35 Ill. Adm. Code 734.350
Off-site Access
Section 734.350 Off-site Access
a) An
owner or operator seeking to comply with the best efforts requirements of
Section 734.345(b) of this Part must demonstrate compliance with the
requirements of this Section.
b) In
conducting best efforts to obtain off-site access, an owner or operator must,
at a minimum, send a letter by certified mail to the owner of any off-site
property to which access is required, stating:
1) Citation
to Title XVI of the Act stating the legal responsibility of the owner or
operator to remediate the contamination caused by the release;
2) That,
if the property owner denies access to the owner or operator, the owner or
operator may seek to gain entry by a court order pursuant to Section 22.2c of
the Act;
3) That,
in performing the requested investigation, the owner or operator will work so
as to minimize any disruption on the property, will maintain, or its consultant
will maintain, appropriate insurance and will repair any damage caused by the
investigation;
4) If
contamination results from a release by the owner or operator, the owner or
operator will conduct all associated remediation at its own expense;
5) That
threats to human health and the environment and diminished property value may
result from failure to remediate contamination from the release; and
6) A reasonable time to
respond to the letter, not less than 30 days.
c) An
owner or operator, in demonstrating that the requirements of this Section have
been met, must provide to the Agency, as part of the corrective action
completion report, the following documentation:
1) A
sworn affidavit, signed by the owner or operator, identifying the specific
off-site property involved by address, the measures proposed in the corrective
action plan that require off-site access, and the efforts taken to obtain
access, and stating that the owner or operator has been unable to obtain access
despite the use of best efforts; and
2) A
copy of the certified letter sent to the owner of the off-site property
pursuant to subsection (b) of this Section.
d) In determining
whether the efforts an owner or operator has made constitute best efforts to
obtain access, the Agency must consider the following factors:
1) The
physical and chemical characteristics, including toxicity, persistence and
potential for migration, of applicable indicator contaminants at the property
boundary line;
2) The
hydrogeological characteristics of the site and the surrounding area, including
the attenuation capacity and saturation limits of the soil at the property
boundary line;
3) The
nature and extent of known contamination at the site, including the levels of
applicable indicator contaminants at the property boundary line;
4) The
potential effects of residual contamination on nearby surface water and
groundwater;
5) The
proximity, quality and current and future uses of nearby surface water and
groundwater, including regulated recharge areas, wellhead protection areas, and
setback zones of potable water supply wells;
6) Any
known or suspected natural or man-made migration pathways existing in or near
the suspected area of off-site contamination;
7) The
nature and use of the part of the off-site property that is the suspected area
of contamination;
8) Any
existing on-site engineered barriers or institutional controls that might have
an impact on the area of suspected off-site contamination, and the nature and
extent of such impact; and
9) Any other applicable
information assembled in compliance with this Part.
e) The
Agency must issue a No Further Remediation Letter to an owner or operator
subject to this Section and otherwise entitled to such issuance only if the
owner or operator has, in accordance with this Section, either completed any
requisite off-site corrective action or demonstrated to the Agency's
satisfaction an inability to obtain off-site access despite best efforts.
f) The
owner or operator is not relieved of responsibility to clean up a release that
has migrated beyond the property boundary even where off-site access is denied.