BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
IN
THE
MATTER
OF:
PETITION
OF
MAXIMUM
INVESTMENTS,
LLC)
AS-09-02
FOR
AN
ADJUSTED
STANDARD
FROM
)
35
ILL
INOIS
ADMINISTRATIVE
CODE
)
740.210(A)3
FOR
THE
STONEY
CREEK
)
ECVED
LANDFILL
IN
PALOS
HILLS,
IL
)
CLERK’S
OFFICE
?vAR3U
2009
STATE
OF
ILtJNOIs
Certificate
of
Service
Polluhon
Contro
Board
I, the
undersigned,
certify
that
I
have
served
the
attached
Brief
re
Adjusted
Standard,
by
depositing
in
the
US
Postal
Service
first
class
postage
prepaid
on
March
26,
2009,
upon
the
following
persons:
Pollution
Control
Board,
Clerk
Division
of
Legal
Counsel
100
W
Randolph
Illinois
EPA
Thompson
Center,
Suite
11-500
1021
N
Grand
Ave East
Chicago,
IL
60601-3218
P0
Box
19276
Springfield,
IL
6
1794-9276
Mr.
Brad
Halloran
Pollution
Control Board
100
W
Randolph
Thompson
Center,
Suite
11-500
Chicago,
IL
60601-3218
Richard
Rosenbaum
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
INTHEMATTEROF:
PETITION OF
MAXIMUM INVESTMENTS,
LLC)
AS-09-02
FOR AN ADJUSTED
STANDARD FROM
)
CE
35 ILL INOIS ADMINISTRATIVE
CODE
)
MAR
302009
LANDFILL
740.2
10(A)3
IN
FOR
PALOSTHE
STONEY
HILLS, IL
CREEK
))
OUton
STATE
OF
Control
IWN
BRIEF RE ADJUSTED
STANDARD
On February 5, 2009, the Board entered an
order requesting a brief
by
the parties
regarding the statutory requirements
for the Site Remediation Program
as they relate to
the petition. A briefing schedule was set
by
the hearing officer on February 26, 2009.
Background
On December
21,
2007, Petitioner acquired the tax lien (Exhibit
1) on the subject
property for the years 1987 through 2005, real estate taxes having not
been
paid since at
least 1987. According to documents obtained
from the Illinois Environmental Protection
Agency, the property had been used as
a
construction
debris landfill operated
by
Richard
and Bessie Lenz and closed in approximately 1971. The City of Palos
Hills owns an
adjacent
12 acres that
was
previously
part of the landfill.
According to the Illinois EPA, Mr. Lenz filed for bankruptcy and was deceased
prior to
1990(Exhibit
2). Bessie Lenz is believed
to
also
be deceased but is still listed as the
owner of record by the Cook County Recorder and Treasurer.
On
January 14, 2008, Peitioner submitted
a
request
to
the
IEPA requesting a release from
liability as a prospective purchaser under 415/ILCS5/22.2b. Petitioner was directed
by
the Agency to apply for the Site Remediation Program (Exhibit 3).
Statutory Requirements
Section 415 ILCS 5/58.7.b.l.f provides that the applicant for the Site Remediation
Program
“demonstrate, if necessary, authority to act on behalf
of
or in lieu
of the owner
or
operator.” Section 415 ILCS
5/22.2b.a
provides that a prospective purchaser of real
property may
request a release of liability if, among other things,
“the person requests, in
writing,
that the Agency provide
review
and evaluation services.” There are no
regulations
defining the level of review and evaluation services
to be performed or
the
application requirements.
Argument
The subject property
has been abandoned for over 20 years
and
the last known owners
are
deceased. Petitioner is the holder
of a
tax
lien on the property that supercedes
all
other
possible lienholders. Petitioner’s lienholder
status permits it to act “in lieu
of the
owner” in the circumstances,
where the last known owners are deceased
and the property
has been abandoned in excess of 20 years.
In the alternative, the Board
can
specify
“review
and evaluation” services
to be
performed by the Agency, different from
the Site Remediation Program, that
would
enable the Petitioner to obtain the release of liability
that
is the ultimate goal of this
Petition.
Section
415
ILCS 5/22.2b.e specifically provides that
“the Agency may adopt
regulations relating
to
this
Section. The regulations may include... .Requirements
and
procedures for a response action plan.”
Failure to adopt one of these alternatives
would mean the property will
forever remain
abandoned and off the tax rolls which would
be contrary to the intent of both statutory
provisions.
Petitioner is unwilling to move forward with perfecting
title without
obtaining
the
release and
it
is
unlikely that any future lienholder would
either given the
potential liability for acts of prior owners.
Wherefore,
Petitioner respectfully requests
that the Board grant the Adjusted Standard
by
recognizing Petitioner’s right to act in lieu of the owner in applying for
the Site
Remediation Program or in the alternative
adopt a standard for review and evaluation
services to be used in applying for a prospective purchasers release
of liability that would
enable Petitioner to
make such
application.
Weil &
Assodftes
60
Revere Drive
Suite 888
Northbrook, IL 60062
847-509-0015
STATE
OF
ILLINOIS
SS
CERTIFICATE
NO.
07S—0000413
COUNTY
OF
C
0
0
K
CERTIFICATE
OF
PURCHASE
FOR
GENERAL
TAXES
TWO
OR
MORE
YEARS
DELINQUENT,
PURSUANT
TO
SECTIONS
21—145
AND
21—260
OF
THE
ILLINOIS
PROPERTY
TAX
CODE
I,
DAVID
D.
ORR
,
County
Clerk
in
and
for
the
County
and
State
aforesaid,
DO
HEREBY
CERTIFY
THAT
MAXIMUM
INV
LLC
did,
on
the
day
hereinafter
set
forth,
purchase
at
public
auction
at
the
courthouse
in
Chicago,
the
property
designated
by
the
permanent
real
estate
index
number
hereinafter
set
forth,
situated
in
said
County,
said
property
being
delinquent
in
the
principal
sum
and
for
the
tax
years
hereinafter
set
forth
together
with
statutory
penalties,
interest
and
costs
thereon,
and
paid
as
purchase
money
on
said
property
the
sum
hereinafter
set
forth,
such
sum
being
the
highest
bid
for
cash
received
at
the
auction
of
such
property
pursuant
to
Sections
21—145
and
21—260
of
the
Illinois
Property
Tax
Code.
VOLUME
151
PERMANENT
INDEX
NUMBER
23—14—400-026-0000
TAX
YEARS
DELINQUENT
87-05
TOTAL
PRINCIPAL
AMOUNT
DUE
36,412.49
plus
statutory
penalties,
interest
and
costs
thereon.
DATE
OF
SALE
12-21-07
AMOUNT
OF
SUCCESSFUL
BID
250.00
STATUTORY
TREASURER
FEES
190.00
STATUTORY
CLERK
FEES
30.00
TOTAL
470.00
1
The
aforesaid
purchaser
having
complied
with
the
provisions
of
law
applicable
to
such
sales
so
as
to
be
entitled
to
a
certificate
of
purchase,
on
FEBRUARY
21,
2008,
the
Circuit
Court
of
Cook
County
entered
an
order
confirming
the
sale
of
the
aforesaid
property.
M
If
the
aforesaid
property
is
not
redeemed
in
the
manner
and
within
the
time
provided
by
law,
said
purchaser,
his
heirs
or
assigns
shall
be
entitled,
upon
application
and
compliance
With
the
Illinois
Property
Tax
Code,
to
receive
a
deed
to
said
property;
provided,
that
unless
the
holder
of
this
certificate
shall
take
out
said
deed
and
file
the
same
for
record
Within
one
year
after
the
time
forredemption
expires,
the
said
certificate
or
deed,
and
the
sale
on
which
it
is
based,
shall,
from
and
after
the
expiration
of
such
one
year,
be
absolutely
null.
WITNESS
my
hand
and
the
official
seal
at
CHICAGO
in
said
County
this
10TH
day
of
MARCH
,
A.D.
2008.
contersigned:
P41rL
6ii
1
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
North
Grand
Avenue
East,
P.O.
Box
19276,
SprinfieId,
Illinois
62794-9276
Mary
A.
Gade,
Director
Date:
July
16,
1998
To:
Bureau
of
Land
File
From:
John
Sherrill
Re:
0312400004/Cook
County
Palos
Hills/Stony
Park
West
Superfund/Technical
Reports
Site
Description
The
Stony
Park
site
consists
of
approximately
19.5
acres
of
undeveloped
land
located
in
the
City
of
Palos
Hills.
The
site
is
located
just
north
of
Stony
Creek
and
approximately
one-hundred
feet
west
of
Roberts
Road,
on
the
southerly
edge
of
107th
Street.
The
site
has
homes
immediately
north
of
it
and
is
occasionally
used
for
walking
(i.e.,
local
residents
walking
their
dogs).
History
The
site
was
reported
a
former,
16
acre
landfill
from
before
1969
through
1971.
It
appears
the
landfill
consists
primarily
of
construction
and
demolition
debris,
that
includes
cinders,
concrete,
asphalt,
bricks,
wood,
gravel,
tree
limbs
and
grass.
According
to
a
August
3,
1970
Illinois
EPA
inspection
report,
hazardous
materials
were
not
deposited
on
site.
A
February
1970
Ill.
Dept.
of
Public
Health
permit
application
states
the
type
of
refuse
is
“concrete,
bricks,
ashes,
building
rubbish
and
other
like
dry
materials.”
An
Attorney
General
complaint
was
filed
January
6,
1972
[Illinois
EPA
v.
Bessie
and
Richard
Lenz
and
Charles
Lenz
Disposal
Company],
for
violations
of
21(a)
[operate
a
refuse
disposal
facility
in
such
as
manner
as
to
cause
or
allow
the
open
dumping
of
garbage],
etc.,
and
operating
a
refuse
disposal
facility
without
first
obtaining
a
21(e)
permit.
It
appears
that
disposal
activities
ceased
in
late
1971.
A
November
7,
1973
letter
from
C.E.
Clark
(Illinois
EPA)
to
Richard
Lenz
stated
that
he
had
failed
to
comply
with
a
Illinois
Pollution
Control
Board
order
for
final
cover.
An
August
12,
1974
letter
from
C.
E.
Clark
to
Richard
Lenz
stated
that
the
site
is
“satisfactorily
closed
and
covered,
but
that
site
problems
relating
to
leachate,
surface
dumping
and
erosion
may
develop
in
the
future
and
should
be
corrected
promptly.”
PalosHills
(City)
bought
the
property
in
1976.
From
1976
to
1985,
under
the
City’s
oversight,
clay,
sand
and
gravel
were
used
to
build
up
the
site’s
low
topography.
This
resulted
in
the
entire
site
being
covered
with
approximately
three
to
four
feet
of
clay.
The
cover
reduced
infiltration
on
the
site.
The
site
is
graded
level
and
has
good
topsoil
and
a
permanent
stand
of
grass
that
is
maintained
by
the
city.
During
the
summer
Of
1994,
the
Palo
Hills
applied
additional
cover
material.
There
is
no
ponded
water
at
the
site.
1
2
Printed
on
Recycled
Paper
During
Illinois
EPA
inspections
from
1974
to
1985,
leachate
seeps
were
observed
to
be
flowing
from
the
site
into
Stony
Creek.
The
last
major
seeps
were
reported
on
February
24,
1988
by
an
Illinois
EPA
inspection,
benzene
was
detected
at
60
ugh.
On
May
2,
1994,
three
small
seeps
were
observed
on
the
north
bank
of
Stony
Creek,
toward
the
west
end
of
the
site.
The
Metropolitan
Water
Reclamation
District
of
Greater
Chicago
(MWRDGC)
inspected
the
site
on
July
27,
1994
and
found
the
leachate
discharges
had
been
excavated
and
capped
with
clay.
No
seeps
have
been
observed
since
1994.
A
May
25,
1988
meeting
was
held
with
Palos
Hills
city
officials,
the
AGO
and
Illinois
EPA
officials.
On
February
10,
1989
the
Illinois
EPA
recommended
Palo
Hills
perform
a
Remedial
Investigation.
The
site
was
listed
on
the
former
state
SRAPL
list
on
April
9,
1990.
The
Illinois
EPA
drafted
a
4(q)
Notice,
but
it
was
never
issued
due
to
funding
limitations.
Three
Illinois
EPA
letters,
dated
April
17,
1990,
state
the
site
was
listed
on
SR.APL;
addressed
to
Mr.
Charles
Lenz;
a
letter
to
Mr.
Gerald
Bennett,
Mayor;
and
a
letter
to
Mr.
William
Murphy
of
the
Palos
Hills
Park
District.
Mr.
Lenz
is
deceased
and
had
filed
for
bankruptcy.
A
meeting
was
held
May
4,
1990
with
Illinois
EPA
officials,
Don
Gimbel,
State
Representative
Zickus,
Mayor
Bennett
and
other
city
officials
to
discuss
the
site.
In
1994,
USEPA
removed
the
site
from
USEPA’s
CERCLIS
list.
On
February
10,
1995
Nancy
Rhodes
wrote
a
letter
to
State
Representative
Zickus
(47th
District)
stating
“the
City
of
Palos
Hills
is
working
with
the
IEPA’
s
voluntary
cleanup
program
to
determine
if
there
is
a
groundwater
problem
that
must
be
addressed.”
On
June
9,
1995,
Nancy
Rhodes
wrote
a
letter
to
Representative
Zickus
discouraging
any
utility
excavations
or
intrusive
construction
activities.
Environmental
Investigations
A
February
1980
soil
boring
report
by
Testing
Service
Corporation
stated
“with
a
surface
cover
of
silty
clay
of
over
four
feet
for
four
out
of
the
five
soil
boring
locations,
we
should
not
expect
large
quantities
of
water
to
percolate
into
the
underling
fill.
Also,
due
to
some
slope
of
the
ground
surface,
water
from
rainfall
and
snow
melt
will
run
off
to
the
creek
without
entering
the
landfill
proper.”
A
September
25,
1987
limited
investigation
report
was
conducted
by
E
&
E,
Inc.
In
1988,
HutI
&
Huff,
Inc.,
installed
four
groundwater
monitoring
wells
and
collected
sediment
samples
from
Stony
Creek.
Laboratory
results
for
both
the
sediment
and
groundwater
indicated
the
presence
of
benzene,
semivolatiles,
and
PNAs.
2
On
August
12,
1988
TurnKey
Environmental
Consultants,
Inc.,
on
behalf
of
Huff&
Huff
Inc.,
collected
air
samples
from
ten
locations.
The
samples
were
analyzed
for
benzene
and
vinyl
chloride.
All
sample
results
were
below
detections
limits
(benzene
0.05
ppm
and
vinyl
chloride
0.09
ppm)
and
were
analyzed
according
to
the
NIOSH
Manual
of
Analytical
Methods.
The
sample
pump’s
duration
was
from
155
to
176
minutes
at
each
location.
OCS
reviewed
the
air
data
and
while
they
were
unconvinced
of
the
NIOSH
method,
since
it
is
for
quantifying
chemicals
in
the
workplace,
the
results
were
non-detect
for
both
benzene
and
vinyl
chloride.
In
May
1994,
the
Illinois
EPA
collected
three
soil
samples
along
Stony
Creek
where
it
appeared
leachate
was
coming
from
the
north
bank
of
Stony
Creek.
Four
groundwater
samples
were
collected
and
analyzed.
Groundwater
analysis
indicated
3.8
mg/L
of
benzene
(Class
II
objective
is
0.025
mg/L),
0.79
mg/L
of
vinyl
chloride
(Class
II
objective
is
0.01
mg/L)
and
0.110
mg/L
of
naphthalene
(Class
II
objective
is
0.039
mgIL).
VOCs,
SVOCs
and
small
concentrations
of
pesticides
and
PCBs
were
detected
in
the
soil
samples
collected
along
the
creek
bank.
Metal
concentrations
of
the
groundwater
and
seeps
appear
to
be
indicative
of
background
conditions.
Note,
the
recharge
of
the
monitoring
wells
is
slow,
on
the
order
of
6-hours
to
collect
a
sample,
after
purging
approximately
2.5
gallons.
There
appears
to
be
limited
groundwater
movement.
In
March
and
April
of
1998,
a
site
investigation
was
performed
by
Graef,
Anhalt,
Schloemer
and
Associates,
Inc.,
(GAS)
under
contract
to
the
City
of
Palo
Hills.
The
investigation
and
report
was
conducted
by
an
Illinois
licensed
P.E.
and
registered
geologist.
GAS
completed
twenty-five
(25)
test
pits.
Each
test
pit
was
excavated
to
the
water
table
or
a
depth
often
feet
bgs.
Soils
samples
were
collected
for
VOCs,
SVOCs
and
pesticides/PCBs.
Visual
observations
were
documented.
It
was
reported
the
dumped
material
did
not
appear
to
be
in
contact
with
the
water
table;
however,
some
decomposition
was
evident
and
moisture
was
present
in
some
pits.
It
appears
that
contact
with
water
does
occur,
likely
during
spring
flooding.
GAS
evaluated
impacts
to
Stony
Creek
using
the
flow
rate
of
the
Stony
Creek,
seepage
of
groundwater
into
the
creek
and
the
96-hour
Median
Tolerance
Level
for
surface
water.
It
was
determined
that
the
chemicals
of
concern
at
the
site
would
have
to
exceed
their
solubility
concentrations
to
impact
the
creek.
The
solubility
concentrations
are
not
exceeded.
The
report
concludes
that
a
three
foot
clay
cap
extends
over
most
of
the
site.
The
report
recommends
a
deed
restriction
be
recorded
that:
requires
the
cap
to
remain
in
place;
the
prohibits
the
use
of
the
shallow
groundwater;
and
the
north
bank
of
the
Stony
Creek
be
periodically
monitored
for
seeps
and
off-gas,
and
any
seeps
be
remediated
as
appropriate
with
bentonite.
Groundwater
Class
and
Geology:
Class
II.
The
top
two
to
seven
feet
consists
primarily
of
clay,
brought
to
the
site
by
the
City.
According
to
Berg
et
al.
(1984)
the
site
falls
on
a
boundary
of
B1[sand
and
gravel
at
the
surface,
less
than
20
feet
thick]
and
C1[permeable
bedrock
between
20
and
50
feet
deep
and
overlain
by
more
than
20
feet
of
till].
The
depth
to
bedrock
is
approximately
30
to
50
feet
deep.
Shallow
groundwater
on
the
site
flows
towards
Stony
Creek
which
is
a
tributary
of
the
Cal-Sag
channel.
Stony
Creek
generally
flows
southwest
1.5
miles
to
join
the
Calumet
Sag
Channel.
The
slope
of
the
creek
is
minimal
and
flow
reversals
do
occur.
3
The
site
is
located
in
the
flood
plain
of
Stony
Creek.
Due
to
the
site
being
filled-in
during
the
1970s
and
1
980s,
it
is
approximately
10
feet
higher
then
virgin
flood-plain
ground
to
the
north.
Conclusions
and
Applicable
Engineered
Barriers
and
Institutional
Controls
The
thickness
of
the
clay
cap
exceeds
the
cover
requirements
by
Rule
5.07
of
the
Rules
and
Regulations
for
Refuse
Disposal
Sites
and
Facilities,
in
force
prior
to
July
1973
(IDPH,
1966)
and
35
Ill.
Adm
Code
Section
807.305,
in
force
since
July
1973.
The
ingestion
and
inhalation
routes
can
be
excluded
as
pathways
because
of
the
city
maintaining
a
minimum
three
foot
of
cover
over
the
site.
There
were
past
allegations
that
a
few
homes
immediately
adjacent
to,
and
north
of
the
site
may
have
been
build
over
the
northern
limits
of
the
fill,
but
this
has
not
been
substantiated.
No
seeps
have
been
observed
during
the
last
several
years.
The
groundwater
is
not
used
as
a
water
supply
and
the
city
intends
to
record
a
deed
restriction
to
prohibits
the
use
of
the
site’s
groundwater.
Five
compounds
were
detected
in
soil
samples
from
one
or
more
samples
that
exceed
Tier
1
migration
to
Class
II
groundwater
objectives,
benzene,
1
,2-dichloroethane,
tetrachloroethylene,
dibenzoffiran,
benzo(a)
anthracene,
benzo(b)fluoranthene,
benzo(a)pyrene,
indeno
(1,2,3-c,d)
pyrene,
and
naphthalene.
The
PNAs
appear
to
result
from
burnt
wood
that
was
historically
buried
at
the
site.
However,
the
PNAs
do
not
appear
to
be
impacting
groundwater.
The
volatile
compounds
are
impacting
the
groundwater
beneath
the
site
as
detected
in
the
three
monitoring
wells
on
the
south
site
of
the
site,
confirming
that
groundwater
flow
is
towards
Stony
Creek.
The
groundwater
well
monitoring
well
on
the
north
side
of
the
site
detected
no
contamination.
A
deed
restriction
should
be
recorded
that:
requires
the
cap
remain
in
place;
prohibits
any
excavation
beneath
the
cap;
prohibits
the
use
of
the
shallow
groundwater;
and
requires
the
north
bank
of
the
Stony
Creek
be
periodically
monitored
for
seeps
and
off-gas,
and
any
seeps
be
remediated
as
appropriate
with
bentonite.
cc:
Stan
Black
Lawrence
Eastep
Cliff
Gould
Tom
Walters
Geoff
Sutton
4
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
1021
NORTH
GRAND
AVENUE
EAST,
P.O.
Box
19276,
SPRINGFIELD,
ILLINOIS
62794-9276
—
(
217)
782-3397
JAMES
R.
THOMPSON
CENTER,
100
WEST
RANDOLPH,
SUITE
11-300,
CHICAGO,
IL
60601
— (31
2)
814-6026
Roo
R.
BLAGOJEVICH,
GOVERNOR
DOUGLAS
P.
Scorr,
DIRECTOR
(217)782—5544
Author’s
Direct
Line:
(217)782-9827
E-Mail:
william.ingersoll©illinois.gov
(TDD:
217-782-9143)
Telefax:
217-782-9807
March
12,
2008
Mr.
Richard
Rosenbaum
Maximum
Investments,
LLC
9437
Karlov
Skokie,
IL
60076
Re:
0312400004—
Cook
County
Stoney
Park
West
General
Correspondence
Dear
Mr.
Rosenbaum:
This
is
in
response
to
your
letter
of
January
14,
2008,
in
which
you
requested
that
the
Illinois
EPA
perform
a
review
and
evaluation
for
this
property.
Further,
you
cited
to
Section
22.2b
of
the
Environmental
Protection
Act
(415
ILCS
5122.2b).
The
limit
of
liability
for
prospective
purchasers
is
only
available
for
those
who,
in
addition
to
other
requirements,
perform
an
approve
response
action.
I
recommend
that
you
consider
follow
up
through
the
Agency’s
Site
Remediation
Program.
Information
maybe
found
on
the
Agency’s
website
(www.epa.state.il.us).
Sincerely,
William
D.
Enforcement
Programs
ROCKFORD
—4302
North
Main
Street,
Rockford,
IL
61103
—(815)
987-7760
•
DEs
PLAINES
— 9511
W.
Harrison
St.,
Des
Plaines,
IL
6001
ELGIN
—595
South
State,
Elgin,
IL
60123—
(847)
608-3131
•
PEORIA
—5415
N.
University
St.,
Peoria,
IL
61614
— (309)
BUREAU
OF
LANO
- PEORIA
—
693
/
7620
N.
University
St.,
Peoria,
IL
61614—
(309)
693-5462
•
CHAMPAIGN
—2125
South
First
Street,
Champaign,
IL
t7
‘
SPRINGFIELD
—4500
5.
Sixth
Street
Rd.,
Springfield,
IL
62706
—
(217)
786-6892
•
COLLINSVILLE
—
2009
MaIl
Street,
Co)linsville,
IL
62234
MARION
—
2309
W.
Main
St.,
Suite
116,
Marion,
IL
62959
—(618)
993-7200
Manager
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