification for which the Fund has compensated such 10 owner, operator, or person from the person responsible or 11 liable for the release. 12 (i) If the Agency refuses to pay or authorizes only a 13 partial payment, the affected owner or operator may petition 14 the Board for a hearing in the manner provided for the review 15 of permit decisions in Section 40 of this Act. 16 (j) Costs of corrective action or indemnification 17 incurred by an owner or operator prior to July 28, 1989, 18 shall not be eligible for payment or reimbursement under this 19 Section. 20 (k) The Agency shall not pay costs of corrective action 21 or indemnification incurred before providing notification of 22 the release of petroleum in accordance with the provisions of 23 this Title. 24 (l) Corrective action does not include legal defense 25 costs. Legal defense costs include legal costs for seeking 26 payment under this Title unless the owner or operator 27 prevails before the Board in which case the Board may 28 authorize payment of legal fees. 29 (m) The Agency may apportion payment of costs for plans 30 submitted under Section 57.7(c)(4)(E)(iii) if: 31 (1) the owner or operator was deemed eligible to 32 access the Fund for payment of corrective action costs 33 for some, but not all, of the underground storage tanks 34 at the site; and HB5846 Engrossed -25- LRB9213131ACcd 1 (2) the owner or operator failed to justify all 2 costs attributable to each underground storage tank at 3 the site. 4 (Source: P.A. 91-357, eff. 7-29-99.) 5 (415 ILCS 5/57.10) 6 Sec. 57.10. Professional Engineer or Professional 7 Geologist certification; presumptions against liability. 8 (a) Within 120 days of the Agency's receipt of a No 9 Further Action site classification report, a Low Priority 10 groundwater monitoring report, or a High Priority corrective 11 action completion report, the Agency shall issue to the owner 12 or operator a "no further remediation letter" unless the 13 Agency has requested a modification, issued a rejection under 14 subsection (d) of this Section, or the report has been 15 rejected by operation of law. 16 (b) By certifying such a statement, a Licensed 17 Professional Engineer or Licensed Professional Geologist 18 shall in no way be liable thereon, unless the engineer or 19 geologist gave such certification despite his or her actual 20 knowledge that the performed measures were not in compliance 21 with applicable statutory or regulatory requirements or any 22 plan submitted to the Agency. 23 (c) The Agency's issuance of a no further remediation 24 letter shall signify, based on the certification of the 25 Licensed Professional Engineer or Licensed Professional 26 Geologist, that: 27 (1) all statutory and regulatory corrective 28 action requirements applicable to the occurrence have 29 been complied with; 30 (2) all corrective action concerning the 31 remediation of the occurrence has been completed; and 32 (3) no further corrective action concerning the 33 occurrence is necessary for the protection of human HB5846 Engrossed -26- LRB9213131ACcd 1 health, safety and the environment. 2 (d) The no further remediation letter issued under this 3 Section shall apply in favor of the following parties: 4 (1) The owner or operator to whom the letter was 5 issued. 6 (2) Any parent corporation or subsidiary of such 7 owner or operator. 8 (3) Any co-owner or co-operator, either by joint 9 tenancy, right-of-survivorship, or any other party 10 sharing a legal relationship with the owner or operator 11 to whom the letter is issued. 12 (4) Any holder of a beneficial interest of a land 13 trust or inter vivos trust whether revocable or 14 irrevocable. 15 (5) Any mortgagee or trustee of a deed of trust of 16 such owner or operator. 17 (6) Any successor-in-interest of such owner or 18 operator. 19 (7) Any transferee of such owner or operator 20 whether the transfer was by sale, bankruptcy proceeding, 21 partition, dissolution of marriage, settlement or 22 adjudication of any civil action, charitable gift, or 23 bequest. 24 (8) Any heir or devisee or such owner or operator. 25 (e) If the Agency notifies the owner or operator that 26 the "no further remediation" letter has been rejected, the 27 grounds for such rejection shall be described in the notice. 28 Such a decision shall be a final determination which may be 29 appealed by the owner or operator. 30 (f) The Board shall adopt rules setting forth the 31 criteria under which the Agency may require an owner or 32 operator to conduct further investigation or remediation 33 related to a release for which a no further remediation 34 letter has been issued. HB5846 Engrossed -27- LRB9213131ACcd 1 (g) Holders of security interests in sites subject to 2 the requirements of this Title XVI shall be entitled to the 3 same protections and subject to the same responsibilities 4 provided under general regulations promulgated under Subtitle 5 I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 6 98-616) of the Resource Conservation and Recovery Act of 1976 7 (P.L. 94-580). 8 (Source: P.A. 88-496; 89-428, eff. 1-1-96; 89-457, eff. 9 5-22-96.) 10 (415 ILCS 5/58.2) 11 Sec. 58.2. Definitions. The following words and phrases 12 when used in this Title shall have the meanings given to them 13 in this Section unless the context clearly indicates 14 otherwise: 15 "Agrichemical facility" means a site on which 16 agricultural pesticides are stored or handled, or both, in 17 preparation for end use, or distributed. The term does not 18 include basic manufacturing facility sites. 19 "ASTM" means the American Society for Testing and 20 Materials. 21 "Area background" means concentrations of regulated 22 substances that are consistently present in the environment 23 in the vicinity of a site that are the result of natural 24 conditions or human activities, and not the result solely of 25 releases at the site. 26 "Brownfields site" or "brownfields" means a parcel of 27 real property, or a portion of the parcel, that has actual or 28 perceived contamination and an active potential for 29 redevelopment. 30 "Class I groundwater" means groundwater that meets the 31 Class I Potable Resource groundwater criteria set forth in 32 the Board rules adopted under the Illinois Groundwater 33 Protection Act. HB5846 Engrossed -28- LRB9213131ACcd 1 "Class III groundwater" means groundwater that meets the 2 Class III Special Resource Groundwater criteria set forth in 3 the Board rules adopted under the Illinois Groundwater 4 Protection Act. 5 "Carcinogen" means a contaminant that is classified as a 6 Category A1 or A2 Carcinogen by the American Conference of 7 Governmental Industrial Hygienists; or a Category 1 or 2A/2B 8 Carcinogen by the World Health Organizations International 9 Agency for Research on Cancer; or a "Human Carcinogen" or 10 "Anticipated Human Carcinogen" by the United States 11 Department of Health and Human Service National Toxicological 12 Program; or a Category A or B1/B2 Carcinogen by the United 13 States Environmental Protection Agency in Integrated Risk 14 Information System or a Final Rule issued in a Federal 15 Register notice by the USEPA as of the effective date of this 16 amendatory Act of 1995. 17 "Licensed Professional Engineer" (LPE) means a person, 18 corporation, or partnership licensed under the laws of this 19 State to practice professional engineering. 20 "Licensed Professional Geologist" means a person licensed 21 under the laws of the State of Illinois to practice as a 22 professional geologist. 23 "RELPEG" means a Licensed Professional Engineer or a 24 Licensed Professional Geologist engaged in review and 25 evaluation under this Title. 26 "Man-made pathway" means constructed routes that may 27 allow for the transport of regulated substances including, 28 but not limited to, sewers, utility lines, utility vaults, 29 building foundations, basements, crawl spaces, drainage 30 ditches, or previously excavated and filled areas. 31 "Municipality" means an incorporated city, village, or 32 town in this State. "Municipality" does not mean a township, 33 town when that term is used as the equivalent of a township, 34 incorporated town that has superseded a civil township, HB5846 Engrossed -29- LRB9213131ACcd 1 county, or school district, park district, sanitary district, 2 or similar governmental district. 3 "Natural pathway" means natural routes for the transport 4 of regulated substances including, but not limited to, soil, 5 groundwater, sand seams and lenses, and gravel seams and 6 lenses. 7 "Person" means individual, trust, firm, joint stock 8 company, joint venture, consortium, commercial entity, 9 corporation (including a government corporation), 10 partnership, association, State, municipality, commission, 11 political subdivision of a State, or any interstate body 12 including the United States Government and each department, 13 agency, and instrumentality of the United States. 14 "Regulated substance" means any hazardous substance as 15 defined under Section 101(14) of the Comprehensive 16 Environmental Response, Compensation, and Liability Act of 17 1980 (P.L. 96-510) and petroleum products including crude oil 18 or any fraction thereof, natural gas, natural gas liquids, 19 liquefied natural gas, or synthetic gas usable for fuel (or 20 mixtures of natural gas and such synthetic gas). 21 "Remedial action" means activities associated with 22 compliance with the provisions of Sections 58.6 and 58.7. 23 "Remediation Applicant" (RA) means any person seeking to 24 perform or performing investigative or remedial activities 25 under this Title, including the owner or operator of the site 26 or persons authorized by law or consent to act on behalf of 27 or in lieu of the owner or operator of the site. 28 "Remediation costs" means reasonable costs paid for 29 investigating and remediating regulated substances of concern 30 consistent with the remedy selected for a site. For purposes 31 of Section 58.14, "remediation costs" shall not include costs 32 incurred prior to January 1, 1998, costs incurred after the 33 issuance of a No Further Remediation Letter under Section 34 58.10 of this Act, or costs incurred more than 12 months HB5846 Engrossed -30- LRB9213131ACcd 1 prior to acceptance into the Site Remediation Program. 2 "Residential property" means any real property that is 3 used for habitation by individuals and other property uses 4 defined by Board rules such as education, health care, child 5 care and related uses. 6 "Site" means any single location, place, tract of land or 7 parcel of property, or portion thereof, including contiguous 8 property separated by a public right-of-way. 9 "Regulated substance of concern" means any contaminant 10 that is expected to be present at the site based upon past 11 and current land uses and associated releases that are known 12 to the Remediation Applicant based upon reasonable inquiry. 13 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 14 90-123, eff. 7-21-97.) 15 (415 ILCS 5/58.6) 16 Sec. 58.6. Remedial investigations and reports. 17 (a) Any RA who proceeds under this Title may elect to 18 seek review and approval for any of the remediation 19 objectives provided in Section 58.5 for any or all regulated 20 substances of concern. The RA shall conduct investigations 21 and remedial activities for regulated substances of concern 22 and prepare plans and reports in accordance with this Section 23 and rules adopted hereunder. The RA shall submit the plans 24 and reports for review and approval in accordance with 25 Section 58.7. All investigations, plans, and reports 26 conducted or prepared under this Section shall be under the 27 supervision of a Licensed Professional Engineer (LPE) or 28 Licensed Professional Geologist in accordance with the 29 requirements of this Title. 30 (b) (1) Site investigation and Site Investigation 31 Report. The RA shall conduct a site investigation to 32 determine the significant physical features of the site 33 and vicinity that may affect contaminant transport and HB5846 Engrossed -31- LRB9213131ACcd 1 risk to human health, safety, and the environment and to 2 determine the nature, concentration, direction and rate 3 of movement, and extent of the contamination at the site. 4 (2) The RA shall compile the results of the 5 investigations into a Site Investigation Report. At a 6 minimum, the reports shall include the following, as 7 applicable: 8 (A) Executive summary; 9 (B) Site history; 10 (C) Site-specific sampling methods and 11 results; 12 (D) Documentation of field activities, 13 including quality assurance project plan; 14 (E) Interpretation of results; and 15 (F) Conclusions. 16 (c) Remediation Objectives Report. 17 (1) If a RA elects to determine remediation 18 objectives appropriate for the site using the Tier II or 19 Tier III procedures under subsection (d) of Section 20 58.5, the RA shall develop such remediation objectives 21 based on site-specific information. In support of such 22 remediation objectives, the RA shall prepare a 23 Remediation Objectives Report demonstrating how the 24 site-specific objectives were calculated or otherwise 25 determined. 26 (2) If a RA elects to determine remediation 27 objectives appropriate for the site using the area 28 background procedures under subsection (b) of Section 29 58.5, the RA shall develop such remediation objectives 30 based on site-specific literature review, sampling 31 protocol, or appropriate statistical methods in 32 accordance with Board rules. In support of such 33 remediation objectives, the RA shall prepare a 34 Remediation Objectives Report demonstrating how the area HB5846 Engrossed -32- LRB9213131ACcd 1 background remediation objectives were determined. 2 (d) Remedial Action Plan. If the approved remediation 3 objectives for any regulated substance established under 4 Section 58.5 are less than the levels existing at the site 5 prior to any remedial action, the RA shall prepare a Remedial 6 Action Plan. The Remedial Action Plan shall describe the 7 selected remedy and evaluate its ability and effectiveness to 8 achieve the remediation objectives approved for the site. At 9 a minimum, the reports shall include the following, as 10 applicable: 11 (1) Executive summary; 12 (2) Statement of remediation objectives; 13 (3) Remedial technologies selected; 14 (4) Confirmation sampling plan; 15 (5) Current and projected future use of the 16 property; and 17 (6) Applicable preventive, engineering, and 18 institutional controls including long-term reliability, 19 operating, and maintenance plans, and monitoring 20 procedures. 21 (e) Remedial Action Completion Report. 22 (1) Upon completion of the Remedial Action Plan, 23 the RA shall prepare a Remedial Action Completion Report. 24 The report shall demonstrate whether the remedial action 25 was completed in accordance with the approved Remedial 26 Action Plan and whether the remediation objectives, as 27 well as any other requirements of the plan, have been 28 attained. 29 (2) If the approved remediation objectives for the 30 regulated substances of concern established under Section 31 58.5 are equal to or above the levels existing at the 32 site prior to any remedial action, notification and 33 documentation of such shall constitute the entire 34 Remedial Action Completion Report for purposes of this HB5846 Engrossed -33- LRB9213131ACcd 1 Title. 2 (f) Ability to proceed. The RA may elect to prepare and 3 submit for review and approval any and all reports or plans 4 required under the provisions of this Section individually, 5 following completion of each such activity; concurrently, 6 following completion of all activities; or in any other 7 combination. In any event, the review and approval process 8 shall proceed in accordance with Section 58.7 and rules 9 adopted thereunder. 10 (g) Nothing in this Section shall prevent an RA from 11 implementing or conducting an interim or any other remedial 12 measure prior to election to proceed under Section 58.6. 13 (h) 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. 16 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96.) 17 (415 ILCS 5/58.7) 18 Sec. 58.7. Review and approvals. 19 (a) Requirements. All plans and reports that are 20 submitted pursuant to this Title shall be submitted for 21 review or approval in accordance with this Section. 22 (b) Review and evaluation by the Agency. 23 (1) Except for sites excluded under subdivision (a) 24 (2) of Section 58.1, the Agency shall, subject to 25 available resources, agree to provide review and 26 evaluation services for activities carried out pursuant 27 to this Title for which the RA requested the services in 28 writing. As a condition for providing such services, the 29 Agency may require that the RA for a site: 30 (A) Conform with the procedures of this Title; 31 (B) Allow for or otherwise arrange site visits 32 or other site evaluation by the Agency when so 33 requested; HB5846 Engrossed -34- LRB9213131ACcd 1 (C) Agree to perform the work plan as approved 2 under this Title; 3 (D) Agree to pay any reasonable costs incurred 4 and documented by the Agency in providing such 5 services; 6 (E) Make an advance partial payment to the 7 Agency for such anticipated services in an amount, 8 acceptable to the Agency, but not to exceed $5,000 9 or one-half of the total anticipated costs of the 10 Agency, whichever sum is less; and 11 (F) Demonstrate, if necessary, authority to 12 act on behalf of or in lieu of the owner or 13 operator. 14 (2) Any moneys received by the State for costs 15 incurred by the Agency in performing review or evaluation 16 services for actions conducted pursuant to this Title 17 shall be deposited in the Hazardous Waste Fund. 18 (3) An RA requesting services under subdivision (b) 19 (1) of this Section may, at any time, notify the Agency, 20 in writing, that Agency services previously requested are 21 no longer wanted. Within 180 days after receipt of the 22 notice, the Agency shall provide the RA with a final 23 invoice for services provided until the date of such 24 notifications. 25 (4) The Agency may invoice or otherwise request or 26 demand payment from a RA for costs incurred by the Agency 27 in performing review or evaluation services for actions 28 by the RA at sites only if: 29 (A) The Agency has incurred costs in 30 performing response actions, other than review or 31 evaluation services, due to the failure of the RA to 32 take response action in accordance with a notice 33 issued pursuant to this Act; 34 (B) The RA has agreed in writing to the HB5846 Engrossed -35- LRB9213131ACcd 1 payment of such costs; 2 (C) The RA has been ordered to pay such costs 3 by the Board or a court of competent jurisdiction 4 pursuant to this Act; or 5 (D) The RA has requested or has consented to 6 Agency review or evaluation services under 7 subdivision (b) (1) of this Section. 8 (5) The Agency may, subject to available resources, 9 agree to provide review and evaluation services for 10 response actions if there is a written agreement among 11 parties to a legal action or if a notice to perform a 12 response action has been issued by the Agency. 13 (c) Review and evaluation by a Licensed Professional 14 Engineer or Licensed Professional Geologist. A RA may elect 15 to contract with a Licensed Professional Engineer or Licensed 16 Professional Geologist who will perform review and evaluation 17 services on behalf of and under the direction of the Agency 18 relative to the site activities. 19 (1) Prior to entering into the contract with the 20 RELPEGReview and Evaluation Licensed Professional21Engineer (RELPE), the RA shall notify the Agency of the 22 RELPEGRELPEto be selected. The Agency and the RA shall 23 discuss the potential terms of the contract. 24 (2) At a minimum, the contract with the RELPEG 25RELPEshall provide that the RELPEGRELPEwill submit 26 any reports directly to the Agency, will take his or her 27 directions for work assignments from the Agency, and will 28 perform the assigned work on behalf of the Agency. 29 (3) Reasonable costs incurred by the Agency shall 30 be paid by the RA directly to the Agency in accordance 31 with the terms of the review and evaluation services 32 agreement entered into under subdivision (b) (1) of 33 Section 58.7. 34 (4) In no event shall the RELPEGRELPEacting on HB5846 Engrossed -36- LRB9213131ACcd 1 behalf of the Agency be an employee of the RA or the 2 owner or operator of the site or be an employee of any 3 other person the RA has contracted to provide services 4 relative to the site. 5 (d) Review and approval. All reviews required under 6 this Title shall be carried out by the Agency or a RELPEG 7RELPE, both under the direction of a Licensed Professional 8 Engineer or Licensed Professional Geologist. 9 (1) All review activities conducted by the Agency 10 or a RELPEGRELPEshall be carried out in conformance 11 with this Title and rules promulgated under Section 12 58.11. 13 (2) Specific plans, reports, and activities which 14 the Agency or a RELPEGRELPEmay review include: 15 (A) Site Investigation Reports and related 16 activities; 17 (B) Remediation Objectives Reports; 18 (C) Remedial Action Plans and related 19 activities; and 20 (D) Remedial Action Completion Reports and 21 related activities. 22 (3) Only the Agency shall have the authority to 23 approve, disapprove, or approve with conditions a plan 24 or report as a result of the review process including 25 those plans and reports reviewed by a RELPEGRELPE. If 26 the Agency disapproves a plan or report or approves a 27 plan or report with conditions, the written notification 28 required by subdivision (d) (4) of this Section shall 29 contain the following information, as applicable: 30 (A) An explanation of the Sections of this 31 Title that may be violated if the plan or report was 32 approved; 33 (B) An explanation of the provisions of the 34 rules promulgated under this Title that may be HB5846 Engrossed -37- LRB9213131ACcd 1 violated if the plan or report was approved; 2 (C) An explanation of the specific type of 3 information, if any, that the Agency deems the 4 applicant did not provide the Agency; 5 (D) A statement of specific reasons why the 6 Title and regulations might not be met if the plan 7 or report were approved; and 8 (E) An explanation of the reasons for 9 conditions if conditions are required. 10 (4) Upon approving, disapproving, or approving with 11 conditions a plan or report, the Agency shall notify the 12 RA in writing of its decision. In the case of approval 13 or approval with conditions of a Remedial Action 14 Completion Report, the Agency shall prepare a No Further 15 Remediation Letter that meets the requirements of Section 16 58.10 and send a copy of the letter to the RA. 17 (5) All reviews undertaken by the Agency or a 18 RELPEGRELPEshall be completed and the decisions 19 communicated to the RA within 60 days of the request for 20 review or approval. The RA may waive the deadline upon a 21 request from the Agency. If the Agency disapproves or 22 approves with conditions a plan or report or fails to 23 issue a final decision within the 60 day period and the 24 RA has not agreed to a waiver of the deadline, the RA 25 may, within 35 days, file an appeal to the Board. 26 Appeals to the Board shall be in the manner provided for 27 the review of permit decisions in Section 40 of this Act. 28 (e) Standard of review. In making determinations, the 29 following factors, and additional factors as may be adopted 30 by the Board in accordance with Section 58.11, shall be 31 considered by the Agency when reviewing or approving plans, 32 reports, and related activities, or the RELPEGRELPE, when 33 reviewing plans, reports, and related activities: 34 (1) Site Investigation Reports and related HB5846 Engrossed -38- LRB9213131ACcd 1 activities: Whether investigations have been conducted 2 and the results compiled in accordance with the 3 appropriate procedures and whether the interpretations 4 and conclusions reached are supported by the information 5 gathered. In making the determination, the following 6 factors shall be considered: 7 (A) The adequacy of the description of the 8 site and site characteristics that were used to 9 evaluate the site; 10 (B) The adequacy of the investigation of 11 potential pathways and risks to receptors identified 12 at the site; and 13 (C) The appropriateness of the sampling and 14 analysis used. 15 (2) Remediation Objectives Reports: Whether the 16 remediation objectives are consistent with the 17 requirements of the applicable method for selecting or 18 determining remediation objectives under Section 58.5. 19 In making the determination, the following factors shall 20 be considered: 21 (A) If the objectives were based on the 22 determination of area background levels under 23 subsection (b) of Section 58.5, whether the review 24 of current and historic conditions at or in the 25 immediate vicinity of the site has been thorough and 26 whether the site sampling and analysis has been 27 performed in a manner resulting in accurate 28 determinations; 29 (B) If the objectives were calculated on the 30 basis of predetermined equations using site specific 31 data, whether the calculations were accurately 32 performed and whether the site specific data reflect 33 actual site conditions; and 34 (C) If the objectives were determined using a HB5846 Engrossed -39- LRB9213131ACcd 1 site specific risk assessment procedure, whether the 2 procedure used is nationally recognized and 3 accepted, whether the calculations were accurately 4 performed, and whether the site specific data 5 reflect actual site conditions. 6 (3) Remedial Action Plans and related activities: 7 Whether the plan will result in compliance with this 8 Title, and rules adopted under it and attainment of the 9 applicable remediation objectives. In making the 10 determination, the following factors shall be considered: 11 (A) The likelihood that the plan will result 12 in the attainment of the applicable remediation 13 objectives; 14 (B) Whether the activities proposed are 15 consistent with generally accepted engineering and 16 geologic practices; and 17 (C) The management of risk relative to any 18 remaining contamination, including but not limited 19 to, provisions for the long-term enforcement, 20 operation, and maintenance of institutional and 21 engineering controls, if relied on. 22 (4) Remedial Action Completion Reports and related 23 activities: Whether the remedial activities have been 24 completed in accordance with the approved Remedial Action 25 Plan and whether the applicable remediation objectives 26 have been attained. 27 (f) All plans and reports submitted for review shall 28 include a Licensed Professional Engineer's or Licensed 29 Professional Geologist's certification that all 30 investigations and remedial activities were carried out 31 under his or her direction and, to the best of his or her 32 knowledge and belief, the work described in the plan or 33 report has been completed in accordance with generally 34 accepted engineering and geologic practices, and the HB5846 Engrossed -40- LRB9213131ACcd 1 information presented is accurate and complete. 2 (g) In accordance with Section 58.11, the Agency shall 3 propose and the Board shall adopt rules to carry out the 4 purposes of this Section. At a minimum, the rules shall 5 detail the types of services the Agency may provide in 6 response to requests under subdivision (b) (1) of this 7 Section and the recordkeeping it will utilize in documenting 8 to the RA the costs incurred by the Agency in providing such 9 services. Until the Board adopts the rules, the Agency may 10 continue to offer services of the type offered under 11 subsections (m) and (n) of Section 22.2 of this Act prior to 12 their repeal. 13 (h) Public participation. 14 (1) The Agency shall develop guidance to assist 15 RA's in the implementation of a community relations plan 16 to address activity at sites undergoing remedial action 17 pursuant to this Title. 18 (2) The RA may elect to enter into a services 19 agreement with the Agency for Agency assistance in 20 community outreach efforts. 21 (3) The Agency shall maintain a registry listing 22 those sites undergoing remedial action pursuant to this 23 Title. 24 (4) Notwithstanding any provisions of this Section, 25 the RA of a site undergoing remedial activity pursuant to 26 this Title may elect to initiate a community outreach 27 effort for the site. 28 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 29 89-626, eff. 8-9-96.) 30 (415 ILCS 5/58.11) 31 Sec. 58.11. Regulations and Site Remediation Advisory 32 Committee. 33 (a) There is hereby established an 11-membera 10-memberHB5846 Engrossed -41- LRB9213131ACcd 1 Site Remediation Advisory Committee, which shall be appointed 2 by the Governor. The Committee shall include one member 3 recommended by the Illinois State Chamber of Commerce, one 4 member recommended by the Illinois Manufacturers' 5 Association, one member recommended by the Chemical Industry 6 Council of Illinois, one member recommended by the Consulting 7 Engineers Council of Illinois, one member recommended by the 8 Illinois Chapter of the American Institute of Professional 9 Geologists, one member recommended by the Illinois Bankers 10 Association, one member recommended by the Community Bankers 11 Association of Illinois, one member recommended by the 12 National Solid Waste Management Association, and 3 other 13 members as determined by the Governor. Members of the 14 Advisory Committee may organize themselves as they deem 15 necessary and shall serve without compensation. 16 (b) The Committee shall: 17 (1) Review, evaluate, and make recommendations 18 regarding State laws, rules, and procedures that relate 19 to site remediations. 20 (2) Review, evaluate, and make recommendations 21 regarding the review and approval activities of the 22 Agency and Review and Evaluation Licensed Professional 23 Engineers and Geologists. 24 (3) Make recommendations relating to the State's 25 efforts to implement this Title. 26 (4) Review, evaluate, and make recommendations 27 regarding the procedures for determining proportionate 28 degree of responsibility for a release of regulated 29 substances. 30 (5) Review, evaluate, and make recommendations 31 regarding the reports prepared by the Agency in 32 accordance with subsection (e) of this Section. 33 (c) Within 9 months after the effective date of this 34 amendatory Act of 1995, the Agency, after consideration of HB5846 Engrossed -42- LRB9213131ACcd 1 the recommendations of the Committee, shall propose rules 2 prescribing procedures and standards for its administration 3 of this Title. Within 9 months after receipt of the Agency's 4 proposed rules, the Board shall adopt, pursuant to Sections 5 27 and 28 of this Act, rules that are consistent with this 6 Title, including classifications of land use and provisions 7 for the voidance of No Further Remediation Letters. 8 (d) Until such time as the rules required under this 9 Section take effect, the Agency shall administer its 10 activities under this Title in accordance with Agency 11 procedures and applicable provisions of this Act. 12 (e) By July 1, 1997 and as deemed appropriate 13 thereafter, the Agency shall prepare reports to the Governor 14 and the General Assembly concerning the status of all sites 15 for which the Agency has expended money from the Hazardous 16 Waste Fund. The reports shall include specific information 17 on the financial, technical, and cost recovery status of each 18 site. 19 (Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 20 89-626, eff. 8-9-96.) 21 Section 99. Effective date. This Act takes effect upon 22 becoming law.