Ni Southeastern Pennsylvania Transportation Authority ...

1 SDMS DocID 2114380 N"i Southeastern Pennsylvania Transportation Authority Legal Division (215)580-7993 (215) 580-7078 (Fax) VIA: FAX-215-814-2603 & REGULAR MAIL 1234 Market Street 5^ Floor Philadelphia, PA 19107-3780 Direct Dial Number 215-580-7320 April 9, 2009 Andrew S. Goldman, Esquire Senior Assistant Regional Counsel United States Environmental Protection Agency 1650 Arch Street Philadelphia, PA 19103 Re: Tank Car Corporation Site, Oreland Corporate Department File No. 3409 Dear Mr. Goldman: I I hereby respond to your letter of April 2, 2009, which I received on April 3, 2009. The request/proposed agreement of the United States Environmental Protection Agency ("EPA") is not consistent with SEPTA's safety practices.

2 Initially, please remember that SEPTA is a body corporate and politic which exercises the public power of the Commonwealth of Pennsylvania as an agency and instrumentality thereof. SEPTA shares sovereignty of the Commonwealth. As to this specific project, it is clear that the proposed work will be on SEPTA's railroad right-of-way. SEPTA operates its Lansdale-Doylestown commuter rail line on the right-of-way and CSX Transportation has permission to operate freight trains thereon. Enclosed is a copy of the January 11, 2009 regional rail schedule for that line which shows the number of passenger trains that are scheduled to run on it each day. Also, SEPTA's commuter rail lines are powered by 13,000 volt overhead wires that are also on the right-of-way. It would be irresponsible and dangerous for SEPTA not to require fiill adherence to its safety requirements (including safety training classes) and its insurance requirements.

3 AR000026 Letter to Andrew S. Goldman, Esquire April 9, 2009 Page 2 I understand that EPA will be using TetraTech as its contractor, but am unsure if you have other contractors and/or if EPA's own forces will enter our right-of-way. Tetra Tech has previously entered SEPTA property via our Right-of-Entry agreemeiit and is^ aware of our safety and other requirements. I am enclosing the agreement they executed March 28, 2006 with the appropriate suppoiling materials. In any case, all entities who enter the right-of-way must complete the application and agreement. I enclose blank copies of these although I am told you have them. SEPTA will waive the application fees of the EPA for the agreement and permit. However, SEPTA will not waive the application fee as to the contractor that EPA will employ.

4 (Part of the fee covers the costs of safety training classes for those who will work pursuant to the permit.) Although we wish to cooperate with EPA, we also must protect the riding public. ^ Thank you for your considerations. Sincerely, Joseph J. Devanney Senior Counsel JJD/ecw Enclosures cc: Robin L. Lewis, Esquire Dominik Schneider Lydia C. Grose CD3409 - 040909 - JJD to AR000027> Application To The Southeastern Pennsylvania Transportation Authority For A Right of Entry Permit Instructions, Following are the instructions and forms for applying for right of entry onto SEPTA property. Submit your application and check for fee payment of $750. ,You must submit a fully completed Application Form and Agreement.

5 Please be sure you provide the complete legal name of the applicant, and are explicit In the proposed use of the property. Please send the original application to SEPTA, Office of the Chief Engineer, 1234 I^arket Street, 13'^ Floor, Philadelphia, PA 19107-3780, and retain a copy for your records. 1. Any application fees must be paid at the time of submission of your application. All fees are non-refundable. Please make your check payable to SEPTA. 2. Once executed the applicant will be bound by the terms and conditions set forth in the right of entry agreement. 3. Applicant acknowledges that SEPTA is hot responsible I'or any costs associated with the Work. Permittee must reimburse SEPTA for all costs that SEPTA incurs in connection with this application ("Application"), Agreement and Permit, Without limiting the foregoing, applicant must reimburse SEPTA for all costs that SEPTA incurs in connection with the review of the applicant's plans, drawings or other submissions and flag service and other protection.

6 4. SEPTA will bill applicant for SEPTA's costs, expenses and labor charges at SEPTA's standard force account rates. All payments due from applicant to SEPTA shall be due and payable within thirty (30) calendar days from the date of invoice. Applicant has no right to set off against any payment due any sums wliich applicant may believe are due to it from SEPTA for any reason. In the event that applicant fails to pay, when due, any amount payable by it, applicant must pay SEPTA, together with such overdue payment. Interest at an annual rate of six (6) percent calculated from the date the payment was due until paid. All payments due from applicant to SEPTA hereunder must, be: (i) made by check drawn from currently available funds; (il) made payable to Southeastern Pennsylvania Transportation Authority ; and (111) mailed with a copy of the invoice to.

7 Southeastern Pennsylvania Transportation Authority , Box 7780-4044, Philadelphia, PA 19182-4044. All payments are deemed made only upon receipt by SEPTA of collected funds. 5. SEFTA notifies the applicant that certain words in this application have specific meanings and that applicant must answer the questions below consistent with those meanings. "Hazardous Substance" and "Hazardous Substances" mean without limitation, flammables, explosives, radioactive materials, asbestos, polychlorinated blphenyls (PCB's), chemicals l<nown to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, petroleum and petroleum products, and substances declared to be hazardous or toxic under any law or regulation now or hereafter enacted or promulgated, by any government that has jurisdiction over the Work^and/or the SEPTA property.

8 "Septa Property" means the real estate, right-of-way, building or other property which SEPTA owns, leases, maintains, occupies, possesses or controls and which is associated with the Work that Permittee intends to perform. References herein to "on SEPTA property" or "on the SEPTA Property" mean on, under, over or adjacent to the SEPTA Property, whatever is appropriate! "Work" means the activities identified in the Application which Permittee intends to perform on the SEPTA Property, , , AR000028 SEPTA - RIGHT OF ENTRY APPLICATION FORM APPLICANT INFORMATION The Application fee of $750 is enclosed (mail-in applications only). Check # _ Legal Name of Applicant (party to agreement), Tax ID # Mailing Address: Street Citv State Name of Contact Zip Title.

9 Phone # (_ Billing Address: Street.. Fax #, ( )_ E-Mail Address. Citv State Billina Contact Zip Title Phone # f ) E-Mail Address Fax # f ) \ PROPERTY INFORMATION Location of property (provide all applicable information) i' . Street Address: Railroad/Transit Line Name: Milepost: ' Nearest Station. Sketch of Property: attach a sketch of the worksite that depicts the SEPTA Property, adjacent streets, buildings . facilities and utilities in close to proximity to the work. Duration of occupancy From . J. J. To. J-Worlc to be performed Is: Within Ft of the tracks. (If within 25ft of center of the rail, a flagman Is required at your expense.

10 Or At a location that may impede SEPTA's use of the facility. Yes No . If yes, attach complete description of potential conflict. licant's intended ouroose for this nqht-of-entrv (be specific) : Attach descriotion Were services to be performed requested by SEPTA? D Yes D No Requested by whom? .___ Is the intended purpose of this work related to Cj environmental sampling D environmental Investigation [!] environmental remediation-Does the Applicant intend to use, disturb, transport or remove Hazardous Material? D Yes CD No If the above question answered yes, (1) identify the Hazardous Substances, (11) Explain the work associated therewith and (ill) Identify the Governmental agencies with which the applicant has had contact regarding the Hazardous Substance or proposed environmental test or studies (Attach answer) THE Work associated with tliis application CANNOT piace a permanent facility or structure on SEPTA property such as, but not limited to, an underground pipe, overhead wire or support structure WITHOUT a separate easement agreement and RIGHT of WAY application.