What is this new law?
The new law, entitled
Public Act 94-0274, amended the definition of “owner” at Section 57.2 of the Environmental Protection Act (Act). It expanded the definition to include any person who has submitted to the Illinois Environmental Protection Agency (Illinois EPA) a written
election to proceed under Title XVI of the Act 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 Illinois EPA pursuant to Title XVI of the Act
The new law became effective January 1, 2006.
How does this new law affect the Leaking Underground Storage Tank Program?
The buyer of property with a reported release may become the tank owner for the purpose of remediating the site and accessing the Underground Storage Tank Fund, provided Office of the State Fire Marshal (OSFM) eligibility criteria are met. It is anticipated that more cleanups may occur. For example, the new law provides another option to municipalities that have acquired abandoned or contaminated property.
What should I do if I am considering the purchase of property on which a release from an underground storage tank (UST) was reported?
The first thing you should do is contact the state agencies that regulate USTs and request whatever information they have available on the site. These state agencies include the OSFM and the Illinois EPA.
To find out if the tanks at a property were registered with the OSFM, contact the Division of Petroleum & Chemical Safety at 217/785-5878. When calling, you should be able to give the property’s street address. Besides obtaining information regarding tank registration, you should also inquire as to whether the tanks have been removed, whether the eligibility criteria are met (so that you may access the UST Fund for payment of cleanup costs), and what the deductible amount would be.
You may search the Illinois EPA’s
Leaking UST database or call 888/299-9533 to obtain information about the status of the cleanup and what reports, if any, have been submitted. You should know the property’s street address and, if possible, the name of the business that owned and operated the tanks.
You may obtain copies of reports submitted to the Illinois EPA for a particular Leaking UST Program site and copies of related Illinois EPA correspondence by contacting the Illinois EPA’s
Freedom of Information Act (FOIA) staff. To make a FOIA request, you should have the property’s street address and, if possible, the name of the site and Leaking UST incident number (available from the Leaking UST database). You may request a copy of the site’s entire file or a specific item (a letter, report, etc.). The request may be submitted through the
interactive Web form or through fax, the U.S. mail, or special carrier.
If you choose to purchase the property and wish to become the “owner” as allowed by the new law, you must submit an
Election to Proceed as “Owner” form to the Illinois EPA. Please be advised that, in so doing, you also assume the
responsibilities and liabilities of owner of the tanks and that, once the election has been filed, it cannot be withdrawn. Before purchasing the property, you may want to consult with a private attorney for advice.
If the tanks were never registered with the OSFM, can I qualify as “owner” by the new definition and access the UST Fund?
Provided the OSFM deems you eligible as owner of the tanks pursuant to Public Act 94-0274, you may access the UST Fund for payment of costs for corrective action. One of the things the OSFM requires to determine eligibility is proof of when the tanks were last used. OSFM also requires proof of ownership interest in the site. Please be aware that, if the tanks were not previously registered, the deductible amount to be paid by you out-of-pocket may be $100,000.00.
Please note, too, that USTs removed from service prior to January 2, 1974, are not eligible for payment from the UST Fund because they are unregisterable as determined by OSFM.
What if the tanks were never removed?
The new law does not apply if the tanks are still underground. If the tanks were registered with the OSFM and are still on the premises, the tank registration may be transferred to the new property owner. The registration date from the previous owner would be used to determine the deductible amount.
If remediation of a release has not yet been conducted and I choose to purchase the property and submit the new election form, which regulations apply?
By signing and submitting the Election to Proceed as “Owner” form, you elect to proceed under Title XVI of the Environmental Protection Act and the Illinois Pollution Control Board’s rules at 35 Illinois Administrative Code 734. This applies to anyone who elects to proceed as “owner,” no matter what date the release was reported.
If remediation of a release has begun but has not been completed and the previous owner paid the deductible amount, must the new “owner” (pursuant to P.A. 94-0274) also pay a deductible?
If the previous owner paid the deductible, then the new “owner” will not be assessed a deductible—provided no new release has occurred. Payment of the deductible is assessed only once per site per calendar year, except that, if corrective action continues over a period of more than one year, a deductible is not assessed again for that release. Please be advised that, for multiple incidents reported during multiple calendar years, more than one deductible would be assessed and that, if not paid by the previous owner, the new “owner” would be responsible for the payment.
Where can I get more information?
You may contact the project manager on call in the Leaking UST Section by dialing 217/524-3300.
This fact sheet is for general information only and is not intended to replace, interpret, or modify laws, rules, or regulations.