IN THE MATTER OF:

AMENDMENTS TO REGULATION

OF PETROLEUM LEAKING UNDERGROUND

STORAGE TANKS

35

ILL.

ADM. CODE 732

ROl-26

(Rulemaking-Land)

RECEIVED

CLERK’S OFFICE

JAN

-

7

2002

STATE OF

IWNOIS

Pollution Control Board

NOTICE OF FILING

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois

60601

Robert Lawley, Chief Legal Counsel

Dept ofNatural Resources

524 South

Second Street

Springfield, Illinois

62701-1787

See Attached Service List

Matthew

J. Dunn, Chief

Environmental Bureau

Office ofthe Attorney General

188

W. Randolph, 20tl~Floor

Chicago, Illinois

60601

Joel

Sterstein, Hearing Officer

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

NOTICE OFFILING

PLEASE TAKE NOTICEthat I have filedtoday withthe Illinois Pollution Control Board the Commentriwith

Attachment ofthe ENVIRONMENTAL PROTECTION AGENCY, a copy ofwhich is herewith served upon you.

ENVIRONMENTAL PROTECTION AGENCY

OF THE STATE OF ILLINOIS

By:

~

I~i~

Judith S. Dyer

Assistant Counsel

Division ofLegal Counsel

Dated:

January 4, 2002

Illinois Environmental Protection Agency

1021 N. GrandAve.

E.

P.O. Box 19276

Springfield, Illinois 62794-9276

(217/782-5544)

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

)

)

)

)

)

)

THIS FILiNG IS SUBMITTED ON RECYCLED PAPER

---

RO1-26

(Rulemaking- Land)

RECEIVED

CL!Rk’.g OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

‘~

7

2002

STATE OF IWNOIS

Pollution Control Board

IN

THE

MATTER

OF:

)

Amendments to Regulation of

Petroleum Leaking

Underground Storage Tanks:

35

Ill. Adm.

Code 732

Comments of Illinois. Environmental Protection Agency

Now comes the Illinois Environmental Protection Agency

(“Agency”),

by its attorney, and files the following

comments in the above-referenced rulemaking:

1.

Effective Date for Laboratory Certification

Requirement

—

Section 732.106

The Agency proposes revising the effective date for

the requirement to use an accredited laboratory for

quantitative analyses of samples to January

1,

2003,

rather

than July

1,

2003,

in order to be consistent with the

effective date set forth in the Board’s first notice order

in the rulemaking amending the Site Remediation Program

(In

the Matter of:

Site Remediation Program

(Amendments to 35

Ill. Adm.

Code 740)

R01-27).

The Agency’s laboratory

personnel foresee no problem completing certifications by

the January

1,

2003,

date

if applications are submitted in

a timely manner.

The Agency sees no need to have separate

compliance dates for each program.

~

---

2.

Early Action Trigger Date for Purposes of

Reimbursement

—

Section 732.202(g)

The Agency proposed to the Board that the language of

Section 732.202(g)

be amended to provide as follows:

For purposes of reimbursement, the activities set

forth in subsection

(f)

of this Section shall be

-

performed within 45 days after confirmation initial

notification to

IEMA

of a release, unless special

circumstances, approved by the Agency in writing,

warrant continuing such activities beyond 45 days.

The owner or operator shall notify the Agency in

writing within 45 days of confirmation initial

notification to IEMA of a release of such

circumstances.

Costs incurred beyond 45 days shall be

eligible if the Agency determines that they are

consistent with early action.

The Board declined to adopt the Agency’s proposed

change for the trigger date for reimbursement of costs for

early action activities.

In so declining,

the Board

stated,

It

is not entirely clear from the Agency’s

proposal which of several required notifications to

IEMA should be the trigger date.

If the proposed

2

---

trigger date is the notification to IEMA required by

Subsection 732.202(a)

of the Board’s regulations, then

the Board finds that this proposed change is

unnecessary.

According to Subsection 732.202(a),

an

owner or operator of a UST must report a release of

petroleum to the

IEMA

within 24 hours of confirmation

of that release.

The Agency’s proposed language for

Subsection 732.202(g)

would simply give the owner or

operator a maximum of another 24 hours to perform

reimbursement activities during the Early Action

period.

The Board notes that the other requirements in

Section 732.202 are all tied to the confirmation of a

release as opposed to notification of the IEMA.

The

Board chooses to keep the requirements in Section

732.202 consistent.

The Board also notes that there are other

notifications to the IEMA during the UST remediation

process which are required by the Office of the State

Fire Marshal’~s (“OSFM”)

regulations.

The Board is not

sure if the Agency’s proposed change in the trigger

date might have referred to one of the OSFM-required

notifications.

For example,

the owner or operator of

3

---

the UST

i-s required to notify the IEMA of spills or

overfills from an UST.

And, the OSFM has a requirement

-

similar to the Board’s regarding notification to the

IEMA after confirmation of a release from a UST.

Finally,

the Board also notes that the issue of

the trigger for the reimbursement date is somewhat

controversial.

See e.g. Broderick Teaming Company v.

IEPA PCB 00-187

(December

7,

2000 and April

5,

2001)

The Board invites the Agency to submit comments or an

amended

proposal during the first notice period to

-

address these matters.

-

-

Board Order dated November

1,

2001,

at 14.

In response to the Board’s statements,

the Agency

would like to elaborate as to the merit in establishing the

initial notification to IEMA as the trigger date for

reimbursement of costs for early action activities,

as

proposed by the Agency.

The Agency also proposes a

modification to address concerns raised by the Board in its

first notice order,

in the Broderick case cited above and

in the Board’s most recent order in Ozinga Transportation

Services v.

Illinois Environmental Protection Agency,

PCB

00-188

(December 20,

2001)

4

---

As the Board states, requirements-to notify IEMA of a

release are provided in several places.

The Environmental

Protection Act requires,

as a prerequisite for-access to

the Underground Storage Tank Fund,

that “~tihe owner or

operator notified the Illinois Emergency Management Agency

of a confirmed release,, the costs were incurred after the

notification and the costs were a result of a release of a

substance listed in this Section.

Costs of corrective

action or indemnification incurred before providing that

notification shall not be eligible for payment.”

415 ILCS

5/57.9(a) (5)

The Office of the State Fire Marshal

(“OSFM”)

regulations require notification to IEMA of a suspected

release

(41 Ill. Adm. Code 170.560),

a spill or overfill

(41 Ill. Adm. Code 170.590)

and a confirmation of a release

(41

Ill. Adm. Code 170.600)

.

In addition, the LUST

regulations include a requirement to notify IEMA of a

release within 24 hours of confirmation of the release

(35

Ill. Adm. Code 732.202(a)).

In the face of this confusing multitude of

-

requirements to notify IEMA,

it may seem difficult to

understand why the Agency proposed that the trigger date

for reimbursement of early action activities be tied to

-notification to IEMA rather than release confirmation.

5

---

The Agency did not have in mind any particular requirement

to notify IEMA in proposing use of the date of initial

notification to IEMA as a trigger for reimbursement.

Nor

was there any intent to give the owner or operator extra

time -to perform reimbursable early action activities.

Rather, the Agency was approaching this issue from an

administrative angle,

intending to use the date of the

first notification to IEMA as- a date certain, without

regard to which technical reporting requirement such

notification satisfies.

Under this approach, whichever

call to IEMA constitutes the initial notification triggers

the early action reimbursement period.

Some background on the Agency’s experience in

administering the requirement to reimburse owners and

operators for costs incurred in conducting early action is

necessary to. understand why the Agency endorses this

approach.

In.

practice, the main difficulty with tying the

commencement of reimbursable early action to the

confirmation of a release is that there is no mechanism for

identifying the date of confirmation of a release.

In

contrast, the date of initial notification to IEMA is

readily known.

6

---

The Agency becomes aware of releases through the

receipt of IEMA incident reports.

The date of notification

to IEMA is the only reporting date the Agency receives. The

OSFM does not track the confirmation of releases or provide

such information to the Agency.-

The date of notification

to

IEMA is used,

in effect,

as the presumptive or

constructive date of confirmation of the release for

purposes of compliance with applicable laws and regulations

regarding reimbursement and reporting.

Changing the

trigger for early action reimbursement.to the date of

initial notification to IEMA would comport with Agency

-

practice.

-

Although

it enables the Agency to establish a date

certain for reimbursement, this administrative approach is

admittedly technically flawed in that sometimes the initial

notification to IEMA is of a suspected rather than

confirmed release under the OSFM regulations.

To address

the flaw,

the Agency proposes a modification to its initial

proposal,

as explained below.

-

The OSFM regulations require notification to IEMA upon

confirmation of a suspected release.

41

Ill. Adm.

Code

170.600 Seven days are allowed, pursuant to 41 Ill. Adm.

-

Code 170.580,

to complete confirmation steps.

In practice,

7

---

however, an owner or operator might not comply with the

OSFM requirement to confirm within

7 days of notification

to IEMA of a suspected release.

In fact,

owners or

-

operators might- wait several months or even years to

--

“confirm” the release.

The Agency is then stuck with

whatever date confirmation may have taken place as the

commencement date of reimbursable early action.

Owners and

operators are in this manner allowed to obtain

reimbursement for costs incurred long after the release

--

occurs as early action costs,

thereby benefiting from their

violation of the OSFM regulations.

This approach defeats

the purpose of early action, which is to -address emergency

situations immediately and to prevent further releases.

The Board recognized this concern in its recent Ozinga

decision,

stating:

-

-

-

Any

extension of the confirmation date in this

matter would frustrate the intention of early action.

For example, with no limit on the time for

confirmation, owners or operators could conceivably be

reimbursed for confirmation and subsequent early

action

activities two or three years after the release

is first

suspected.

The result is clearly not what

is

intended by early action.

8

---

Ozinga Transportation Services v.

Illinois Environmental

Protection Agency, PCB 00-188

(December 20,

2001)

at

10.

In addition,

as already mentioned, the Agency has no

means to determine the date confirmation actually takes

place.

The owner or operator may or may not notify

IEMA

of

confirmation; even if IEMA is timely notified, the incident

report the Agency receives does not reflect whether the

-

notification is for a confirmation of a previously-reported

suspected release.

Neither IEMA nor OSFM conveys this

information to the Agency.

The Agency requests that its proposed language be

revised to incorporate the 7-day period allowed under OSFM

regulations for confirmation of

a suspected release.

This

change would in effect create a presumption that the

initial notification to

IEMA

is of a suspected release,

-

thereby ensuring that owners and operators who initially

report a suspected release are not deprived of a portion of

the 45-day period to complete early action activities for

purposes of reimbursement.

--

The Agency recognizes that a side effect of this

proposed modification will be to allow owners and operators

who initially report a confirmed release an additional

7

days

—

a total of 52 rather than 45 days

—

to complete

9

---

early action activities for purposes of reimbursement.

However,

the additional

7 days would-serve as an

-

administrative convenience inuring to the benefit of owners

and operators without frustrating the intent of the LUST

program.

The additional

7 days

is a limited, uniform

period of time.

The LUST regulations already allow

extensions of time to complete early action activities

under special circumstances with written approval from the

Agency

(Section 732.202(g)).

The Board recognized t~e

merit in adding the

7 days for confirmation in the Ozinga

decision Ozinga

at- 10-li.

(“Ozinga was required to confirm

the release within seven days of the reporting of the

release to IEMA —May 29,

1998.

Early action activities

were required to be performed within 45 days of that date

-

July 13,

l998.”).

Furthermore,

this modification would

relieve the Agency of any need to monitor compliance with

the OSFM regulations,

a responsibility properly belonging

to the OSFM.

For these reasons,~theAgency urges the Board to adopt

the language originally proposed by the Agency, with the

modification described above, to read as follows:

For purposes of reimbursement, the activities

set

forth in subsection

(f)

of this Section shall be

10

---

performed within 45 days after confirmation initial

notification to IEMA of a release plus

7 days, unless

-

-

special circumstances, approved by the Agency in

-

-

writing, warrant continuing such activities beyond 45

days.

The owner or operator shall notify the Agency

in writing of such circumstances within 45 dayä of

confirmation initial notification to IEMA of a release

-

plus

7 days of such circumstances.

Costs incurred

-

beyond 45 days shall be eligible if the Agency

determines that they are consistent with early action.

The Agency proposes -use of the phrase “plus

7 days”

rather than a change from “45 days” to

“52 days”

for two

reasons.

The first reason is to preserve the familiar 45

day timefrarne for early action activities,

consistent with

the 45 day reporting requirement.

The second reason is to

reflect the rationale for making the change, which is to

account for the 7-day period allowed under OSFM regulations

for confirmation of a suspected release.

However,- the

Agency would not object to a change from “45 days”

to “52

days” in the alternative.

3.

Response to Comment of the Illinois Department of

-

Transportation

-

11

---

The

Agency objects to the Comments of the

Illinois Department of Transportation (“IDOT”)

filed with

the Board on December 11,

2001.

The “comments”

are

-

-

actually a new rulemaking proposal, not comments on any

amendment the Board has published for adopti-on.

The purpose of the current comment period is to

provide public notice of the regulations the Board intends

-

to adopt and to allow the public to submit

its comments on

those regulations.

IDOT’s submission does not comment on

-any amendment the Board

iiitends to adopt.

It proposes an

amendment to 35

Ill. -Adm.

Code 732.606(kk)

that would make

Highway Authority Agreements

(“HAAs”)

settlement agreements

for the purposes of indemnification from the LUST Fund.

Although the~Board proposes to amend Section 732.606(kk),

the Board’s amendment addresses the separate issue of

reimbursing costs incurred for MTBE remediation.

The

Agency would be happy to discuss with IDOT any regulatory

amendments that IDOT feels are necessary,

as well as their

possible- inclusion -in a future rulemaking proposal.

However, neither the Board’s procedural rules nor the

Administrative Procedures Act allows IDOT to propose a new

amendment at this point

in the rulemaking process.

12

---

Amendments to the Board’s regulations are properly

initiated through the filing of a regulatory proposal.

See

35

Ill. Adm. Code 102.200.

A regulatory proposal must

include,

inter alia,

a statement of the reasons supporting

the proposal,

a synopsis of testimony to be presented by

-

the proponent and, because the proponent

is not the Agency

or -the Department of Natural Resources,

-

a petition signed

by at least 200 persons.

See 35

Ill. Mm.

Code -102.202.

IDOT’s comments lack these items as well as others required

by the Board’s rules.

Furthermore, the submission of a new

proposed amendment at this time circumvents the established

procedure for its proper review and analysis.

The Board

has not had an opportunity to receive testimony in support

of or in opposition to the proposal,

to hold public

-

hearings on the proposal, or to receive post-hearing

comments -on the proposal.

Even if the Board were to

determine that testimony and public hearings are not

-

necessary, public notice of the proposal has not been

published in the Illinois Register and the public has not

been provided an opportunity to comment on it as required

under the Administrative Procedures Act.

See 5 ILCS 100/5-

40.

IDOT should have offered its proposed amendment at one

of the Board’s hearings on the current rulemaking.

Because

13

---

IDOT’s proposal

is improper at this time,

it should not be

accepted or adopted by the Board as part of the current

rulemaking.

-

-

-

Assuming

for the sake of argument that IDOT’s proposal

is procedurally proper,

the Agency does not agree with the

amendment IDOT asks the Board to adopt.

Highway Authority

Agreements

(“HAA’s”) entered into between IDOT and an owner

or operator are not settlement agreements for the purpose

of indemnification from the LUST Fund.

Indemnification is

defined in Title XVI of the Act as:

-

indemnification of an owner or operator for

the amount of any judgment entered against the

-

-

owner or operator in a court of law,

for the

amount of any final order or determination made

against the owner or operator by an agency of

State government or any subdivision thereof, or

--

for the amount of any settlement entered into by

the owner or operator,

if the judgment,

order,

determina~±on,or settlement arises out of bodily

injury or property damage suffered as a result of

a release of petroleum from an underground

-

14

---

storage tank owned or operated by the owner or

operator.

-

-

415

ILCS 5/57.2.

-

-,

In the context of the LUST Program,

settlement

agreements are agreements to settle a dispute in lieu

of proc-eeding to a court judgment or- a final

administrative order or determination.

Id.

IDOT is

not in the process of seeking a court judgment or a

final administrative order or determination against an

owner or operator when it enters into a HAA.

Rather,

as

an alternative to having an owner or operator

-

perform remedial activities in its right-of-way, IDOT

is agreeing to prohibit- certain uses of contaminated

-

-

groundwater and limit access to contaminated soil

below the right-of-way.

Owners and operators likewise

enter HAA5 wit-h IDOT as an alternative to conducting

-

remedial action in IDOT’s rights-of-way, not to settle

-

-

a pending court or administrative action.

Because

HAAs

are not settlement agreements for the purpose of

indemnification from the LUST Fund,

the Board should

not adopt the amendment proposed by IDOT.

Even if HAAs were considered settlement agreements for

the purpose of indemnification,

the costs IDOT hopes to

15

---

have paid by the LUST Fund do not fall within the costs

that are reimbursable as indemnification costs.

As stated

above,

“indemnification” means indemnification for the

-

amount of any judgment,

order, determination or settlement

agreement “if the judgment,

order, determination, or

-settlement arises out of bodily injury or property damage.”

415 ILCS 5/57.2.

The payments owners and operators make

under IDOT’s HAAs are not damages for bodily injury or

property damage.

Rather,

the payments “reimburse the

Department for reasonable costs it has incurred in

protecting human health and the environment,

including,

but

not limited-to,

identifying,

investigating, handling,

storing and disposing of contaminated soil and

groundwater.”

IDOT “Master Agreement,

Tiered Approach to

Corrective-Action Objectives Agreement”

at par.

7

(copy

attached)

.

IDOT merely uses its HAA to make owners and

operators pay its costS of protecting human health and the

environment when its

wo-rk involves contaminated soil or

groundwater that

it allowed to remain below its right-of-

way.

Because the costs owners and operators agree to pay

to IDOT under its HAA are not damages for bodily injury or

property damage,

they are not indemnification costs that

can be reimbursed from the LUST Fund.

-

16

-

---

In its comments IDOT expresses concern over owners and

--operators having to choose between

(1) remediating a right-

of-way and receiving reimbursement from the LUST Fund for

eligible corrective action costs and

(2) entering into a

HAA

--

and in the case of IDOT’s HAA agreeing to pay IDOT’s

costs of protecting human health and the environment.

IDOT

claims this choice is the result of the Agency’s position

-

on indemnification.

The Agency’s position on

indemnification, however, merely refleqts the governing

provisions of Title XVI.

Any “Hobson’-s choice” owners and

operators face is created by the terms of IDOT’s own HAA.

One of the many non-requisite provisions IDOT includes in

its HAA is a requirement that -owner and operators reimburse

IDOT for costs

it incurs when it runs across the

contamination it allowed the owner or operator to leave

under its right-of-way.

Such payments may be advantageous

for IDOT,

but they are not required by the LUST or TACO

regulations.

Neither the LUST regulations nor the TACO

regulations require IDOT to perform any work in the right-

of-way after entering a

HAA.

When the Agency issues an NFR

letter based upon a HAA it has determined that -the HAA is

adequately protective of human health and the environment.

Any work in the right of way performed by IDOT is

17

---

undertaken upon IDOT’s own initiative.

There are many ways

-

IDOT could alleviate its concern over the burden its

HAAs

place upon many owners and operators.

For example,

IDOT

-

could carefully limit its work in rights-of-way where

contamination is left in place or it could look to sources

of funding other than payments from owners and operators.

IDOT cannot, however, use the LUST Fund to recoup its

expenses by characterizing them as costs for which an owner

or operator may seek i-ndemnification.

3.

Exemptions from Recording for Federal Landholding

Facilities

—

Sections 732.300(b) (1), 732.309(a),

732.312(i)

and 732.409(b)

In order to carry through the exemption set forth in

Section 732.703(d)

from the duty to record a No Further

Remediation Letter, applicable to sites located on

Federally Owned Property for- which the Federal Landholding

Entity does not have the authority under federal law to

record institutional controls on the chain of title,

the

Agency proposes.a minor revision to Sections 732.300(b) (1),

732.309(a),

732.312(i)

and 732.409(b),

as follows:

Section 732.300(b) (1)

—

amend the first sentence of

the Agency’s proposed language as indicated by double-

underlining:

-

18

---

-

With the exception of Federal Landholding

Entities

subject to Section 732.703(d),

the owner or

operator must sign and submit, with the corrective

action completion report,

a form prescribed and

provided by the Agency addressing ownership of the

site.

Section 732.309(a)

-

amend the following sentence of

the Agency’s proposed language as indicated by double-

underlining:

-

For

No Further Action sites, with the exception

of Federal Landholding Entities subject to Section

732.703(d),

the owner or operator must sign and

submit, with the -site classification report,

a form

pre-scribed and provided by the Agency addressing

ownership of the site.-

Section 732.312(i)

—

amend the following sentence of

the Agency’s proposed language as indicated by double-

underlining:

-

With the exception of Federal Landholding

Entities sublect to Section 732.703(d),

the owner or

operator must sign and submit, with the site

classification completion report,

a form prescribed

19

---

and provided by the Agency addressing ownership of the

-

site.

-

-

-

Section 732.409(b)

—

amend the following sentence of

the Agency’s proposed language as indicated by double-

underlining:

With the exception of Federal Landholding

Entities subject to Section 732.703(d);

the owner or

operator must sign and submit, with the corrective

action completion report,

a form prescribed and

-

-

provided by the Agency addressing ownership of the

site.

-

-

The Agency respectfully requests that the Board

consider these comments in response to the Board’s first

notice proposal in this- rulemaking.

Respectfully submitted,

-

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

By:

___________

___________

Ju ith S. Dyer

Kyle Rominger

-

Assistant Counsel

-

Assistant Counsel

Date: January 4,

2002

-

-

THIS DOCUMENT SUBMITTED ON RECYCLED PAPER

20

---

OVERVIEW

IDOl

-

UST OWNER/OPERATOR

-

INITIAL

STORAGE TANK SITES

The purpose of this document

is

to

notify the

Illinois

Department of Transportation

(IDOT)

of the

extent

of hydrocarbon

impact within

soil and/or groundwater and to

provide

-

the

necessary initial information needed to enter into a highway

authority agreement,

pursuant

to 35 IAC 742.1020.

-

Applicant

Information

Telephone

No:

Fax

No:

-

Applicant’sAttorney

Environmental

Name:

Address:

Telephone

Name:

Address:

Telephone

Property Adiacent to the

Right-of-Way(s) reguiring

Highway

Number(s):

(Check one or both)

OSoil

Impact

D

in Right-of-Way

IEMA

Incident

Number:

IEPA

IEPA

Status:

(Check one)

~Conditional

Approval

-

DOther

______________

UST

Owner:

Operator (if different):

Address:

ATTAC~I4MENY

---

Sampling

in the Right-of-Way

Check one)

Right-of-Way sampled

LJRight-of-Way impractical to sample

(Sampling was

done adjacent to

-

Right-of-Way.)

-

-

Person(s) to be

Notified

Name:

Nature and extent of Hydrocarbon Impact Information

—

For Exhibit A

The Closure Report/Closure

Response Letter will document the nature and

extent of

hydrocarbon impact in the

right-of-way.

-

Soil:

Refer to Figure

1

—

Objectives

Groundwater:

Refer to Figure 2— Estimated Groundwater Impact in the

-

-

Right-of-Way Map

Using Tier One Corrective

Action Objectives

-

Tables showing

soil

and/or adjacent to

it need

to be

submitted

and keyed

to Figures

1

and 2.

Samples

above Tier I

One Residential

Corrective Action Objectives need

to be

highlighted.

Area Covered

by Highway Authority Agreement

—

For Exhibit B

-

~heck one)

LiReferto Figure 3—Proposed Highway Authority Agreement Location

Map

0

Location

not proposed (The Department will draw map based on-Figures

1

and 2.)

Attachments:

EjFigure

I

Estimated

Soil

Impact Map

0

Figure 2 Estimated

Groundwater Impact Map

-

0

Figure 3 Proposed Highway Agreement Location Map

DTables Showing Sampling Results

-

DOther

---

1-31-00

MASTER AGREEMENT

-

TIERED APPROACH TO CORRECTIVE-ACTION OBJECTIVES

AGREEMENT

This Agreement is entered

into this

_____

day of.__

,

2000 pursuant to

35

III. Admin. Code

Section 742.1020

by and between (I)

-

(“Owner”)

and

(2)

—

__..fOperator”) referred

to herein

Illinois Department of Transportation (“Department”),

I.

This Agreement

is

not binding upon the

Department until

it is executed by the

undersigned representative of the Department and prior to execution, this Agreement

constitutes

an

offer by Owner/Operator.

The duly authorized representatives of

-

Owner/Operator

have signed this Agreement and this Agreement

their successors and assigns.

2.a.

Owner/Operator is

pursuing a corrective action of a Site and

adjacent to the

boundary of the Site

located at (3)

(the “Site”).

2.b.

Attached as

Exhibit A are site maps prepared by Owner/Operator which

show the

area of estimated

contaminant impacted soil and/or groundwater- atthe- time of this

Agreement

in the

right-of-way above Tier I

residential

levels under 35

III. Admin.

Code

Part 742.

Also shown

in Exhibit A are tables prepared

by Owner/Operator

showing the

concentration

of contaminants

of concern,

hereafter “Contaminants,”

in soil and/or

groundwaterwithin the

Site

and which

shows the

applicable Tier I

soil remediation

objectives for residential

property and Tier I

objectives for groundwater of the

Illinois

Pollution Control

Board (“IPCB”) which

are exceeded along

the

boundary of the

Site

adjacent to the Right-of-Way.

The right-of-way,

and only the

right-of-way,

as described

in ExhIbit

B,

hereinafter

the “Right-of-Way,” adjacent to the site

is subject

to this

Agreement.

As the

drawings in the

Exhibits are

not surveyed

plats, the boundary of the

---

Right-of-Way in the Exhibits may be an

approximation of the actual

The Right-of-Way

is

impractical to sample for Contaminants; however, the

believe that the area of the Right-of-Way is adequate to encompass

soil

groundwater within the Right-of-Way possibly impacted with Contaminants from a

release atthe Site.

-

-

-

2.c.

The Illinois Emergency Management Agency has -assigned

incident number

(4)

______

to this release

at the Site.

-

2.d.

Owner/Operator intends to

request risk-based, site specific soil and/or groundwater-

remediation

objectives from the

Illinois Environmental Protection Agency

(“IEPA”) under

35

Ill.

Admin. Code Part 742.

-

2.e.

Under these rules,

Right-of-Way may require the use of a Highway Authority Agreement as defined

35

Ill. Admin. Code

Section 742.1020.

3.

The Department holds a -fee simple

interest or a dedication

for highway

purposes

in

the Right-of-Way, or the Right-of-Way

is a platted street,

and has jurisdiction of the

Right-of-Way.

For purposes of this Agreement, “jurisdiction” means that the Department

‘exercises access control over the

use of groundwater beneath

the Right-of-Way and

over access to the

soil

beneath the Right-of-Way because

it requires a permit for that

access.

-

4.a.

Under 35

III. Admin. Code -Section 742.1020, this Agreement

is

intended

to be an

acceptable “Highway Authority Agreement”

to IEPA, as the Department is willing to

agree

that

it will not allow the use of groundwater under the

highway Right-of-Way as a

potable or other domestic supply of water and that

it will limit access

as described herein

to soil under the

highway Right-of-Way that is

contaminated

from the

above residential Tier I

remediation

objectives.

---

4.b.

The IEPA and

Illinois Attorney General

Agreement,

and this Agreement shall be referenced

in the IEPA’s

“No Further

Remediation”

determination

in the

chain of title for the Site

in the

county where the

is located.

4.c.

This Agreement shall be

the IEPA or AG

not approve

it or should

it not be

referenced

in the

“No Further

Remediation”

determination,

provided, however, thatthis Agreement shall be effective

between

the Owner/Operator and the Department immediately upon

signature

by their

representatives.

--

5.

The Department promises

IEPA and the Owner/Operator that it will prohibit the

use of

groundwater that

is

contaminated from the release at the Site at levels above Tier I

remediation objectives beneath

its Right-of-Way as a potable or other domestic supply of

water and will limit access to soil as described herein under the Right-of-Way that

is

contaminated from the release at the Site at levels above Tier

1

remediation

As thepavement in the Right-of-Way may be considered an engineered

barrier,

Owner/Operator agrees to reimburse the

Department for maintenance

requested by Owner/Operator

in writing

in order to

maintain it as a barrier.

The

Department does not otherwise agree

to perform maintenance of the

Right-of-Way, nor

does

it agree thatthe

maintain the Right-of-Way as an engineered

barrier.

6.

other highway

authorities, if any,

maintaining the

highway Right-of-Way

by

an agreement

with

the Department,

and the Department’s agents,

contractors or employees for all

obligations asserted

against or costs

incurred by them,

including

attorney’s fees and

court

costs, associated

with the release of Contaminants from the

Site, regardless

---

whether said

obligations or

costs were caused

by the

negligence,

negligence,

of them.

7.

As an

additional consideration, Owner/Operatoragrees to reimburse the

Department

-

for the reasonable costs it has incurred

in protecting human

health and the environment,

including, but not limited to, identifying,

investigating, handling, storing and disposing of

contaminated

soil and groundwater in the Right-of-Way as

contaminants at this Site.

The Department has documented

those

costs for Owner.

Those costs amount to (5)

$

—.

If costs have been incurred,

a cashier’s check

made payable to “Treasurer,

State of Illinois” shall be tendered to the Department of

time Owner/Operator furnishes a signed Agreement to the

Department for

its

signature.

That check will be deposited when this Agreement

signed by

all

8.

This Agreement shall be

binding upon

all successors

in interest to the Owner/

Operator or highway Right-of-Way.

A successor in interest of the Department would

include a highway authority to which the

highway.

9.

Violation of the terms of this Agreement by Owner/Operator, or their

interest,

may be

grounds for voidance of this Agreement as a Highway Authority

Agreement.

Violation

of the terms of this Agreement

by

the Department will not void

this

Agreement,

unless

the IEPA

has determined that the

violation

is

Agreement as

a Highway Authority Agreement and the

violation within such

time as IEPA has granted

to cure the

violation.

10.

This Agreement shall continue

in

effect from the date of this Agreement-until the

Right-of-Way

is demonstrated to be suitable for unrestricted use and there

is no

longer a

IEPA

has,

written request to the IEPA

by the Owner/Operator and notice to the

Department,

---

amended the

notice

in the

chain of title of the

Site

to reflect unencumbered future use

that highway Right-of-Way.

11.

This Agreement is in settlement -of claims the Department may have arising from the

release of Contaminants

into the Right-of-Way associated

with

incident

number

(6)

-

.

-

-

12.

This Agreement does not limit the Department’s ability to

construct, reconstruct,

improve,

repair,

maintain and operate a highway upon its property

orto allow others to

use the highway Right-of-Way by

permit.

To that extent, the Department reserves the

right and the right of those

using its property under permit to remove contaminated soil

or groundwater above Tier I

residential

remediation objectives from its Right-of-Way and

to

dispose of them as they deem

appropriate not inconsistent with

applicable

environmental regulations so as to avoid causing a furtherreleaseof the Contaminants

and to protect human health and the environment.

Prior to taking any such action, the Department will first give Owner/Operator written

notice, unless there is an immediate threat to the health or safety to any individual or to

the public, that

it intends to perform a site investigation in the Right-of-Way and remove

or

dispose of contaminated soil or groundwater to the extent necessary for its work.

-

Failure to give notice is not a violation

of this Agreement.

The removal or disposal shall

be based

upon the site investigation

(which

may

be modified

by field conditions during

excavation), which Owner/Operator may review or may perform, if requested to do so

by

the Department.

If practicable, as determined by the Department, the Department may

request Owner/Operator to

remove and dispose

of

the contaminated soil and/or

groundwater necessaryfor the

Department’s work in

advance of thatwork.

The Owner/Operator shall reimburse

the reasonable

costs incurred

by the Department to

perform the site investigation and to dispose of any contaminated

soil or groundwater,

provided, however, that if notice to

Owner/Operator has not been given and there was

---

no immediate threat to health

or safety,

reimbursement for those

costs shall be limited to

$10,000.00.

There is a rebuttable

presumption that the

Contaminants-found

in the

highway Right-of-Way arose from the release of Contaminants from the Site.

Should

Owner/Operator not reimburse the

reasonable costs under the

conditions set forth

herein, this Agreement shall be null and void, at the Department’s option, upon

written

notice to Owner/Operator bythe Department that those costs have not been reimbursed.

Owner/Operator may cure that problem within twenty working days by-making-payment,

or may seek to enjoin that result.

13.

Written notice required by this Agreement shall be mailed to the following:

If to Owner/Operator:

-

Name

-

Company

Street

City, State, Zip

If to Department:

District

(No.)

Engineer

(Name)

Street

City,

State,

Zip

14.

The Department’s sole responsibility under this Agreement with respect to others

using the highway Right-of-Way under permit from the Department is to include the

following, or similar language,

in the future standard permit provisions

and to make an

effort to notify its current permit holders

of the following:

-

As a condition

of this permit, the permittee shall request the

District Permit Office to identify sites in the Right-of-Way where

access to contaminated soil or groundwater is governed

by Tiered

Approach to Corrective-Action Objectives

(“TACO”) Agreements.

The permittee shall take measures before, during and

after any

access to these sites to protect worker safety and

human health

---

-

and -the environment.

Excavated, contaminated

soil should be

managed off-site in accordance with all environmental laws.

Owner/Operator hereby releases the Department from

liability for breach of this

Agreement by others under permit and

indemnifies the Department against claims that

may arise from others under permit causing a breach of thisAgreement.

Owner/

Operator agrees that its

personnel, if any, at the Site who are aware of this Agreement

will notify anyone they know is excavating in the Right-of-Way about this Agreement.

15.

Should the Department breach this Agreement, Owner/Operator’s sole remedy is for

an

action for damages in the Illinois Court of Claims.

Any and all claims for damages

againstthe Department,

its agents, contractors, employees or its successors

in interest

arising at any time for a breach of paragraph 5 of this Agreement are

limited to an

aggregate maximum of $20,000.00.

No other breach by the Department,

its agents,

contractors, employees and its successors in interest of a provision of this Agreement is

actionable

in either law or equity

by Owner/Operator against the Department orthem

and Owner/Operator hereby releases the Department,

its agents,

contractors,

employees and

its successors in interest for any cause

of action it may have against

them, other than as allowed in this paragraph, arising under this Agreement or

-

environmental

laws, regulations or common law governing the contaminated soil or

groundwater in the highway Right-of-Way.

Should the Department convey, vacate or

transferjurisdiction of that highway Right-of-Way, Owner/Operator maypursue an action

under this Agreement against the

successors in interest, other than a

State agency,

in a

court of law.

16.

This Agreement is entered into by the Department in recognition

of laws passed by

the General Assembly and

regulations adopted by the Pollution

Control Board

which

encourage a tiered-approach to remediating environmental contamination.

This

Agreement is entered into by the Department in the spirit of those laws and under its

---

right and

obligations as

a highway authority.

Should any provisions of thisAgreement

be struck down as

beyond the authority of the Department,

however, this Agreement

shall be null and void.

---

IN WITNESS WHEREOF, Owner/Operator, (8)

—____

Agreement to

be si~ned

by its

duly authorized representative.

BY:

(Title)

DATE:

—,

has caused this

IN WITNESS WHEREOF, the Department has caused thisAgreement to

be signed by

its Secretary.

-

Illinois Department of Transportation

BY:

Kirk Brown

Secretary

DATE:

This Agreement is approved on behalf of the Office of the Illinois

Attorney General.

BY:

DATE:

---

STATE OF ILLiNOIS

)

COUNTY

OF SANGAMON

)

)

PROOF OF SERVICE

I, the undersigned,

on

oath

state that I have served the

attached

Comments with Attachment of the

Illinois

Environmental Protection Agency upon the personto whom it is directed, by placing a copy in an envelope addressed

to:

Dorothy M. Gunn, Clerk

IL. Pollution Control Board

James R. Thompson Center

100 W. Randolph, Ste

11-500

Chicago, Illinois 60601

Robert Lawley, Chief Legal Counsel

Dept.ofNatirral Resources

524

South Second Street

Springfield, Illinois

62701-1787

See Attached Service List

Matthew

J.

Dunn,

Chief

Environmental Bureau

Office of the Attorney General

188

W. Randolph,

20th

Floor

-

Chicago,

Illinois 60601

Joel Sterstein,

Hearing

Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W.

Randolph, Suite 11-500

Chicago,

Illinois

60601

and

mailing it from Springfield, Illinois on

1

~4_o.~

with sufficientpostage affixed.

SUBSCRIBEDAND

SWORN

TO

BEFORE

ME

this

~layof_____

Notary

Public

.~

.-

X’,4’+,+~++

++++.~4+G+...i’

-

OFFICIAL

SEAL

•

BRENDA

BOEHNER

NOTARY

PUBLIC,

STATE

OF

ILLINOIS ~

i’MY

COMMISSION

EXPIRES

11-14-2005~:

THISFILING IS SUBMITTED

ON RECYCLED PAPER

---

ROt-26 SERVICELIST

In

the Matter of:

Amendmen:s

to

Regjiation

ofPetroleum Leaking Underground

Storage

Tanks:

35

111.

Adm. Code

732

-

Revised

January

2,

2002

lame

fume

company

Address

citystate

zip

Andenon

Scott

Black & Veatch

101 N.

Wackea Drivç

Suite

1100

Chicago, IL

60606

-

Aronbag

(Jairy

Knbhminn DesignGroup

15

East Washington

Belloville,IL

-

62220

Benczyk

Bruce

601

W.

Monroe

Springileld, IL

62704

Carson,

PB,

RobertA.

924

CherokeeDrive

Springfield, IL

62707

Chappel, P.E.

Hairy A.

IalandChappel Environmental

144 Laconwood

-

Springfield, IL

62707

Consalvo

Cindy

PioneerEnvironmental

700

N. Sacnunznto

Chicago,

IL

60612

SuitulOl-

-

Dickett

WilliamnG.

SidleyAustinBrown&Wood

-

BankOuePlaa

-

10

South DearbornStreet

Chicago, IL

60603

Donibrowsid

Leo P.

Wildniaa, Harrold, Allen

& Dxon

225

W.

Wacker Drive,

Suite

3000

Chicago, IL

60606

Dye

Ron

CORE Geological Services~

Inc.

2621 Montego,

Suite

C

Springfield, IL

62704

Dyer

JuditliS.

-

IEPA,DivisionotLegutCouisel

-

1021

North Grand

Avenue

East

P.O. Box

19276

-

Springflekl,IL

62794-9276

Falbe,

Esq.

LawrenceW.

Wildnmau, Harrulci Allen &

D±ou

225

W.

WackerDrive,

Suite

3000

Chicago,

IL

60606-1229

Flynn

Neil F.

-

Attorney atLaw

1035

South

Second Street

Springfleld,IL

62704

riSe

LisaM.

Chemical

Industry Council

ofIllinois

9801

W.

lflgginsRo4

Suite

515

Rosano4

IL

60018

-

Glenn

Sid

Arcadi;

35

East Wacker,

Suite

1000

-

Chicago, IL

-

60601

Goodwin, P.B.

Daniel I’.

Goodwin Envirorcnentat Consultants, Inc.

400 Buns

Lane

Springfield, IL

62702

Gray

CoIIinW.

SEECO Environmental Services, Inc.

7350

Duvon

Drive

Tinley

Park, IL

60477

Gunn

Dorothy

Clerk of the Board

-

Illinois Pollution Control Board

100 West Randolph Street

Suite

11-500

Chicago, EL

60601

Herlacher

Thomas L.

Herlacher Angletoa Associates, LLC

8731

Bluff

Road

- -

Waterloo, iL

62298

Hug P.E.

James E.

Hnff&

Hufl

Inc.

512W.

Burlington,

Suite

100

LaGrangAIL

60525

James

-

Kenneth

CarlseaEnvironmental, Inc.

65

B.

Wacker Place,

Suite

1500

Chicago, IL

60601

Kelly, PB

Joe

United Science Industries, Inc.

P.O. Box

360

Woodlawi, IL.

62898

Lie

Kenncth-W.

AndrewsEngjneeiing, Inc.

3535

Mayflower Boulevard

Springfield, IL

-

62707

Ludewig

Pat

Caterpillar

Tech Center, Bldg.F

P.O.

Box

1875

Peoria, IL

-

61656-1875

Magel

Barbara

I(aragmis & White,

L~

Suite 810, 414 N. Omteens

Chicago, IL

60610

Moncek

George F.

United Environnicatnl Consultants, Inc.

119 East Palatine Road,

Suite 101

Palaine, IL

60067

Nienkerk, P.O.

Monte Id.

Senior Project Manger

Clayton Group Services,Inc.

3140 Finley Road

-

Downers Grove, IL

60515

-

-

Rieser

David

Ross & Hardies

150 N.

Michigan

Chicago, IL

60601

Schick

J.

Randle

ASsiStant ChiefCounsel

lOOT

2300- Dirksen Parkway

Springfield, IL

-

62764

SaSh

Wayne

Pioneer Environmental

700 N.

Sacnumento

Chicago, IL

60612

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---

R0t-26

SERVICE LIST

In tie

Matter

of:

Amendmen:s

to

Regmatiori

ofPetroleumLeaking Underground Storage

Tanks:

35

111.

Mm.

Code

732

Revised

January

2,

2002

Sonucasphein

Nat & Rosenthal

IEearirg Officer

Illinois

Ptillution Control Boa4

SpeedwaySuperAmerie~

LW

Illinois Petroleum Conch

Cause!

Naval Training Center

Walker Engineering

Gardner, Canon & Douglas

U.S.

Army

Envinnmenlal Center

Suite

101

8000 ScarsTower

lOC) West RandolphStreet

Suite

11-500

P.O. Box 1500

P.O. Box 12047

2501A Paul

Jones

Street

SOC

W.

HerniaSlrect

321 N.

Clark Snet

Northern Regional Euviroinnental

Office,

Building E-4480

Smith

Stnrnstein

Sirubel

Sykata

V4xs

Walker

Watson

Zolyak

SnaaaueD.

Joel

J.

Dan

David &

Georgia

Rodger

John

GaiyT.

Chicago, IL

Chicago, EL

Sptiagfielcl,

OH

Spiiaglield, IL

Great Lakes, IL

Herrin,JL

Chicago, IL

Ab~dem

Proving

Grcnnd, MD

60606

60601

45001

62791

60088-2845

62448

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