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Title XVI - Petroleum Underground Storage Tanks

      (415 ILCS 5/Tit. XVI heading)TITLE XVI. PETROLEUM UNDERGROUND STORAGE TANKS

(415 ILCS 5/57)     Sec. 57. Intent and purpose. This Title shall be known and may be cited as the Leaking Underground Storage Tank Program (LUST). The purpose of this Title is, in accordance with the requirements of the Hazardous and Solid Waste Amendments of 1984 of the Resource Conservation and Recovery Act of 1976 and in accordance with the State's interest in the protection of Illinois' land and water resources: (1) to adopt procedures for the remediation of underground storage tank sites due to the release of petroleum and other substances regulated under this Title from certain underground storage tanks or related tank systems; (2) to establish and provide procedures for a Leaking Underground Storage Tank Program which will oversee and review any remediation required for leaking underground storage tanks, and administer the Underground Storage Tank Fund; (3) to establish an Underground Storage Tank Fund intended to be a State fund by which persons who qualify for access to the Underground Storage Tank Fund may satisfy the financial responsibility requirements under applicable State law and regulations; (4) to establish requirements for eligible owners and operators of underground storage tanks to seek payment for any costs associated with physical soil classification, groundwater investigation, site classification and corrective action from the Underground Storage Tank Fund; and (5) to audit and approve corrective action efforts performed by Licensed Professional Engineers. (Source: P.A. 91‑357, eff. 7‑29‑99.)

(415 ILCS 5/57.1)     Sec. 57.1. Applicability.     (a) An owner or operator of an underground storage tank who meets the definition of this Title shall be required to conduct tank removal, abandonment and repair, site investigation, and corrective action in accordance with the requirements of the Leaking Underground Storage Tank Program.     (b) An owner or operator of a heating oil tank as defined by this Title may elect to perform tank removal, abandonment or repair, site investigation, or corrective action, unless the provisions of subsection (g) of Section 57.5 are applicable.     (c) All owners or operators who conduct tank removal, repair or abandonment, site investigation, or corrective action may be eligible for the relief provided for under Section 57.10 of this Title.     (d) The owners or operators, or both, of underground storage tanks containing regulated substances other than petroleum shall undertake corrective action in conformance with regulations promulgated by the Illinois Pollution Control Board. (Source: P.A. 92‑554, eff. 6‑24‑02.)

    (415 ILCS 5/57.2)
    Sec. 57.2. Definitions. As used in this Title:
    "Audit" means a systematic inspection or examination of plans, reports, records, or documents to determine the completeness and accuracy of the data and conclusions contained therein.
    "Bodily injury" means bodily injury, sickness, or disease sustained by a person, including death at any time, resulting from a release of petroleum from an underground storage tank.
    "Release" means any spilling, leaking, emitting, discharging, escaping, leaching or disposing of petroleum from an underground storage tank into groundwater, surface water or subsurface soils.
    "Fill material" means non‑native or disturbed materials used to bed and backfill around an underground storage tank.
    "Fund" means the Underground Storage Tank Fund.
    "Heating Oil" means petroleum that is No. 1, No. 2, No. 4 ‑ light, No. 4 ‑ heavy, No. 5 ‑ light, No. 5 ‑ heavy or No. 6 technical grades of fuel oil; and other residual fuel oils including Navy Special Fuel Oil and Bunker C.
    "Indemnification" means indemnification of an owner or operator for the amount of any judgment entered against the owner or operator in a court of law, for the amount of any final order or determination made against the owner or operator by an agency of State government or any subdivision thereof, or for the amount of any settlement entered into by the owner or operator, if the judgment, order, determination, or settlement arises out of bodily injury or property damage suffered as a result of a release of petroleum from an underground storage tank owned or operated by the owner or operator.
    "Corrective action" means activities associated with compliance with the provisions of Sections 57.6 and 57.7 of this Title.
    "Occurrence" means an accident, including continuous or repeated exposure to conditions, that results in a sudden or nonsudden release from an underground storage tank.
    When used in connection with, or when otherwise relating to, underground storage tanks, the terms "facility", "owner", "operator", "underground storage tank", "(UST)", "petroleum" and "regulated substance" shall have the meanings ascribed to them in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98‑616), of the Resource Conservation and Recovery Act of 1976 (P.L. 94‑580); provided however that the term "underground storage tank" shall also mean an underground storage tank used exclusively to store heating oil for consumptive use on the premises where stored and which serves other than a farm or residential unit; provided further however that the term "owner" shall also mean any person who has submitted to the Agency a written election to proceed under this Title and has acquired an ownership interest in a site on which one or more registered tanks have been removed, but on which corrective action has not yet resulted in the issuance of a "no further remediation letter" by the Agency pursuant to this Title.
    "Licensed Professional Engineer" means a person, corporation, or partnership licensed under the laws of the State of Illinois to practice professional engineering.
    "Licensed Professional Geologist" means a person licensed under the laws of the State of Illinois to practice as a professional geologist.
    "Site" means any single location, place, tract of land or parcel of property including contiguous property not separated by a public right‑of‑way.
    "Site investigation" means activities associated with compliance with the provisions of subsection (a) of Section 57.7.
    "Property damage" means physical injury to, destruction of, or contamination of tangible property, including all resulting loss of use of that property; or loss of use of tangible property that is not physically injured, destroyed, or contaminated, but has been evacuated, withdrawn from use, or rendered inaccessible because of a release of petroleum from an underground storage tank.
    "Class I Groundwater" means groundwater that meets the Class I: Potable Resource Groundwater criteria set forth in the Board regulations adopted pursuant to the Illinois Groundwater Protection Act.
    "Class III Groundwater" means groundwater that meets the Class III: Special Resource Groundwater criteria set forth in the Board regulations adopted pursuant to the Illinois Groundwater Protection Act.
(Source: P.A. 94‑274, eff. 1‑1‑06.)

(415 ILCS 5/57.3)     Sec. 57.3. Underground Storage Tank Program. The General Assembly hereby establishes the Illinois Leaking Underground Storage Tank Program (LUST Program). The LUST Program shall be administered by the Office of the State Fire Marshal and the Illinois Environmental Protection Agency. (Source: P.A. 88‑496.)

(415 ILCS 5/57.4)     Sec. 57.4. State Agencies. The Office of State Fire Marshal and the Illinois Environmental Protection Agency shall administer the Leaking Underground Storage Tank Program in accordance with the terms of this Title. (Source: P.A. 88‑496.)

(415 ILCS 5/57.5)     Sec. 57.5. Underground Storage Tanks; removal; repair; abandonment.     (a) Notwithstanding the eligibility or the level of deductibility of an owner or operator under the Underground Storage Tank Fund, any owner or operator of an Underground Storage Tank may seek to remove or abandon such tank under the provisions of this Title. In order to be reimbursed under Section 57.8, the owner or operator must comply with the provisions of this Title. In no event will an owner or operator be reimbursed for any costs which exceed the minimum requirements necessary to comply with this Title.     (b) Removal or abandonment of an Underground Storage Tank must be carried out in accordance with regulations adopted by the Office of State Fire Marshal.     (c) The Office of the State Fire Marshal or a designated agent shall have an inspector on site at the time of removal, abandonment, or such other times the Office of State Fire Marshal deems appropriate. At such time, the inspector shall, upon preliminary excavation of the tank site, render an opinion as to whether a release of petroleum has occurred and, if so, the owner or operator shall report the known or suspected release to the Illinois Emergency Management Agency. The owner or operator shall determine whether or not a release has occurred in conformance with the regulations adopted by the Board and the Office of the State Fire Marshal. Except that if the opinion of the Office of the State Fire Marshal inspector is that a release of petroleum has occurred and the owner or operator has reported the release to the Illinois Emergency Management Agency within 24 hours of removal of the tank, no such determination is required under this subsection. In the event the owner or operator confirms the presence of a release of petroleum, the owner or operator shall comply with Section 57.6. The inspector shall provide the owner or operator, or a designated agent, with an "Eligibility and Deductibility Determination" form. The Office of the State Fire Marshal shall provide on‑site assistance to the owner or operator or a designated agent with regard to the eligibility and deductibility procedures as provided in Section 57.9. If the Office of the State Fire Marshal is not on site, the Office of the State Fire Marshal shall provide the owner or operator with an "Eligibility and Deductibility Determination" form within 15 days after receiving notice that the confirmed release was reported by the owner or operator.     (d) In the event that a release of petroleum is confirmed under subsection (c) of this Section, the owner or operator may elect to backfill the preliminary excavation and proceed under Section 57.6.     (e) In the event that an Underground Storage Tank is found to be ineligible for payment from the Underground Storage Tank Fund, the owner or operator shall proceed under Sections 57.6 and 57.7.     (f) In the event that no release of petroleum is confirmed, the owner or operator shall proceed to complete the removal of the underground storage tank, and when appropriate, dispose of the tank and backfill the excavation or, in the alternate, abandon the underground storage tank in place. Either option shall be in accordance with regulations adopted by the Office of the State Fire Marshal. The owner or operator shall certify to the Office of the State Fire Marshal that the tank removal or abandonment was conducted in accordance with all applicable rules and regulations, and the Office of the State Fire Marshal shall then issue a certificate of removal or abandonment to the owner or operator. If the Office of the State Fire Marshal fails to issue a certificate of removal or abandonment within 30 days of receipt of the certification, the certification shall be considered rejected by operation of law and a final action appealable to the Board. Nothing in this Title shall prohibit the Office of the State Fire Marshal from making an independent inspection of the site and challenging the veracity of the owner or operator certification.     (g) The owner or operator of an underground storage tank taken out of operation before January 2, 1974, or an underground storage tank used exclusively to store heating oil for consumptive use on the premises where stored and which serves other than a farm or residential unit shall not be required to remove or abandon in place such underground storage tank except in the case in which the Office of the State Fire Marshal has determined that a release from the underground storage tank poses a current or potential threat to human health and the environment. In that case, and upon receipt of an order from the Office of the State Fire Marshal, the owner or operator of such underground storage tank shall conduct removal and, if necessary, site investigation and corrective action in accordance with this Title and regulations promulgated by the Office of State Fire Marshal and the Board.     (h) In the event that a release of petroleum occurred between September 13, 1993, and August 1, 1994, for which the Office of the State Fire Marshal issued a certificate of removal or abandonment based on its determination of "no release" or "minor release," and the Office of the State Fire Marshal subsequently has rescinded that determination and required a report of a confirmed release to the Illinois Emergency Management Agency, the owner or operator may be eligible for reimbursement for the costs of site investigation and corrective action incurred on or after the date of the release but prior to the notification of the Illinois Emergency Management Agency. The date of the release shall be the date of the initial inspection by the Office of the State Fire Marshal as recorded in its inspection log. Eligibility and deductibility shall be determined in accordance with this Title, the owner or operator must comply with the provisions of this Act and its rules, and in no case shall the owner or operator be reimbursed for costs exceeding the minimum requirements of this Act and its rules. (Source: P.A. 92‑554, eff. 6‑24‑02.)

(415 ILCS 5/57.6)     Sec. 57.6. Underground storage tanks; early action.     (a) Owners and operators of underground storage tanks shall, in response to all confirmed releases, comply with all applicable statutory and regulatory reporting and response requirements.     (b) Notwithstanding any other corrective action taken, an owner or operator may, at a minimum, and prior to submission of any plans to the Agency, remove the tank system or abandon the underground storage tank in place, in accordance with the regulations promulgated by the Office of the State Fire Marshal. The owner or operator may also remove visibly contaminated fill material and any groundwater in the excavation which exhibits a sheen. For purposes of payment for early action costs, however, fill material shall not be removed in an amount in excess of 4 feet from the outside dimensions of the tank. (Source: P.A. 92‑554, eff. 6‑24‑02.)

    (415 ILCS 5/57.7)
    Sec. 57.7. Leaking underground storage tanks; site investigation and corrective action.
    (a) Site investigation.
        (1) For any site investigation activities required by

statute or rule, the owner or operator shall submit to the Agency for approval a site investigation plan designed to determine the nature, concentration, direction of movement, rate of movement, and extent of the contamination as well as the significant physical features of the site and surrounding area that may affect contaminant transport and risk to human health and safety and the environment.

(2) Any owner or operator intending to seek payment

from the Fund shall submit to the Agency for approval a site investigation budget that includes, but is not limited to, an accounting of all costs associated with the implementation and completion of the site investigation plan.

(3) Remediation objectives for the applicable

indicator contaminants shall be determined using the tiered approach to corrective action objectives rules adopted by the Board pursuant to this Title and Title XVII of this Act. For the purposes of this Title, "Contaminant of Concern" or "Regulated Substance of Concern" in the rules means the applicable indicator contaminants set forth in subsection (d) of this Section and the rules adopted thereunder.

(4) Upon the Agency's approval of a site

investigation plan, or as otherwise directed by the Agency, the owner or operator shall conduct a site investigation in accordance with the plan.

(5) Within 30 days after completing the site

investigation, the owner or operator shall submit to the Agency for approval a site investigation completion report. At a minimum the report shall include all of the following:

(A) Executive summary.             (B) Site history.             (C) Site‑specific sampling methods and results.             (D) Documentation of all field activities,

including quality assurance.

(E) Documentation regarding the development of

proposed remediation objectives.

(F) Interpretation of results.             (G) Conclusions.     (b) Corrective action.         (1) If the site investigation confirms none of the

applicable indicator contaminants exceed the proposed remediation objectives, within 30 days after completing the site investigation the owner or operator shall submit to the Agency for approval a corrective action completion report in accordance with this Section.

(2) If any of the applicable indicator contaminants

exceed the remediation objectives approved for the site, within 30 days after the Agency approves the site investigation completion report the owner or operator shall submit to the Agency for approval a corrective action plan designed to mitigate any threat to human health, human safety, or the environment resulting from the underground storage tank release. The plan shall describe the selected remedy and evaluate its ability and effectiveness to achieve the remediation objectives approved for the site. At a minimum, the report shall include all of the following:

(A) Executive summary.             (B) Statement of remediation objectives.             (C) Remedial technologies selected.             (D) Confirmation sampling plan.             (E) Current and projected future use of the

property.

(F) Applicable preventive, engineering, and

institutional controls including long‑term reliability, operating, and maintenance plans, and monitoring procedures.

(G) A schedule for implementation and completion

of the plan.

(3) Any owner or operator intending to seek payment

from the Fund shall submit to the Agency for approval a corrective action budget that includes, but is not limited to, an accounting of all costs associated with the implementation and completion of the corrective action plan.

(4) Upon the Agency's approval of a corrective action

plan, or as otherwise directed by the Agency, the owner or operator shall proceed with corrective action in accordance with the plan.

(5) Within 30 days after the completion of a

corrective action plan that achieves applicable remediation objectives the owner or operator shall submit to the Agency for approval a corrective action completion report. The report shall demonstrate whether corrective action was completed in accordance with the approved corrective action plan and whether the remediation objectives approved for the site, as well as any other requirements of the plan, have been achieved.

(6) If within 4 years after the approval of any

corrective action plan the applicable remediation objectives have not been achieved and the owner or operator has not submitted a corrective action completion report, the owner or operator must submit a status report for Agency review. The status report must include, but is not limited to, a description of the remediation activities taken to date, the effectiveness of the method of remediation being used, the likelihood of meeting the applicable remediation objectives using the current method of remediation, and the date the applicable remediation objectives are expected to be achieved.

(7) If the Agency determines any approved corrective

action plan will not achieve applicable remediation objectives within a reasonable time, based upon the method of remediation and site specific circumstances, the Agency may require the owner or operator to submit to the Agency for approval a revised corrective action plan. If the owner or operator intends to seek payment from the Fund, the owner or operator must also submit a revised budget.

(c) Agency review and approval.         (1) Agency approval of any plan and associated

budget, as described in this subsection (c), shall be considered final approval for purposes of seeking and obtaining payment from the Underground Storage Tank Fund if the costs associated with the completion of any such plan are less than or equal to the amounts approved in such budget.

(2) In the event the Agency fails to approve,

disapprove, or modify any plan or report submitted pursuant to this Title in writing within 120 days of the receipt by the Agency, the plan or report shall be considered to be rejected by operation of law for purposes of this Title and rejected for purposes of payment from the Underground Storage Tank Fund.

(A) For purposes of those plans as identified in

paragraph (5) of this subsection (c), the Agency's review may be an audit procedure. Such review or audit shall be consistent with the procedure for such review or audit as promulgated by the Board under Section 57.14. The Agency has the authority to establish an auditing program to verify compliance of such plans with the provisions of this Title.

(B) For purposes of corrective action plans

submitted pursuant to subsection (b) of this Section for which payment from the Fund is not being sought, the Agency need not take action on such plan until 120 days after it receives the corrective action completion report required under subsection (b) of this Section. In the event the Agency approved the plan, it shall proceed under the provisions of this subsection (c).

(3) In approving any plan submitted pursuant to

subsection (a) or (b) of this Section, the Agency shall determine, by a procedure promulgated by the Board under Section 57.14, that the costs associated with the plan are reasonable, will be incurred in the performance of site investigation or corrective action, and will not be used for site investigation or corrective action activities in excess of those required to meet the minimum requirements of this Title.

(A) For purposes of payment from the Fund,

corrective action activities required to meet the minimum requirements of this Title shall include, but not be limited to, the following use of the Board's Tiered Approach to Corrective Action Objectives rules adopted under Title XVII of this Act:

(i) For the site where the release occurred,

the use of Tier 2 remediation objectives that are no more stringent than Tier 1 remediation objectives.

(ii) The use of industrial/commercial

property remediation objectives, unless the owner or operator demonstrates that the property being remediated is residential property or being developed into residential property.

(iii) The use of groundwater ordinances as

institutional controls in accordance with Board rules.

(iv) The use of on‑site groundwater use

restrictions as institutional controls in accordance with Board rules.

(B) Any bidding process adopted under Board rules

to determine the reasonableness of costs of corrective action must provide for a publicly‑noticed, competitive, and sealed bidding process that includes, at a minimum, the following:

(i) The owner or operator must issue

invitations for bids that include, at a minimum, a description of the work being bid and applicable contractual terms and conditions. The criteria on which the bids will be evaluated must be set forth in the invitation for bids. The criteria may include, but shall not be limited to, criteria for determining acceptability, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Criteria that will affect the bid price and be considered in the evaluation of a bid, such as discounts, shall be objectively measurable.

(ii) At least 14 days prior to the date set

in the invitation for the opening of bids, public notice of the invitation for bids must be published in a local paper of general circulation for the area in which the site is located.

(iii) Bids must be opened publicly in the

presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder, the amount of each bid, and other relevant information as specified in Board rules must be recorded and submitted to the Agency in the applicable budget. After selection of the winning bid, the winning bid and the record of each unsuccessful bid shall be open to public inspection.

(iv) Bids must be unconditionally accepted

without alteration or correction. Bids must be evaluated based on the requirements set forth in the invitation for bids, which may include criteria for determining acceptability, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Criteria that will affect the bid price and be considered in the evaluation of a bid, such as discounts, shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used.

(v) Correction or withdrawal of inadvertently

erroneous bids before or after selection of the winning bid, or cancellation of winning bids based on bid mistakes, shall be allowed in accordance with Board rules. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the owner or operator or fair competition shall be allowed. All decisions to allow the correction or withdrawal of bids based on bid mistakes shall be supported by a written determination made by the owner or operator.

(vi) The owner or operator shall select the

winning bid with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. The winning bid and other relevant information as specified in Board rules must be recorded and submitted to the Agency in the applicable budget.

(vii) All bidding documentation must be

retained by the owner or operator for a minimum of 3 years after the costs bid are submitted in an application for payment, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. All bidding documentation must be made available to the Agency for inspection and copying during normal business hours.

(C) Any bidding process adopted under Board rules

to determine the reasonableness of costs of corrective action shall (i) be optional and (ii) allow bidding only if the owner or operator demonstrates that corrective action cannot be performed for amounts less than or equal to maximum payment amounts adopted by the Board.

(4) For any plan or report received after June 24,

2002, any action by the Agency to disapprove or modify a plan submitted pursuant to this Title shall be provided to the owner or operator in writing within 120 days of the receipt by the Agency or, in the case of a site investigation plan or corrective action plan for which payment is not being sought, within 120 days of receipt of the site investigation completion report or corrective action completion report, respectively, and shall be accompanied by:

(A) an explanation of the Sections of this Act

which may be violated if the plans were approved;

(B) an explanation of the provisions of the

regulations, promulgated under this Act, which may be violated if the plan were approved;

(C) an explanation of the specific type of

information, if any, which the Agency deems the applicant did not provide the Agency; and

(D) a statement of specific reasons why the Act

and the regulations might not be met if the plan were approved.

Any action by the Agency to disapprove or modify a

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