ALBUQUERQUE, NM

CHICAGO, IL

GRIFFITH, IN

GLENELLYN, IL

2021

TIMBERBROOK

LANE

SPRINGFIELD, ILLINOIS

62702

217/787-0290

FAX

217/787-0294

RECEIVED

CLERK’S OFFICE

May 2, 2001

Proposal No: 0000-01-05

Ms. Dorothy Gunn

Clerk ofthe Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

MAY 0 3

2001

Re: Amendments to 35 Ill. Admin.

Code 732

Regulation

ofPetroleum Leaking Underground

Rulemaking RO1-26

Dear Ms. Gunn:

Weaver Boos

&

Gordon,

Inc.

(Weaver

Boos)

hereby

submits these

comments

regarding

the

proposed amendments to

the Petroleum Leaking Underground Storage Tank (UST) regulations

filed by the

Illinois

Environmental Protection Agency

(JEPA).

Weaver Boos

is

a geotechnical

and

environmental engineering firm that has been performed numerous site investigations and

detailed geological investigations in accordance with

both

federal and state remediation

programs. Weaver Boos involvement with contaminated sites has extended from the site

investigation phase through development and

implementation ofremedial action plans.

Weaver

Boos’ personnel have obtained closure or in the process ofimplementing remedial action plans at

numerous underground storage

tank

sites

in

Illinois

and

other

states.

Because offsite

contamination has

been an issue at several of our sites,

Weaver

Boos’ personnel have been

involved

in

notifying

and

working

with offsite

property

owners in

gaining access

to

their

property for purposes of investigation,

and if necessary, remediation. Through our experiences,

Weaver Boos has gained an understanding ofthe sensitivity surrounding potential off-site impact

issues. It is

for these reasons that Weaver Boos has serious concerns with the JEPA’s proposed

Section 732.411

(Off-Site Access).

Specifically, our concerns involve two issues:

1.

The contents ofthe letter demonstrating “best efforts”to

obtain offsite access; and

GEO-ENVIRONMENTAL

ENGINEERS AND

SCIENTISTS

www.weaverboos.com

~

~

LUST S

2.

O2.d~

STATE OF ILUNOIS

Pollution Control Board

---

Ms. Dorothy Gunn

May 2, 2001

Page:

2

2.

The criteria the IEPA considers when reviewing such demonstration.

The proposed

rule

states

that an

owner

or operator

seeking to comply with the best

efforts

requirements must, at a minimum, send a certified letter

to

the off-site

property

setting

forth

eight

specific statements

(35

JAC

732.41 1(b)(1)

—

(8)). Weaver Boos

has

concerns with

mandating the content of such a letter for a number of reasons.

Many times

when attempting to

access off-site properties, we are unsure as to the

level of environmental

concern present

on the

property. Our goal in obtaining

access

is

to investigate and evaluate the adjacent property

in

relation to the

environmental concerns being addressed.

Conclusions are drawn following and

not prior

to

investigation.

The statements in

subparagraphs

(1) through (6) appear

to

imply

upfront,

prior to

gaining

access and conducting further investigation, that

remediation

and

monetary damages are absolutes;

and if remediation

is

not conducted, there will be a threat

to

human health and the environment.

Weaver Boos believes the proposed statements are contrary

to the spirit and intent ofthe State’s risk-based remediation program.

Over the past several years,

the State has moved away from a remediation program

that

focused

on

cleaning up every particle of each contaminant and

moved

to a

program

that

addressed

potential pathways and risk to

receptors. Local governments have passed ordinances prohibiting

the use ofgroundwater

and accepted highway authority agreements limiting access, and remedial

applicants have relied on these institutional controls to

obtain

closures at various

sites.

This

more reasonable approach to

remediation has resulted in substantial redevelopment

and

closure

of

contaminated

sites.

While

residual

contamination

may

be

present

in the

soil

or

the

groundwater and extend beyond the property boundaries ofa remedial site, it is unreasonable and

illogical to state, as

set

forth in subparagraph (6), that a threat

to

human health

and

the

environment exists unless remediation is conducted.

Each leaking underground storage site

is

different

and

should

be

evaluated based

on

the site-

specific characteristics.

To

imply as

part

of

an

effort to gain access that

all

sites

must be

remediated

is

to

return

to

the pre-risk based

thinking.

To

require the submittal of a

standard

letter containing

all

of the elements

set

forth in subparagraph (1) through

(6) would

have an

adverse

impact

on

site remediation.

It

could slow down the whole remediation process by

turning the focus from one ofidentifying and

addressing environmental concerns to

one ofusing

any potential environmental issues as a mechanism to obtain a monetary benefit.

¾Serve,~users\OOOO-OI-OSiPCB

C,,,,~,,w,zrs.LUST.3.2.OJ.doc

4?o~4 &

~

~

---

Ms. Dorothy Gunn

May 2, 2001

Page:

3

Weaver Boos believes

the

remedial applicants

should

have the ability to correspond with

adjacent property owners in a manner that

is

not threatening and

does not use scare tactics. In

particular, the access requirements cannot and

need not increase the likelihood of the applicant

getting sued. Because

if

it does, it will

serve

as a

strong

deterrent to applicants pursuing

remediation efforts.

Many times

the source of offsite contamination may result from

activities

on other adjacent properties. We believe such access should be documented and submitted to the

IEPA.

However, we

do

not

believe

the IEPA’s

criteria

for

evaluating the “best

efforts

demonstration” should be the criteria set

forth in paragraph (d) of Section

732.411.

The criteria

set

forth in paragraph (d) are the factors considered when approving a remedial action plan and

not the factors for determining whether an

appropriate level ofeffort was made to

obtain access.

Factors to be

considered when evaluating a “best efforts demonstration” should

focus

on

the

following:

•

The type and level ofcommunications made with the offsite property owners;

•

Response or lack ofresponse received; and

•

Any follow-up conducted by the remedial applicant.

Weaver Boos supports the IEPA’sposition that reasonable efforts must be made to obtain access

to

offsite properties. We

believe it

is

in

everyone’sbest

interest

to

have

an

understanding

of

offsite impacts.

Offsite

situations

are

sensitive

matters that

should

be

addressed

in a

clear,

concise and

positive

manner. The

level

of information provided

may vary depending on the

circumstances surrounding the site.

Movement toward a risk-based approach to remediation has been a long and laborious process.

Weaver Boos believes the program

that has been established

is

a good

one.

We acknowledge

that amendments may be necessary to

build on and improve the system.

Weaver Boos supports

the inclusion ofa general requirement that notification to the offsite property owner be provided,

documented,

and

submitted to the

JEPA

as

part

of

a “best efforts to obtain access”

demonstration. We

also

support

the

inclusion

of standards

for defining what level

of effort

would be determined to be the “best effort” for obtaining

access.

However,

we believe the

proposed offsite notification provisions will unnecessarily frighten and mislead offsite owners.

~O#~k~

&~

~

4U.

lServeriusersWOOO-O1-O5~PCB CumrnentsLUSTS2OLdoc

---

Ms. Dorothy Gunn

May 2, 2001

Page:

4

Further applicants will try to avoid offsite work, as they will view

these

requirements as

increasing

their

liability prior

to

getting any information. We

support

requirements that are

limited

to

communications between the remedial applicant and the offsite owners.

Obtaining

permission through a Court Order should be left to the discretion

of the

property

owner and

should not be mandated by the IEPA as part ofa “best effort” demonstration.

Weaver Boos appreciates the opportunity

to

provide these

comments

to the

Illinois

Pollution

Control Board.

Very truly yours,

Weaver Boos & Gordon, Inc.

\\Se~’er~users\OOOO-O1-OjPCBC~,m,,wnr,.LUST5.2OJ.doc

/

W. Weaver II, P.E.

A. Steinhour

Senior Project Manager

9lea~t~’ez

d%oj’

&

~

~=4u~.

---

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy ofthe

Comments of Weaver Boos &

Gordon,

Inc.

in

the Illinois Pollution Control Rulemaking

RO 1-26 (Amendments

to

35

Illinois Administrative Code

732

—

Regulation

of

Petroleum

Leaking

Underground

Storage Tanks) were served

upon

all

the parties

on

the

attached

Service List

on

the

2nd day of May, 2001,

by either first class

U.S.

mail, postage

prepaid or by overnight federal express delivery.

~/Of9i’

&

~O~(/~2’fl,

~

---

SERVICE

LIST

ROI-26

Scott Anderson

Black & Beatch

101

North Wacker Drive

Suite

1100

Chicago, IL

60606

Christie Bianco

Chemical Industry Council of Illinois

9801

W. Higgins Road

Suite 515

Rosemont, IL

60018

Cindy Consalvo

Pioneer Environmental

1000 N.

Haisted

Chicago,

IL

60622

Leo

P.

Dombrowski

Wildman, Harrold, Allen & Dixon

225 W. Wacker Drive

Suite 3000

Chicago, IL

60606

Judith

S.

Dyer

Assistant Counsel

Division of Legal Counsel

Illinois Environmental

Protection Agency

1021

North Grand Avenue

East

P.O.

Box 19276

Springfield,

IL

62794-9276

Neil

F. Flynn

Attorney at Law

1035 South Second Street

Springfield,

IL

62704

Collin W. Gray

SEECO Environmental

Services, Inc.

7350 Duvon Drive

Tinley Park, IL 60477

James E. Huff, P.E.

Huff& Huff, Inc.

512W. Burlington, Suite 100

LaGrange, IL 60525

Garry Aronberg

Kuhlmann Design Group

15 East Washington

Belleville, IL 62220

Bruce Bonczyk

601 W. Monroe

Springfield,

IL

62704

William G.

Dickett

Sidley & Austin

Bank One Plaza

Chicago,

IL

60603

Ron Dye

CORE Geological Services,

Inc.

2621

Montego

Suite C

Springfield,

IL

62704

Lawrence W.

Falbe,

Esq.

Wildman, Harrold, Allen

& Dixon

225 W. Wacker Drive,

Suite 3000

Chicago, IL 60606-1229

Daniel J. Goodwin, P.E.

Goodwin

Environmental Consultants,

Inc.

400 Burns

Lane

Springfield,

IL

62702

Thomas L.

Herlacher

Herlacher Angleton Associates,

LLC

8731 Bluff Road

Waterloo, IL

62298

Kenneth James

Carlson Environmental,

Inc.

65

E. Wacker

Place,

Suite

1500

Chicago, IL

60601

---

Kenneth W. Liss

Andrews Engineering, Inc.

3535

Mayflower Boulevard

Springfield, IL

62707

Barbara Magel

Karaganis & White, Ltd.

Suite 810

414 N. Orleans

Chicago, IL

60610

Monte M. Nienkerk, P.G.

Senior Project Manager

Clayton Group Services, Inc.

3140 Finley Road

Downers Grove, IL

60515

Joel J. Sternstein

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Georgia Vlahos

Counsel

Naval Training Center

2501A Paul

Jones Street

Great Lakes,

IL

60088-2845

John Watson

Gardner, Carton

& Douglas

321

N.

Clark Street

Chicago, IL

60610

Pat Ludewig

Caterpillar

Tech Center

Building

F

Peoria,

IL

61656-1875

George

F. Moncek

United Environmental Consultants,

Inc.

119 East Palatine Road

Suite

101

Palatine, IL

60067

Wayne Smith

Pioneer Environmental

1000

N.

Halsted

Suite 202

Chicago,

IL

60622

David A.

Sykuta

Illinois Petroleum Council

P.O.

Box 12047

Springfield,

IL 62791

Rodger Walker

Walker Engineering

500 W. Herrin Street

Herrin,

IL

62448

Gary T. Zolyak

U.S. Army Environmental Center

Northern Regional Environmental

Office

Building

E-4480

Aberdeen

Proving Ground, MD 2101 0-5401

2