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TO: Mayor Thomas J. Weisner
FROM: Alayne M. Weingartz, Corporation Counsel
DATE: February 3, 2016
SUBJECT:
Resolution Approving an Environmental Indemnity Agreement and Highway Authority Agreement between Phillips 66 Company and the City of Aurora for Property Located at 1331 North Farnsworth Avenue
PURPOSE:
Phillips 66 Company has asked the City to enter into an Environmental Indemnity Agreement and Highway Authority Agreement for property located at 1331 North Farnsworth Avenue, in the City of Aurora, Illinois.
BACKGROUND:
Phillips 66 Company (“Phillips”) is attempting to close an underground storage tank (UST) incident with the Illinois EPA. The incident is associated with a subsurface release of gasoline from USTs which appears to have migrated onto a City right-of-way.
DISCUSSION:
Generally, the City has two options pertaining to contamination beneath the roadways. One is to enter into a Highway Authority Agreement (HAA) with Phillips, which Phillips is asking the
City to do. A HAA would allow any contamination under the roadways to remain in-place. A HAA is commonly used when contamination has migrated off private property and under a City highway or road. These agreements are not the invention of the companies asking for them, but rather, are the result of the Illinois Department of Transportation (IDOT) getting involved in the Tiered Approach to Corrective Action Objectives (TACO) rule change which required the Illinois Pollution Control Board to consider land use controls in determining risk to human health from contaminated soil and groundwater and part of the environmental cleanup regulations. As a result of IDOT’s efforts, HAAs became one of the land use controls recognized in TACO, and IDOT has signed literally hundreds of them.
The second option is to require Phillips to do a dig and haul of the contaminated soils in the right-of-way which Phillips may not be willing to do and may result in a request by Phillips of the IEPA that the IEPA make a determination that it is impractical under the TACO regulations to do so.
IMPACT STATEMENT:
Protection against future claims and contamination in the City right-of-way is provided to the City through the enclosed Environmental Indemnity Agreement. A number of municipalities enter into HAAs if it makes technical sense to do so. From a legal standpoint, it resolves the liability and damage issues without going through the expensive and uncertain process of litigating against an alleged polluter. In fact, through this process, the City probably will get more (i.e., protection against future claims and contamination through the Indemnity Agreement) than it ever would in a lawsuit. In addition, the recovery of these costs was extremely difficult before the advent of HAAs as it was nearly impossible to prove where contamination in the right-of-way comes from.
RECOMMENDATIONS:
Place this item on BGI Agenda for their 2/8/16 Committee Meeting.
cc: Alderman Garza, Chairman
Alderman Johnson
Alderman Mesiacos
Alderman Bohman, Alternate
CITY OF AURORA, ILLINOIS
RESOLUTION NO. _________
DATE OF PASSAGE ________________
title
A Resolution Approving an Environmental Indemnity Agreement and Highway Authority Agreement Between Phillips 66 Company and the City of Aurora for Property Located at 1331 North Farnsworth Avenue
body
WHEREAS, the City of Aurora has a population of more than 25,000 persons and is, therefore, a home rule unit under subsection (a) of Section 6 of Article VII of the Illinois Constitution of 1970; and
WHEREAS, subject to said Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs for the protection of the public health, safety, morals, and welfare; and
WHEREAS, Phillips 66 Company has requested the City of Aurora to provide assistance in its efforts to obtain a No Further Remediation letter from the Illinois Environmental Protection Agency (“IEPA”), with respect to the presence of contaminants on the property commonly known as 1331 N Farnsworth Avenue and, more particularly, to negotiate and enter into a Environmental Indemnity Agreement and a Highway Authority Agreement with respect to a certain City of Aurora owned Right of Way(s) adjacent to the property; and
WHEREAS, it is in the interest of the City of Aurora and its citizens that the risks presented to public health and the environment by the presence of contaminants on real property within the City of Aurora be assessed, and that properties upon which such contaminants may be present are remediated to a level consistent with such risk assessments, so as to promote the health, welfare and economic well-being of citizens and the City of Aurora alike; and
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WHEREAS, the Corporate Authorities of the City of Aurora desire to enter into the Highway Authority Agreement and the Environmental Indemnity Agreement, subject to the terms and conditions set forth in said Agreements and attached hereto as Exhibit "1" ; and
WHEREAS, the City of Aurora, a home rule Illinois municipal corporation, has the authority to enter into the attached Agreements pursuant to its home rule powers as provided by Article VII, Sections 6 and 10(a) of the Illinois Constitution of 1970, and finds that entering into this Agreement is in the best interests of the City)
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Aurora, Illinois, as follows:
SECTION 1: The Corporate Authorities of the City of Aurora approve of the "Environmental Indemnity Agreement” and “Highway Authority Agreement” which are attached hereto as Exhibit "1" and made a part hereof and authorize and direct the Mayor and Clerk, or their designees, to execute said Agreements and to execute and deliver all other instruments and documents that are necessary to fulfill the City’s obligations under the Agreement.
enter your resolution summary here.
Exhibits
Environmental Indemnity Agreement
Highway Authority Agreement