XII Underground Storage Tanks

• Library: Illinois Environmental Law for Non-Environmental Lawyers (2017 Ed.)

XII. Underground Storage Tanks Monica T. Rios 2017 Supplement by Emily N. Masalski

The following is intended to provide the non-environmental lawyer with an overview of petroleum¹ underground storage tank ("UST")² regulation in Illinois and is meant to highlight the framework in which owners or operators of USTs conduct corrective action activities when there is a release³ of petroleum from a UST at a site. Since USTs in Illinois are regulated by the Office of the State Marshal ("OSFM") and the Illinois Environmental Protection Agency ("Illinois EPA"),⁴ this overview briefly summarizes both OSFM and Illinois EPA requirements for USTs. This should be used only as a guide to direct the reader to relevant statutory and regulatory provisions, as it provides only a general description of the law related to UST issues.

A. Registration and Operation of USTs

OSFM oversees the registration of USTs, the installation and operation of UST systems, and the eligibility of owners and operators of USTs to receive payment from the Illinois Underground Storage Tank Fund ("Fund").⁵ All owners of USTs must register their USTs with OSFM.⁶ Owners of new tanks also are required to certify that the tank systems are in compliance with all installation, financial responsibility, and other technical UST system requirements, including compliance with leak detection, overfill, and piping regulations.⁷ In addition, UST owners or operators must apply for and be granted a permit from OSFM prior to installing, repairing, removing, or abandoning a UST.⁸ USTs subject to Parts 174, 175, 176 and 177 of OSFM's regulations must meet the design, construction, and installation requirements for UST systems, including complying with reporting and recordkeeping requirements.⁹

OSFM also makes eligibility and deductibility ("E&D") determinations regarding whether an owner or operator of a UST is eligible to access the Fund for reimbursement for corrective action costs incurred during the remediation of a release at a site and/or for indemnification for the amount of any judgment or settlement entered into by the owner or operator under certain circumstances.¹⁰In order for an owner or operator to be deemed eligible to obtain reimbursement from the Fund for corrective action costs or payment for indemnification costs, OSFM must determine that a UST meets certain criteria and deem the owner or operator eligible to access the Fund.¹¹ Once a release is confirmed, OSFM will provide the owner or operator with an E&D application, which the owner or operator must complete and submit to OSFM.¹² OSFM has 60 days from receipt of the E&D application to determine the eligibility of the UST and determine the deductible that will apply to the owner.¹³

B. Corrective Action Activities

The Illinois Environmental Protection Act ("Act") and Illinois Pollution Control Board ("Board") regulations administered by Illinios EPA govern the remediation of sites where there has been a release of petroleum from a UST.¹⁴When a release occurs from a UST, the owner or operator is required to report the release to the Illinois Emergency Management Agency ("IEMA"),¹⁵ and IEMA, in turn, notifies Illinois EPA that a release has occurred. Once a release occurs, an owner or operator¹⁶ must conduct investigation and corrective action activities in accordance with the Act and Board regulations. These activities include, from beginning to end, a combination of reports and other submittals to Illinois EPA and onsite investigation and remediation activities.¹⁷ Ultimately, in order to close a site, an owner or operator must obtain a No Further Remediation Letter ("NFR Letter") or No Further Action Letter ("NFA Letter") from Illinois EPA, which Illinois EPA will issue if the owner or operator has completed remediation and/or excluded exposure pathways so as to prevent potential harm to human health in accordance with Part 731 or 734¹⁸ of the Board's regulations (see further discussion below).

1. Early Action Activities and Free Product Removal

Once an owner or operator has confirmed that a release of petroleum has occurred from a UST, the owner or operator must report the release to IEMA and take any additional actions to prevent the further release of petroleum.¹⁹Within "20 days after initial notification to IEMA of a release plus 14 days," the owner or operator must remove as much petroleum from the UST as is necessary to prevent further release, inspect any aboveground and/or exposed below ground releases, monitor and mitigate any additional fire and safety hazards "posed by vapors or free product," remedy "hazards posed by contaminated soils," measure for the presence of a release, determine the presence of "free product" (released petroleum that has not been absorbed into groundwater), and begin free product removal as soon as practicable.²⁰ Within the same timeframe, the Owner or operator must submit a 20-day report to Illinois EPA summarizing the initial abatement steps taken at the site.²¹ Subsequently, within 45 days after notification to IEMA of the release plus 14 days, another report must be submitted to Illinois EPA describing the ongoing abatement activities at the site.²² The 45-day report must include data regarding the extent of the release, water well information, subsoil surface conditions, and results of the free product investigation.²³ Further, the Board's regulations also allow for the removal of USTs during early action activities if certain requirements are met.²⁴

If free product is present at a site, the owner or operator must remove free product to the maximum extent practicable where free product measures more than 1/8 inch in a groundwater monitoring well.²⁵ Once free product is discovered, the owner or operator of the UST from which the release occurred must submit a free product removal report to Illinois EPA within 45 days of the date of discovery of free product.²⁶ The report must include the name of the persons responsible for implementing the free product removal measures, the estimated amount and type of free product present onsite, whether any discharge will take place on-site or off-site, the steps that have or are being taken to obtain permits for any discharge, the type of recovery system used, the actions taken to identify the scope of free product contamination, and a schedule for future free product recovery activities at the site.²⁷ Free product removal activities may be reimbursed from the Fund, if they are conducted within 45 days of the discovery of free product.²⁸ If free product recovery activities are conducted after 45 days of the confirmation of free product at the site, the activities will be reimbursable from the Fund only if the owner or operator submits to Illinois EPA a free product removal plan and budget, and Illinois EPA approves the plan and budget.²⁹

It is possible for an owner or operator to complete remediation of a site during early action activities. If an owner or operator can provide evidence that the site has met the most stringent Tier 1 Remediation Objectives ("ROs") established in 35 Illinois Administrative Code Part 742,³⁰ that groundwater wells are not impacted above Tier 1 levels, that free product has been removed, and that there is no evidence of contaminated soil impacting groundwater, the owner or operator can submit a report to Illinois EPA within 30 days of completion of early action activities to demonstrate compliance with early action requirements.³¹

2. Next Steps

In 2012, the Board adopted amendments to "Underground Storage Tanks" (35 Ill. Admin. Code 731;35 Ill. Reg 16183) and "Petroleum Underground Storage Tanks" (35 Ill. Admin. Code 734, 35 Ill. Reg. 16338) and repealed Part 732 titled "Petroleum Underground Storage Tanks (Releases Reported September 23, 1994 through June 23, 2002)" (35 Ill. Admin Code 732, 35 Ill Reg 16191), all effective March 19, 2012. Amendments to Part 731 clarify that owners and operators of heating oil USTs are subject to rules in Part 734. The repeal of Part 732 reflects removal of pre-2002 provisions.

a. Part 734: Reported Releases 2002 to Present

i. Part 734: Site Investigation

For releases reported on or after June 24, 2002, and releases reported prior to June 24, 2002 where the owner or operator elected to proceed under Part 734, the owner or operator must perform a Site Investigation ("SI") pursuant to Part 734³² and propose ROs for applicable indicator contaminants at the site.³³ Prior to conducting SI activities, the owner or operator must submit an SI plan and budget to Illinois EPA for approval.³⁴ Upon approval of the SI plan, the owner or operator may proceed with a SI in accordance with the approved plan.³⁵

Pursuant to Part 734, SIs must be performed in the following stages:

• A Stage 1 SI is intended to determine the extent of onsite contamination that exceeds the most stringent Tier 1 ROs after early action activities have been completed.³⁶ It may include a soil investigation in certain circumstances, groundwater investigation, and a water supply well survey conducted in accordance with Section 734.445(a).³⁷
• A Stage 2 SI is intended to complete "the identification of the extent of the soil and groundwater contamination" at a site that exceeds the most stringent Tier1 ROs.³⁸ It requires that additional soil borings be drilled and sampled and, where groundwater contamination exists, additional groundwater monitoring wells be installed and samples collected.³⁹
• A Stage 3 SI is intended "to identify the extent of off-site soil and groundwater contamination" that exceeds the most stringent Tier l ROs.⁴⁰ It includes additional soil boring drillings and samples, as well as installation of additional groundwater monitoring wells and

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