Governor Edgar Signs Lust, Brownfields Bills
The two most prominent environmental bills of the 1995 Illinois legislative session were recently signed into law by Governor Jim Edgar. Senate Bill 721 provides additional funding for underground tank cleanup and House Bill 901 opens the door for risk-based environmental cleanups. Both bills deal with environmental cleanups and, to some extent, both overlap one another. And, each adds yet another layer of complication to an already complex regulatory picture. Those affected by the new statutes will find that there now exists a virtual potpourri of cleanup options available for environmental remediation in Illinois. For those leaking underground storage tanks (LUSTs) reported prior to the Illinois Pollution Control Board's September 15, 1994, adoption of LUST rules (i.e., Part 732), tank owners may now select from a menu of cleanup options that can include the Illinois Environmental Protection Agency's (IEPA) pre-rule standard, or Part 732 interim standard (which is risk based), or risk-based guidelines now under development by IEPA.

Two Masters
The Illinois LUST Fund, a state managed financial vehicle for remediating leaking underground tanks, has now run out of funds on two occasions. The first time this occurred (1993), the legislature propped up the Fund with $110 million generated through the sale of bonds. By late 1994, the money had been spent and the LUST Fund was in much the same shape that it had been in the previous year. But, when the legislature was unable to find additional funding in the Spring 1995 session, the Illinois program was placed at odds with the federally mandated requirement for LUST financial assurance. With no relief in sight, USEPA reclaimed the program, thereby imposing federal LUST rules on Illinois tank owners to go along existing state LUST statutes and regulations. At this writing, Illinois is subject to two sets of LUST regulations, and two sets of LUST regulators.

Cleanup Wars
Because Illinois LUSTs are currently subject to joint regulation by IEPA and its federal counterpart, you may also throw into the aforementioned mix of cleanup requirements and options, risk-based cleanup guidance recently recommended by Region V of the United States Environmental Protection Agency (USEPA). It comes on the heels of yet another USEPA draft cleanup guidance document, July 1994's Framework for Soil Screening Levels (S.S.Ls). That document was nearly coincident with publication of the Guide for Risk-Based Corrective Action (RBCA), earlier adopted as a national standard by the highly respected American Society for Testing and Materials. For those now insufficiently confused, consider also that for non-LUST Brownfields, which in Illinois include pre-1974 LUST incidents, the IEPA has been operating a voluntary cleanup program since 1989, which program offers yet another cleanup option. The Agency is now contemplating a proposed codification of pre-notice rules (as Part 859) which, in early draft form, contain risk-based cleanup options. A similar stand alone RBCA (pronounced Rebecca) Guidance Document has been circulated by IEPA for peer review, and is likely to be proposed as a regulation that can jointly satisfy both LUST and non-LUST (Brownfield) cleanup requirements.

Too Many Rules?
While the expense of environmental rulemaking doubtless confuses both layman and non-layman alike, the reader may take heart in that the moment may have finally arrived in which nearly all of the partisans have reached an accord. That there should be a risk-based methodology for environmental cleanups is now a generally accepted principle in Illinois. The current regulatory confusion actually stems from a well intentioned patchwork of rulemaking and legislation, spaced over several years, that has piled one partial solution atop another, in the fashion of a tug-of-war. This was born of a fundamental difference in philosophy which pitted IEPA's "old guard," and its rigid single standard cleanup agenda, versus a national movement by industry groups, as well as by USEPA, aimed at customizing cleanups to fit circumstances and need. In the end, the latter philosophy prevailed, due to reoccurring shortfalls in cleanup money in the Illinois LUST Fund. While recent legislation has fixed the LUST funding crisis and made RBCA part of Illinois statutes, the residual rules and statutes from the cleanup wars remain on the books. As a result, the regulatory landscape might now benefit less from the adoption of new rules than from the repeal of the same old ones.

Senate Bill - 721 (LUST Funding)
SB-721, which initially dealt only with the subject of convicted sex offenders, was used as a vehicle to secure LUST funding in the fall veto session. With respect to the latter purpose, it creates a new funding mechanism that is expected to generate approximately $48 million dollars per year during the next seven years. Funding will be secured by imposition of a $60 per 7,500 gallon tax on bulk fuel deliveries, to be passed on as a user fee. It is estimated that this will equate to roughly 8-tenths of a cent per gallon at the pump. Prior to adoption of SB-721, LUST funding came from a 3-tenths of a cent per gallon fuel tax, two-thirds of which is committed for the long term repayment of the 1993 bond issue.

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SB-721 is also intended to fix concerns raised by USEPA that the Illinois LUST statutes and rules are less stringent than federal requirements. That agency's principal concern was that Illinois law allowed tank owners to defer corrective action for LUST activities at such times when the Illinois LUST Fund was depleted, which generally describes much of the time of the Fund's existence. Repeal of that provision was thought necessary in order to clear the way for IEPA to regain primacy over operation of the LUST program. Per SB-721, new LUST regulations, that would correct various such matters, will need to be adopted by the Illinois Pollution Control Board before January 1, 1997.

House Bill - 901 (Brownfields)
Approval of HB-901 came on the heels of the legislature's November 16,1995, acceptance of Governor Edgar's earlier amendatory veto of HB-544, the spring session's "Brownfields" bill. The Edgar Administration had disagreed with those provisions of HB-544 that would have eliminated strict Joint and several liability for all Illinois Brownfields. HB-901 served as a "trailer bill" to the earlier vetoed legislation. It fixed the administration's concerns by providing for proportionate shared liability for sites that enter the state Brownfields program.

HB-901 creates Title XVII of the Illinois Environmental Protection Act, "Site Remediation Program," which establishes a quasi-privatization system for Brownfields cleanup. In so doing, it identifies and defines roles for owner operators, cleanup contractors, and oversight personnel. In addition, HB-901 introduces, as law, the concept of risk-based corrective action, and is explicit in setting forth that affected sites must be evaluated using a three tiered "risk-based" approach. Other HB-901 features are:

• HB-901 is not applicable to sites already regulated under RCRA, CERCLA, or LUST rules or statutes. However, where applicable, such sites may utilize risk-based corrective action procedures, to the extent that they do not violate federal law and regulations.
• HB-901 defines a Remediation Applicant (RA) as the person performing the investigation or remediation.
• HB-901 defines the Review and Evaluation Licensed Professional Engineer (RELPE) as a licensed professional engineer contracted by an RA, but who takes directions and work assignments from, and reports to, the IEPA.
• The goal of an RA is to obtain a "No Further Action" (NFA) letter from the IEPA. The Agency, with the assistance of the RELPE administers the site investigation and remediation programs.
• The required degree of site remediation can be reduced through engineering, institutional, or legal controls such as restrict the current or future land use, e.g., restrict residential use. However, future changes in land use can be cause for the retraction of an NFA.
• An RA is permitted to propose site specific groundwater remediation objectives at levels that exceed the IPCB's groundwater quality standards, i.e., an Agency approved variance.
• RAs receiving an NP'A must submit it to the applicable county recorder's office within 45 days of receipt in order to make the NFA effective.
• HB-901 takes effect on July 1,1996. IEPA then has until April 1,1997 to proposed applicable regulations to the IPCB, which is in turn required to adopt final rules prior to January 1, 1998.
• A ten member Site Remediation Advisory Committee is created, appointed by the Governor, comprised of seven members recommended by industry, and three at large members appointed by the Governor. The committee will provide oversight of the statutes, rules, and operation and activities thereunder, and make recommendations to the Governor, as appropriate.

Cleanup Standards
The traditional method for establishing standards in the public health field, dating to at least the 1940s, has been that of one size fits all. The sole recommended health based drinking water standard for nitrates, for example, has long been set at 10 milligrams of nitrates (as nitrogen) per liter of water. Yet, nitrates represent no known health threat to adults. The standard exists only to protect infants, a relatively small portion of the population. This is because infants are susceptible to nitrate related methemoglobinemia (i.e., "blue baby" syndrome). But, few would argue against enforcing this standard in order to protect our most vulnerable. Such standards are clearly appropriate. This is the traditional model for setting health or aesthetic based standards

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for air and water quality. First used in public health agencies, the model was largely retained by successor environmental agencies that formed in the 1970s and 1980s.

The general model for setting environmental standards is typically directed toward worst case scenarios and applied "across the board." This is appropriate when considering potable water or urban air quality. And, certainly, from an administrative point of view, it is far easier to enforce a single standard than one that varies as to circumstances. But the health and aesthetic based model begins to break down when it is applied to environmental cleanups that do not directly relate to or otherwise involve actual human exposure. In reference to the earlier example, what should the soil cleanup standard be set at for nitrates? There is no obvious answer to this question. However, it is clear that to cleanup soil nitrate levels to the 10 mg/1 drinking water limit would certainly prevent the same soil from causing a nitrates exceedance in groundwater. Following this line of reasoning, and independent of cost, a regulator can never err in approving a soil cleanup that is taken to the lowest possible limit. This is the real story behind the recent flurry of Illinois LUST and Brownfields legislation and rulemaking.

Edible Earth
In 1989, the Illinois legislature established a LUST cleanup fund sustained by a motor fuel tax. When created, the LUST fund was intended to pay for the IEPA required cleanup of qualifying tank systems, subject to a $100,000 deductible. LUST cleanup standards did not exist in the state at that time. But, in 1990, IEPA established defacto soil cleanup standards for a set of gasoline and fuel oil indicator compounds. For example, the cleanup objective for benzene, one of the most common indicator compounds in gasoline, was set at 25 parts per billion (ppb). By way of analogy, a part per billion is roughly equivalent to three seconds of time in a century.

In 1991, IEPA tightened the earlier established soil cleanup standards, lowering the cleanup requirement for benzene, for example, from 25 ppb to 5 ppb. This is a probable source of the often heard reference to "edible earth standards"; the drinking water standard for benzene in Illinois is 5 ppb. At or about the same time IEPA elevated the LUST cleanup standard, the legislature lowered the LUST fund deductible to $10,000 for

TABLE NO. 1 Illinois LUST Fund Disbursements Gross Avg. Funds Dollars per Year Disbursed ($) Claims Paid Claim 1990 6,087,632 65 93,656 1991 14,499,974 223 65,022 1992 22,971,576 323 71,119 1993 40,693,392 792 51,380 1994 86,366,722 1,563 55,257 1995 5,331,666 81 65,823 Totals 175,950,962 3,047 57,746

most registered tank systems. The combination of these two actions precipitated a frenzy of cleanup activity that by year's end 1994 had tapped the LUST fund for more than 170 million dollars. Risk-Based Corrective Action Cleanup expenditures in Illinois well exceed early expectations of the rulemakers, as has the magnitude of the problem. Illinois has more than 50,000 active and registered underground storage tanks. And, from 1990 through year's end 1994, more than 12,000 LUST incidents (releases) were reported in the state. During the same period, the Illinois LUST Fund distributed more than 170 million dollars to cover fewer than 3000 claims, with an average payout per claim of roughly $57,000. The record of annual disbursements from the LUST Fund is itemized in Table No. 1 and illustrated in Figure No. 1. Companion Figure No. 2 shows the steady rise in annual disbursements followed by the precipitous drop in disbursements that inspired SB-721.

A substantial portion of the claims were for partial or ongoing tank closures. Some tank cleanups, particularly those involving groundwater remediation, are expected to continue for many years, and at a cost that is yet unknown. However, annual disbursements from the LUST fund are expected to remain relatively constant for the next seven years, probably not exceeding an average of $50 million per year. Long term cleanups such as groundwater pump and treat systems that might require more than seven years for completion do not presently have assurance for funding beyond that window of time.

Given its enormous expense, its limited success in achieving full closure on LUST incidents, and the absence of a foreseeable end point, the legislature read-

Figure No. 1 Illinois LUST Fund Disbursements ($) per claim

February 1996 / Illinois Municipal Review / Page 15

dressed the state's LUST program in 1993 by enacting House Bill 300. The linch pin of that bill was its focus on eliminating expensive investigations and cleanups for LUST sites that posed little or no apparent risk to human health and the environment. The statute set forth geologic settings and other conditions to classify LUST sites as a High Priority, a Low Priority, or No Further Action, and directed the IPCB to adopt regulations from which IEPA could administer the system.

Interim Cleanup Standards
On September 15,1994, the IPCB adopted the Part 732 "LUST Rules" (35 111. Adm. Code 732, Regulation of Petroleum - Leaking Underground Storage Tanks) which rely on an interim soil cleanup standard. At the same time, the Board created a sub-docket for purposes of establishing permanent cleanup objectives. The Board conducted a status hearing on the matter of permanent LUST cleanup objectives on October 12,1995. But, given the state of the LUST Fund, the USEPA takeover of the LUST program, and pending legislation, the Board postponed work on the sub-docket indefinitely.

LUSTs at the Grass Roots
Today's LUST laws and regulations date back to 1984, when Congress enacted amendments to the Resource Conservation and Recovery Act (RCRA). Home-owners and farmers are exempt from LUST regulations. However, the total number of schools, municipalities, and small business owners that must comply with LUST laws well exceeds that of the major oil companies. So, unlike RCRA hazardous waste regulations, which have had limited impact on most citizens, LUST regulations hit at the grass roots level where they are felt by local taxpayers and small businesses. This has probably made a difference in the outcome of LUST rule-making in Illinois. Whereas the hazardous waste lobby might have had limited success in altering an environmental cleanup standard, stringent IEPA cleanup rules applied at the local level probably aided in ushering in a more economical risk-based cleanup approach. It also helped to break up a major legislative log jam in the fall veto session.

LUST Sites and Brownfields - The Future
Although rulemaking is incomplete, and while it may take several years to pay down the accumulated debt associated with old LUST projects, indications are that LUST cleanups performed in the future will be adequately financed. And, while pockets of resistance doubtless remain, IEPA, as an organization, has come to embrace the RBCA concept and has begun to approve risk-based cleanups. The Agency is soon expected to formally propose risk-based environmental cleanup regulations that would apply to both LUST and Brownfield corrective actions. The rules would replace the interim risk-based cleanup formulae now contained in the IPCB's Part 732 regulations. As earlier alluded herein, most of those knowledgeable in the subject will now agree that the accumulated statutes and regulations that deal with LUSTs and Brownfields tend to overlap, are, in some cases, obsolete, and under any circumstance, could be safely consolidated and simplified. It is unclear as to what group might step forth to untangle the entanglements, although the Governor's Brownfields Advisory group is a best guess. •

MAY 3, 1996—
PASSAGE DEADLINE

Michael W. Rapps, P.E., is president of Rapps Engineering & Applied Science, a Springfield based consulting firm. Mr. Rapps drafted the interim soil cleanup objectives contained in the IPCB's Part 732 LUST Regulations. Mr. Rapps is also a peer reviewer for IEPA's proposed Brownfield/LUST RBCA cleanup standards. Ronald Dye, C.P.G. is a professional geologist with Rapps Engineering. Mr. Dye has experience with the investigation and remediation of more than 200 Illinois LUSTs.

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