Environmental Protection Act Title XVII: Site Remediation Program

Section 58. Intent.

It is the intent of this Title:

  1. To establish a risk-based system of remediation based on protection of human health and the environment relative to present and future uses of the site.

  2. To assure that the land use for which remedial action was undertaken will not be modified without consideration of the adequacy of such remedial action for the new land use.

  3. To provide incentives to the private sector to undertake remedial action.

  4. To establish expeditious alternatives for the review of site investigation and remedial activities, including a privatized review process.

  5. To assure that the resources of the Hazardous Waste Fund are used in a manner that is protective of human health and the environment relative to present and future uses of the site and surrounding area.

Section 58.1. Applicability.

  1.  

    1. This Title establishes the procedures for the investigative and remedial activities at sites where there is a release, threatened release, or suspected release of hazardous substances, pesticides, or petroleum and for the review and approval of those activities.

    2. Any person, including persons required to perform investigations and remediations under this Act, may elect to proceed under this Title unless (i) the site is on the National Priorities List (Appendix B of 40 CFR 300), (ii) the site is a treatment, storage, or disposal site for which a permit has been issued, or that is subject to closure requirements under federal or State solid or hazardous waste laws, (iii) the site is subject to federal or State underground storage tank laws, or (iv) investigation or remedial action at the site has been required by a federal court order or an order issued by the United States Environmental Protection Agency. To the extent allowed by federal law and regulations, the sites listed under items (i), (ii), (iii), and (iv) may utilize the provisions of this Title, including the procedures for establishing risk-based remediation objectives under Section 58.5.

  2. Except for sites excluded under subdivision (a)(2) of this Section, the Remediation Applicant (RA) for any site that has not received an Agency letter under subsection (y) of Section 4 of this Act may elect to proceed under the provisions of this Title by submitting a written statement of the election to the Agency. In the absence of such election, the RA shall continue under the provisions of this Act as applicable prior to the effective date of this amendatory Act of 1995.

  3. Except for sites excluded under subdivision (a)(2) of this Section, agrichemical facilities may elect to undertake corrective action in conformance with this Title and rules promulgated by the Board thereunder and land application programs administered by the Department of Agriculture as provided under Section 19 of the Illinois Pesticide Act, and shall be eligible for the relief provided under Section 58.10.

Section 58.2. Definitions.

The following words and phrases when used in this Title shall have the meanings given to them in this Section unless the context clearly indicates otherwise:

"Agrichemical facility" means a site on which agricultural pesticides are stored or handled, or both, in preparation for end use, or distributed. The term does not include basic manufacturing facility sites.

"ASTM" means the American Society for Testing and Materials.

"Area background" means concentrations of regulated substances that are consistently present in the environment in the vicinity of a site that are the result of natural conditions or human activities, and not the result solely of releases at the site.

"Class I groundwater" means groundwater that means the Class I Potable Resource groundwater criteria set forth in the Board rules adopted under the Illinois Groundwater Protection Act.

"Class III groundwater" means groundwater that meets the Class III Special Resource Groundwater criteria set forth in the Board rules adopted under the Illinois Groundwater Protection Act.

"Carcinogen" means a contaminant that is classified as a Category A1 or A2 Carcinogen by the American Conference of Governmental Industrial Hygienists; or a Category 1 or 2A/2B Carcinogen by the World Health Organizations International Agency for Research on Cancer; or a "Human Carcinogen" or "Anticipated Human Carcinogen" by the United States Department of Health and Human Service National Toxicological Program; or a Category A or B1/B2 Carcinogen by the United States Environmental Protection Agency in Integrated Risk Information System or a Final Rule issued in a Federal Register notice by the USEPA as of the effective date of this amendatory Act of 1995.

"Licensed Professional Engineer" (LPE) means a person, corporation, or partnership licensed under the laws of this State to practice professional engineering.

"Man-made pathway" means constructed routes that may allow for the transport of regulated substances including, but not limited to, sewers, utility lines, utility vaults, building foundations, basements, crawl spaces, drainage ditches, or previously excavated and filled areas.

"Natural pathway" means natural routes for the transport of regulated substances including, but not limited to, soil, groundwater, sand seams and lenses, and gravel seams and lenses.

"Person" means individual, trust, firm, joint stock company, joint venture, consortium, commercial entity, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body including the United States Government and each department, agency, and instrumentality of the United States.

"Regulated substance" means any hazardous substance as defined under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510) and petroleum products including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).

"Remedial action" means activities associated with compliance with the provisions of Sections 58.6 and 58.7.

"Remediation Applicant" (RA) means any person seeking to perform or performing investigative or remedial activities under this Title, including the owner or operator of the site or persons authorized by law or consent to act on behalf of or in lieu of the owner or operator of the site.

"Residential property" means any real property that is used for habitation by individuals and other property uses defined by Board rules such as education, health care, child care and related uses.

"Site" means any single location, place, tract of land or parcel or property, or portion thereof, including contiguous property separated by a public right-of-way.

"Regulated substance of concern" means any contaminant that is expected to be present at the site based upon past and current land uses and associated releases that are known to the Remediation Applicant based upon reasonable inquiry.

Section 58.3. Site Investigation and Remedial Activities Program.

The General Assembly hereby establishes a Site Investigation and Remedial Activities Program for sites subject to this Title. This program shall be administered by the Illinois Environmental Protection Agency under this Title XVII and rules adopted by the Illinois Pollution Control Board.

Section 58.4. Permit waiver.

A State permit or permit revision which is not otherwise required by federal law or regulations shall not be required for remedial action activities undertaken pursuant to the provisions of this Title that occur entirely on the site.

Section 58.5. Risk-based remediation objectives.

  1. Determination of remediation objectives. This Section establishes the procedures for determining risk-based remediation objectives for sites subject to this Title.

  2. Background area remediation objectives.

    1. Except as provided in subdivisions (b)(2) or (b)(3) of this Section, remediation objectives established under this Section shall not require remediation of regulated substances to levels that are less than area background levels.

    2. In the event that the concentration of a regulated substance of concern on the site exceeds a remediation objective adopted by the Board for residential land use, the property may not be converted to residential use unless such remediation objective or an alternate risk-based remediation objective for that regulated substance of concern is first achieved.

    3. In the event that the Agency has determined in writing that the background level for a regulated substances poses an acute threat to human health or the environment at the site when considering the post-remedial action land use, the RA shall develop appropriate risk-based remediation objectives in accordance with this Section.

  3. Regulations establishing remediation objectives and methodologies for deriving remediation objectives for individual or classes of regulated substances shall be adopted by the Board in accordance with this Section and Section 58.11.

    1. The regulations shall provide for the adoption of a three-tiered process for a RA to establish remediation objectives protective of human health and the environment based on identified risks and specific site characteristics at and around the site.

    2. The regulations shall provide procedures for using alternative tiers in developing remediation objectives for multiple regulated substances.

    3. The regulations shall provide procedures for determining area background contaminant levels.

    4. The methodologies adopted under this Section shall ensure that the following factors are taken into account in determining remediation objectives:

      1. potential risks posed by carcinogens and noncarcinogens; and

      2. the presence of multiple substances of concern and multiple exposure pathways.

  4. In developing remediation objectives under subsection (c) of this Section, the methodology proposed and adopted shall establish tiers addressing manmade and natural pathways of exposure, including but not limited to human ingestion, human inhalation, and groundwater protection. For carcinogens, soil and groundwater remediation objectives shall be established at exposures that represent an excess upper-bound lifetime risk of between 1 in 10,000 and 1 in 1,000,000 as appropriate for the post-remedial action use, except that remediation objectives protecting residential use shall be based on exposures that represent an excess upper-bound lifetime risk of 1 in 1,000,000. No groundwater remediation objective adopted pursuant to this Section shall be more restrictive than the applicable Class I or Class III Groundwater Quality Standard adopted by the Board. At a minimum, the objectives shall include the following:

    1. Tier I remediation objectives expressed as a table of numeric values for soil and groundwater. Such objectives may be of different values dependent on potential pathways at the site and different land uses, including residential and nonresidential uses.

    2. Tier II remediation objectives shall include the formulae and equations used to derive the Tier II objectives and input variables for use in the formulae. The RA may alter the input variables when it is demonstrated that the specific circumstances at and around the site including land uses warrant such alternative variables.

    3. Tier III remediation objectives shall include methodologies to allow for the development of site-specific risk-based remediation objectives for soil or groundwater, or both, for regulated substances. Such methodology shall allow for different remediation objectives for residential and various categories of non-residential land uses. The Board’s future adoption of a methodology pursuant to this Section shall in no way preclude the use of a nationally recognized methodology to be used for the development of site-specific risk-based objectives for regulated substances under this section. In determining Tier III remediation objectives under this subsection, all of the following factors shall be considered:

      1. The use of specific site characteristic data.

      2. The use of appropriate exposure factors for the current and currently planned future land use of the site and adjacent property and the effectiveness of engineering, institutional, or legal controls placed on the current or future use of the site.

      3. The use of appropriate statistical methodologies to establish statistically valid remediation objectives.

      4. The actual and potential impact of regulated substances to receptors.

    4. For regulated substances that have a groundwater quality standard established pursuant to the Illinois Groundwater Protection Act and rules promulgated thereunder, site specific groundwater remediation objectives may be proposed under the methodology established in subdivision (d)(3) of this Section at values greater than the groundwater quality standards.

      1. The RA proposing any site specific groundwater remediation objective at a value greater than the applicable groundwater quality standard shall demonstrate:

        1. To the extent practical, the exceedance of the groundwater quality standard has been minimized and beneficial use appropriate to the groundwater that was impacted has been returned; and

        2. Any threat to human health or the environment has been minimized.

      2. The rules proposed by the Agency and adopted by the Board under this Section shall include criteria required for the demonstration of the suitability of groundwater objectives proposed under subdivision (b)(4)(A) of this Section.

  5. The rules proposed by the Agency and adopted by the Board under this Section shall include conditions for the establishment and duration of groundwater management zones by rule, as appropriate, at sites undergoing remedial action under this Title.

  6. Until such time as the Board adopts remediation objectives under this Section, the remediation objectives adopted by the Board under Title XVI of this Act shall apply to all environmental assessments and soil or groundwater remedial action conducted under this Title.

Section 58.6. Remedial investigations and reports.

  1. Any RA who proceeds under this Title may elect to seek review and approval for any of the remediation objectives provided in Section 58.5 for any or all regulated substances of concern. The RA shall conduct investigations and remedial activities for regulated substances of concern and prepare plans and reports in accordance with this Section and rules adopted hereunder. The RA shall submit the plans and reports for review and approval in accordance with Section 58.7. All investigations, plans, and reports conducted or prepared under this Section shall be under the supervision of a Licensed Professional Engineer (LPE) in accordance with the requirements of this Title.

  2.  

    1. Site investigation and Site Investigation Report. The RA shall conduct a site investigation to determine the significant physical features of the site and vicinity that may affect contaminant transport and risk to human health, safety, and the environment and to determine the nature, concentration, direction and rate of movement, and extent of the contamination at the site.

    2. The RA shall compile the results of the investigations into a Site Investigation Report. At a minimum, the reports shall include the following, as applicable:

      1. Executive summary;

      2. Site history;

      3. Site-specific sampling methods and results;

      4. Documentation of field activities, including quality assurance project plan;

      5. Interpretation of results; and

      6. Conclusions.

  3. Remediation Objectives Report.

    1. If a RA elects to determine remediation objectives appropriate for the site using the Tier II or Tier III procedures under subsection (d) of Section 58.5, the RA shall develop such remediation objectives based on site-specific information. In support of such remediation objectives, the RA shall prepare a Remediation Objectives Report demonstrating how the site-specific objectives were calculated or otherwise determined.

    2. If a RA elects to determine remediation objectives appropriate for the site using the area background procedures under subsection (b) of Section 58.5, the RA shall develop such remediation objectives based on site-specific literature review, sampling protocol, or appropriate statistical methods in accordance with Board rules. In support of such remediation objectives, the RA shall prepare a Remediation Objectives Report demonstrating how the area background remediation objectives were determined.

  4. Remedial Action Plan. If the approved remediation objectives for any regulated substance established under Section 58.5 are less than the levels existing at the site prior to any remedial action, the RA shall prepare a Remedial Action Plan. The Remedial Action 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 reports shall include the following, as applicable:

    1. Executive summary;

    2. Statement of remediation objectives;

    3. Remedial technologies selected;

    4. Confirmation sampling plan;

    5. Current and projected future use of the property; and

    6. Applicable preventive, engineering, and institutional controls including long-term reliability, operating, and maintenance plans, and monitoring procedures.

  5. Remedial Action Completion Report.

    1. Upon completion of the Remedial Action Plan, the RA shall prepare a Remedial Action Completion Report. The report shall demonstrate whether the remedial action was completed in accordance with the approved Remedial Action Plan and whether the remediation objectives, as well as any other requirements of the plan, have been attained.

    2. If the approved remediation objectives for the regulated substances of concern established under Section 58.5 are equal to or above the levels existing at the site prior to any remedial action, notification and documentation of such shall constitute the entire Remedial Action Completion Report for purposes of this Title.

  6. Ability to proceed. The RA may elect to prepare and submit for review and approval any and all reports or plans required under the provisions of this Section individually, following completion of each such activity; concurrently, following completion of all activities; or in any other combination. In any event, the review and approval process shall proceed in accordance with Section 58.7 and rules adopted thereunder.

  7. Nothing in this Section shall prevent an RA from implementing or conducting an interim or any other remedial measure prior to election to proceed under Section 58.6.

  8. In accordance with Section 58.11, the Agency shall propose and the Board shall adopt rules to carry out the purposes of this Section.

Section 58.7. Review and approvals.

  1. Requirements. All plans and reports that are submitted pursuant to this Title shall be submitted for review or approval in accordance with this Section.

  2. Review and evaluation by the Agency.

    1. Except for sites excludes under subdivision (a)(2) of Section 58.1, the Agency shall, subject to available resources, agree to provide review and evaluation services for activities carried out pursuant to this Title for which the RA requested the services in writing. As a condition for providing such services, the Agency may require that the RA for a site:

      1. Conform with the procedures of this Title;

      2. Allow for or otherwise arrange site visits or other site evaluation by the Agency when so requested;

      3. Agree to perform the work plan as approved under this Title;

      4. Agree to pay any reasonable costs incurred and documented by the Agency in providing such services;

      5. Make an advance partial payment to the Agency for such anticipated services in an amount, acceptable to the Agency, but not to exceed $5,000 or one-half of the total anticipated costs of the Agency, whichever sum is less; and

      6. Demonstrate, if necessary, authority to act on behalf of or in lieu of the owner or operator.

    2. Any moneys received by the State for costs incurred by the Agency in performing review or evaluation services for actions conducted pursuant to this Title shall be deposited in the Hazardous Waste Fund.

    3. An RA requesting services under subdivision (b)(1) of this Section may, at any time, notify the Agency, in writing that Agency services previously requested are no longer wanted. Within 180 days after receipt of the notice, the Agency shall provide the RA with a final invoice for services provided until the date of such notifications.

    4. The Agency may invoice or otherwise request or demand payment from a RA for costs incurred by the Agency in performed review or evaluation services for actions by the RA at sites only if:

      1. The Agency has incurred costs in performing response actions, other than review or evaluation services, due to the failure of the RA to take response action in accordance with a notice issued pursuant to this Act;

      2. The RA has agreed in writing to the payment of such costs;

      3. The RA has been ordered to pay such costs by the Board or a court of competent jurisdiction pursuant to this Act; or

      4. The RA has requested or has consented to Agency review or evaluation services under subdivision (b)(1) of this Section.

    5. The Agency may, subject to available resources, agree to provide review and evaluation services for response actions if there is a written agreement among parties to a legal action or if a notice to perform a response action has been issued by the Agency.

  3. Review and evaluation by a Licensed Professional Engineer. A RA may elect to contract with a Licensed Professional Engineer who will perform review and evaluation services on behalf of and under the direction of the Agency relative to the site activities.

    1. Prior to entering into the contract with the Review and Evaluation Licensed Professional Engineer (RELPE), the RA shall notify the Agency of the RELPE to be selected. The Agency and the RA shall discuss the potential terms of the contract.

    2. At a minimum, the contract with the RELPE shall provide that the RELPE will submit any reports directly to the Agency, will take his or her directions for work assignments from the Agency, and will perform the assigned work on behalf of the Agency.

    3. Reasonable costs incurred by the Agency shall be paid by the RA directly to the Agency in accordance with the terms of the review and evaluation services agreement entered into under subdivision (b)(1) of Section 58.7.

    4. In no event shall the RELPE acting on behalf of the Agency be an employee of the RA or the owner or operator of the site or be an employee of any other person the RA has contracted to provide services relative to the site.

  4. Review and approval. All reviews required under this Title shall be carried out by the Agency or a RELPE, both under the direction of a Licensed Professional Engineer.

    1. All review activities conducted by the Agency or a RELPE shall be carried out in conformance with this Title and rules promulgated under Section 58.11.

    2. Specific plans, reports, and activities which the Agency or a RELPE may review include:

      1. Site Investigation Reports and related activities;

      2. Remediation Objectives Reports;

      3. Remedial Action Plans and related activities; and

      4. Remedial Action Completion Reports and related activities.

    3. Only the Agency shall have the authority to approve, disapprove, or approve with conditions a plan or report as a result of the review process including those plans and reports reviewed by a RELPE. If the Agency disapproves a plan or report or approves a plan or report with conditions, the written notification required by subdivision (d)(4) of this Section shall contain the following information, as applicable:

      1. An explanation of the Sections of this Title that may be violated if the plan or report was approved;

      2. An explanation of the provisions of the rules promulgated under this Title that may be violated if the plan or report was approved;

      3. An explanation of the specific type of information, if any, that the Agency deems the applicant did not provide the Agency;

      4. A statement of specific reasons why the Title and regulations might not be met if the plan or report were approved; and

      5. An explanation of the reasons for conditions if conditions are required.

    4. Upon approving, disapproving, or approving with conditions a plan or report, the Agency shall notify the RA in writing of its decision. In the case of approval or approval with conditions of a Remedial Action Completion report, the Agency shall prepare a No Further Remediation Letter that meets the requirements of Section 58.10 and send a copy of the letter to the RA.

    5. All reviews undertaken by the Agency or a RELPE shall be completed and the decisions communicated to the RA within 60 days of the request for review or approval. The RA may waive the deadline upon a request from the Agency. If the Agency disapproves or approves with conditions a plan or report or fails to issue a final decision within the 60 day period and a RA has not agreed to a waiver of the deadline, the RA may, within 35 days, file an appeal to the Board. Appeals to the Board shall be in the manner provided for the review of permit decisions in Section 40 of this Act.

  5. Standard of review. In making determinations, the following factors, and additional factors as may be adopted by the Board in accordance with Section 58.11, shall be considered by the Agency when reviewing or approving plans, reports, and related activities, of the RELPE, when reviewing plans, reports, and related activities:

    1. Site Investigation reports and related activities: Whether investigations have been conducted and the results compiled in accordance with the appropriate procedures and whether the interpretations and conclusions reached are supported by the information gathered. In making the determination, the following factors shall be considered:

      1. The adequacy of the description of the site and site characteristics that were used to evaluate the site;

      2. The adequacy of the investigation of potential pathways and risks to receptors identified at the site; and

      3. The appropriateness of the sampling and analysis used.

    2. Remediation Objectives Reports: Whether the remediation objectives are consistent with the requirements of the applicable method for selecting or determining remediation objectives under Section 58.5. In making the determination, the following factors shall be considered:

      1. If the objectives were based on the determination of area background levels under subsection (b) of Section 58.5, whether the review of current and historic conditions at or in the immediate vicinity of the site has been thorough and whether the site sampling and analysis has been performed in a manner resulting in accurate determinations;

      2. If the objectives were calculated on the basis of predetermined equations using site specific data, whether the calculations were accurately performed and whether the site specific data reflect actual site conditions; and

      3. If the objectives were determined using a site specific risk assessment procedure, whether the procedure used is nationally recognized and accepted, whether the calculations were accurately performed, and whether the site specific data reflect actual site conditions.

    3. Remedial Action Plans and related activities: Whether the plan will result in compliance with this Title, and rules adopted under it and attainment of the applicable remediation objectives. In making the determination, the following factors shall be considered:

      1. The likelihood that the plan will result in the attainment of the applicable remediation objectives;

      2. Whether the activities proposed are consistent with generally accepted engineering practices; and

      3. The management of risk relative to any remaining contamination, including but not limited to, provisions for the long-term enforcement operation, and maintenance of institutional and engineering controls, if relied on.

    4. Remedial Action Completion reports and related activities: Whether the remedial activities have been completed in accordance with the approved Remedial Action Plan and whether the applicable remediation objectives have been attained.

  6. All plans and reports submitted for review shall include a Licensed Professional Engineer’s certification that all investigations and remedial activities were carried out under his or her direction and, to the best of his or her knowledge and belief, the work described in the plan or report has been completed in accordance with generally accepted engineering practices, and the information presented is accurate and complete.

  7. In accordance with Section 58.11, the Agency shall propose and the Board shall adopted rules to carry out the purposes of this Section. At a minimum, the rules shall detail the types of services the Agency may provide in response to requests under subdivision (b)(1) of this Section and the recordkeeping it will utilize in documenting to the RA the costs incurred by the Agency in providing such services. Until the Board adopts the rules, the Agency may continue to offer services of the type offered under subsections (m) and (n) of Section 22.2 of this Act prior to their repeal.

  8. Public participation.

    1. the Agency shall develop guidance to assist RAs in the implementation of a community relations plan to address activity at sites undergoing remedial action pursuant to this Title.

    2. The RA may elect to enter into a services agreement with the Agency for Agency assistance in community outreach efforts.

    3. The Agency shall maintain a registry listing those sites undergoing remedial action pursuant to this Title.

    4. Notwithstanding any provisions of this Section, the RA of a site undergoing remedial activity pursuant to this Title may elect to initiate a community outreach effort for the site.

Section 58.8. Duty to record.

  1. The RA receiving a No Further Remediation Letter from the Agency pursuant to Section 58.10, shall submit the letter to the Office of the Recorder or the Registrar of Titles of the county in which the site is located within 45 days of receipt of the letter. The Office of the Recorder or the Registrar of Titles shall accept and record that letter in accordance with Illinois law so that it forms a permanent part of the chain of title for the site.

  2. A No Further Remediation Letter shall not become effective until officially recorded in accordance with subsection (a) of this Section. The RA shall obtain and submit to the Agency a certified copy of the letter as recorded.

  3. At no time shall any site for which a land use limitation has been imposed as a result of remediation activities under this Title be used in a manner inconsistent with the land use limitation unless further investigation or remedial action has been conducted that documents the attainment of objectives appropriate for the new land use and a new letter obtained and recorded in accordance with this Title.

  4. In the event that a No Further Remediation Letter issues by operation of law pursuant to Section 58.10, the RA may, for purposes of this Section, file an affidavit stating that the letter issued by operation of law. Upon receipt of the No Further Remediation Letter from the Agency, the RA shall comply with the requirements of subsections (a) and (b) of this Section.

Section 58.9. Liability.

  1. Cost assignment.

    1. Notwithstanding any other provisions of this Act to the contrary, including subsection (f) of Section 22.2, in no event may the Agency, the State of Illinois, or any person bring an action pursuant to this Act or the Groundwater Protection Act to require any person to conduct remedial action or to seek recovery of costs for remedial activity conducted by the State of Illinois or any person beyond the remediation of releases of regulated substances that may be attributed to being proximately caused by such person’s act or omission or beyond such person’s proportionate degree of responsibility for costs of the remedial action of releases of regulated substances that were proximately caused or contributed to by 2 or more persons.

    2. Notwithstanding any provisions in this Act to the contrary, including subsection (f) of Section 22.2, in no event may the State of Illinois or any person require the performance of remedial action pursuant to this Act against any of the following:

      1. A person who neither caused nor contributed to in any material respect a release of regulated substances on, in, or under the site that was identified and addressed by the remedial action taken pursuant to this Title.

      2. Notwithstanding a landlord’s rights against a tenant, a landlord, if the landlord did not know, and could not have reasonably known, of the acts or omissions of a tenant that caused or contributed to, or were likely to have caused or contributed to, a release of regulated substances that resulted in the performance of remedial action at the site.

      3. The State of Illinois or any unit of local government if it involuntarily acquires ownership or control of the site by virtue of its function as a sovereign through such means as escheat, bankruptcy, tax delinquency, or abandonment, unless the State of Illinois or unit of local government takes possession of the site and exercises actual, direct, and continual or recurrent managerial control in the operation of the site that causes a release or substantial threat of a release of a regulated substance resulting in removal or remedial activity.

      4. The State of Illinois or any unit of local government if it voluntarily acquires ownership or control of the site through purchase, appropriation, or other means, unless the State of Illinois or the unit of local government takes possession of the site and exercises actual, direct, and continual or recurrent managerial control in the operation of the site that causes a release or substantial threat of a release of a regulated substance resulting in removal or remedial activity.

      5. A financial institution, as that term is defined in Section 2 of the Illinois Banking Act and to include the Illinois Housing Development Authority, that has acquired the ownership, operation, management, or control of a site through foreclosure, a deed in lieu of foreclosure, receivership, by exercising of an assignment of rents, as mortgagee in possession or otherwise under the terms of a security interest held by the financial institution, or under the terms of an extension of credit made by the financial institution, unless the financial institution takes actual physical possession of the site and, in so doing, directly causes a release of a regulated substance that results in removal or remedial activity.

      6. A corporate fiduciary that has acquired ownership, operation, management, or control of a site through acceptance of a fiduciary appointment unless the corporate fiduciary directly causes a release of a regulated substance resulting in a removal or remedial activity.

  2. In the event that the State of Illinois seeks to require a person who may be liable pursuant to this Act to conduct remedial activities for a release or threatened release of a regulated substance, the Agency shall provide notice to such person. Such notice shall include the necessity to conduct remedial action pursuant to this Title and an opportunity for the person to perform the remedial action.

  3. In any instance in which the Agency has issued notice pursuant to subsection (b) of this Section, the Agency and person to whom such notice was issued may attempt to determine the costs of conducting the remedial action that are attributable to the releases to which such person or any other person caused or contributed. Determinations pursuant to this Section may be made in accordance with rules promulgated by the Board.

  4. Within 18 months of the effective date of this amendatory Act of 1995, the Board shall adopt, pursuant to Sections 27 and 28 of this Act, rules and procedures for determining proportionate share. Such rules shall, at a minimum, provide for criteria for the determination of apportioned responsibility based upon the degree to which a person directly caused or contributed to a release of regulated substances on, in, or under the site identified and addressed in the remedial action; procedures to establish how and when such persons may file a petition for determination of such apportionment; and any other standards or procedures which the Board may adopt pursuant to this Section. In developing such rules, the Board shall take into consideration any recommendations and proposals of the Agency and the Site Remediation Advisory Committee established in Section 58.11 of this Act and other interested participants.

  5. Nothing in this Section shall limit the authority of the Agency provide notice under subsection (q) of Section 4 or to undertake investigative, preventive, or corrective action under any other applicable provisions of this Act. The Director of the Agency is authorized to enter into such contracts and agreements as may be necessary to carry out the Agency’s duties and responsibilities under this Section as expeditiously as possible.

  6. This Section does not apply to any cost recovery action brought by the State under Section 22.2 to recover costs incurred by the State prior to July 1, 1996.

Section 58.10. Effect of completed remediation; liability releases.

  1. The Agency’s issuance of the No Further Remediation Letter signifies a release from further responsibilities under this Act in performing the approved remedial action and shall be considered prima facie evidence that the site does not constitute a threat to human health and the environment and does not require further remediation under this Act, so long as the site is utilized in accordance with the terms of the No Further Remediation Letter.

  2. Within 30 days of the Agency’s approval of a Remedial Action Completion Report, the Agency shall issue a No Further Remediation Letter applicable to the site. In the event that the Agency fails to issue the No Further Remediation Letter within 30 days after approval of the Remedial Action Completion Report, the No Further Remediation Letter shall issue by operation of law. A No Further Remediation Letter issued pursuant to this Section shall be limited to and shall include all of the following:

    1. An acknowledgement that the requirements of the Remedial Action Plan and the Remedial Action Completion Report were satisfied;

    2. A description of the location of the affected property by adequate legal description or by reference to a plat showing its boundaries:

    3. The level of the remediation objectives, specifying, as appropriate, any land use limitation imposed as a result of such remediation efforts;

    4. A statement that the Agency’s issuance of the No Further Remediation Letter signifies a release from further responsibilities under this Act in performing the approved remedial action and shall be considered prima facie evidence that the site does not constitute a threat to human health and the environment and does not require further remediation under the Act, so long as the site is utilized in accordance with the terms of the No Further Remediation Letter;

    5. The prohibition against the use of any site in a manner inconsistent with any land use limitation imposed as a result of such remediation efforts without additional appropriate remedial activities;

    6. A description of any preventive, engineering, and institutional controls required in the approved Remedial Action Plan and notification that failure to manage the control in full compliance with the terms of the Remedial Action Plan may result in voidance of the No Further Remediation Letter;

    7. The recording obligations pursuant to Section 58.8;

    8. The opportunity to request a change in the recorded land use pursuant to Section 58.8.

    9. Notification that further information regarding the site can be obtained from the Agency through a request under the Freedom of Information Act (5 ILCS 140); and

    10. If only a portion of the site or only selected regulated substances at a site were the subject of corrective action, any other provisions agreed to by the Agency and the RA.

  3. The Agency may deny a No Further Remediation Letter if fees applicable under the review and evaluation services agreement have not been paid in full.

  4. The No Further Remediation Letter shall apply in favor of the following persons:

    1. The RA or other person to whom the letter was issued.

    2. The owner and operator of the site.

    3. Any parent corporation or subsidiary of the owner of the site.

    4. Any co-owner, either by joint-tenancy, right of survivorship, or any other party sharing a legal relationship with the owner of the site.

    5. Any holder of a beneficial interest of a land trust or inter vivos trust, whether revocable or irrevocable, involving the site.

    6. Any mortgage or trustee of a deed of trust of the owner of the site or any assignee, transferee, or any successor-in-interest thereto.

    7. Any successor-in-interest of the owner of the site.

    8. Any transferee of the owner of the site whether the transfer was by sale, bankruptcy proceeding, partition, dissolution of marriage, settlement or adjudication of any civil action, charitable gift, or bequest.

    9. Any heir or devisee of the owner of the site.

    10. Any financial institution, as that term is defined in Section 2 of the Illinois Banking Act and to include the Illinois Housing Development Authority, that has acquired the ownership, operation, management, or control of a site through foreclosure or under the terms of a security interest held by the financial institution, under the terms of an extension of credit made by the financial institution, or any successor in interest thereto.

    11. In the case of a fiduciary (other than a land trustee), the estate, trust estate, or other interest in property held in a fiduciary capacity, and a trustee, executor, administrator, guardian, receiver, conservator, or other person who holds the remediated site in a fiduciary capacity, or a transferee of such party.

  5. The No Further Remediation Letter shall be voidable if the site activities are not managed in full compliance with the provisions of this Title, any rules adopted under it, or the approved Remedial Action Plan or remediation objectives upon which the issuance of the No Further Remediation Letter was based. Specific acts or omissions that may result in voidance of the No Further Remediation Letter include, but shall not be limited to:

    1. Any violation of institutional controls or land use restrictions, if applicable;

    2. The failure of the owner, operator, RA, or any subsequent transferee to operate and maintain preventive or engineering controls or comply with a groundwater monitoring plan, if applicable;

    3. The disturbance or removal of contamination that has been left in place in accordance with the Remedial Action Plan;

    4. The failure to comply with the recording requirements of Section 58.8;

    5. Obtaining the No Further Remediation Letter by fraud or misrepresentation;

    6. 6. Subsequent discovery of contaminants, not identified as part of the investigative or remedial activities upon which the issuance of the No Further Remediation was based, that pose a threat to human health or the environment; or

    7. The failure to pay the No Further Remediation Assessment required under subsection (g) of this Section.

  6. If the Agency seeks to void a No Further Remediation Letter, it shall provide notice by certified letter to the current title holder of the site and to the RA at his or her last known address. The notice shall specify the cause for the voidance and describe facts in support of that cause.

    1. Within 35 days of the receipt of the notice of voidance, the RA or current title holder may appeal the Agency’s decision to the Board in the manner provided for the review of permits in Section 40 of this Act. If the Board fails to take final action on the petition within 120 days, unless such time period is waived by the petitioner, the petition shall be deemed denied and the petitioner shall be entitled to an Appellate Court order pursuant to subsection (d) Section 41 of this Act. The Agency shall have the burden of proof in any such action.

    2. If the Agency’s action is not appealed, the Agency shall submit the notice of voidance to the Office of the Recorder or the Registrar of Titles for the county in which the site is located. The notice shall be filed in accordance with Illinois law so that it forms a permanent part of the chain of title for the site.

    3. If the Agency’s action is appealed, the action shall not become effective until the appeal process has been exhausted and a final decision reached by the Board or courts.

    4. Upon receiving notice of appeal, the Agency shall file a notice of lis pendens with the Office of the Recorder or the Registrar of Titles for the county in which the site is located. The notice shall be filed in accordance with Illinois law so that it becomes a part of the chain of title for the site. However, if the Agency’s action is not upheld on appeal, the notice of lis pendens shall be removed in accordance with Illinois law within 45 days of receipt of the final decision of the Board or the courts.

  7. Within 30 days after the receipt of a No Further Remediation Letter issued by the Agency or by operation of law pursuant to this Section, the recipient of the letter shall forward to the Agency a No Further Remediation Assessment in the amount of the lesser of $2,500 or an amount equal to the costs incurred for the site by the Agency under Section 58.7. The assessment shall be made payable to the State of Illinois, for deposit in the Hazardous Waste Fund. The No Further Remediation Assessment is in addition to any other costs that may be incurred by the Agency pursuant to Section 58.7.

Section 58.11. Regulations and Site Remediation Advisory Committee.

  1. There is hereby established a Site Remediation Advisory Committee which shall consist of one member from the Illinois State Chamber of Commerce, one member from the Illinois Manufacturers’ Association, one member from the Chemical Industry Council of Illinois, one member from the Consulting Engineers Council of Illinois, one member from the Illinois Bankers Association, one member from the Community Bankers Association of Illinois, and one member from the National Solid Waste Management Association. In addition, the Agency shall select one member each from an environmental advocacy group, a community development corporation, and a public interest community organization. Members of the Advisory Committee may organize themselves as they deem necessary and shall serve without compensation.

  2. The Committee shall:

    1. Review, evaluate, and make recommendations regarding State laws, rules, and procedures that relate to site remediations;

    2. Review, evaluate, and make recommendations regarding the review and approval activities of the Agency and RELPEs; and

    3. Make recommendations relating to the State’s efforts to implement this Title.

    4. Review, evaluate, and make recommendations regarding the procedures for determining proportionate degree of responsibility for a release of regulated substances.

    5. Review, evaluate, and make recommendations regarding the reports prepared by the Agency in accordance with subsection (e) of this Section.

  3. Within 9 months after the effective date of this amendatory Act of 1995, the Agency, after consideration of the recommendations of the Committee, shall propose rules prescribing procedures and standards for its administration of this Title. Within 9 months after receipt of the Agency’s proposed rules, the Board shall adopt, pursuant to Sections 27 and 28 of this Act, rules that are consistent with this Title, including classifications of land use and provisions for the voidance of No Further Remediation Letters.

  4. Until such time as the rules required under this Section take effect, the Agency shall administer its activities under this Title in accordance with the Agency procedures and applicable provisions of this Act

  5. By July 1, 1997 and as deemed appropriate thereafter, the Agency shall prepare reports to the Governor and the General Assembly concerning the status of all sites for which the Agency has expended money from the Hazardous Waste Fund. The reports shall include specific information on the financial, technical, and cost recovery status of each site.

Section 58.12. Severability.

The provisions of this Title are severable under Section 1.31 of the Statute on Statutes.

Section 58.13. Brownfields Redevelopment Grant Program.

    1. The Agency shall establish and administer a program of grants to be known as the Brownfields Redevelopment Grant Program to provide municipalities in Illinois with financial assistance to be used for coordination of activities related to brownfields redevelopment, including but not limited to identification of brownfields sites, site investigation and determination of remediation objectives and related plans and reports, and development of remedial action plans, but not including the implementation of remedial action plans and remedial action completion reports. The plans and reports shall be developed in accordance with Title XVII of this Act.

    2. Grants shall be awarded on a competitive basis subject to availability of funding. Criteria for awarding grants shall include, but shall not be limited to the following:

      1. problem statement and needs assessment;

      2. community-based planning and involvement;

      3. implementation planning; and

      4. long-term benefits and sustainability.

    3. The Agency may give weight to geographic location to enhance geographic distribution of grants across this State.

    4. Grants shall be limited to a maximum of $120,000 and no municipality shall receive more than one grant under this Section.

    5. Grant amounts shall not exceed 70% of the project amount, with the remainder to be provided by the municipality as local matching funds.

  1. The Agency shall have the authority to enter into any contracts or agreements that may be necessary to carry out its duties or responsibilities under this Section. The Agency shall have the authority to adopt rules setting forth procedures and criteria for administering the Brownfields Redevelopment Grant Program. The rules adopted by the Agency may include but shall not be limited to the following:

    1. purposes for which grants are available;

    2. application periods and content of applications;

    3. procedures and criteria for Agency review of grant applications, grant approvals and denials, and grantee acceptance;

    4. grant payment schedules;

    5. grantee responsibilities for work schedules, work plans, reports and record keeping;

    6. evaluation of grantee performance, including but not limited to auditing and access to sites and records;

    7. requirements applicable to contracting and subcontracting by the grantee;

    8. penalties for noncompliance with grant requirements and conditions, including stop-work orders, termination of grants, and recovery of grant funds;

    9. indemnification of this State and the Agency by the grantee; and

    10. manner of compliance with the Local Government Professional Services Selection Act.

Section 58.14. Environmental Remediation Tax Credit review.

  1. Prior to applying for the Environmental Remediation Tax Credit under Section 201 of the Illinois Income Tax Act, Remediation Applicants shall first submit to the Agency an application for review of remediation costs. The application and review process shall be conducted in accordance with the requirements of this Section and the rules adopted under subsection (g). A preliminary review of the estimated remediation costs for development and implementation of the Remedial Action Plan may be obtained in accordance with subsection (d).

  2. No applicant for review shall be submitted until a No Further Remediation Letter has been issued by the Agency and recorded in the chain of title for the site in accordance with Section 58.10. The Agency shall review the application to determine whether the costs submitted are remediation costs, and whether the costs incurred are reasonable. The application shall be on forms prescribed and provided by the Agency. At a minimum, the application shall include the following:

    1. information identifying the Remediation Applicant and the site for which the tax credit is being sought and the date of acceptance of the site into the Site Remediation Program;

    2. a copy of the No Further Remediation Letter with official verification that the letter has been recorded in the chain of title for the site and a demonstration that the site for which the application is submitted is the same site as the one for which the No Further Remediation Letter is issued;

    3. a demonstration that the release of the regulated substances of concern for which the No Further Remediation Letter was issued were not caused or contributed to in any material respect by the Remediation Applicant. After the Pollution Control Board rules are adopted pursuant to the Illinois Administrative Procedure Act for the administration and enforcement of Section 58.9 of the Environmental Protection Act, determinations as to credit availability shall be made consistent with those rules;

    4. an itemization and documentation, including receipts, of the remediation costs incurred;

    5. a demonstration that the costs incurred are remediation costs as defined in this Act and its rules;

    6. a demonstration that the costs submitted for review were incurred by the Remediation Applicant who received the No Further Remediation Letter;

    7. an application fee in the amount set forth in subsection (e) for each site for which review of remediation costs is requested and, if applicable, certification from the Department of Commerce and Community Affairs that the site is located in an enterprise zone and is located in a census tract that is located in a minor civil division and place or county that has been determined by the Department of Commerce and Community Affairs to contain a majority of households consisting of low and moderate income persons;

    8. any other information deemed appropriate by the Agency.

  3. Within 60 days after receipt by the Agency of an application meeting the requirements of subsection (b), the Agency shall issue a letter to the applicant approving, disapproving, or modifying the remediation costs submitted in the application if the remediation costs are approved as submitted, the Agency’s letter shall state the amount of the remediation costs to be applied toward the Environmental Remediation Tax Credit. If an application is disapproved or approved with modification of remediation costs, the Agency’s letter shall set forth the reasons for the disapproval or modification and state the amount of the remediation costs, if any, to be applied toward the Environmental Remediation Tax Credit.

    If a preliminary review of a budget plan has been obtained under subsection (d), the Remediation Applicant may submit, with the application and supporting documentation under subsection (b), a copy of the Agency’s final determination accompanied by a certification that the actual remediation costs incurred for the development and implementation of the Remedial Action Plan are equal to or less than the costs approved in the Agency’s final determination on the budget plan. The certification shall be signed by the Remediation Applicant and notarized. Based on that submission, the agency shall not be required to conduct further review of the costs incurred for development and implementation of the Remedial Action Plan and may approve costs as submitted.

    Within 35 days after receipt of an Agency letter disapproving or modifying an application for approval of remediation costs, the Remediation Applicant may appeal the Agency’s decision to the Board in the manner provided for the review of permits in Section 40 of this Act.

    1. A Remediation Applicant may obtain a preliminary review of estimated remediation costs for the development and implementation of the Remedial Action Plan by submitting a budget plan along with the Remedial Action Plan. The budget plan shall be set forth on forms prescribed and provided by the Agency and shall include but shall not be limited to line item estimates of the costs associated with each line item (such as personnel, equipment, and materials) that the Remediation Applicant anticipates will be incurred for the development and implementation of the Remedial Action Plan. The Agency shall review the budget plan along with the Remedial Action Plan to determine whether the estimated costs submitted are remediation costs and whether the costs estimated for the activities are reasonable.

    2. If the Remedial Action Plan is amended by the Remediation Applicant or as a result of Agency action, the corresponding budget plan shall be revised accordingly and resubmitted for Agency review.

    3. The budget plan shall be accompanied by the applicable fee as set forth in subsection (e).

    4. Submittal of a budget plan shall be deemed an automatic 60-day waiver of the Remedial Action Plan review deadlines set forth in this Section and its rules.

    5. Within the applicable period of review, the Agency shall issue a letter to the Remediation Applicant approving, disapproving, or modifying the estimated remediation costs submitted in the budget plan. If a budget plan is disapproved or approved with modification of estimated remediation costs, the Agency’s letter shall set forth the reasons for the disapproval or modification.

    6. Within 35 days after receipt of an Agency letter disapproving or modifying a budget plan, the Remediation Applicant may appeal the Agency’s decision to the Board in the manner provided for the review of permits in Section 40 of this Act.

  4. The fees for reviews conducted under this Section are in addition to any other fees or payments for Agency services rendered pursuant to the Site Remediation Program and shall be as follows:

    1. The fee for an application for review of remediation costs shall be $1,000 for each site reviewed.

    2. The fee for the review of the budget plan submitted under subsection (d) shall be $500 for each site reviewed.

    3. In the case of a Remediation Applicant submitting for review total remediation costs of $100,000 or less for a site located within an enterprise zone (as set forth in paragraph (i) of subsection (1) of Section 201 of the Illinois Income Tax Act), the fee for an application for review of remediation costs shall be $250 for each site reviewed. For those sites, there shall be no fee for review of a budget plan under subsection (d).

      The application fee shall be made payable to the State of Illinois, for deposit into the Hazardous Waste Fund.

      Pursuant to appropriation, the Agency shall use the fees collected under this subsection for development and administration of the review program.

  5. The Agency shall have the authority to enter into any contracts or agreements that may be necessary to carry out its duties and responsibilities under this Section.

  6. Within 6 months after the effective date of this amendatory Act of 1997, the Agency shall propose rules prescribing procedures and standards for its administration of this Section. Within 6 months after receipt of the Agency’s proposed rules, the Board shall adopt on second notice, pursuant to Sections 27 and 28 of this Act and the Illinois Administration Procedure Act, rules that are consistent with this Section. Prior to the effective date of rules adopted under this Section, the Agency may conduct reviews of applications under this Section and the Agency is further authorized to distribute guidance documents on costs that are eligible or ineligible as remediation costs.