RECEXVED

CLERK’S

OFFICE

M4Y

0 2

2U01

Dea Zimmerman

SIME OFIWNOIS

841

Bittersweet Drive

p0~~0,3

Control Bt~jrd

Northbrook, Illinois 60062

May 2,

2001

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100

W. Randolph Street

-

Suite 11-500

Chicago, Illinois

In the Matter of~

Proposed Regulation Changes to

35 Illinois Administrative Code Part

732

Dear Ms.

Gunn,

I have

serious concerns regardingthe proposed regulation changes to 35 Illinois Administrative

Code Part 732:

Regulation ofPetroleum Leaking Underground Storage Tanks.

Specifically,

I am

concerned over the proposed language addition found at Part 732.411, Off-Site Access.

My

comments are based on personal experience and will demonstrate the need to alter these

proposed changes before they become final.

Enclosed are my comments.

Thank you for your time and consideration.

Sincerely,

Dea Zimmerman

enc.

---

RECEIVED

CLERK’S

OFFICE

Before the Illinois Pollution Control Board

MIV’(

2

-

2001

In the Matter of

STATE OF IWNOIS

poflutiofl Control

Board

Proposed Amendments to Regulation

)

RO 1-26

ofPetroleum Leaking Underground

)

(Rulemaking

-

Land)

Storage Tanks, 35 ILL. ADM. 732

)

I have serious concerns regarding the proposed regulation changes to

35

Illinois Administrative

Code Part 732: Regulation ofPetroleum Leaking Underground Storage Tanks.

Specifically, I am

concerned over the proposed language addition found at Part 732.411,

Off-Site Access.

My

comments are based on personal experience and will demonstrate the need to alter these

proposed changes before they become final.

My family owns a small commercial building containing retail

businessesthat

is located adjacent

to an Amoco gasoline station.

In early June of2000, we received a letterfrom Amoco requesting

us to sign and return an off-site access agreement allowing Amoco access to collect soil samples

as part ofan environmental assessment (Attachment 1).

We were a little puzzled by the request

as there was no informationabout~~

Amoco wanted the soil samples.

My husband left Amoco

a phone message, which was not returned prior to us going on an extended leave.

We returned at

the end ofAugust.

Because Amoco was not forthcoming about what was going on or had gone

on their property, or their motivation forwanting to do an environmental assessment on our

property, I filed a Freedom ofInformation request with the Illinois EPA.

Once we received this

information, we had a better idea ofthe situation.

The latest LUST incident occurred in December of 1997 and it was this incident that Amoco was

working on closing out.

Amoco’s objective was (and remains) to

obtain a No Further

Remediation letter from JEPA for the 1997

release.

The IEPA classified the site as a “High

Priority Site” and, in a letter dated April

19, 2000, required Amoco to

submit a High Priority

Action Completion Report within 60 days.

This letter instructed Amoco that pursuant to 35 IAC

Part 742.120, Amoco had to sample off-site (which would

be on our property).

It was now the Winter of2000, and I obtained a “model” IEPA off-site access agreementthat

was developed based on requirements outlined in Section 22.2c ofthe Environmental Protection

Act (415 ILCS 5/22.2c) (Attachment 2).

We re-structured the access agreement we were

negotiating with Amoco to follow this “model” IEPA access agreement and sent it back to

Amoco (Attachment 3).

At thebeginning ofFebruary 2001, Amoco refused to sign the

agreement due to language that required them to accept responsibility for diminution in property

value caused by any release.

In responseto a second FOIA request to IEPA, I learned that Amoco had received an extension

from IEPA, giving them until March 31, 2001, to file the High Priority Action Completion

Report.

After the date passed, I called

the IEPA project manager forthis LUST incident to

inform her that Amoco refused to sign the access agreementwe sent them and to determine what

the next steps would

be.

I was appalled to hear her state that Amoco would probably get theirNo

Further Remediation letter anyway, especially as more time passed.

When asked why, she stated

---

2

that theregulations were changing and all Amoco would have to do was show the IEPA that they

(Amoco) had used best efforts in attempting to obtain off-site access. The JEPA project manager

was not able to answer the question ofj~

IEPA would evaluate whether Amoco used “best

efforts” or not.

I could not believethat the regulations could be and would be manipulated in

such a manner as to allow a corporate giant to

shirk their responsibilities under the law.

It was at this point offrustration that I looked atthe proposed language for off-site access found

at Part 732.411.

I do not disagree with any ofthe criteria that an owner/operator would have to

meet in 732.411(b).

While the requirements in 732.411(c) are weak, essentially a statement from

the owner/operator stating what they did and that they were not successful in obtaining offsite

access, it is Part 732.411(d) that concerns me the most.

This is the Section that says how IEPA is going to eva’uate whether or not an owner/operator

used “best efforts” in obtaining off-site access.

Most ofthe requirements listed in section (d)

require the JEPA to evaluate physical, hydrogeological, and other environmental factors.

There

is nothing in these proposed regulations that requires IEPA to try to discern whether the

owner/operator is telling the truth about their “best efforts,” whether the owner/operator is the

one atfault fornot obtaining offsite access, or whether any unreasonable demands were placed

on either party.

I can envision certain circumstances where owner/operators really have made an honest attempt

at obtaining offsite access, but, due to no fault oftheir own, have failed.

I do believe there

should be provisions in the regulations to

allowthose owner/operators a chance to obtain

an NFR

letter.

However, the proposed regulations are so

lopsided in favor of owner/operators that

situations

like the one described above might occur.

The proposed regulations should impose on IEPA some responsibility to get the other side ofthe

story, by contacting the offsite property ownerto

determine if indeed the owner/operator used

“best efforts.”

Without seeing or hearing the other side, IEPA simply does not have the

appropriate and necessary information upon which to base a “best efforts” decision.

Ifyou don’t

change the regulations to incorporate this information, you might as well stop imposing the off

site sampling requirement.

The bottom line is that we followed a model off-site access agreement that IEPA believes meets

the requirements ofthe law, we made no

unreasonable demands upon Amoco, and Amoco

refused to sign it.

And the prevailing thought on the part ofthe IEPA project manager is that

Amoco, the ownerofthe tank that released toxicants into the environment,

willprobably get an

NFR letter anyway.

This outcome, as I see it, would

be a great disservice to environmental law

enforcement.

The current proposed regulations could allow this outcome.

I am hoping this

example is an unintended consequence ofthe proposed regulations and that IEPA will resolve

this loophole prior to final adoption of the regulations.

Thank you for yourtime and consideration.

---

ACCESS

AGREEMENT

This access agreement is entered into between Amoco Oil Company and the Grantor shown below.

Grantor

is the

ownerof the following property-

For good

and

valuable

consideration

which

the

parties

hereby

acknowledge

the

receipt

and

sufficiency

thereof, the undersigned (Grantor)hereby

fl

agrees

fl

does not agree to grant Amoco access to

the

above-referenced

Property

in order

to perform

certain

environmental activities

which

Amoco

at

its

sole

discretion

chooses to perform.

Such

activities

may

include

sampling,

assessment,

inspection,

monitoring,

installation of equipment, operation and maintenance of equipment, and remediation activities

(Activities).

Amoco

shall use reasonable efforts during

its Activitiesto minimize interruption to the business or use ofthe

Property.

Amoco will repair any property damage that may occur as a result of its Activities at the Property.

Upon

written

request by

Grantor,

Amoco

agrees to provide

the

results

of

analytical testing performed

by

Amoco regarding

Activities.

Amoco

provides

this

information

as

a

courtesy

only.

Use

of

any

of

the

information

contained in ‘these

documents

are

at

Grantor’s

sole

risk.

No

copies are

to be

made,

nor

will

Grantor allow

any person to examine these documents without the prior written consent of Amoco.

Amoco

shall not be deemed to~have

made any representation or warranty,

expressed or implied, as to the condition to

the Property or the accuracy to the documents.

Amoco

will

indemnify

Grantor

from third party causes

of action

which

arise out of negligence

associated

with Activities performed by Amoco on the Property.

It is hereby

agreed that the

Amoco Access

Agreement or Activities

on

the Property

are neither

an admission

against Amoco’s interests nor an

assumption of liability or waiver of any rights

by Amoco.

Either

party

to

the

Access

Agreement

may

revoke

it

with

sixty

days

written

notice

indicating

such

revocation.

Amoco Oil Company Representative

Property Owner Signature (Grantor)

Consultant Contact Person

PrintedName

Phone Number

Date of Authorization

---

(tRTkviPD MATL

217/782-6762

ILLINOIS

ENVIRONMENTAL

PROTECTION

A

GEM

~Y

1021

WOrth

Giend Avenue

£nst.

P.O. Box 19276,

Springfield,

Jllinvis

62794-9276

Mary

A.

Cad.

Dirr

t~r

FEB

1

0 ~9Y

The illinois Euvuvs*mcnal Protection Agency

(1llinozs

EPA”) has

reviewed theHi~tPr1orit~Correctivc

ActionPlan (~plan”)

submitted forthe above-referenced incident

This plan, datedDecembc~

iL

1998,

w-5

received by the Illinois EPA

m December 2,1998.

Citations in

this lcttci

arc from lhs.Envir~

nial

Protection Act(“Act”) and

35

Illinois Administrative Code (“35 IAC’).

Pursuant

to

35

IACSection 732.405(c)andSection

57.7(cX4)

ofthe Act, the Illinois

EPA is

mod ify:ng the

plan.

The followingmodifications are necessity, in addition

to those provi*ions

already outthid

in the

plan, to demoomate compliance with

35

IAC

Past

732 and TitleXVI

ofthe Act

1.

Perform the le~~h4itg

factor equation (R14)

on the

cooc~L~an

ofb~.~1c

de~cted

in~iØils

a: MW-

3.

In addition, ckitermin~

the dissolved hydrocarbon

concentration along the c.~~-.¼LliUtha

the north

of

MW-3 by performing equationR26 based on the results ofk14.

It should be noted that thelilinais EPAhas developed amodel latter forLUST owne&opei4D

to .~~cnd

to

off.sitn property owners

for

the purposeofrequesting access forinvestigationand/sIr rcmedi

The

letter outlinesterms thatthe

LUST

owner/operator will abideby if access is provided wftbos&the necessity

of an injunction.

This infonnatkxswas developed based on requirements outlined in Sectiou~22,2c

~fthe

Envirosartental Protection Act(415 ILCS

5I22.2c).

This processis now in effectand should

~i,

followed

forall futoreaccess requests.

The dcciskm to accept the documentation provided in the abo~ferenced

planfor off-siteaccess denialwas

based on

site-specific

cimurnatances andthuing.

Thisdos~not

ii

east that

the Illinois EPA will accept anyother future orpest

attempts at

off

.sfte access

withoutthe proper

documentation in the loon

of

the model

letter.

Please find attached

a

copy ofthe modól lctt~

for y~’ur

information.

• MditionaUy, the Iilhiois EPAhas revisedform LPC 568 that was previoussentto you in a s~smr

daed

March

17,

1998

This form must be completed and submittcd to

the

Illinois

EPA

prior to arp,~cc

~

the

No

Further

Remediatinu Letter..

ri,

rh

r’~i”~,T1’rr~’rr’i’

---

wag..

MODEL

LE~n~R

TO

OFF

SITE

PROPERTY

OWNERS

REQUESTING

ACCESS

FOR. PURPOSES OF Ra4EDIATION

!DATE!

ADJACENT PROPERTY

OWNER

NAME!

ADDRESS!

I

ADDRESS!

RE:

Property AccessConsent

Dcar!NAME!:

On behalfof! OWNER/OPERATOR

!,

this document serv~(aa

a request for propçxty

access pertaining to the remediadon of

cont

mii~axio&t

th4~j.4~ircsent

on yourprop~..

•

The contamination

resulted

from a release of! TYPE OF CONTAMINATION

fróin an

•

underground storage

tank

(liST’)

system.

The

IJS1’ was ~

I

BA~!.

t

Pursuant to

provisions

ofthe IUinO~SEnvironmental Protection Act (“Actipcrt*in$ to

petroleum ubdcrground storage tanks

(41

~ ILCS

5(57),owners oroperatorsof

U9* are

•

responsible fo~coucctivc

action to rentcthate any contamination that posesa tbreat~

•

•

human health, human safety, orthe environment resulting from theUST release.

•

Section 22.2c ofthe Act provides that if an owner

ofan

adjacent properly refusestØ

•

penniaccess onto

theadjowing land forthe purposeofeffecting remediation, tint ~

•

~•

•

oroperator may seek acQuitorder to compel the

owner

of

the

offsire propertyto p~rmit

•

urunediare enny for purposesrelatingto the rernediation ofthe site,the adjOining

1~

•

and

any

other zeal property that may be contaminated with petroleum products.

(415

•

IICS

5/22.2c)

In

theevent that

it

becomes necessary forthe owner or operatorto s~tk

an

•

injtmcnon pursuant

to

S

cdon

V~v.

thecourt will prescribe theconditions of

the

•

and will derenuins the amount

ofdamages,if any, to be paid to you ascoulpu~tis!t

for

theentry.

if

access is provided without the necessity olan injunction,! OWNER/OPERATOR!

•

;•

•

will abide by the following temu~

I.

I OWNER/OPERATOR I will renazu the condition ofthe property to ita co~ticn

•

prior to the entry(lessthe conlantination).

2.

1 OWNER/OPERATOR! will conduct all rernediation atits own expense.

3.

1 OWNER/OPERATOR! and

its Coritractors will kccp end malp~in.p!upcc

~.

as

applicable, including

Worker’s Compcuaalian

Coinniercil

G~~1

•

Liability;Comprehensive Automobile Liability and Professional Liabilityf*

•

•

•

•

Errors and Omissions forthe completion

ofall work.

I

---

~E-3

As a consequruceofthe

release,

potential thxcats

to

human health and the environ~t

and diminished propei~y

value may be an issue.

Pursuant to the Act, it is the duty ~1!

OWNER/OPERATOR

I to mitigate any threat

to

human

health, human safety, andile

enviromnent resulting from

the UST release.

It is necessary that we have your

cooperation in granting access to your property

tocomply

with

our responsibilityt~der

the law.

Please select one ofthe choices below. sign. date and return this document to!

OWNERJOPERATOR

I

at

the*ddrc~s

stared herein.

•

p~

the termsofthis docuiue*n,

I

elect to GRANT

access forsite

emedlada~

~

~ermns

ofthis docwnem. I elect to DENY ____access for sire

remedlation ~a4

understand that!

OWNER/OPERATOR.

I

may seek an injanaction in a courtof cOu~*tent

jurisdictionto gain access to

my

property forthe purpose ofrernediating contaniiu*kn

caused

by the release as stated

in this document

I

unde*stand thai failure to allow! OWNER/OPERATOR

I to remediate myp,~pert~.

may muft in

my

inclusion in a lawsuit filedby the Illh~is

EPAorthe Slate

of

UIIn~is

involving thacontamination on my p~op~rty.

NAME

OF

OFF

SITE OWNER!

ADDRESS!

I

ADDRESS

I

I

1

NAME

OF

OWNER/OPERATOR!

!

ADDRESS!

I

ADDRESS I

Signature:

__~

Signature:

Date

•

Date:

4

1”

‘ •fl’

---

Access

Agreement

This

Access

Agreement is entered into between Amoco Oil Company (“Owner/Operator”)

and

The purpose ofthis Agreement is for

the

Owner/Operatorto

advance a soil

boring

at

illinois

(“off-site property”) as

indicated

on the attached site map (Exhibit A) at the approximate location

indicated as

B-8.

This document

serves

as a requestby

the

Owner/Operator for

access

to

the

off-site

property~’

pertaining

to

the sampling for

~

contamination that

could

be present and

subsequent

corrective action if necessary.

The contnmination

need for sampling resulted

from a release

of

___________________

fill

in type

of contamination

from an underground storage

tank

(“UST”) system.

The UST

was

removed on

___________

insert

date.

Pursuant to provisions ofthe Illinois Environmental Protection

Act (“the Act”) pertaining

to

petroleum

underground

storage tanks

(415 ILCS 5/57),

owners

or operators ofUSTs

are

responsible for

corrective

action to remediate any contamination thatposes

a threat to

human

health,

hilni2n

safet)e, or the environment resulting

from

theUST release.

If

provides

access

to the off-site property,

then

the Owner/Operator will abide

by

the

following~

1.

The

Owner/Operator will

advance the soil

boring

on

__________________,

2001

between

the hours of

,

M

and

,

_M.

The Owner/Operator shall

use

all reasonable efforts during this time to

minimize

interruption of the

businesses

at or

use

of

the

off-site property.

2.

After the

sampling,

tT-he Owner/Operator

will

return the condition of the off-site

property to

its

condition priorto the

access

(less

thc

contamination).

3.

The Owner/Operatorwill conduct a11 remcdiationtake

any

and all corrective action as

reouired..ky.thc Illinois

Environmental Protection

Agency

-at

its

own expense.

4.

The Owner/Operator

and its

contractors will

keep and

maintain proper insurance, as

applicable,

induding:

Worker’s Compensation; Commercial

General

Liability;

Comprehensive Automobile Liability

and

Professional Liability for

Errors and

Omissions for

the completion of all work.

Further, the Owner/Operatorwill

indemnify

from third party

causes

of action

which

arise out of negligence associated with any activities

by the Owner/Operatoror

its

contractors on the off-site property.

5.

The Owner/Operatorwill promptly provide

with

the analytical

results

from thesoil boring taken on the above date.

---

6.

As a consequence ofthe release, potential threats to

human health

and

the

environment

and

diminished property value may be

an issue.

Pursuant to

the

Act, it is the

duty of

the

Owner/Operator to mitigate

any

threat to

human

health, human safety,

and

the

environment

resulting from the UST release.

Further,

the

Owner/Operatortakes full

responsibility for

any

diminution in value to the off-site property that results from the

release.

The undersigned do hereby agree to enter into this Access Agreement under

the

terms

specified above.

Amoco

Oil Company Representative

property owner

Consultant Contact:

____

Name:

-

Telephone Numberi~__________

2