Current through Register Vol. 48, No. 38, September 20, 2024
a) An
agreement with a highway authority may be used as an institutional control
where the requirements of this Section are met and the Agency has determined
that no further remediation is required as to the property(ies) to which the
agreement is to apply. Highway Authority Agreements submitted to the Agency,
except for those agreements with the Illinois Department of Transportation,
must match the form and contain the same substance, except for variable
elements, as the model in Appendix D.
b) As part of the agreement the highway
authority shall agree to:
1) Prohibit the use
of groundwater under the highway right of way that is contaminated above
residential Tier 1 remediation objectives from the release as a potable supply
of water; and
2) Limit access to
soil contamination under the highway right of way that is contaminated above
residential Tier 1 or construction worker remediation objectives, whichever is
less, from the release. Access to soil contamination may be allowed if, during
and after any access, public health and the environment are
protected.
c) The
agreement shall provide the following:
1)
Fully executed signature blocks by the highway authority and the owner of the
property (or, in the case of a petroleum leaking underground storage tank, the
owner or operator of the tank) from which the release occurred;
2) A scaled map delineating the area and
extent of soil and groundwater contamination above the applicable Tier 1
remediation objectives or a statement that either soil or groundwater is not
contaminated above the applicable Tier 1 residential remediation
objectives;
3) Information showing
the concentration of contaminants of concern within the zone in which the
applicable Tier 1 remediation objectives are exceeded;
4) A stipulation of the information required
by subsections (c)(2) and (3) of this Section in the agreement if it is not
practical to obtain the information by sampling the highway right-of-way;
and
5) Information identifying the
highway authority having jurisdiction.
d) Highway Authority Agreements must be
referenced in the instrument that is to be recorded on the chain of title for
the remediation property.
e)
Violation of the terms of an Agreement approved by the Agency as an
institutional control under this Section shall be grounds for voidance of the
Agreement as an institutional control and the instrument memorializing the
Agency's no further remediation determination.
f) Failure to provide all of the information
required in subsections (b) and (c) of this Section will be grounds for denial
of the Highway Authority Agreement as an institutional control.
g) In instances in which the highway
authority is also the property owner of the site, a Highway Authority Agreement
may not be used. In such cases, the highway authority shall instead enter into
a Highway Authority Agreement Memorandum of Agreement (HAA MOA) between the
highway authority and the Agency. An HAA MOA may be used as an institutional
control where the requirements of this Section are met and the Agency has
determined that no further remediation is required as to the property(ies) to
which the agreement is to apply. HAA MOAs submitted to the Agency must match
the form and contain the same substance, except for variable elements, as the
model in Appendix E.
h) As part of
the HAA MOA the highway authority shall agree to:
1) Prohibit the use of groundwater under the
highway right of way that is contaminated above residential Tier 1 or
construction worker remediation objectives, whichever are less, from the
release as a potable supply of water; and
2) Limit access to soil contamination under
the highway right of way that is contaminated above residential Tier 1 or
construction worker remediation objectives, whichever are less, from the
release. Access to soil contamination may be allowed if, during and after any
access, public health and the environment are protected.
i) The HAA MOA shall provide the following:
1) Information identifying the site by common
address or legal description or both;
2) The Illinois Emergency Management Agency's
(IEMA) incident number for the site, if one has been assigned;
3) A scaled map delineating the current and
estimated future area and extent of soil and groundwater contamination above
the applicable Tier 1 or construction worker remediation objectives, whichever
are less, or a statement that either soil or groundwater is not contaminated
above the applicable Tier 1 residential remediation objectives;
4) Information prepared by the highway
authority that lists each contaminant of concern that exceeds its Tier 1
residential or construction worker remediation objective, its Tier 1
residential remediation objective, and its concentrations within the zone where
Tier 1 residential or construction worker remediation objectives, whichever is
less, are exceeded;
5) A scaled map
prepared by the highway authority showing the area of the highway authority's
right of way that is governed by the HAA MOA;
6) If samples have not been collected within
the right of way because of impracticability, a stipulation by the parties
that, based on modeling, soil and groundwater contamination exceeding Tier 1
residential or construction worker remediation objectives, whichever is less,
does not and will not extend beyond the boundaries of the
right-of-way;
7) A stipulation by
the highway authority that it has jurisdiction over the right of way that gives
it sole control over the use of the groundwater and access to the soil located
within or beneath the right of way;
8) A stipulation by the highway authority
that it agrees to limit access by itself and others to soil within the right of
way exceeding Tier 1 residential or construction worker remediation objectives,
whichever is less. Access may only be allowed if human health (including worker
safety) and the environment are protected during and after any access. The
highway authority may construct, reconstruct, improve, repair, maintain, and
operate a highway upon the right of way, or allow others to do the same by
permit. The highway authority and others using or working in the right of way
under permit have the right to remove soil or groundwater from the right of way
and dispose of the same in accordance with applicable environmental laws and
regulations. The highway authority agrees to issue all permits for work in the
right of way, and make all existing permits for work in the right of way,
subject to the following or substantially similar conditions:
A) As a condition of this permit the
permittee shall request the office issuing this permit to identify sites in the
right of way where an HAA MOA governs access to soil that exceeds the Tier 1
residential remediation objectives of 35 Ill. Adm. Code 742; and
B) The permittee shall take all measures
necessary to protect human health (including worker safety) and the environment
during and after any access to such soil;
9) A stipulation that the HAA MOA shall be
referenced in the Agency's no further remediation determination issued for the
release(s);
10) A stipulation that
the highway authority shall notify the Agency of any transfer of jurisdiction
over the right of way at least 30 days prior to the date the transfer takes
effect. The HAA MOA shall be null and void upon the transfer unless the
transferee agrees to be bound by the agreement as if the transferee were an
original party to the agreement. The transferee's agreement to be bound by the
terms of the agreement shall be memorialized at the time of transfer as a rider
to this agreement that references the HAA MOA and is signed by the highway
authority, or subsequent transferor, and the transferee;
11) A stipulation that the HAA MOA will
become effective on the date the Agency issues a no further remediation
determination for the release(s). It shall remain effective until the right of
way is demonstrated to be suitable for unrestricted use and the Agency issues a
new no further remediation determination to reflect there is no longer a need
for the HAA MOA, or until the agreement is otherwise terminated or
voided;
12) A stipulation that in
addition to any other remedies that may be available, the Agency may bring suit
to enforce the terms of the HAA MOA or may, at its sole discretion, declare the
HAA MOA null and void if the highway authority or a transferee violates any
term of the HAA MOA. The highway authority or transferee shall be notified in
writing of any such declaration; and
13) A fully executed signature block by the
highway authority and a block for the Agency's Director.
