BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

L.

KELLER OIL PROPERTIES, INC. / FARINA

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

) PCB No. 07-147

)

)

)

)

)

NOTICE OF FILING

TO:

Melanie A. Jarvis

Assistant Counsel

Division

of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Carol Webb

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield, Illinois 62794-9274

PLEASE TAKE NOTICE that on January 11, 2008, filed with the Clerk of the Illinois

Pollution Control Board

of the State of Illinois an original, executed copy of Petitioner's Motion

for Reconsideration and Request for Oral Argument along with Petitioner's

Brief in Support of

its Motion for Reconsideration.

Dated: January 11, 2008

Respectfully submitted,

Carolyn

S. Hesse

Barnes

&

Thornburg LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

344175v2

By:

L.

KELLER OIL PROPERTIES / FARINA

O~Ofit~

C,OJ~~H~~

[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021

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CERTIFICATE OF SERVICE

I, on oath state that I have served the attached Petitioner's Motion for Reconsideration

and Request for Oral Argument along with Petitioner's Brief in Support

of its Motion for

Reconsideration

by placing a copy in an envelope addressed to:

Melanie

A.

Jarvis

Assistant Counsel

Division

of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Carol Webb

Hearing Officer

Illinois Pollution Control Board

1021 NOlih Grand Avenue East

P.O. Box 19274

Springfield, Illinois 62794-9274

from One NOlih Wacker Drive, Suite 4400, Chicago, Illinois, before the hour

of 5:00 p.m., on

this

11 th Day of January, 2008.

Carolyn

Cw~

S. Hes

Jo

HL9Jl)~

[This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021

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BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

L. KELLER OIL PROPERTIES / FARINA

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

) PCB No. 07-147

)

)

)

)

)

PETITIONER L. KELLER OIL PROPERTIES/FARINA'S MOTION

FOR RECONSIDERATION AND REQUEST

FOR ORAL ARGUMENT

Petitioner,

L. Keller Oil Properties / Farina ("Keller Oil" or "Keller/Farina"), by its

counsel Barnes

&

Thornburg LLP and pursuant to 35

Ill.

Adm. Code 101.500(e), moves the

Board to Reconsider its Order and Opinion dated December 6, 2007.

In support of this Motion,

Keller Oil states

as follows:

1.

On December 6, 2007, the Board issued an Opinion and Order of the Board (the

"Decision") in this case. In the Decision, the Board partially affirmed and partially reversed

determinations made

by the Illinois Environmental Protection Agency (the "Agency") in its May

17, 2007 letter rejecting L. Keller Oil Properties/Farina's ("Keller") Site Investigation Plan and

Budget for the underground storage tank site located at 1003 West Washington Avenue, Farina,

Fayette County (the "Site").

2.

Specifically, the Board "affirm[ed] the Agency

by finding that the Record

supports the Agency's determination that Keller did not construct monitoring wells in a manner

that allows for sampling at only the desired interval."

Id.

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3.

Under the standard for a motion to reconsider, the Board should reconsider the

rulings in its Order as errors in the application

of existing law under the Act. A party can file a

motion to reconsider "to bring to the [Board's] attention newly discovered evidence which was

not available at the time

of the hearing, changes in the law or errors in the [Board's] previous

application

of existing law."

People v. Community Landfill Co, Inc.,

PCB No. 03-191,2006 Ill.

Env. LEX

IS 323, *2-3 (June 1,2006). Moreover, a "motion to reconsider may specify 'facts in

the record which were overlooked.'"

Id.

(quoting

Wei Enterprises v. IEPA,

PCB No. 04-23, slip

op. at 5 (Feb. 19, 2004). Keller moves the Board to reconsider based on newly discovered

evidence, errors in the Board's previous application

of existing law, and facts in the Record that

the Board appears to have overlooked.

4.

Keller now moves the Board to reconsider the portion of the Decision affirming

the Agency's determination that the monitoring wells were not constructed "in a manner that

allows for sampling at only the desired interval" and, therefore, Keller did not comply with the

Stage I groundwater monitoring requirements.

5.

As set forth more fully in the accompanying memorandum, Keller moves the

Board to reconsider this determination because (1) the Board's holding is not supported by the

law for a number

of reasons, including its approval of the Agency's interpretation of the term

"desired interval"; (2) the Board's holding would result in monitoring wells at the Site being

constructed in violation

of the requirements of 35 Ill. Adm. Code 734.430(a) based on the

undisputed evidence contained in the Record; (3) the Board's holding that requiring monitoring

wells to be screened at the static groundwater level is reasonable for detecting petroleum

indicator contaminants because those contaminants are lighter than the groundwater is not

supported by the undisputed evidence contained in the Record; (4) the Board's holding is

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in

35 III. Adm. Code 101.2021

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contrary to accepted principles of professional geology and professional engineering practices

and, therefore, is not in accordance with

35 Ill. Adm. Code 734.51 O(a); (5) the Board ignored the

evidence in the Record establishing that groundwater at the Site is under confined conditions; (6)

the Board erroneously concluded that the results

of the hydraulic conductivity tests are consistent

with the silty clay unit being the groundwater-producing layer; and (7) the Agency and the Board

erroneously concluded that monitoring wells installed as the Agency directed would produce

water even though undisputed evidence in the Record and newly discovered evidence

demonstrates that they would not produce water.

6.

Keller also moves the Board to reconsider its denial of Keller's request for

attorney's fees and award a portion of those fees consistent with the issues on which Keller

prevailed.

7.

In addition, pursuant to 35 Ill. Admin. Code 101.700, Keller respectfully requests

oral argument before the Members of the Board and suggests that oral argument be scheduled

following or before a regularly scheduled Board meeting to allow all Board members to attend.

The purpose

of oral argument is to discuss the legal issues discussed elsewhere in this Motion

and in the brief being filed simultaneously with this Motion. Oral argument will also allow the

Board

to ask questions.

8.

Attorneys for Keller were served by certified mail with the Board's December 6,

2007 Order on December 12, 2007. Accordingly, this Motion to Reconsider is timely filed.

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WHEREFORE, Keller respectfully requests that the Board grant this Motion for

Reconsideration, award Keller attorney's fees, grant oral argument before the Board, and grant

all other relief that the Board deems fair and just.

Respectfully submitted,

L.

Keller Oil Properties (Farina)

By:

~~~oJ~HtW4Z

Carolyn S. Hesse, Esq.

Jonathan P. Froemel, Esq.

David

T. Ballard, Esq.

Barnes

&

Thornburg

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

.IWF 442521

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OF THE STATE OF ILLINOIS

L.

KELLER OIL PROPERTIES / FARINA

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

) PCB No. 07-147

)

)

)

)

)

PETITIONER

L.

KELLER OIL PROPERTIES/FARINA'S

BRIEF

INTRODUCTION

On December 6, 2007, the Illinois Pollution Control Board (the "Board") issued an

Opinion and Order

of the Board (the "Decision") in this case. In the Decision, the Board

partially affirmed and partially reversed determinations made

by the Illinois Environmental

Protection Agency (the "Agency") in its May 17, 2007 letter rejecting

L.

Keller Oil

PropertieslFarina's ("Keller") Site Investigation Plan and Budget for the underground storage

tank site located at 1003 West Washington Avenue, Farina, Fayette County (the "Site").

(D. 1)1

Specifically, the Board "affirm[ed] the Agency by finding that the record supports the Agency's

determination that Keller did not construct monitoring wells in a manner that allows for sampling

at only the desired interval."

Id.

Based on this holding, the Board "direct[ed] Keller to submit to

the Agency an amended Stage 2 Site Investigation Plan and Budget consistent with the terms of

this opinion and order." (D. 1-2) The portion of the Decision affirming the Agency's

1 The designation "D." refers to the December 6, 2007 Order and Decision of the Board. The designation "R."

refers to the administrative record in this appeal. The designation "T." refers to the transcript of the Board hearing

that took place in this appeal on August

22,2007. The designation "Ex." refers to exhibits at the August 22, 2007

hearing.

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detennination that the monitoring wells were not constructed "in a manner that allows for

sampling at only the desired interval" and, therefore, Keller did not comply with the Stage I

groundwater monitoring requirements is the primary subject

of this brief and the associated

motion for reconsideration. In addition, Keller requests that the Board reconsider its denial

of

attorneys' fees as that issue had not yet been fully briefed.

As discussed in this brief, Keller requests that the Board grant its motion for

reconsideration

of its holding that Keller did not construct the monitoring wells in a manner that

allows for sampling at only the desired interval because:

1.

The Board's holding is not supported by the law. If the Board had interpreted the

words "desired interval" in accordance with governing case law, the Board would have held that

the tenn "desired interval" in

35 Ill. Adm. Code 734.430(a)(3) could not mean the static

groundwater

levee in the wells which is the water level that was found in the wells days after the

wells were constructed. Instead, "desired interval" must mean the zone where groundwater is

located in the ground where groundwater contaminants could be located

as Keller contends.

Holding that the tenn "desired interval" means the static groundwater level in a monitoring well

and that the monitoring well must be screened at that level: (a) conflicts with Section 734.430(a)

when it is read

as a whole; (b) ignores the plain meaning of the word "interval"; and (c) ignores

2 "Static level" is defined as the "water level of a well that is not being affected by withdrawal of ground water".

Exhibit 4 at

197.

It

also synonymous with "hydrostatic level."

Id.

"Hydrostatic level" is defined as "[t]he water

level

in

a well or piezometer.

It

defines the potentiometric surface." Id. at 105. "Potentiometric surface" is defined

as "[a]n imaginary surface representing the total head of groundwater and defined by the level to which water will

rise in a tightly cased well. The water table

is the potentiometric surface of an unconfined aquifer."

Id.

at 156

(emphasis added). The static groundwater level in a monitoring well indicates the depth of the top of the

groundwater in only an unconfined aquifer where the pressure on the surface

of the groundwater is equal to

atmospheric pressure. As discussed, the evidence in the record clearly demonstrates that the groundwater at the site

is not an unconfined aquifer because there is at least a 4 to 5 foot difference between the level of water in the ground

and the level

of water in the wells. Thus, the groundwater at the Site meets the definition of confined groundwater.

(Ex. 4,

p. 40) The static groundwater level at the Site has no relation to the depth of the top of the groundwater in

the ground.

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that Section 734.430 uses the different terms "desired interval" and "static groundwater

elevations" in different portions of that regulation and, therefore, those different terms must

mean different things.

2.

The Board's holding would result

III

monitoring wells at the Site being

constructed in violation

of the requirements of 35 Ill. Adm. Code 734.430(a) based on the

undisputed evidence contained in the Record. The Record is clear that groundwater is present at

the Site only beginning at a depth of approximately 10 to 11 feet below the ground surface and

extending downward to a depth of approximately 13.5 feet. (R. 90-94) There is nothing in the

Record that indicates that groundwater is located in the soil at a depth shallower than 10 feet

below ground surface ("bgs").

Therefore, to monitor for potential contaminants in the

groundwater, the monitoring well screens must be located at the interval where groundwater is

located in the formation.

3

The Record is clear that groundwater does not exist at the Site at the

depths associated with the static groundwater levels and, thus, placing the well screens at those

depths would be pointless because representative groundwater samples could not be collected

due to the absence

of groundwater at those depths in the formation. Furthermore, if a monitoring

well were installed according to the Agency's position and the Board's decision that the well

should be screened at the water elevation in the well, that monitoring well would violate other

requirements

of 35 Ill. Adm. Code 734.430 because the well screen would be located too close to

the surface of the ground.

3 The tenn "formation" refers to the various layers of soil, sand, silt, clay located beneath the surface of the ground.

The U.S. Environmental Protection Agency's document "Handbook

of Suggested Practices for the Design and

Installation of Ground-Water Monitoring Wells" defInes "fonnation" as "[a] mappable unit of consolidated material

or unconsolidated material characterized by a degree oflithologic homogeneity." EPA160014-891 034, March 1991,

p.214.

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3.

The Board's holding that requiring monitoring wells to be screened at the static

groundwater level is reasonable for detecting petroleum indicator contaminants because those

contaminants are lighter than the groundwater is not supported

by the undisputed evidence

contained in the Record.

4.

The Board's holding is contrary to accepted principles

of professional geology

and, therefore, is not in accordance with

35 Ill. Adm. Code 734.510(a). Keller presented

testimony from two professional geologists that the desired interval is the interval at which

groundwater is located in the ground.

If the Agency personnel involved in this case understood

geology, they would understand that the desired interval, the interval at which groundwater

samples must be collected, must be the interval at which groundwater exists in the formation and

not the static groundwater level in the monitoring well.

5.

The Board's holding is not supported by and conflicts with evidence in the

Record. The Record shows that groundwater was first encountered during drilling as moisture

was first detected at depths

of approximately 10 to 11 feet bgs. (R. 90-94; T. 23-24, 90, 121,

124) At a depth

of 12 to 13.5 feet, there was wet sand, then the soil became dry again.

!d.

The

wet sand layer, along with the moist area above it is the groundwater interval

of interest. (T. 47-

48, 60, 97) The evidence before the Board also demonstrated that the wells were screened across

this interval

of wet sand and moist soil so that water could flow from the wet sand and moist soil

into the monitoring well. (R. 90-94, 102-102, 173;

T. 34-35, 90-91)

In

fact, the well screens

extended above the depth

of 10 feet into the dry soil above the groundwater interval. (R. 102-

106) Thus,

if contaminants were floating on the groundwater, they would have been intercepted

by the well screens. There is no evidence in the Record to support the Agency's erroneous

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conclusions, which the Board adopted, that the wells were submerged or that the uppermost silty

clay layer is a water bearing unit.

6.

The Board erroneously concluded that the results of the hydraulic conductivity

tests are consistent with the silty clay unit being the groundwater-producing layer. There is no

evidence in the Record to support that conclusion.

In

fact, the evidence shows the opposite.

7.

If a monitoring well were installed as the Agency directed and not screened at the

depth at which the Record conclusively demonstrates corresponds to the interval in which

groundwater is located

in the ground, that monitoring well will not produce water. The Record

documents that Keller informed the Agency

of this and presented testimony at the hearing

confirming this fact. (R. 173;

T. 36-37, 49-50, 95-96) The testimony of Keller's witnesses was

not rebutted.

In addition, Keller installed a monitoring well in conformance with the Agency's

position regarding the bottom depth of the well and the well screen after the Board issued its

Decision.

(See

Appendix A)

In

other words, the well is not screened at the depth that Keller

believes and the Record demonstrates is the desired groundwater interval.

That well did not

produce water, as Keller predicted,

and as the evidence in the Record dictated.

STANDARD OF REVIEW

Under the standard for a motion to reconsider, the Board should reconsider the rulings in

its Order

as errors in the application of existing law under the Act. A party can file a motion to

reconsider "to bring to the [Board's] attention newly discovered evidence which was not

available at the time

of the hearing, changes in the law or errors in the [Board's] previous

application of existing law."

People v. Community Landfill Co, Inc.,

PCB No. 03-191,2006 Ill.

Env. LEXIS 323, *2-3 (June

1, 2006). Moreover, a "motion to reconsider may specify 'facts in

the record which were overlooked.

'"

Id.

(quoting

Wei Enterprises v. IEPA,

PCB No. 04-23, slip

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op. at 5 (Feb. 19,2004). In addition, the standard of review at a hearing before the Board under

415 ILCS 5/40 "is whether the application, as submitted to the Agency, would not violate the Act

and Board regulations."

L.

Keller Oil Properties, Inc. v. IEPA,

2007 Ill. Env. LEXIS 510, *105-

106 (Dec.

6, 2007).

Keller is filling its motion for reconsideration and this brief in support of that motion

because the Board'sholding that the Record supports the Agency's determination that Keller did

not construct monitoring wells in a manner that allows for sampling at only the desired interval

(a) constitutes an erroneous application of existing law, (b) is not supported by and ignores the

undisputed facts and evidence in the Record, (c) would result in the installation

of monitoring

wells that would violate regulatory requirements and that would not conform to principles of

professional geology, and (d) new evidence that documents that the desired interval for

collecting a groundwater sample is the saturated zone that Keller has inconsistently told the

Agency is the desired interval. In addition, the undisputed evidence contained in the Record

clearly demonstrates that Keller's monitoring wells, as currently installed, do not violate the Act

and the applicable regulations.

THE UNDISPUTED EVIDENCE IN THE RECORD DEMONSTRATES THAT THE

DESIRED INTERVAL OF GROUNDWATER

1.

On July 12, 2006, monitoring wells were drilled at the Site using hollow stem

augers.

(R. 11, 90-94) During drilling, dry silty clay and clayey silt was observed to a depth of

approximately 10 feet below ground surface ("bgs"). (R. 90-94, 102-106) (To assist the Board

in its review of this Brief, R. 90-94 and 102-106 are attached at Appendix

B.)

At a depth of

approximately 10 feet below ground surface, the silty clay became moist and at a depth of

approximately 12 feet below ground surface wet sand was encountered.

(Id.,

T. 90, 91, 97) At a

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depth of approximately 14 feet below ground surface, the soil became dry silt.

Id.

These

observations were recorded in borehole logs for the site. The borehole logs are found at

R. 90-

94. The column labeled "soil and rock description" in the borehole logs shows that moisture

was first observed at a depth

of approximately 10 feet below ground surface and that a wet sand

layer was observed between

12 and 13.5 feet bgs. The notation on the borehole logs "wet sand"

means that this layer is saturated with water. There is no indication that moisture or wet

conditions existed in the clayey silty soil at levels above 10 feet bgs.

It

is generally accepted

professional geologist principles to record on soil boring logs conditions that were observed in

the field while drilling soil borings and monitoring wells. In fact, Section 734.425(c) requires

that observations while drilling soil borings be recorded on soil boring logs also known

as

borehole logs. Thus, the borehole logs in the Record clearly show that there is an interval of

groundwater located in the wet sand layer and that there is no interval of groundwater located

less than 10 feet bgs.

2.

The well construction reports found at

R. 102-106 show that the well screens were

10 feet in 1ength.

4

(See

Appendix B) A well screen essentially is a pipe made of stainless steel

or other material that is inert to the contaminants being monitored. The well screen has

numerous small slits in it that allow water to migrate from the surrounding formation into the

monitoring well. The Record that was before the Agency demonstrates that the

10 foot well

screens at the Site were positioned so that the center

of the monitoring well was located at or

slightly above the level at which groundwater was first encountered during drilling. (R. 102-

106) This was done to take into account possible seasonal fluctuations in the groundwater level.

(T. 89)

In

addition, by positioning the wells so that the screen extended above the upper surface

4 The Agency generally requires use of 10 foot long well screens. (R.253)

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of the groundwater, if there were contaminants on top of the groundwater, those contaminants

would migrate from the formation through the slits in the well screen and into the monitoring

well. (T. 57)

By reviewing the Well Completion Report for Monitoring Well 1, located at

R.

102, one can see that the depth to groundwater while drilling was approximately 10 to 11 feet.

The well screen for that monitoring well was positioned so that it extended from 4.5 feet to 14.5

feet below ground surface. (The ground surface is at relative elevation

of 100 feet and the top of

the well screen is at 95.50 feet. 100 - 95.5 = 4.5 feet. Similarly, the bottom of the well screen is

at 85.5 feet. 100 - 85.5

=

14.5) Thus, Monitoring WeIll was completed so that several feet of

the well screen extended above the upper-most level of moisture.

For Monitoring Well 2, the Well Completion Report at

R.

103 documents that the depth

to water while drilling was approximately 10 to

11 feet bgs. The 10 foot well screen was

positioned

so that the top of the screen was located approximately 4.5 feet below ground surface

(ground surface located at 100.33 feet minus top

of screen located at 95.83 feet

=

4.5 feet). The

bottom

of the well screen was located at 14.5 feet below ground surface (100.33 feet minus

85.83 feet elevation at bottom of well screen

=

14.5 feet). Thus, Monitoring Well 2 covered the

entire interval where groundwater was located in the formation, and extended several feet above

the surface

of the groundwater interval.

The Monitoring Well 3 Well Completion Report is located at R. 104. This Report shows

that the depth to water while drilling was approximately 10 to

11 feet below ground surface. The

well screen for Monitoring Well 3 was set so that the top

of the well screen was 4.5 feet below

ground surface (ground surface at 101.47 feet minus top of well screen at 96.97 feet

=

4.5 feet).

The bottom

of the well screen was set at 14.5 feet below ground surface (101.47 feet minus

86.97 feet).

Thus, the well screen for Monitoring Well 3 crossed the entire interval

of

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groundwater in the formation, and the top of the well screen extended above the top of the upper

most surface of the groundwater by several feet.

The Well Completion Report for Monitoring Well 4 is located at

R. 105. This Well

Completion Report documents that the depth to water when the well was drilled and constructed

was approximately 10 to

11 feet. This report also documents that the top of the well screen was

set at approximately 4.5 feet bgs (101.45 foot elevation

of the ground surface minus 96.95 foot

elevation for the top

of the screen

=

4.5 feet). Similarly, the bottom of the well screen was set at

a depth

of 14.5 feet below ground surface (101.45 foot elevation at ground surface minus 86.95

foot elevation to the bottom

of screen). Thus, the well screen extended over the entire interval

where groundwater was observed during drilling

of the monitoring well and the well screen

extended above the surface

of the groundwater by several feet.

The Well Completion Report for Monitoring Well 5 is found at

R. 106. That Well

Completion Report shows that the depth

of the groundwater was approximately 10 to 11 feet

while drilling. The top

of the well screen was located 4.5 feet below ground surface (100.70 ft.

ground surface elevation minus 96.20 ft. elevation at top of screen). The bottom of the well

screen was located at 14.5 feet below ground surface (100.70 feet elevation for the ground

surface minus 86.20 feet elevation

of bottom of screen). Thus, Monitoring Well 5 was screened

to intersect the entire interval

of groundwater in the formation and extended several feet above

the surface

of the groundwater encountered during drilling. In short, the Record that was before

IEPA clearly documents that all five monitoring wells were screened to intersect the saturated,

wet sand layer which is the desired interval for sampling groundwater as well as the moist layer

and part

ofthe dry zone above the groundwater.

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3.

Keller presented testimony at hearing from two licensed professional geologists

who had installed thousands

of monitoring wells. Their testimony explained certain generally

accepted practices and principles

of professional geologists as the regulations at 35 Ill. Admin.

Code 734.510(a) require the Agency to review plans "in accordance with generally accepted

engineering practices or principles

of professional geology." In addition, they identified the

portions

of the Record that demonstrate that the desired interval of groundwater is the wet sand

layer

at 12 to 13.5 feet. They also testified that, if monitoring wells were installed at the Farina

site as IEPA believes they should be installed, the wells would not produce water and would

violate Board regulations and generally accepted professional engineering practices and

principles

of professional geology. While the Board is generally limited in permit appeals to

considering the information in the Record before the Agency, "the Board hearing affords

petitioner the opportunity to challenge the Agency's reasons for its decision."

See

Board Order

in this mater dated July 12, 2007. At hearing, Keller presented evidence that the Agency's

reasoning is wrong based on the information in the Record and wells installed according

to the

Agency's reasoning would result in violations

of Board regulations and generally accepted

practices for installing monitoring wells.

4.

Ms. Rowe, who has installed hundreds of monitoring wells, installed the wells at

the Site and is Keller's consultant. (T. 87) She testified that the wet sand seam, located at

12 to

13.5 feet was the desired interval

for screening the wells. "[T]he sand seam was obviously the --

the primary aquifer" (T. 91)

Q.

And what would you describe the desired interval as at the

Farina site?

A.

Definitely the sand seam would be a desired interval. And

again the foot or foot and-a-half above that we are not sure

if that was a producible unit or not.

It

appeared saturated

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during drilling. So it may have produced as well. So both -

- both

of those units would have been within the screened

interval. (T. 97)

This fact is also documented in the borehole logs and the well construction reports in the Record

at R. 90-94 and 102-106. During cross examination, Ms. Rowe confirmed that at "10 feet we hit

moisture and then it became virtually saturated

..." (T. 121) and that was the information Keller

presented to the Agency. (T. 121-122) Ms. Rowe also testified that, when the wells were

installed, they could not tell they were in a confined aquifer situation.

(T.91)

5.

Another one of Keller's witnesses, Ron St. John, is a certified professional

hydrogeologist

by the American Institute of Hydrology, a certified professional geologist by the

American Institute

of Professional Geologists and a certified geologist in the State of Illinois.

(T. 11-12) He has over 27 years

of experience in his field and installed either in person or

directed in the field the installation

of more than 10,000 monitoring wells. (T. 14, Ex. 3) At the

hearing in this appeal, Mr. St. John testified as an expert witness

on hydrogeology and the

correct installation

of monitoring wells, and that the wells at the Site were installed in

compliance with Board regulations and professional geologist practices.

s

(T. 11-81) His

testimony was based solely

on information contained in the Record that was before the Agency

as he had not been to the site

or discussed the site with Keller's consultant prior to the hearing.

(T.78) The boring logs and the monitoring well completion reports and related documents from

the Record that he reviewed are the types

of documents that a professional geologist would

review to determine

if monitoring wells were installed in accordance with professional geologist

5 The hearing officer admitted Mr. St. John's expert testimony. Further, a federal district court judge has found

Mr.

St. John to be an expert on hydrogeologic issues. (T. 66, 77)

Le Clerq v. The Lockformer Co.,

No. OOC7164,

2005 WL 1162979 (N.D.

Ill.

April 28, 2005). Not reported

in

F. Supp. 2d, but available through Westlaw. While

Mr.

St. John's testimony was not admitted with respect to wastewater treatment in that matter, he was recognized as

an expert on hydrogeologic issues

(Jd.),

which is the subject of his testimony here.

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practices. (T. 60-61) By reviewing information in the Record at R. 90-94, Mr. St. John testified

that the soil became moist at approximately 10 feet below ground surface and that the sand seam

below that, which was wet, was the water bearing unit. (T. 20-21,29-30) The monitoring wells,

as installed, intersected the desired groundwater interval and extended above that interval.

(R. 90-94, 102-106; T. 60, 96-97) The monitoring wells were installed in accordance with the

applicable regulations and accepted practices and principles

of professional geology and

professional engineering. (T. 58-59)

6.

Mr. St John also testified at hearing that the silty clay layer that is the

predominant soil type from the surface to about

12 feet "is incapable of yielding water to any

degree freely to a borehole

or a well. (T. 20-21) He also testified that "the only unit that would

have [produced water] would have been the sand layer located at 12 to 13.5 feet below ground

surface.

(Id.)

This wet sand layer is the desired interval for sampling groundwater. (T. 47-48)

It

is the groundwater bearing unit closest to the surface. (R. 37, 90-94) This is also the layer

where one would most likely find groundwater contaminants.

(T.70) The layer of sand at 12 to

13.5 feet below the surface of the ground is where groundwater was encountered and there is an

apparent confining pressure because the static water levels in the wells rose to a level of 2 or 3

feet below the ground surface. (T.29-30) The static water level for a confined aquifer cannot be

used to determine the top

of a water bearing unit. (T. 30) When drilling a monitoring well in

glacial till, like at the Site, "there's

no way to really know what the ultimate level -- hydrostatic

level will be for a well completed in a saturated zone or aquifer. . . . You simply have to wait

until the well is completed and determine later

on after the static water level has reached

equilibrium with the atmosphere." (T. 32-33)

In

instances where soil permeabilities are not

great, it may take days for the static water level to reach equilibrium.

(T. 33) When a screen is

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placed in a monitoring well, one cannot always tell what the static water level will be.

(Id.)

His

testimony was based on his knowledge

as a professional hydrogeologist and his review of the

borehole logs and other documents contained in the Record. (T. 22-23, 26-28) Based on his

review

of the well completion logs at R. 102-106 the wells were screened in compliance with

Board regulations (T. 34) and the saturated zone, which is the desired interval, was intersected by

the well screen. (T. 34-35)

7.

Thus, the Record demonstrates that the wells were screened to obtain water at the

desired interval, which is the wet sand layer that is the upper saturated zone, located at

12 to 13.5

feet below ground surface, and well screens extended above that interval. (R. 90-94, 102-106;

T.

59-60,88-91,96-97, 123-125) Thus, the well screen intersected the desired interval and, ifthere

were petroleum contaminants floating on the groundwater, the well screen would have

intersected them.

8.

Because all of the well screens were positioned so that the screens extended above

the surface

of the observed groundwater interval, the well screens were not submerged beneath

the desired groundwater interval (T. 47-48) and,

if petroleum contaminants were floating on the

groundwater, the monitoring well screens were positioned to collect samples

of the petroleum.

Further, the borehole logs found at R. 90-94 for Monitoring Wells

MW-l, MW-2, MW-4 and

MW-5 contain the statement in the remarks column that there was "no odor or discoloration

throughout." (R. 90, 91, 93 and 94) The borehole log from Monitoring Well 3 at

R. 92 indicates

a slight odor and discoloration at a depth of approximately 4.5 feet below ground surface. None

of the borehole logs indicate a layer of petroleum products on the groundwater. (R. 90-94) Had

such a layer been observed, it would have been noted on one

or more borehole logs. As a result,

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the Record indicates that a layer of petroleum was not floating on the groundwater at the Keller

site.

9.

Mr. St. John testified about typical procedures for constructing monitoring wells.

(T.40-41) Monitoring wells are constructed when the holes for the wells were drilled, which is

standard geological procedure. The casings for the wells are installed when drilling and the well

screen is set during construction of a well. Because the boreholes that are drilled (typically 9 Y4

or 12.5 inches for hollow stem augers, which were used at the Site) are larger than the well

casing and screen (typically 2 to 3 inch outer diameter), it is necessary to fill the space between

the hole that was drilled and the well casing and screen. This space is referred to

as the "annular

space." (T. 40)

A

material such as sand is used, and was used at the Site, to fill the annular

space between where the screen is located and the surrounding formation to allow water

to freely

flow from the fonnation into the well.

(Id.,

R. 14, 102-106) The regulations at subsection

734.430(a)(3) require that materials be used at the level

of the well screen to allow water to enter

the well. Above the level

of the well screen a bentonite seal and then grout are placed in the

annular space to prevent surface contamination from flowing into the monitoring well

(T.

41)

and that is how the wells were constructed at the Keller site. (R. 102-106) The top part

of the

monitoring well was cased in accordance with regulations and grouted to prevent surface

contamination from entering the monitoring well and to prevent the monitoring well from

heaving during the freeze thaw cycle, in accordance with 734.430(a)(3), (4), and (5). R. 102-

106.

10.

The static groundwater elevation, which is also known as the static water level,

was determined on

CW

3

M's second trip to the site after the wells were installed. (T. 94)

Typically, static water elevations are determined days or weeks after a monitoring well is drilled

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to allow the water level in the well to reach equilibrium with atmospheric pressure, in accordance

with generally accepted professional geology procedures. (T. 32-33) As discussed above in

paragraph 6

of this Section, it may take days for the static water level to reach equilibrium in low

permeability soil. The regulation at subsection 734.430(c) states: "Static groundwater elevations

in each well must be determined and recorded following well construction and prior to each

sample collection

.... " 35 Ill. Admin. Code 734.430(c) (emphasis added). The Agency's

position, which the Board adopted, that the well screen must be set during construction at an

elevation that can

be determined only after the well is constructed and the water level in the well

has stabilized defies common sense, logic and the requirements

of subsection 734.430(c).

11.

Keller presented testimony at hearing that the only importance

of determining the

static water level is to compare the static water levels "to all the other wells at the site to

determine which

way groundwater is moving across the site or which direction groundwater is

flowing." (T. 95) This opinion is entirely consistent with section 734.430, Monitoring Well

Construction and Sampling, in which the only reference to static groundwater elevations is in

subsection (c) in the context

of determining "the gradient of the groundwater table." The

Agency has presented no evidence nor referenced any regulations either at hearing or in the

Record that there is another purpose for determining the static water levels, also referred to

as

static groundwater elevations.

In

short, the Agency presented no evidence to support its position

and the Board incorrectly held that the water level in the well is the desired interval for sampling.

12.

It

is a generally accepted principle of hydrogeology that if the pressure on the

water in the water bearing unit, which is referred to as hydrostatic pressure, is greater than

atmospheric pressure, the static water elevation in the well will

be higher than where the water is

located in the ground. When this phenomenon occurs, the water bearing unit is considered a

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"confined aquifer" or an "artesian aquifer." Mr. St. John testified that when you install a well

into a confined sand layer that is saturated, which means that the spaces between the sand grains

contain water

(i.e.,

wet) and there is hydrostatic pressure on the water, the water level in the well

will actually rise up to a level above the top

ofthe wet sand. (T. 21)6, 7

13.

At the Site, the static water level was approximately 2 to 3 feet below ground

surface a few days after the wells were installed and 6 to 8 feet above the level where moisture

was first encountered when drilling in the formation. R. 102-106 The depth below ground

surface can be determined

by subtracting the static water level elevation from the ground surface

6 The Glossary of Hydrology, Ex. 4, contains the following definitions:

Aquifer: A formation, group

of formations, or part of a fOlmation that contains sufficient saturated permeable

material

to yield significant quantities of water to wells and springs.

Confined aquifer: An aquifer that

is bounded above and below by confining beds; an aquifer containing confined

ground water.

Confined groundwater: Groundwater under pressure significantly greater than that

of the atmosphere. Its upper

surface is the bottom of a confining bed.

Confining bed: A body

of distinctly les permeable material that is stratigraphically adjacent to one or more

aquifers. In nature, its hydraulic conductivity may range from nearly zero to any value that is distinctly less than

that

of the aquifer.

Hydrostatic pressure: The pressure exerted at the base

of a column of water.

Saturated: Said

of the condition in which the interstices of a material are filled with a liquid, usually water. It

applies whether the liquid

is under greater than or less than atmospheric pressure, so long as all connected interstices

are full.

Saturated zone: A subsurface zone in which all the interstices are filled with water under pressure greater than

that

of the atmosphere. Although the zone may contain gas-filled interstices or interstices filled with fluids other

than water,

it is still considered saturated. This zone is separated from the unsaturated zone (above) by the water

table.

.

7 The McGraw-Hill Dictionary of Scientific and Technical terms, 5

th

Ed. 1994 ("McGraw-Hill Dictionary") defines

the terms as follows:

Confined Aquifer -

See

artesian aquifer

Artesian Aquifer - An aquifer that

is bounded above and below by impermeable beds and that contains

artesian water. Also known

as confined aquifer.

Artesian Water - Groundwater that

is under sufficient pressure to rise above the level at which is encounters

a well, but does not necessarily rise

to or above the surface of the ground.

Artesian Well - A well in which the water rises above the top

of the water-bearing bed.

Hydrostatic Pressure - The pressure at a point in a fluid at rest due

to the weight of the fluid above it.

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elevation to detennine how far below the surface of the ground groundwater rose in the well.

This number is then compared to the depth

of approximately 10 to 11 feet bgs where

groundwater was observed when the hole was drilled for the monitoring well

to detennine how

far the static water level was above the surface

of the groundwater. The difference in elevation

between the level

of the groundwater observed when the well was drilled and the static water

level in the well demonstrates that there is hydrostatic pressure on the groundwater and that the

water bearing unit at the Site meets the definition

of a confined aquifer, also known as an

artesian aquifer. The fact that it is a confined aquifer is recognizable

by someone with a modest

knowledge

of hydrogeology and was apparent to Mr. St. John, whose only knowledge about the

Site consisted

of reviewing the infonnation in the Record.

14.

While the manner in which Keller perfonned the hydraulic conductivitl test at

this site

is not in issue, the Agency grossly misrepresents the results ofthe hydraulic conductivity

tests. Contrary

to the Agency's statements in prior briefs, which the Board adopted in its

decision, nowhere on R.

13 of the Record is it stated that the silty clay layer is a water bearing

unit. (A copy

of R. 13 is attached in Appendix C to facilitate the Board's review of that page.)

Rather,

R. 13 indicates that the hydraulic conductivity at the site is 9.61 x 10-

7

and that the

hydraulic conductivity calculations are based on the total well depth, screen length and radius,

initial water depth and the water level change over time.

R. 13. Because the well screens cross

the wet sand layer

as well as the dry silty clay above the zone where water is located, the

hydraulic conductivity test is an average

of the hydraulic conductivity of the wet sand unit as

8 The McGraw-Hill Dictionary defines hydraulic conductivity as:

Hydraulic Conductivity -

See

permeability coefficient - (fl. mechanics)

Permeability Coefficient - The rate of water flow in gaVday through a cross section of 1 square foot under a

unit hydraulic gradient, at the prevailing temperature.

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well as the clay and silt layers. (T. 79-80) Mr. St. John, an expert in hydrogeology, testified that

if separate hydraulic conductivity tests, also referred to as slug tests, were conducted on the

water bealing sand layer and

on the silty clay layer that he would expect the fine grained sand to

have a hydraulic conductivity

of approximately 1 x 10-

3

and for the silty clay to have a hydraulic

conductivity in the range

of 10-

6

to 10-

9

.

(T. 72-73) However, because the well screen

intersected both intervals, the hydraulic conductivity test tested

both intervals at the same time

and the water that entered the well came from the water bearing sand layer and very little water,

if any, would be coming from the layer above that. (T. 81) Thus, Mr. St. Jolm's testimony

refutes the

Agency's mistaken belief that the silty clay layer is a water bearing unit. There is

simply no evidence in the Record to support the Agency's position, which the Board adopted.

(D. 42) In fact, the evidence

in the Record supports Keller'sposition.

15.

The silty clay layer above the wet sand is a confining layer as documented in the

Record. The hydraulic conductivity tests were conducted over the full length

of the well screen

(R. 13) which included both the silty clay layer as well as the

wet sand layer (R. 102-106; T. 79-

80) and showed a hydraulic conductivity of 1.61 x 10-

6

and 9.61 x 10-

7

(R. 229-230). The

hydraulic conductivity

of 1.61 x 10-

6

means that groundwater has the potential of moving 1.61

centimeters in one million seconds.

A hydraulic conductivity of 9.61 x 10-

7

means that

groundwater could move 9.61 centimeters in 10 million seconds.

As discussed in more detail

below,

by way of comparison, the regulatory requirements for an impermeable liner at a landfill

require the liner to have a hydraulic conductivity

of 10-

7

or less.

35 Ill. Adm. Code

724.401 (c)(1)(A)(ii).

In contrast, the groundwater regulations at Section 620.210 define a class 1

groundwater as

"any geologic material which is capable of a . . . hydraulic conductivity of

1 times 10-

4

centimeters per second or greater." 35 Ill. Admin. Code 620.210.

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16.

The fact that the silty clay layer above the wet sand is a confining layer is obvious

from the Record. When a portion

of the silty clay layer above the wet sand layer was removed

by constructing the monitoring wells, the confining layer was removed at that location and the

hydrostatic pressure on the groundwater in the sand layer forced water up into the well to a level

approximately 6 to 8 feet above where water was located in the wet sand layer.

17.

There is no evidence anywhere in the Record, including

on any of the drilling

borehole logs that indicate that water was present in the silty clay layer at the elevation where

water was observed in the wells. In fact, the Record demonstrates that Keller advised the

Agency that

if a well were installed that was screened in the silty clay layer and was not screened

across the saturated sand zone the well would be dry.

(R. 172). hl response to Agency

comments, including the Agency's earlier incorrect statements that "the screens are fully

submerged beneath groundwater" (R. 172), Keller submitted a supplemental report

to the

Agency. (R. 167-245) After explaining that the wells were screened where groundwater was

encountered in the ground, Keller stated "The groundwater is still entering the monitoring wells

in the screen

as required by regulation. To have set the wells at shallower depths would have

resulted in no production." (R. 173) Mr. St. John testified at hearing that if a monitoring well

were drilled that did not connect to the groundwater, the well would not produce water because

"you wouldn'thave a good hydraulic connection to the well." (T. 36-37) He also testified that it

would be very difficult

to know in the field how to screen a well to intersect the static water level

in the well. (T. 49) If "the screened interval of the well were to intersect the static water level in

the well, often times in the case

of confined aquifers, you wouldn't have any water. You

couldn't have water in the well because the static water level would

be too far above the

saturated zone yielding water to the well and creating the static water level." (T. 49-50)

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Ms. Rowe, one of Keller's consultants also testified at hearing that if a well were screened above

the saturated sand layer, the well would be dry.

Q.

What would have been the result for the wells at Farina if

they were installed where you first believe you would have

encountered groundwater?

A.

If we would set the well at 10 to 11 feet, we believe there

would be

no production of water in that well. (T. 95-96)

To further illustrate this point and to demonstrate the error in the Agency's position and the

Board's holding that the wells should have been screened at the static water level, rather than

where groundwater is located in the formation, Keller installed another well that was screened

solely in the silty clay layer

of the formation that IEPA claims is a water bearing unit.

In

other

words, the well was not screened

at the interval that Keller believes is the desired interval. As

discussed in more detail below and in attached Appendix A, that well did not produce water,

even though one

of the original monitoring wells, located only a few feet way, had a static water

level

at 1.8 feet below ground surface. Thus, Keller is correct. Groundwater enters MW-2

where it

is screened in the wet sand. Then hydrostatic pressure pushes the water up the well until

the water reaches the level where it

is observed in the well. Where water is observed in the well

is not the desired interval. The Agency's decision must be overturned.

18.

Setting the wells at the level of the static water level would result in wells being

screened at depths

of 2 feet below ground surface or less. The problem with setting screens at

such shallow levels is not whether the bottom of the well screen will reach the saturated interval

located

12 to 13.5 feet below ground surface as the Agency and the Board appear to believe, but

that such shallow wells violate generally accepted principles

of professional geology.

It

would

be improper for a number

of reasons to have a well screened at the Farina site that went to within

2

to 3 feet of the ground surface. The biggest problem is that surface contaminants can enter

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shallow wells through the upper portion of the well screen. (T.38) The borehole log for MW-2,

(location shown at R. 33), clearly shows that the top approximately

1.5 feet is asphalt/gravel

subbase. (R. 91) Thus,

if a well were screened to be above the static water level that was

measured in 2006, which was approximately 3 feet bgs, the well screen would be very near the

gravel beneath the concrete. In addition,

as the new evidence shows, the water level in MW-2

was at 1.8 feet bgs in December, 2007 and,

if a well were screened above that level, the well

screen would clearly intercept the asphalt/gravel subbase. As a result, surface spills

of gasoline

or other contaminants could migrate into the monitoring well. (T. 42-43)

In

other words, if a

well were screened so the top

of the well screen was close to ground surface, there would be a

vertical pathway for spills that occur on the surface

or piping leaks to enter the well

(Id.)

and the

well would violate 35 Ill. Admin. Code 734.430(a)(4).

In addition, wells must be grouted from a point above the well screen to the ground

surface and the grout must extend below the frost line to prevent the well from heaving during

the freeze thaw cycle. (T. 38)

See

35 Ill. Admin. Code 734.430(a)(5). Grout at monitoring

wells is similar to grout between tiles in a shower in that both are designed to prevent water from

migrating between the things being grouted. Since the frost line at Farina is approximately 40

inches below grade (T. 39),

if a well were screened at 2 feet (24 inches) below grade, the well

screen would extend above the frost line and could not

be properly grouted. Alternatively to

avoid violating subsection 734.430(a)(5), the grout must extend to at least 3 feet 4 inches below

ground surface, resulting in grout blocking the well screen. In short, screening wells at the Site

in the manner ordered

by the Board would result in violations of Board regulations.

19.

There is no evidence in the Record to support the holding that the well screens

were submerged below the desired interval for sampling. The Record clearly demonstrates that

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the well screens were not submerged below the top of the saturated water producing layer

located in the ground, which is the desired interval. (R. 90-94,102-106; T. 88-91, 96-97, 123-

125) Unsworn statements in a letter from the Agency are not credible evidence that the wells

were submerged below the desired interval. Questions

by the Agency's attorney during cross-

examination at hearing are not evidence. Ms. Jarvis' question about whether Keller intended the

wells to be submerged is not evidence that the well screens were submerged because Ms. Jarvis

did not define what she meant

by submerged, nor is there any testimony or other evidence in the

Record before the Board that the wells were not constructed as intended, nor is Ms. Jarvis'

question about intentions evidence.

In fact, the entire cross examination by Ms. Jarvis on those

topics consisted

of the following exchange:

Q.

When you set the well screen, did you intend the well to be

submerged?

A.

No.

Q.

Okay.

A.

No.

Ms. Jarvis: I have no further questions. (T. 123)

In addition, on re-direct examination, Ms. Rowe testified as follows:

Q.

Would you have set the screens

differently. .. for these

wells

if you had known they would be submerged beneath

the static water level?

A.

No, I

don't think I would have. And, if I did, I would have

probably only

by six inches." (T. 125-125)

The Record is clear. The wells were constructed as intended, with the wells screened at the wet

sand layer and the moist layer above that which are the desired interval.

As stated above, the

evidence in the Record shows clearly, to anyone with a modest understanding

of hydrogeology,

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that the well screens were not submerged below the desired interval for sampling groundwater

because they were not submerged below the saturated zone in the ground. In other words, the

wells screens were not submerged below where water was located in the ground or where the

water entered the wells.

20.

The Agency presented no evidence, no sworn testimony, no sworn affidavits, and

no cites

to credible authorities to explain the Agency's erroneous assertions that the wells should

have been screened at levels 2

to 3 feet below ground surface which is the static water level,

even though the evidence in the Record documents that the groundwater in the formation is

located

10 feet bgs and 6 to 8 feet below the static groundwater elevation.

21.

The Agency presented no evidence, no witnesses, no sworn affidavits and

no cites

to credible authorities to rebut Keller's evidence in the Record that the soil was dry above the 10

foot level.

22.

The Agency presented no evidence, no sworn witnesses, no sworn affidavits and

no cites

to credible authorities to explain how water could flow from dry soil at the 2 to 4 foot

below ground surface level, which was the location

of the static water elevation, through a well

screen into a monitoring well.

In short the Agency failed to present any evidence that had the

well been screened at that level that there would have been water in the formation

to flow into

the well. In short, the Agency presented no evidence that the well screens were submerged

below the desired interval.

23.

The proper method for determining

if contamination is present in soil above the

level

of the groundwater is to analyze soil samples from soil borings. This, if contamination

were presented in the soil above the level

of the monitoring wells, it would be found in the soil

samples that were analyzed.

The Board correctly overturned the Agency's decision and

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determined that Keller properly analyzed soil samples that were collected from the soil located

above the groundwater, when the monitoring wells were drilled. (D. 45)

24.

Because Keller presented a prima facie case based

on evidence in the Record that

the monitoring wells were installed in compliance with applicable regulatory requirements, the

burden shifts to the Agency to rebut that presumption. The Agency presented no evidence to

rebut Keller's evidence that the wells were installed properly.

In fact, the Agency even failed to

explain how the shallow wells requested

by the Agency would not violation Board regulations.

Thus, the Board should have held in favor

of Keller.

John Sexton Contractors Co.

v.

Pollution

Control Board,

207

Ill.

App. 3d 415,425,558 N.W.2d 1222, 1229 (1 st Dist. 1990).

ARGUMENT

THE BOARD'S DECISION THAT "THE MONITORING WELLS WERE NOT

CONSTRUCTED IN A MANNER THAT ALLOWS FOR SAMPLING AT ONLY THE

DESIRED INTERVAL" CONFLICTS WITH ILLINOIS CASE LAW GOVERNING THE

INTERPRETATION OF REGULATIONS, THE APPLICABLE REGULATIONS

THEMSELVES, AND THE UNDISPUTED FACTS CONTAINED IN THE RECORD

AND THUS CONSTITUTES CLEAR ERROR.

The issue before the Board in Keller's Motion for Reconsideration is whether the

monitoring wells were "constructed in a manner that allows for sampling at only the desired

interva1." According to the Decision, the "desired interval" is the surface

of the groundwater

inside the well, which is also known as the static water level and is refelTed to in the regulations

at subsection 734.430(c) as the "static groundwater elevation" and, therefore, a monitoring well's

screen must be located at that

leve1. (D. 40-41) In the Decision, the Board stated that it "finds

that the Agency's policy

of requiring the well screen to intersect the water level in the well in

order to meet the performance standard specified at Section 734.430(a)(3) is reasonable for

detecting petroleum indicator contaminants, as those contaminants are lighter than the

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groundwater." (D. 41) The Board's holding is inconsistent with Illinois case law governing the

interpretation of regulations. The Board'sholding also is inconsistent with and directly conflicts

with the regulations governing the construction of monitoring wells. Moreover, the Board's

holding conflicts with the undisputed evidence contained in the Record.

1.

The Board's Holding That the Term "Desired Interval" in 35 Ill. Adm. Code

734.430(a)(3) Means the Depth at Which Groundwater

is Found in the

Monitoring Well and, Thus, the Well Must Be Screened at That Depth is

Inconsistent With Illinois Case Law Governing the Interpretation of Regulations

and is Inconsistent With and Directly Conflicts With the Regulations Governing

the Construction

of Monitoring Wells and Would Result in Violation of Those

Regulations.

The Board's holding that the term "desired interval" in

35 Ill. Adm. Code 734.430(a)(3)

means the depth at which groundwater is found in a monitoring well and, thus, a monitoring

well's screen must be located at that depth is erroneous when Illinois case law governing the

interpretation

of regulations is applied. As such, that holding conflicts with the law and must be

overturned.

The law is clear that when regulations are interpreted: (1) they must be evaluated as a

whole; (2) the plain meaning

of a term governs when that term is undefined; and (3) when one

phrase is used in a portion of the regulation and a different phrase is used in another portion of

the regulation, different results are intended. The Illinois Supreme Court has provided that

"[a]dministrative regulations have the force and effect

oflaw and are construed according to the

same standards that govern the construction of statutes."

People

v.

Hanna,

207 Ill. 2d 486, 497,

800 N.E.2d 1201, 1207 (Ill. 2003);

Union Elec. Co.

v.

Dep't of Revenue,

136 Ill. 2d 385, 391,

556 N.E.2d 236, 239 (Ill. 1990). In construing a regulation or a statute, a Court should review

the regulation or statute as a whole.

Ultsch

v.

Ill. Municipal Retirement Fund,

226 Ill. 2d 169,

181,874 N.E.2d 1, 8 (Ill. 2007) ("The statute should be evaluated as a whole.");

People

v.

Jones,

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223 Ill. 2d 569, 581, 861 N.E.2d 967, 975 (Ill. 2006) ("We construe statutes as a whole, so that

no part is rendered meaningless or superfluous.").

In addition, when a term is not defined, it

must be given its plain meaning. Where a term is not defined by statute or regulation, courts are

to interpret that term according

to its plain, ordinary, and popular meaning.

People v. Brooks,

221 Ill. 2d 381, 390, 851 N.E.2d 59, 63 (Ill. 2006)

("Brooks")

("The Act does not define the

word 'docketing.'

As such, we must interpret it, and in so doing, we must give the word its

plain, ordinary, and popularly understood meaning.");

People v. Sheehan,

168 Ill. 2d 298, 306,

659 N.E.2d 1339, 1342 (Ill. 1995)

("Sheehan")

("Because the word 'committed'is not defined

by statute, we may assume that the legislature intended for the term to possess its ordinary and

popularly understood meaning."). Moreover, "[i]t is a basic rule

of statutory construction that,

'by employing certain language in one instance and wholly different language in another, the

legislature indicates that different results were intended."

In re Mary Ann P,

202 Ill. 2d 393,

409,

781 N.E.2d 237, 247 (Ill. 2002) (quoting

In re K.G.,

186 Ill. 2d 542, 549-50, 714 N.E.2d

491 (Ill. 1999));

In re S.R.,

349 Ill. App. 3d 1017, 1022, 811 N.E.2d 1285, 1289 (4

th

Dist. 2004)

("When the General Assembly uses a particular phrase in one provision and different language in

another, we must assume that it intended different results for each.");

Emerald Casino, Inc. v.

Illinois Gaming Board,

346 Ill. App. 3d 18, 35, 803 N.E.2d 914,928 (1

st

Dist. 2003) ("Generally,

when the legislature uses certain words in one instance and different words in another, different

results were intended.").

a.

The Board'sholding violates the rules of regulatory interpretation.

The Board'sholding conflicts with the plain meaning

of the word "intervaL" As required

by Illinois case law, when a term is not defined in the regulations, the plain meaning of that term

governs.

Brooks,

851 N.E.2d at 63;

Sheehan,

659 N.E.2d at 1342. "Groundwater is defined as

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"underground water which occurs within the saturated zone and geologic materials where the

fluid pressure in the pore space is equal

to or greater than atmospheric pressure." 35 Ill. Adm.

Code 734.115 (citing 415 ILCS 5/3.210). The term "interval" is defined

as "a space between

objects, units, points, or states". Merriam-Webster OnLine Dictionary.

In

this context, the

"desired interval" is the zone

of groundwater located between two zones that do not contain

groundwater. The Agency's determination, which was upheld by the Board, that the "desired

interval" is the depth

of groundwater in a monitoring well, which is a single point, disregards the

plain meaning

of the term "interval."

The Board'sholding also violates the rule

of regulatory interpretation which provides that

when different terms are used in different portions

of the regulation, they must mean different

things. In its holding, the Board incorrectly determined that "desired interval" means the static

water level in the wells.

(D. 41) The static water level in the wells also is known as the "static

groundwater elevation" which is discussed in another portion

of Section 734.430. According to

the regulations, "[s]tatic groundwater elevations in each well must be determined and recorded

following well construction and prior

to each sample collection to determine the gradient of the

groundwater table, and must be reported in the corresponding site investigation plan, site

investigation completion report or corrective action completion repmi."

35 Ill. Adm. Code

734.430(c).

First, the Agency's own rules describe the function

of static groundwater elevations and

that function is

to determine the gradient of the groundwater table which has nothing to do with

the depth

at which monitoring wells must be screened. Second, if the terms "desired interval"

and "static groundwater elevation" were synonymous, one would expect that Section

734.430(a)(3) would have used the words "[s]tatic groundwater elevations" or referenced

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subsection 734.430(c). Subsection 734.430(a)(3) contains no such language or reference.

In

fact, by using the term "desired interval" in 734.430(a)(3) and a different term, "[s]tatic

groundwater elevations" in 734.430(c), it is clear those terms mean different things. The Agency

must have known what the term "static groundwater elevation" meant when it proposed the

monitoring well construction regulations because it used that very term in a subparagraph

contained in those regulations.

Therefore,

if it meant "desired interval" to mean "static

groundwater elevation", it would have said

so.

Further, the regulation requires that the static groundwater elevation be determined after

the well is constructed and this is typically done at least two days after a well is constructed to

allow time for water to enter the well and for water levels to equilibrate. (T. 32-33) When a well

is constructed, one cannot determine what the static water level will be. (T. 33)

In

addition,

static groundwater water elevations are measured before each sample collection.

35 Ill. Adm.

Code 734.430(c). Because constructing monitoring wells including setting well screens to

intersect the desired groundwater interval and measuring static elevations occur at different

times, it is clear that the terms "static groundwater elevations," which is the stabilized level of

water in the monitoring wells, and the "desired groundwater interval," which is the zone that

must be screened in order to collected a representative groundwater sample, have different

meanings. To make them synonymous would result in a physical impossibility because static

groundwater water elevation cannot be known with certainty when a well is constructed. (T. 33)

b.

The Board's holding regarding the meaning

of "desired interval" also is

inconsistent with the requirements in subsection 734.430(a) when it is read

as a whole.

The Board's holding that "desired interval" means the static groundwater level in a

monitoring well and, thus, the well must be screened at that depth is inconsistent with the

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requirements in subsection 734.430(a) when it is read as a whole. The relevant portions of

Section 734.430(a) are as follows:

At a minimum, all monitoring wells constructed must satisfy the following requirements:

1)

Wells must be constructed in a manner that will enable the

collection

of representative groundwater samples;

*

**

3)

Wells must be screened to allow sampling only at the

desired interval. Annular space between the borehole wall

and well screen section must be packed with clean, well-

rounded and uniform material sized to avoid clogging by

the material in the zone being monitored

....;

4)

Annular space above the well screen section must be sealed

with a relatively impermeable, expandable material such

as

cement/bentonite grout that does not react with or in any

way affect the sample, in order

to prevent contamination of

groundwater samples and groundwater and avoid

intercOlmections. The seal must extend

to the highest

known seasonal groundwater level;

5)

The annular space must be backfilled with expanding

concrete grout from

an elevation below the frost line and

mounded

above the surface and sloped away from the

casing so

as to divert surface water away;

*

*

*

7)

Wells must be developed to allow free entry of

groundwater, minimize turbidity of the sample, and

minimize clogging.

35 Ill. Admin. Code 734.430(a) IS intended to ensure that monitoring wells are

constructed

to allow the collection of representative samples of the groundwater most likely to be

impacted by a release and

to prevent the contamination of groundwater and groundwater

samples. Therefore, each provision in Section 734.430(a) must be read together to accomplish

that goal.

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First, monitoring wells must be constructed to "enable the collection of representative

groundwater samples[.]".

35 Ill. Adm. Code 734.430(a)(1) (bracketed material added). Also,

"[wJells must be developed to allow free entry

of groundwater" into the monitoring well as

required by 734.340(a)(7). "Groundwater" is defined as "underground water which occurs

within the saturated zone and geologic materials where the fluid pressure in the pore space is

equal

to or greater than atmospheric pressure." 35 Ill. Adm. Code 734.115. Therefore,

monitoring wells must be constructed in the portion

of the formation that is saturated. Because

the portion

of the monitoring well that allows groundwater to flow into the well is the well's

screen, the screen must be located at the depth at which groundwater is found which

is the

saturated zone and the geologic materials where the fluid pressure in the pore space

is equal to or

greater than atmospheric pressure. Holding that "desired interval" means the screen must be

placed at the depth that corresponds

to the static groundwater level in the monitoring well would

not consistently allow groundwater to flow through the screen and into the monitoring well. The

Keller Site is an example

of a site where the zone that contains groundwater is located several

feet below the static water level and water is not present in the formation at the elevation

of the

static groundwater level. Since water is not present at the static water elevation, there is no water

present

to flow through a well screen into a well even if a well were screened at that elevation.

Therefore, the Board's holding conflicts and is inconsistent with 734.430(a)(7) that requires the

well

to be constructed to allow free entry of groundwater and 734.430(a)(1) that requires the

collection

of representative groundwater samples. Conversely, interpreting "desired interval" to

mean the portion of the formation in which groundwater is located, as Keller contends, is fully

consistent with these regulations.

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Second, 734.430(a)(4) requires the seal between the formation and the monitoring well,

called the "annular space,"

to extend to the "highest known seasonal groundwater level." This

requirement is intended to allow groundwater to flow into a monitoring well through the screen

as groundwater levels fluctuate over time.

It

also is intended to ensure that the monitoring well

is sealed above that depth to prevent groundwater and groundwater samples from becoming

contaminated by materials entering the well from the surface or shallow, unsaturated, portions

of

the formation. Therefore, holding that "desired interval" means the static groundwater level in

the monitoring well would conflict with this requirement any time the static groundwater

elevation was higher than the highest known seasonal groundwater level.

Conversely,

interpreting "desired interval"

to mean the portion of the formation in which groundwater is

located

as Keller contends is fully consistent with this regulation.

Third, 734.430(a)(5) requires the annular space around a monitoring well

to be backfilled

with expanding cement grout beginning at an elevation below the frost line and extending above

the ground surface. By using expanding cement grout, the portion

of the well at which the grout

is located will be sealed. Holding that "desired interval" means the static groundwater level in

the monitoring well and the monitoring well screen must be located at that depth results in it

being impossible

to comply with 734.430(a)(5), 734.430(a)(I) and 734.430(a)(7) at the same

time

if the static groundwater level in the monitoring well is higher than the frost line. This is

true for the Keller Site because,

if the well screen were sealed because of being grouted below

the frost line, free entry

of groundwater into the monitoring well would be prevented under the

Board's and Agency's theory, and the collection

of representative groundwater samples as

required by 734.430(a)(1) and (7) could not be achieved. Conversely, interpreting "desired

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interval" to mean the portion of the formation III which groundwater IS located as Keller

contends is fully consistent with these regulations.

Fourth, 734.430(a)(3) requires monitoring wells

to "be screened to allow sampling at

only the desired interval.,,9 However, it also requires that the annular space between the

borehole and the well screen be packed with materials "to avoid clogging by the material

in the

zone being monitored."

Id.

(emphasis added). Because the phrases "desired interval" and "zone

being monitored" are used in the same regulatory provision, they must be related

to each other.

Holding that "desired interval" means the depth at which groundwater is located in the

monitoring well and that the well must be screened at that interval results in a conflict between

the terms "desired interval" and "zone being monitored" at confined aquifer sites, like Keller's,

where there is a difference

of several feet between where water is located in the ground and the

water level in the well. Therefore, the Board's holding results in 734.430(a)(3) being internally

inconsistent. Conversely, interpreting "desired interval" as referring to the interval at which

groundwater is found within the formation,

as Keller contends, results in 734.430(a)(3) being

internally consistent because it

lillks the interval at which groundwater sampling will be

performed, the "desired interval," to the portion

of the formation that contains groundwater, the

"zone being monitored." This interpretation also results in the requirements in 734.430(a)(3)

being consistent with the other requirements in subsection 734.430(a).

9 While not an issue in this appeal, it is a well-established geological principle that a reason for placing well screens

at only the desired groundwater interval

is to prevent contaminants in one water bearing unit from being able to

migrate into another and that is likely a basis for the regulation at Section 734.430(a)(3) that the well "be screened to

allow sampling at only the desired interval." For example, at one state Superfund site, the Agency project manager

wanted

to be able to sample both the contaminated upper aquifer and the aquifer beneath it. The Agency caused a

single monitoring well to be installed through the upper aquifer, through the confining layer between the upper

aquifer and

the aquifer below that and into the deeper aquifer. This allowed contaminants to migrate from the upper

contaminated aquifer through the monitoring well into the lower aquifer. Subsequent monitoring at that site

documented that the only contaminated area in the lower aquifer was down gradient

of this monitoring well.

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When the requirements in subsection 734.430(a) are read as a whole, it is clear that

monitoring wells must be screened at the interval where groundwater is found in the formation.

Furthermore, because constructing monitoring wells in conformance with the requirements in

subsection 734.430(a) is intended to allow for the collection

of representative groundwater

samples

so contamination can be detected, a monitoring well's screen must be located to include

the depth at which contaminants in the groundwater would be present. Therefore, the term

"desired interval" must mean the interval

of groundwater in the formation at which

contamination associated with a release is likely

to be present, as Keller contends. When

subsection 734.430(a) is read

as a whole, the Board's holding affirming the Agency's

determination that "desired interval" means the depth at which water is found in a monitoring

well and not in the formation is contrary

to the clear language in the regulation and conflicts with

black letter law governing the interpretation

of regulations. Therefore, it must be overturned.

By affirming the Agency's decision that "desired interval" refers

to the depth at which

water

is found in a monitoring well and not the depth at which groundwater is found in the

formation, the Board has divorced the phrase "desired interval" from the rest

of the regulation

and made the underlying regulation internally inconsistent.

For all these reasons, the Board'sholding that "desired interval" is the static groundwater

level in a monitoring well and the well must be screened at that level violates black letter law

governing regulatory interpretation

and must be overturned.

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2.

The Undisputed Evidence in the Record Show that the Board Incorrectly Held

that the Tenn "Desired Interval" in 35 Ill. Adm. Code 734.430(a)(3) Means the

Depth at Which Groundwater is Found in the Monitoring Well and, Thus, the

Well Must be Screened at that Depth; the Board's Holding is Inconsistent With

and Directly Conflicts with the Evidence in the Record and the Regulations

Governing the Construction

of Monitoring Wells and Would Result in Violations

of Those Regulations.

The Board's holding that the tenn "desired interval" in

35 Ill. Adm. Code 734.430(a)(3)

means the depth at which groundwater is found within a monitoring well and, thus, a monitoring

well's screen must be located at that depth is inconsistent with and directly conflicts with the

regulations concerning the construction

of monitoring wells. Therefore, the Board's Decision

that the Agency's policy requiring monitoring wells to be screened to intersect the level

of water

in the well is not supported by the governing regulations and must be overturned when viewed in

light

of the undisputed evidence contained in the Record.

The undisputed evidence contained in the Record demonstrates that the top

of the

groundwater at the Site is located at a depth

of approximately 10 to 11 feet bgs because that was

the depth at which the fonnation became moist. (R. 90-94) The Record also demonstrates that

groundwater is present at the Site at an interval beginning at approximately 10 to

11 feet bgs and

ending at approximately 13.5 feet bgs because that was the interval in which the fonnation was

moist or wet.

(Id.)

Because groundwater at the Site is present in this interval and to give effect

to each portion

of subsection 734.430(a), the screen for each of the monitoring wells must be

located in this interval and the Record documents that each screen was located at this interval.

(R. 102-106)

Furthennore,

if the monitoring wells at the Site were screened at the depth at which

groundwater was present in the monitoring well as required

by the Board's holding, the

monitoring wells would violate Sections 734.430(a)(4) and (5). According to the undisputed

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facts in the Record, the depth at which water is present in the monitoring wells at the Site ranges

from 2.25 feet below the ground surface in Monitoring Well I to 4.36 feet below the ground

surface in Monitoring Well 3. (R. 102-106) The undisputed evidence in the Record also

demonstrates that groundwater is not located at those depths in the formation. (R. 37, 90-94)

In

other words, the formation at those depths does not contain groundwater that could flow through

well screens into the monitoring wells. Each

of the monitoring well boring logs and the

Geologic Cross Section explicitly document the depths at which the formation was moist and wet

and the depths

of groundwater during drilling across the Site and none of those depths

correspond to the water levels observed in the monitoring wells.

In

fact, the undisputed evidence

in the Record clearly demonstrates that the highest known groundwater level is approximately 10

to

11 feet below the ground surface.

(Id.)

Therefore, if the monitoring wells were to be screened

at the depth

of the water found in the monitoring wells, the annular seal would not extend to the

highest known groundwater level

as required by 734.430(a)(4) because the highest known

groundwater level found in the formation was approximately 5.64 to 7.75 feet lower than the

water level in the monitoring wells.

In addition, 734.430(a)(5) requires the annular space surrounding the well be filled "with

expanding cement grout from an elevation below the frost line

...." According to Mr. St. John's

unrebutted testimony, the frost line at the latitude at which the Site is located is 40 inches, or 3

feet 4 inches. (T. 39) According to the Record, the depth

of water in Monitoring Wells 1 and 5

was 2.25 and 2.7 feet respectively. (R. 102, 106) Therefore,

if the monitoring wells were

screened at those depths, the requirement in 734.430(a)(5) would be violated because the

expanding cement grout could not extend below the frost line.

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Constructing monitoring wells in this manner, though consistent with the Agency's

determination and the Board's holding, would result in violations

of 734.430(a)(4) and (5).

Because the Board's holding would result in monitoring wells at the Site being constructed in

violation

of the regulations, that holding is clearly erroneous. Therefore, the term "desired

interval" in 734.430(a)(3) must refer to the interval at which groundwater is present in the

formation and at which contaminants would be located.

Any interpretation of that phrase that

would result in the desired interval being located at any other depth simply would be inconsistent

with, and directly contrary to, the regulations based on the undisputed evidence contained in the

Record.

3.

The Evidence in the Record Does not Support the Board'sHolding that Requiring

Monitoring Wells to be Screened at the Depth Groundwater is Present in the Well

is Reasonable for Detecting Petroleum Indicator Contaminants Because Those

Contaminants are Lighter Than Groundwater.

To support its affirmation

of the Agency's determination that monitoring wells must be

screened at the elevation of the water in the monitoring well, the Board relied on the Agency's

erroneous claims that such positioning was necessary to detect "petroleum indicator

contaminants, as those contaminants are lighter than the groundwater." (D. 40-41) However, the

Agency's claims and the Board's holding that was based

on those claims ignores undisputed

evidence in the Record.

Keller agrees that

if free-phase petroleum indicator contaminants are present, they will

float on groundwater. However, for free-phase petroleum indicator contaminants to be found

floating on groundwater, groundwater must be present or there will be nothing upon which the

petroleum indicator contaminants could float.

The undisputed evidence in the Record

demonstrates that the top

of the groundwater in the formation is at a depth of no less than

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approximately 10 to 11 feet below the ground surface. (R. 90-94) Therefore, if there were

petroleum indicator contaminants floating

on the groundwater at the Site, they would be located

at approximately 10 to

11 feet below the ground surface.

The Record also is clear that the center

of the 10 foot screen in each of the monitoring

wells is located at a depth of 9.5 feet below the ground surface. (R. 102-106) Therefore, the

screen for each monitoring well extends approximately 5.5 feet above the top

of the groundwater

that was detected in the formation at the time each monitoring well was drilled. Accordingly, if

petroleum indicator contaminants were floating on the groundwater at the Site, the placement of

the screen in each of the groundwater monitoring wells is appropriate to detect those

contaminants.

The Agency's claim that because the top

of the screen is below the depth of the water in

the monitoring wells, they are "submerged" and thus will not detect petroleum indicator

contaminants floating

on the groundwater merely demonstrates the Agency's ignorance of

groundwater movement and sampling in confined aquifers. If the intent is to detect petroleum

indicator contaminants floating on groundwater, the salient facts are (1) the depth at which the

top

of the groundwater is located in the soil formation because that is the depth at which floating

contaminants will be present; (2) the depth of the screen in relation to the depth at which the top

of the groundwater is located in the formation because that will determine if there is a sufficient

amount

of screen above the top of the groundwater for floating contaminants to be detected; and

(3) whether the monitoring well was adequately purged to allow for the collection

of fresh

groundwater from the formation. The ultimate elevation

of the water in the well is simply

irrelevant

to this issue.

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Clearly, if the goal is to detect these floating contaminants as the Agency claims and the

Board agreed, then one does not want the well screen to be submerged

in relation to the depth of

groundwater in the formation

because if it is, contaminants floating at the top of the groundwater

in the formation will not flow into the well and be detected. The undisputed evidence in the

Record clearly demonstrates that

the screens are not submerged when compared to the depth of

the top of the groundwater in the formation at the Site. (R. 90-94, 102-106) In fact, each

monitoring well has more than 5 feet

of screen above that depth.

(Id.)

Therefore, the evidence

in the Record clearly demonstrates that the screens are not submerged when compared to the

groundwater at the Site and are not submerged below the desired groundwater interval.

Furthermore, the fact that the elevation

of the groundwater in the monitoring wells is

above the top

of the screen has no impact on a monitoring well's ability to detect petroleum

indicator contaminants floating on the groundwater. As explained above, any floating petroleum

indicator contaminants will enter the monitoring wells because those wells are screened above

the top

of the groundwater in the formation. Once the groundwater enters the monitoring well,

it, as well as any floating contaminants, will move up the monitoring well until it reaches its

static elevation. Just as the groundwater in the wells rose to elevations that exceed the elevations

at which it was found in the formation, so too will any contaminants floating

on the groundwater.

Therefore, the rationale that submerging the screen in relation to the elevation

of groundwater in

the well will not allow for monitoring

of floating contaminants simply demonstrates the

Agency's fundamental misunderstanding

of groundwater movement and sampling in confined

aquifers.

The Board's Decision also "notes that the administrative record does not include any

detailed discussion

or determination to indicate that site-specific conditions warrant the location

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of the well screen below the static water level in the monitoring wells." (D. 41) The Board's

note is wrong for at least two reasons.

First, as discussed above, the static water level in the monitoring wells is irrelevant to the

question

of where the screens should be placed. They must be placed at a depth which allows for

groundwater sampling and that depth is the interval at which groundwater is present in the

formation and at which contaminants would be located. The static water level in the monitoring

wells simply has nothing to do with the elevation

of the groundwater in a fonnation or the proper

location

of a monitoring well's screen. In fact, its only function under the monitoring well

construction regulations is "to determine the gradient

of the groundwater table." 35 Ill. Adm.

Code 734.430(c).

Second, the Record is replete with undisputed facts documenting

why the screens are

placed at their individual depths. The screens are centered at a depth

of 9.5 feet below the

ground surface. (R. 102-106) Groundwater was detected at the Site at a depth

of approximately

10 to 11 feet below the ground surface. (R. 90-94, 102-106) The bottom of the screen in each of

the monitoring wells is located at approximately 14.5 feet below the ground surface. (R. 102-

106) Because 10 foot screens

10

were used for each of the monitoring wells, the screens extend

from a depth

of 4.5 to 14.5 feet below the ground surface.

(Id.)

The interval at which

groundwater is present at the Site extends from a depth

of approximately 10 to 11 feet below the

ground surface to a depth

of approximately 13.5 feet below the ground surface. (R. 90-94, 102-

106) Therefore, the screens are located throughout the entire interval in which groundwater was

detected in the fomlation and extend above that interval

by approximately 5 feet to account for

10

The Agency generally mandates the use of 10 foot screens. (R. 253)

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fluctuations in groundwater depth over time thereby allowing any floating contaminants to be

detected.

As such, the Board'snote is not supported by the facts in the Record and is erroneous.

4.

The Board's Holding is Contrary to Accepted Principles of Professional Geology

and, Therefore, is not in Accordance With

35 Ill. Adm. Code 734.510(a).

Illinois' petroleum underground storage tank regulations contain specific requirements

conceming the Agency's standard

of review for plans, budgets, and reports. According to 35 Ill.

Adm. Code 734.510(a):

A technical review must consist

of a detailed review of the steps

proposed or completed

to accomplish the goals of the plan and to

achieve compliance with the Act and regulations. Items to be

reviewed,

if applicable, must include, but not be limited to, number

and placement

of wells and borings, number and types of samples

and analysis, results

of sample analysis, and protocols to be

followed in making determinations.

The overall goal of the

technical review for plans must be to

determine if the plan is

sufficient to satisfy the requirements of the Act and regulations

and has been prepared in accordance with generally accepted

engineering practices

or principles of professional geology.

The overall goal of the technical review for reports must be to

determine if the plan has been fully implemented in

accordance with generally accepted engineering practices

or

principles of professional geology, if the conclusions are

consistent with the information obtained while implementing

the plan,

and if the requirements of the Act and regulations

have been satisfied.

(emphasis added). Therefore, the Agency's review

of Keller's submissions and the Board's

Decision must be consistent with the regulations

and generally accepted professional

engineering practices and principles

of professional geology. As discussed above, the portion of

the Decision concurring with the Agency's position conceming "desired interval" conflicts with

the regulations while Keller's position is consistent and in compliance with the regulations. As

such, Keller's monitoring wells were installed in conformance with the regulations. They also

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were installed in confonnance with generally accepted engineering practices or principles of

professional geology.

During the hearing, Keller presented the testimony

of two professional geologists and

two professional engineers. They testified that Keller's monitoring wells were constructed in

accordance with generally accepted engineering practices and principles

of professional geology.

(T. 11-12, 58-59, 87, 126, 175) Because the Agency offered absolutely no testimony on this

issue during the hearing, the testimony of these witnesses is the only evidence in the Record

before the Board and that evidence establishes that the monitoring wells at issue were

constructed pursuant to generally accepted engineering practices and principles

of professional

geology.

The Record demonstrates, and Ms. Rowe and Mr. St. John testified, that the moist layer

begins at a depth of about 10 feet below the ground surface and becomes saturated at 12 to 13.5

feet below the ground surface. (T. 81, 97;

R. 90-94) There is no evidence in the Record that

indicates and the Agency presented no evidence that groundwater exists at the Site at any

shallower depth.

As such, the desired interval for sampling groundwater at the Site is the wet sand seam

(T. 97), which is located at

12 to 13.5 feet below the ground surface. (R. 90-94)

In

addition, the

moist foot and one

half above that may have produced some water as well. (T. 97) This wet

sand seam is the water bearing unit of interest because it is the one located closest to the surface

and the one most likely to become contaminated

by releases from underground storage tanks.

(R. 90-94) The wet sand seam and moist zone above it were screened so they could be sampled

(T. 81, 88-91, 121; R. 102-106) and the Agency never presented any evidence to support its

erroneous claim that the desired interval is located anywhere else.

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Although the Agency produced no witnesses to explain what the Agency believes

regarding the location

of the water producing zone at the Site, it appears from the Agency's

May 17, 2007 Letter (the wells must be screened at the level of the water in the well) (R. 258),

that the Agency believes that at a confined aquifer site, which is what exists here (T. 29-30),

water can enter through a well screen located at the same elevation as the static water level in the

well. The Agency ignores the fact that the evidence in the Record shows that the clayey silt is

not wet

or even moist at the same elevation as the static water level, which is the level of the

groundwater in the wells. (R. 90-94, 102-106) As shown above, the static water level is

between 2.25 and 4.36 feet below the ground surface and at least 5 feet above the saturated zone.

The borehole logs do not indicate wet

or even moist conditions in the formation at that depth.

(Id.)

The Agency provided no evidence to show that groundwater is present in the formation at

the Site at the level to which groundwater rose in the wells. If groundwater is not present in the

formation at that depth, it cannot enter the well at that level through the well screen.

In summary, screening the wells at the level

of the water in the wells will not result in

water entering the well at that level because water is not present at that level at the Site. The

Agency's policy that the monitoring wells should have been screened at the level

of the

groundwater in the wells and the Board's holding affirming that policy are clearly erroneous,

against the manifest weight

of the evidence, contrary to generally accepted professional

engineering practices and principles

of professional geology, and at sites like Keller's would

result in a violation

of Board regulations.

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5.

The Undisputed Evidence in the Record Clearly Demonstrates that Groundwater

at the Site is Under Confined Conditions.

The Decision also takes Keller to task because it "did not substantiate its claims [that

groundwater at the Site is under confined conditions] with a detailed analysis of the Site's

hydrology to show that groundwater encountered at the site is present under confined

conditions." (D. 42) (bracketed material added).ll

It

is true that the August 2006 Stage II Site

Investigation Plan and the January 2007 Stage II Site Investigation Plan and Budget-Additional

Information and Reconsideration documents might not use the words "confined condition."

However, they both contain

su~ficient

information for anyone with even a marginal

understanding of geology or hydrogeology to understand that the location of groundwater in the

ground and the level to which groundwater rises in the monitoring wells due to hydrostatic

pressure are two different elevations. This is evidence that groundwater at the Site is under

confined conditions. Even

if someone is not familiar with the term "confined aquifer" or

"miesian aquifer," the Record clearly demonstrates that the location of groundwater in the

formation is several feet below the level where groundwater is located in the monitoring wells.

Thus, while this condition meets the definition

of "confined aquifer" whether that tern1 is used or

not is irrelevant

to the basic principle that the well must be screened at the interval where

groundwater is located in the ground so that groundwater can flow into the monitoring well and a

representative groundwater sample can be collected.

A "confined aquifer" is defined

as "[a]n aquifer that is bounded above and below by

confining beds;

an aquifer containing

confined ground water."

(Ex. 4 at 40) (emphasis in

original). A "confining bed" is defined

as "[a] body of distinctly less permeable material that is

II

No such detailed analysis is required by the regulations.

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stratigraphically adjacent to one or more aquifers.

In

nature, its hydraulic conductivity may

range from nearly zero to any value that is distinctly less than that

of the aquifer."

(Id.)

"Confined groundwater" is defined as "[g]round water under pressure significantly greater than

that

of the atmosphere. Its upper surface is the bottom of a confining bed."

(Id.)

Also, Mr. St.

John testified at the hearing that "[b]y definition a confined aquifer is an aquifer that exhibits a

static water level

above

the upper surface

of the aquifer." (T. 30) (emphasis added).

What information is in the Record that demonstrates the aquifer at the Site is confined?

First, the Geologic Cross Section in the August 2006 Site Investigation Plan shows the location

of the top of the groundwater during drilling as at the bottom of the silty clay layer in the

formation and above the underlying clayey silt layer and sand layer. (R. 37) Second, the drilling

borehole logs for Monitoring Wells 1 through 5 document that the depth to the top of the

groundwater

is between 10 and 11 feet below the ground surface; the formation became moist at

approximately 10 feet below the ground surface; the formation was wet

to a depth of

approximately 13.5 feet below the ground surface; and the formation was dry at approximately

14 feet below the ground surface. (R. 91-94) Therefore, the aquifer at the Site is located

between the depths of approximately 10 to 11 feet below the ground surface and 12 to 13.5 feet

below the ground surface. Third, the LUST Well Completion Reports document that the depth

to groundwater during drilling was approximately

10 to 11 feet but the static water levels in the

monitoring wells ranged from 2.25 feet below the ground surface in Monitoring Well 1 to 4.36

feet below the ground surface in Monitoring Well 3. Therefore, the static water levels clearly are

above

the upper surface

of the aquifer. (R. 102-106) Fourth, in response to the Agency's

comment concerning the depth at which the monitoring wells were screened, Keller responded as

follows:

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Well screens were set at the groundwater table encountered at

drilling.

The moisture in the soil in [sic] indicative

to the

groundwater table, which was encountered around ten to eleven

feet. The well screens are then placed

so that there is room for

seasonal fluctuation and still produce in the well stem. Due

to the

hydro-static pressure or hydraulic head

of the formation, the

isostatic water levels rose in the monitoring wells.

This is

described

by the Potentiometric Surface, which is the surface that

represents the level

to which water will rise in tightly cased wells.

(R. 173) "Potentiometric surface" is defined as "[a]n imaginary surface representing the total

head

of ground water and defined by the level to which water will rise in a tightly cased well."

(Ex.

4, p. 156) (Emphasis added) In other words, Keller told the Agency that the well screens

were set

to intersect the wet sand layer where groundwater was found when the wells were

drilled and the well screens extended above that level in case the groundwater level changed due

to seasonable fluctuations. Because there was pressure on the groundwater (hydraulic head or

hydrostatic pressure) that pressure pushed groundwater from the wet sand layer

up the

monitoring well until the water level in the well stabilized, which was several feet above where

the groundwater was actually located in the ground. The stabilized water level in the well is

referred

to as the static (or isostatic) water level (or elevation). This isostatic water level in the

wells indicates the potentiometric surface. Thus, Keller did explain in the Record using geologic

terminology why the saturated zone and the static water level are at two different levels and that

the groundwater was under confined conditions. Apparently, the Agency project manager did

not understand this explanation because she does not have even a modest understanding

of

hydrogeology.

Based on the undisputed fact that the static water level in the monitoring wells was well

above the depth at which groundwater was found when the wells were drilled, only one

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conclusion can be reached - the groundwater is under confined conditions.

12

And the Record

clearly supports that conclusion.

6.

The Board Erroneously Concluded that the Results of the Hydraulic Conductivity

Tests are Consistent with the Silty Clay Unit Being the Groundwater-Producing

Layer.

As an initial matter, the hydraulic conductivity tests were not raised

by the Agency in its

May 17, 2007 letter that was the basis for Keller's appeal. (R. 256-63) Therefore, information

regarding hydraulic conductivity was not properly before the Board. Despite that fact, the

Board's Decision agreed with the Agency that "the results

of the hydraulic conductivity tests are

consistent with the silty clay unit being the groundwater-producing layer." (D. 42) This

conclusion is erroneous based on the Record. In fact, the Agency misrepresented in its post-

hearing brief that the Record at R. 13 demonstrated that the silty clay layer was a water

producing unit. The Board adopted this argument in its Decision, apparently, without reviewing

page

13 of the Record. Nowhere on R. 13 is it stated or otherwise indicated that the upper silty

clay layer is a water bearing unit. (A copy ofR. 13 is contained in Appendix C)

As previously discussed in detail, before a layer can be groundwater-producing,

groundwater must be present in that.layer. The depth at which groundwater is present at the Site

is in the interval beginning at approximately

10 to II feet below the ground surface and

extending downward to a depth of approximately 13.5 feet below the ground surface. (R. 90-94,

102-106) This interval consists of the bottom of the silty clay layer and extends down through

the sand layer. (R. 37, 90-94) These layers are the groundwater-producing layers because they

are the layers at which groundwater is located at the Site.

12 Frankly, Keller is mystified how the Agency could review these facts and not reach the technical conclusion that

groundwater at the Site

is in a confined condition but instead conclude that these facts demonstrate that the wells

should have been screened at a depth that is well above the top of the groundwater.

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Regarding the hydraulic conductivity results, Keller does not dispute that the results

range from a high

of 1.31x10-

6

em/sec to 9.61x10-

7

em/sec. (R. 229-30) What Keller does

dispute is that these results are indicative

of a groundwater-producing unit.

Using the hydraulic conductivity result

of 1.31x10-

6

em/sec, which is the hydraulic

conductivity that represents the most rapid movement

of water through the formation as

determined at the Site, groundwater movement would be 1.31 cm/1,000,000 sec., or 0.00000131,

centimeters per second. Given that there are 2.54 centimeters in an inch,

12 inches in a foot, and

31,536,000 seconds in a year, the rate

of groundwater movement at a hydraulic conductivity

measurement

of 1.31x10-6 em/sec equates to 1.4 feet per year. As Mr. St. John testified, the

definition

of a Class 1 aquifer in Illinois includes a hydraulic conductivity of approximately 1 x

10-

4

centimeters per second, which is 1 em per 10,000 sec., or greater. (T. 16) A class 1 aquifer

is defined in Illinois' groundwater regulations

as "any geologic material which is capable of a ...

hydraulic conductivity of 1 times 10-4 centimeters per second or greater." 35 Ill. Admin. Code

620.210. Therefore, a Class 1 aquifer has a hydraulic conductivity that is at least 100 times

greater than the hydraulic conductivity at this Site. To put it another way, the hazardous waste

regulations require that the bottom component

of the bottom liner for a hazardous waste landfill

must have a hydraulic conductivity

of no more than 1 X 10-

7

em/sec. (l cmIlO,OOO,OOO sec.) 35

Ill. Adm. Code 724.401(c)(l)(A)(ii). As such, the hydraulic conductivity results for the Site are

nearly

as impermeable as a hazardous waste landfill liner. No one would contend that the

bottom liner for a hazardous waste landfill is a groundwater-producing layer simply because it

has a hydraulic conductivity that is approximately the same as the hydraulic conductivity at the

Site.

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Furthermore, the Record shows that the hydraulic conductivity calculations were based

on the total well depth, screen length and radius, initial water depth and the water depth change

over time.

(R. 13) Here, the 10 foot well screens spanned not only the moist and wet zones

which extended from about

10 to 13.5 feet below the surface of the ground, they also extended

into the dry layer above that interval. Thus, the hydraulic conductivity test results were in a

sense a mixture

of the various layers of sand and clayey silt that were screened. (T. 79-80) As

such, the hydraulic conductivity test results

do not demonstrate that the silty clay unit is the

groundwater-producing layer. They merely show that water can move through the entire

formation but only at an extremely slow rate. Any claims

by the Agency that the hydraulic

conductivity tests shows that the upper silty clay layer is the water bearing unit misstates

infOlmation in the Record and demonstrates the Agency's lack

of knowledge about geology.

7.

Both the Record and Newly Discovered Evidence Demonstrates that the Board is

Incorrect by Stating "Even if the Well Screen Was Raised Above the Static Water

Level, the Well Screen Interval

of 10 Feet Would Have Provided Adeguate

Screen Interval Below the Surface for Collection

of Groundwater Samples"; The

Board'sHolding Would Also Result in Violations

of35 Ill. Adm. Code 734.430.

Finally, the Board stated in its Decision that "even

if the well screens were raised above

the static water levels, the well screen interval

of 10 feet would have provided adequate screen

interval below the surface for collection

of groundwater samples." (D. 42) If Keller were to

construct monitoring wells in a manner that complied with this statement, the wells would

violate

35 Ill. Adm. Code 734.430.

Raising the screens above the elevation

of the static water level would violate two

provisions

of Section 734.430 even if it physically could be done. First, if the well screens were

raised above the static water levels, Section 734.430(a)(5) would be violated because the annular

space surrounding the well could not be filled with expanding cement grout

to an elevation

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below the frost line as discussed above. Second, subsection 734.430(c) requires the static

groundwater elevations

to be detennined

after

the well is constructed. However, well screens

must be set

during

construction to intersect the desired groundwater interval, so the desired

interval can be sampled.

35 Ill. Adm. Code 734.430(a)(3). Moreover, it is impossible to know

what the static water level will be during construction

of a monitoring well. (T. 32-33)

Typically, static water levels are detennined days after a well is constructed and developed.

Further, once a well is constructed, it is impossible

to move the screen in a well to a new

elevation. Thus, it is impossible

to always be able to screen a well at the elevation of the static

water level because one does not know where the static water level is until days after the well is

constructed.

In addition, a well screen interval of 10 feet that began above the static water levels

would not transect the groundwater interval present at the Site and such a requirement is

unsupported by the undisputed evidence contained in the Record. According

to the Record, the

groundwater interval ranges from approximately

10 to 11 feet below the ground surface to

approximately 13.5 feet below the groundwater surface. (R. 90-94, 102-106) Furthennore, the

highest static water elevation observed at the site based on evidence in the Record was only 2.25

feet below the ground surface. (R. 102) Therefore, simple mathematics demonstrates that

placing the top

of the well screen at or above 2.25 feet below the ground surface would result in

the bottom

of the screen being located at not more than 12.25 feet below the ground surface

which is above the bottom

of the groundwater interval. Placing a screen in that manner would

not allow for the collection

of representative groundwater samples as required by 734.430(a)(1).

Finally, in an effort

to satisfy the Board's Decision and the Agency's erroneous position

that the wells not be drilled below 10 feet while ensuring that the well complied with the

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requirement

III

Section 734.430(a)(5) that the well be grouted below the frost line, Keller

installed a new monitoring well, MW-2A on December

6, 2007.

(See

attached report,

Appendix

A.) MW-2A is located in close proximity to Monitoring Well 2. MW-2A was

tenninated at a depth

of 10 feet according to the Agency's position and was screened with 6 feet

of screen to allow for the placement of expanding cement grout at an elevation below the frost

line. No water was detected in MW-2A on December

13, 2007 even though the elevation of the

water in Monitoring Well 2 was

1.8 feet on that same date. These newly discovered facts

confinn the evidence in the Record by demonstrating that the groundwater interval begins at

approximately

10 feet but extends downward for another 3.5 feet and that groundwater will not

enter a monitoring well that is not screened in that groundwater interval.

(R. 173; T. 36-37,

49-50, 95-96) As such, these newly discovered facts also disprove the Agency'sincorrect belief

that such a well would allow for the collection

of groundwater samples.

These newly discovered facts also demonstrate that requiring a monitoring well

to be

screened at or above the static groundwater elevation in the well is impossible. As demonstrated

by the Record, the static groundwater elevation in Monitoring Well 2 was 3.43 feet below the

ground surface shortly after it was'installed on July

12, 2006. (R. 103) However, the static

groundwater elevation in Monitoring Well 2 was at a depth

of 1.8 feet below the ground surface

in December, 2007. Yet the soil was dry at that depth when MW-2A was drilled.

(See

Appendix A borehole log) Based on this infonnation and to comply with the Board's holding

that the monitoring well's screen

must be located at the depth of the static groundwater elevation,

the well would have

to be constructed in a manner that would allow the screen to be moved as

the static groundwater elevation changed over time. Moving a well screen simply is impossible

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after the well has been constructed because 734.430(a)(5) requires the annular space around the

monitoring well to be filled with expanding concrete grout which prevents the well from moving.

Furthermore, because 734.430(a)(4) requires the annular space around the well to be

sealed to the elevation of the highest known seasonal groundwater level, moving the well screen

to a new depth (assuming that were possible) based on the static groundwater level in the well

would result in the well screen being sealed in relation to the formation at that new depth. This

would result in a violation

of 734.430(a)(7) requiring that the well allow free entry of

groundwater because the seal would prevent the entry of any material, including groundwater if

it were present. On the other hand, if the well screen extended above the static water level at 1.8

feet bgs to allow petroleum contaminants floating on the groundwater to enter the well,

subsection 734.430(a)(4) would be violated because the well would not be sealed "in order to

prevent contamination of groundwater samples and groundwater and to avoid interconnections."

In other words, contamination from surface spills could enter the well. The undisputed evidence

in the Record clearly demonstrates groundwater simply is not present in the fonnation at the

depths that correspond to the static groundwater levels in the monitoring wells and,

if the wells

were constructed

as the Agency and Board direct, numerous regulations would be violated.

8.

The Board Should Reconsider its Denial of Keller's Request for Attorney Fees

and Grant a Portion of Those Fees Consistent With Those Issues on Which Keller

Prevailed.

The Board should also reconsider its rej ection

of Keller's request for attorneys fees and

costs,

as its decision was premature. In support of its ruling, the Board cited and summarized the

case

of

Webb

&

Sons, Inc.

v.

IEPA,

PCB 07-24 (May 3, 2007).

(See

D. 47) Procedurally, the

Webb

case was before the Board on the petitioner's supplemental brief in support of

reimbursement of petitioner's legal fees, in which the petitioner presented its case for why it was

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entitled to its fees and costs related to its UST appeal.

Webb

&

Sons,

PCB 07-24, slip op. at 2.

On consideration of that supplemental brief that detailed the petitioner's fees and costs, the

Board was able to determine that

45 percent of the fees and costs were recoverable because that

percentage

of the fees and costs were related to the petitioner's success in its appeal.

Id.

at 5.

Similarly, in

Ayers v. IEPA,

PCB 03-214, slip op. at 1 (Aug. 5, 2004), the Board allowed the

petitioner to seek attorneys fees and costs related

to its appeal in which the requested relief was

granted in part and denied in pmi by a previous order. In that case, the Board ultimately decided

to grant the request for reimbursement

oflegal fees.

Id.

at 9.

In the instant case, the Board prematurely denied Keller's request for attorneys fees and

costs. In both the

Webb

&

Sons

and

Ayers

cases, the Board granted in part and denied in part the

underlying reliefrequested by the petitioners.

Webb

&

Sons,

PCB 07-24, slip op. at 1-2;

Ayers

v.

IEPA,

PCB 03-214, slip op. at 1. Because the relief sought by those petitioners was not granted

or denied in total, the petitioners were allowed to brief the issue

of what fees and costs they were

entitled to for only obtaining partial success in their appeals.

Id.

Similar to those cases, Keller

has prevailed in part in this case as to the Agency's determinations regarding sampling soil

borings from monitoring wells MW-1, MW-2, and MW-4 and performing additional sampling

near SB-5. (the "Prevailing Issues").

(See

D. 48) Consistent with the

Webb

&

Sons

and

Ayers

cases, Keller should now be allowed to file a brief on the issue of what fees and costs Keller is

entitled to related to the Prevailing Issues. Instead, the Board has prematurely denied Keller its

right to outline the exact fees and costs related to the Prevailing Issues. The Board should

reconsider its ruling on Keller's request for attorneys fees and costs, and allow Keller to submit a

brief specifying the fees and costs that were incurred related to the Prevailing Issues.

Furthern10re, if Keller prevails on the issues that are the subject of Keller's Motion to

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Reconsider, Keller should also be allowed to submit a brief regarding the costs and fees related

to the issues in its Motion to Reconsider.

SUMMARY

The Record clearly demonstrates and Keller's witnesses testified at hearing that Keller's

monitoring wells were properly constructed to intersect the desired interval for sampling

as

required by the Board's regulations. The evidence shows that desired interval of groundwater is

the saturated zone located in the formation beneath the ground surface at a depth

of 12 to 13.5

feet which is indicated on the borehole logs in the Record as wet sand. In addition because the

moist layer that started at

10 to 11 feet below ground surface might be capable of producing

groundwater, the

10 foot well screens were placed so the center of the screens were located at 9.5

feet bgs. Accordingly, the well screens ran from 4.5 to 14.5 feet bgs. Since groundwater was

located

at least 10 feet bgs, if petroleum contaminants were floating on the groundwater, the

monitoring wells were screened to allow the groundwater

as well as the petroleum contaminants

to enter the wells.

The Agency presented no evidence

to support its erroneous claim, that the Board also

adopted

in its holding, that the wells should be screened where the water is observed in the wells,

which was between 2.25 feet at

MW-l to 4.36 feet at MW-3. The Record clearly shows that the

formation surrounding the wells at those elevations is dry. The Agency presented no evidence

to

explain how water or contaminants floating on groundwater could enter wells through well

screens

if groundwater is not there.

In

other words, groundwater must be present in the

formation in order for groundwater

to flow into a well.

Nor did the Agency explain how a well could be screened at a level that cannot be

observed until after the well is constructed and the screen is placed. The Agency's positions defy

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logic and clearly demonstrate the Agency's misunderstanding of geology, which is unfortunate

because the regulations at Section 734.51

O(a) require the Agency's technical review to include

generally accepted engineering practices or principles

of professional geology. Instead, the

Record demonstrates that the Agency does not understand such principles and practices.

Further, as demonstrated in the Agency comments and briefs, the Agency, or at least the

project manager, does not understand the concept

of hydraulic conductivity. The Agency claims

that soil with a hydraulic conductivity similar

to the Board's requirements for a liner at a

hazardous waste landfill is a water bearing unit. Just because the tenn "hydraulic conductivity"

is used does not mean a unit is water bearing. The tenn is merely a measure

of the ability by

which water can move through that unit. In some cases, such

as the silty clay layer, water does

not move very well and would take more than a year

to travel one foot.

The Agency's claims that the Record does not support Keller's position is obviously due

to the Agency's ignorance of the science and engineering that the Agency is charged with

overseeing on a day to day basis.

If the Agency had the competence necessary to perform a

review in accordance with Section 734.510, the Agency would have concluded that the

monitoring wells were installed

to intersect the desired interval. In fact, Mr. St. John, a

hydrogeologist whose knowledge

of the Site was limited to the infonnation in the Record

concluded that the wells were properly installed and did intersect the desired interval and that

representative groundwater samples could be collected.

The Agency's ignorance

of geology and the regulatory requirements IS further

demonstrated

by the Agency's demands that monitoring wells be constructed in a manner that

would violate numerous provisions

of the Board's regulations and not be in accordance with

generally accepted engineering practices or principles

of professional geology.

[This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202]

54

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

To summarize, Keller has demonstrated through evidence in the Record and explanations

of that evidence at hearing that the desired interval for sampling is the saturated layer located 10

to 13.5 feet bgs. The Agency presented no evidence to the contrary. When a petitioner presents

a

prima facie

case on an issue, the burden then shifts to the Agency to present some

evidence

to

dispute the issue.

John Sexton Contractors Co.

v.

PCB,

201 Ill. App. 3d 415, 425,558 N.E.2d

1222, 1229

(1 st Dist. 1990) ("Once Sexton had established a

prima facie

case that the [permit]

conditions were unnecessary, it became incumbent upon the Agency to refute the

prima facie

case.");

Marathon Petroleum Co.

v.

IEPA,

PCB No. 88-179, p. 16 (July 27, 1989) (Petitioner

prevailed on monitoring and reporting issue where it presented evidence

to support issue, and

IEPA" did not refute this

prima facie

case.");

IEPA

v.

Bliss,

PCB No. 83-17, pp. 6-7 (Aug. 2,

1984). Indeed,

if a petitioner submits evidence and proves a

prima facie

case, and IEPA presents

no evidence

to dispute the issue, there is no issue of fact that petitioner is entitled to prevail on

the undisputed issue.

Id.

Keller/Farina proved its case. The Agency presented no credible or

other

evidence

to rebut Keller's case, only unsupported arguments. Thus, Keller should prevail.

Because some

of these issues may be new to the Board and because it appears to Keller

that the Board did not review the entire Record and may not have understood the technical

issues, Keller is requesting oral argument before all the Board members

so that Keller can

respond

to questions from the Board. The oral argument may be scheduled at a time convenient

to the Board, such

as in conjunction with a regularly scheduled Board meeting.

[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.202]

55

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

CONCLUSION

Because the Board's Decision is contrary to the underlying regulations, contrary to

Illinois case law goveming the interpretation of regulations, contrary to the undisputed evidence

contained in the Record, and is not supported

by Keller's newly discovered evidence, the holding

that Keller did not construct monitoring wells in a mamler that allows for sampling at only the

desired interval must be overtumed. In addition, the Board's holding that Keller must submit an

amended Stage 2 Site Investigation Plan and Budget consistent with the terms

of the Decision

must be overtumed for the same reasons. Further, Keller should be awarded fees and costs for

those issues where Keller prevailed.

[This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202J

56

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

CONCLUSION

Because the Board's Decision is contrary to the underlying regulations, contrary to

Illinois case law governing the interpretation

of regulations, contrary to the undisputed evidence

contained in the Record, and is not supported by Keller's newly discovered evidence, the holding

that Keller did not construct monitoring wells in a manner that allows for sampling at only the

desired interval must be overturned. In addition, the Board'sholding that Keller must submit an

amended Stage 2 Site Investigation Plan and Budget consistent with the terms

of the Decision

must be overturned for the same reasons. Further, Keller should be awarded fees and costs for

those issues where Keller prevailed.

Respectfully submitted,

L.

Keller Oil Properties (Farina)

By:

~~

ElfYAASL

Carolyn S. Hesse, Esq.

Jonathan P. Froemel, Esq.

David T. Ballard, Esq.

Barnes

&

Thornburg

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

CHDSOI CSH 442934vl

[This filing submitted on recycled paper as defined

in

35 III. Adm. Code 101.2021

56

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

APPENDIX A

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

Phone~

(217) 322-8001

Fax:

(217)

522~

~~l-W-.

~U~G-. ~··~-ve-nu-e

°1

Springfteld, IL 62704

I

Environmelltal ConsuItingSerVices

January 10, 2008

REPORT ON CONSTRUCTION OF 1\nV-2A

RE:

LPC #0514155011-Fayette County

FarinafL. Keller Oil Properties, Inc. (Farina 711)

1003 West Washington Avenue

Incident Numbers: 2005-1539

&

2006-0153

LUST

Technical Reports-Amended Sta.ge 1 Site Investigation

Following the decision of the Illinois Pollution Control Board (IPCB) on December 6,

2007,

CW:JM personnel were mobilized to the site on December 11, 2007 in order to

install

an additional monitoring well for Stage 1 site investigation. This was deemed

required

as the IPCB determined that "Keller did not construct the wells in a manner

that allows for sampling only at the desired

interval." The Board disagreed with Keller

that the desired interval was the moist and wet zone between 10 and

13 V2 feet below

ground surface. The plan was to install wells per the project manager's review notes

and comments, which the IPCB affirmed. The pertinent items are as follows from the

administrative record:

•

Pages 149 and 250

-- 10 feet would be the proper placement for the bottom of

the borehole.

• Page 253

- The Agency reqUires at least a 10 foot screen, even though this

requirement

isnol specified in the rules,

•

Page 258 - In citing the regulations, at Section 734.430(a)(5) the Agency states.

that the annular space

must be backfilled with expanding cement grout from an

elevation below the frost line.

All three

of these items cannot be accomplished simultaneously. Using a ten foot well

screen with a borehole that ends at

10 feet cannot be sealed below the frost line.

Therefore, in attempting to install wells where

the Agency (affirmed by the Board)

states is appropriate, a borehole was drilled to

10 feet below ground surface with a 6

foot well screen in order

to seal the well below the frost line.

MW-2A was installed on December 11,2007,

14lf2

feet to the north ofMW-2. The

boring log, Well Completion

Report and a map shOWing its location are attached. As

it

was installed near MW-2, the soils were similar to those found at MW-2. The soils

were mostly dry with moisture beginning to

be noticed at the very bottom of the

borehole. Therefore, the well was set at 10 feet. Water did not produce on the day of

installation. Therefore. no other wells were set, in order to avoid the possibility of

multiple dry wells.

70 I W. South Grand Avenue

Springfield. IL 62704

(217)

522~8001

400 West Jackson, Suite C

M.arion. IL 62959

(618)

997-2238

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

CW

3

M personnel returned to the site on December 13, 2007 in order to survey the

newly installed monitoring well and determine if

it had yet produced groundwater.

MW-2A remained dry upon inspection. It should be noted that it was within two days,

after the initial drilling, that static water elevations were measured in the original wells.

As a point

of reference, and

in

order to determine whether groundwater levels had

dropped,

MW-2 was checked. Groundwater was measured at 1.8 feet deep

in

that well

as a result

of the hydraulic head on the wet sand layer pushing groundwater up into

MW-2, as explained in the hearing transcripts, page 18.

This

information that was obtained during and after construction of MW-2A documents

that our position is correct. The desired interval that must be screened in a monitoring

well in order to coUect a representative groundwater sample at the Farina site

is the wet

sand layer and moist layer that are located between

10 and

13

1

/2

feet below ground

surface. This information also reinforces the point all along that CW

3

M, with a licensed

professional geologist has been stating, and that was confIrmed during the hearing by

an additional professional expert not employed by CW

3

M. That water is entering the

wells at the site between 10 and

13th feet below land surface, and the hydrostatic

pressure

of the confined aquifer that is located there is pushing the static water

elevations in the wells above the tops

of the well screens. Representative groundwater

samples can be collected by properly purging the water

levels

in

the wells down to the

level where the water is entering the well and then collecting the samples

of fresh

groundwater

as it flows into the well. This is the only method by which sampling at the

"desired interval" can occur at this site.

I certify under penalty of law that all activities iliat are the subject of this plan were conducted under my

supervision or were conducted under the supervision of another Licensed Professional Engineer or

Licensed Professional Geologist and reviewed by

me;

that

this

plan and all attachments were prepared

under my supervision; that, to the best of my knOWledge and belief, the work described in this plan has

been completed in accordance with the Environmental Protection Act [415 lLCS 5), 35 Ill. Adm. Code

734, and

generally

accepted standards

and

practices of

my

profession; and that the information presented

is accurate and complete.

I

am aware there are significant penalties for submitting false statements or

representations to the Illinois EPA, including but not limited to flnes, imprisonment, or boili as provided

in Sections 44 and 57.17 of the Environmental Protection Act [415 lLCS 5/44 and 57. 17].

Licensed Pr.ofessional Engineer or Geologist

Name: Vince E. Smith

Company: CWM Company. Inc.

Address: 701

South Grand

Ave. West

City: Springfield

State: Illinois

Zip

Code:.-=.:62=..:.7~04.:.-.

_

Phone: (217) 522-8001

Ill. Registration No.

:",,6~2~-4..:.;6:.:;1-=-18=--

_

L!cense

Expir)'!.ti9~te:

~1l!30J2009.

Signature:

-K-.:£~

Date:

;'Z"o/O£

I:IK05.1539/Appel1llBoard

Recon2.doc

L.P.E. or LoP.G. Seal

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

~

Illinois Environmental Protection Agency

CW[QJM COMPANY, INC.

DRILLING BOREHOLE LOG

Page 1 of 1

LUST INCIDENT #: 05-0153/06-0153

BOREHOLE NUMBER: MW-2A

SITE NAME: Keller Oil Company, Inc./Farina

711

BORING LOCATION:

14.5'N or MW-2

SITE ADDRESS: 157

&

IL Rt. 185

Farina. Il1inois

RIG TYPE:

Longyear Truck-Mount

DATEfIIME STARTED:

12/11/07 1:45 PM

DRILLING/SAMPLE METHOD: Hollow Stem Augers/5' Cont. Sampler

DATEfIIME FINISHED: 12/11/07 2:25 PM

BACKFILL: N/A- Set Well

DEPTH

SOIL

AND ROCK

USCS

Sample

PID

Sample

SAMPLE

REMARKS: (Odor, Color,

(FEET)

DESCRIPTION

CLASS

Recovery

(ppm)

Tvpe

NUMBER

Moisture, Penetrometer, etc.)

0

Asphalt/gravel subbase

GP

No odor or discoloration

1

-

-

throughout

2

Brown siltloam

ML

-

90%

0.0

grab

MW2-2.5'

3

Brown clayey silt

ML

-

-

4

-

-

5

-

stiffens

6

-

-

-

7

Grey silty clay till

wi

some poorly-sorted sand

CL

100%

-

8

&

very small pebbles, stiff

0.0

grab

MW2-7.5'

-

-

9

-

10

-

moist

-

End of boring

11

-

-

12

-

-

14

13

--

-

-

15

Stratification lines are approximate, in-situ transition between soil types may be gradual.

NOTES: No soil samples because they were already taken immediately adjacent to this location at MW-2.

Manwav

I

Surface Elevation:

100.31

T

Groundwater Depth While DriIlin2:

-10'

AU2er Depth:

10'

Driller:

CW

3

M

V

Groundwater Depth After Drilline:

Rotary Depth:

Geoloeist:

JRW

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

Illinois Environmental Protection Agency

LUST Well Completion Report

Incident No.

Site

Name

Drilling Contractor

Driller

Drilling

Method

05-1539/06-0153

Farina

711

Hollow stem auger

Well No.

Date Drilled

Date

Completed

Geologist

Drilling Fluids

MW-2A

12/11/07

12/11/07

JRW

N/A

Annular Space Details

Well Construction Materials

Riser Pipe Length

4.25 ft.

Screen Length

6.0 ft.

Screen Slot Size

10-slot

Protective Casing Length

N/A

Depth to Water

-10 while drilling

Depth to Water

Dry -- static

Free Product Thickness

N/A

Gallons removed (develop)

Gallons removed (purge)

Other

Stainless

PVC

Other

Steel

Specify

Specify

Type

Type

Type

Riser Coupling Joint

Riser Pipe Above

Sched.-40

w.t.

Riser Pipe Below w.t.

Screen

Sched.-40

Coupling Joint

Sched.-40

Screen to Riser

Protective Casing

Steel

Bottom of

Screen

Bottom

of

Borehole

Total Screen

Interval

Top

of Seal

Total Seal interval

Top

of Sand

Top

of Screen

2.5 ft.

99.81 ft.

97.31 ft.

96.81 ft

6.0

ft.

90.81 ft.

90.31 ft.

99.81 ft.

Top of Annular

Sealant

N/A

Casing Stickup

~~---

100.31 ft.

Top of Protective

______ casing

100 06 ft

Top of riser pipe

---:.-:-:-;;.,;'

~,:,,-'

-

Ground surface

100.31 ft.

Bentonite

High-Yield

Concrete

Coarse 20-20

Completed by:

JRW

Type of Surface Seal

Type of Annular Sealant

Type of Bentonite

Type of Sand Pack

Measurements

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

-,,_._y~

y~_.-

OHUNE

PROPERTY UNE

UTILITY POLE

OHUNE

RT185

GRASS

0, ...

•

~

.1iIlkUY

eql£.... ..- - .- - "LiGHT

;

,.--

[

-,----

... - ----,-.-.----...,--,. r

+

MW.ZA

:+MW-S

GRASS

I

,

I

~:

..l,

I

q

ASPHALT

LIGHT

o

+MW-4

r~JPjrl

C~~Y

+~~

;~"0fi1?YY~%;;$;

1llll~i

;:U;;C'Z:Z,;;Z't);;':;W2;:;@1}"C;

n

PUMP

~DS

n

Z

lJ2Z;",U;'"

Q

';,

I

BUILDING

ASPHALT

CONCRETE

SEWER

o

+MW-Z

o

LIGHT

t

N

--

._-~

-

~

~

,

'FIELD

I

FENCE----

J

RESIDENCE

UGHT 0

~·1

,!:I~u:!P

.

__

FENCE

FIELD

__ • __L!.G!IT_

~

--,

PROPERTY UNE

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

APPENDIXB

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

~

Illinois Environmental Protection Agency

CW';M COMPANY, INC.

DRILLING BOREHOLE LOG

•

INCIDENT #: 05-0153/06-0153

IPage

I

of

I

BOREHOLE NUMBER: MW-I

SITE NAME: Keller Oil Comvany, Inc.lFarina 711

BORING LOCATION: 69' S ofSW comer of the bldg.

SITE ADDRESS: 1 57

&

IL Rt. 185

Farina. Illinois

RIG TYPE:

Longyear Truck-Mount

DATEITIME STARTED:

7/12/06 8:10

DRILLING/SAMPLE METHOD: Hollow Stem Augers/5' Cont. Sampler

DATEITIME FINISHED:

7/12/06 9:00

BACKFILL:

N/A-

Set Well

DEPTH

SOIL AND ROCK

USCS

Sample

PID

Sample

SAMPLE

REMARKS: (Odor, Color,

(FEET)

DESCRIPTION

CLASS Recovery

(ppm)

Type

NUMBER

Moisture, Penetrometer, etc.)

0

Gravelftopsoil

GP

No odor or discoloration

-

I

throughout

2

-

-

Brown silt loam

ML

95%

3

-

-

Brown clayey silt

ML

0.0

Grab

MWI-2.5'

BETX, MTBE, PNAs

4

6_

5

-

-

-

-

stiffens

-

7

8

-

,-

-

&Greyverysiltysmallclaypebbles,till

wI

somestiff poorly-sorted sand

CL

100%

0.0

Grab

MWI-7.5' BETX, MTBE, PNAs

ID

9

--

'-

II

Brown clayey silt, moist

ML

12

-

-

some fine-grained sand

Grey very fine sand,

wet

SP

100%

-

13

-

14

Brown till/silty clay/large chert

CL

Brown silt, hard, dry

ML

15

Fine grey sand, dry

SP

Stratification lines are approximate, in-situ transition between so'il types may be gradual.

NOTES:

...

Groundwater

Mapway

I

SurfaceDepth

Elevation:

While

Drillin~:

-10-11'

100.00'

Auger Depth:

15'

Driller:

CW

3

M

V

Groundwater Depth After Drilling:

Rotary Depth:

Geologist:

CLRlJRW

90

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

~

Illinois Environmental Protection Agency

CW.;M COMPANY, INC.

DRILLING BOREHOLE LOG

Page 1 of I

INCIDENT #: 05-0153/06.0153

BOREHOLE NUMBER:

MW-2

SITE NAME: Keller Oil Company, Inc.lFarina 711

BORING LOCATION: 200' from SE comer of pump island

SITE ADDRESS: I 57

&

IL Rt. 185

Farina. Illinois

RIG TYPE:

Longyear Truck-Mount

DATEITIME

STARTED:

7/12/06 9:00

DRILLING/SA~PLEMETHOD:

Hollow Stem Augers/5' Com. Sampler

DATEfflME FINISHED:

7/12/06 9:40

BACKFILL: N/A. Set

Well

DEPTH

SOIL AND ROCK

USCS

Sample

PID

Sample

SAMPLE

REMARKS: (Odor, Color,

(FEET)

DESCRIPTION

CLASS

Recovery

(ppm)

Type

NUMBER

Moisture, Penetrometer, etc.)

0

Asphalt/gravel subbase

OP

No odor or discoloration

-

1

-

throughout

2

-

Brown silt loam

ML

90%

3

-

-

Brown clayey silt

ML

0.0

Grab

MW2-2.5' BETX, MTBE, PNAs

4

-

-

5

-

stiffens

-

6

-

-

7

Grey silty clay till

w/ some poorly-sorted sand

CL

100%

8_

-

&

very small pebbles, stiff

0.0

Grab

MW2-7.5' BETX, MTBE, PNAs

-

9

-

-

10

moist

-

12

II

-

-

someBrownfine-grainedclayey

silt,

sand

moist

ML

Grey very fine sand, wet

SP

100%

-

13

-

14

Brown till/silty clay/large chert

CL

Brown silt, hard,

dry

ML

-

IS

Stratification lines are approximate, in-situ transition between soil types may be gradual.

NOTES:

.-

Groundwater

Manwav / SurfaceDepth

Elevation:

While Drillinl!:

-10.11'

100.33'

AU2er Depth:

IS' .

Driller:

CW

3

M

V

Groundwater Depth After DriIline:

Rotary Depth:

Geoloe.ist:

CLRlJRW

91

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

~.

Illinois Environmental Protection Agency

CWt~ ~MCOMPANY,

INC.

DRILLING BOREHOLE LOG

Page 1 of I

INCIDENT #: 05-0153

BOREHOLE NUMBER:

MW-3

SITE NAME: Keller Oil Company, Inc.lFarina 711

BORING LOCATION: 85'N

&

50' W ofNE corner of bldg.

SITE ADDRESS: 157

&

IL Rt. 185

Farina. Illinois

RIG TYPE:

Longyear Truck-Mount

DATEfflME STARTED:

7/12/06 10:10

DRILLING/SAMPLE METHOD: Hollow

'Stem Augers/5'Cont. Sampler

DATEffIME FINISHED:

7/12/06

11 :15

BACKFILL: N/A- Set Well

DEPTH

SOIL AND ROCK

USCS

Sample

PID

Sample

SAMPLE

REMARKS: (Odor, Color,

(FEET)

DESCRIPTION

CLASS

Recovery

(ppm)

Type

NUMBER

Moisture, Penetrometer, etc.)

0

-

Concrete/gravel

GP

I

-

-

2

-

Brown clayey silt

ML

90%

3_

0.0

Grab

MW3-2.5'

BETX,MTBE

4

-

-

5

-

-

-

very stitT

Slight odor and discoloration

6

-

-

7

-

Grey silty clay till w/ some poorly-sorted sand

CL

100%

,~

8_

&

very small pebbles, stiff

0.2

Grab

MW3-7.5' BETX, MTBE

-

9

-

-

10

-

11

Brown clayey silt, moist

ML

-

12

-

some fine-grained sand

Grey very fine sand, wet

SP

100%

-

13_

14

Brown till/silty clay/large chert

CL

Brown silt, hard, dry

ML

-

15

Stratification lines are approximate. in-situ transition between soil types may be gradual.

NOTES:

...

Groundwater

Manwav / SurfaceDepth

Elevation:

Wbile Drillin2:

-10-11'101.47'

AU2er Depth:

15'

Driller:

CW

3

M

V

Groundwater Depth After Drillini!::

Rotary Depth:

Geologist:

CLRlJRW

92

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

~

Illinois Environmental Protection Agency

CW':"-M COMPANY, INC.

DRILLING BOREHOLE LOG

Page 1 of 1

INCIDENT #:

05-0

J

53106-0 153

BOREHOLE NUMBER: MW-4

SITE NAME: Keller Oil Company, Inc./Farina 711

BORING LOCATION: 111' N

&

47' E ofNW comer of bldg.

SITE ADDRESS: 157

&

IL Rt. 185

Farina_ lllinois

RIG TYPE:

Longyear Truck-Mount

DA

TE/TIME STARTED:

7/12/06

11 :45

DRILLING/SAMPLE METHOD: Hollow Stem Augers/5' Cont. Sampler

DA

TEITIME FINISHED:

7/12/06

12:25

BACKFILL: N/A- Set Well

DEPTH

SOIL AND ROCK

USCS

Sample

PID

Sample

SAMPLE

REMARKS: (Odor, Color,

(FEET)

DESCRIPTION

CLASS

Recovery

(pPItl)

Type

NUMBER

Moisture, Penetrometer, etc.)

0

Grass/topsoil

No odor or discoloration

-

21

-

-

throughout

3

-

Brown silty loam

ML

100%

0.0

Grab

MW4-2.5' BETX, MTBE, PNAs

-

Brown/grey clayey silt

ML

4

-

OXidation

-

7

6

5

-

-

-

-

stiffens

8_

-

&

Grey

verysiltysmall

clay

pebbles,till

wI

some

stiff

poorly~sorted

sand

CL

100%

0.1

Grab

MW4-7.5'

BETX, MTBE, PNAs

-

9_

-

lO_

II

-

-

Brown clayey silt, moist

ML

12

some fine-grained sand

Grey very fine sand, wet

SP

100%

-

13

-

14

Brown till/silty clay/large chert

CL

Brown silt, hard, dry

ML

15

Fine grey sand, dry/hard

SP

Stratification lines are approximate. in-situ transition between soil types may be gradual.

NOTES:

Manwav

I

Surface Elevation:

10 1.45'

Groundwater Depth While Drillin2:

-10-1 I'

Auf;ter Depth:

15'

Driller:

CW

3

M

V

Groundwater Depth After Drillin2:

Rotary Depth:

Geologist:

CLRlJRW

93

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

~

Illinois Environmental Protection Agency

CW' .-;. M COMPANY, INC.

DRILLING BOREHOLE LOG

Page 1 of I

INCIDENT #: 05-0 153/06-0153

BOREHOLE NUMBER: MW-5

SITE NAME: Keller Oil Company, Inc.lFarina 711

BORING LOCATION: ]86' W

&

97'N ofSW comer of the bldg.

SITE ADDRESS: 157

&

IL Rt. 185

Farina. Illinois

RIG

TYPE:

Longyear Truck.Mount

DATEITIME STARTED:

7/12/06 12:25

DRILLING/SAMPLE METHOD: Hollow Stem Augers/S' Cont. Sampler

DATEITIME FINISHED:

7/12/06 1:00

BACKFILL:

N/A-

Set Well

DEPTH

SOIL AND ROCK

USCS

Sample

PID

Sample

SAMPLE

REMARKS: (Odor, Color,

(FEET)

DESCRIPTION

CLASS Recovery

(ppm)

Type

NUMBER

Moisture, Penetrometer, etc.)

0

I

-

Grass/topsoil

No

throughoutodor

or discoloration

2_

-

Brown silt loam

ML

100%

5

43

-

-

--

stiffensBrown

clayey silt

ML

0.0

Grab

MW5-2.S' BETX, MTBE, PNAs

6

7

-

-

-

-

9

8

-

--

stiff

&Greyverysiltysmallclaypebblestill

w/ some poorly-sorted sand

CL

100%

0.0

Grab

MWS-7.S'

BETX, MTBE, PNAs

10

-

-

-

II

12

-

-

someBrownfine-grainedClayey

silt,

sandmoist

ML

Grey very fine sand, wet

SP

90%

13

-

-

14

Brown till/silty clay/large chert clasts

CL

Brown silt, hard, dry

ML

15

Fine grey sand, dry

SP

Stratification lines are approximate, in-situ transition between soil types may be gradual.

NOTES:

Manwav

I

Surface Elevation:

100.70'

Groundwater Depth While Drillin«:

-10-11'

Au«er Depth:

15'

Driller:

CW

3

M

V

Groundwater Depth After Drillinl!:

Rotary Depth:

Geologist:

CLRlJRW

94

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

Illinois Environmental Protection Agency

LUST Well Completion

Report

Incident No.

Site Name

Drilling

Contractor

Driller

Drilling Method

05-1539/06-0153

Farina 711

Hollow stem auger

Well No.

Date Drilled

Date Completed

Geologist

Drilling Fluids

MW-I

7112/06

7/12/06

CLRlJRW

N/A

Annular Space Details

Well Construction Materials

Riser Pipe Length

4.25

ft.

Screen Length

10.0

ft.

Screen Slot Size

10-slot

Protective Casing Length

NJA

Depth to Water

~

10-11 while drilling

Depth to Water

97.75 feet static

Free Product Thickness

NJA

Gallons removed (develop)

Approximately 3 gallons

Gallons removed (purge)

Approximately 3 gallons

Other

Stainless

PVC

Other

Steel

Specify

Specify

Type

Type

Type

Riser Coupling Joint

Riser Pipe Above

Sched.-40

\V.l.

Riser Pipe Below W.l.

Screen

Sched.-40

Coupling Joint

Sched.-40

Screen to Riser

Protective Casing

Steel

Top of Protective

casing

Top

of riser pipe

Ground surface

Top

ofAnnular

Sealant

Casing Stickup

Total Screen

Interval

Top

of Seal

Total Seal interval

Top

of Screen

Top

of Sand

99.50 ft.

100.00 ft.

100.00 ft.

99.75 ft.

NJA

99.50 ft.

3.0 ft.

96.50 ft.

95.50 ft

10.0 ft.

85.50 ft.

85.00 ft.

Bentonite

Coarse 20-20

Concrete

High-Yield

Completed by:

MKC

Type of Surface Seal

Type of Annular Sealant

Type

of Bentonite

Type

of Sand Pack

Measurements

102

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

Illinois Environmental Protection Agency

LUST Well Completion

Report

Incident No.

Site Name

Drilling Contractor

Driller

Drilling Method

05-1539/06-0 l53

Farina 71l

Hollow stem auger

Well No.

Date Drilled

Date Completed

Geologist

Drilling Fluids

MW-2

7/12/06

7/12/06

CLRlJRW

N/A

Annular Space Details

Well Construction Materials

Riser Pipe Length

4.25 ft.

Screen Length

10.0 ft.

Screen Slot Size

lO-slot

Protective Casing Length

N/A

Depth to Water

-10-11 while drilling

Depth to Water

96.91 feet static

Free Product Thickness

N/A

Gallons removed (develop)

Approximately 3 gallons

Gallons removed (purge)

Approximately 3 gallons

Other

Stainless

PVC

Other

Steel

Specify

Specify

Type

Type

Type

Riser Coupling Joint

Riser Pipe

Above

Sched.-40

w.t.

Riser Pipe Below W.t.

Screen

Sched.-40

Coupling Joint

Sched.-40

Screen to Riser

Protective Casing

Steel

Total Screen

Interval

Bottom

of

Screen

Bottom of

Borehole

Top ofSeal

Total Seal interval

Top of Screen

Top of Sand

99.83 ft.

3.0 ft.

96.83 ft.

10.0 ft.

95.83 ft

85.83 ft.

85.33 ft.

100.33 ft.

Top of Protective

casing

100.08 ft.

Top of riser pipe

-=-1O=-0:..:.=-33=--===ftc-.-

Ground surface

99.83 ft.

Top of Annular

Sealant

N/A

Casing Stickup

High-Yield

Bentonite

Concrete

Coarse 20-20

Completed

by:

MKC

Type of Surface Seal

Type

of Annular Sealant

Type of Bentonite

Type of Sand Pack

Measurements

103

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

Illinois Environmental Protection Agency

LUST Well Completion Report

Incident No.

Site Name

Drilling Contractor

Driller

Drilling Method

05-1539

Farina 71 1

Hollow stem auger

Well No.

Date Drilled

Date Completed

Geologist

Drilling Fluids

MW-3

7/12/06

7112/06

CLRlJRW

N/A

Annular Space Details

Well Construction Materials

Riser Pipe Length

4.25 ft.

Screen Length

10.0 ft.

Screen Slot Size

IO-slot

Protective Casing Length

N/A

Depth to Water

~

10-11 while drilling

Depth to Water

97.11 feet static

Free Product Thickness

N/A

Gallons removed (develop)

Approximatelv 3 .!.tallons

Gallons removed (purge)

AODToximately 3 e:allons

Other

Stainless

PVC

Other

Steel

SpecifY

SpecifY

Type

Type

Type

Riser Coupling Joint

Riser Pipe Above

Sched.-40

W.1.

Riser Pipe Below W.1.

Screen

Sched.-40

Coupling Joint

Sched.-40

Screen to Riser

Protective Casing

Steel

Top of Protective

casing

Top of riser pipe

Ground surface

Top ofAnnular

Sealant

Casing Stickup

Bottom of

Screen

Bottom of

Borehole

IOJ.47ft.

101.22 ft.

101.47 ft.

N/A

100.97 ft.

100.97 ft.

Top of Seal

3.0 ft.

Total Seal interval

97.97 ft.

Top of Sand

96.97 ft

Top of Screen

10.0 ft.

86.47 ft.

86.97 ft.

Total Screen

_____ Interval

Bentonite

Concrete

High-Yield

Coarse 20-20

Completed by:

MKC

Type of Surface Seal

Type of Annular Sealant

Type of Bentonite

Type of Sand Pack

Measurements

--_--.:...-_----------------_._---_

.....-

104

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

lIIinois Environmental Protection Agency

LUST Well Completion Report

Incident

No.

Site Name

Drilling Contractor

Driller

Drilling Method

05-1539/06-0153

Farina 711

Hollow stem auger

Well No.

Date Drilled

Date Completed

Geologist

Drilling Fluids

MW-4

7/12/06

7/12/06

CLRlJRW

N/A

Annular Space Details

Well Construction Materials

Riser Pipe Length

4.25

ft.

Screen Length

10.0 ft.

Screen Slot Size

10-slot

Protective Casing Length

N/A

Depth to Water

-10-11 while drilling

Depth to Water

97.30 feet static

Free Product Thickness

N/A

Gallons removed (develop)

Aoproxlmately 3 gallons

Gallons removed (purge)

Approximately 3 gallons

Other

Stainless

PVC

Other

Steel

Specify

Specify

Type

Type

Type

Riser Coupling Joint

Riser Pipe Above

Sched.-40

W.1.

Riser Pipe Below

W.t.

Screen

Sched.-40

Coupling Joint

Sched.-40

Screen to Riser

Protective Casing

Steel

Total Screen

Interval

Bottom of

Screen

Bottom of

Borehole

3.0 ft.

Total Seal interval

100.95 ft.

Top of Seal

97.95 ft.

Top of Sand

96.95 ft

Top of Screen

10.0 ft.

86.45 ft.

86.95 ft.

101.45 ft.

Top of Protective

casing

101.20 ft.

Top of riser pipe

-=1~0':'1'::.4;':;5;";ft=".

-

Ground surface

100.95 ft.

Top of Annular

Sealant

NI

A

Casing Stickup

Concrete

Bentonite

High-Yield

Coarse 20-20

Compleled by:

MKC

Type of Surface Seal

Type

of Annular Sealant

Type

of Bentonite

Type

of Sand Pack

Measurements

105

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

Illinois Environmental Protection Agency

LUST Well Completion Report

Incident No.

Site Name

Drilling Contractor

Driller

Drilling Method

05-1539/06-0153

Farina 711

Hollow stem auger

Well No.

Date Drilled

Date Completed

Geologist

Drilling Fluids

MW-5

7/12/06

7/12/06

CLRlJRW

N/A

Annular Space Details

Well Construction Materials

Riser Pi pe Length

4.25

ft.

Screen Length

10.0

ft.

Screen Slot Size

10-slot

Protective Casing Length

N/A

Depth to Water

-10- I I while drilling

Depth to Water

98.00 feet static

Free Product Thickness

N/A

Gallons removed (develop)

Approximately 3 gallons

Gallons removed (purge)

Approximately 3 gallons

Other

Stainless

PVC

Other

Steel

Specify

Specify

Type

Type

Type

,.

Riser Coupling Joint

Riser Pipe Above

Sched.-40

W.t.

Riser Pipe Below

W.t.

Screen

Sched.-40

Coupling Joint

Sched.-40

Screen to Riser

Protective Casing

Steel

Top of Protective

casing

Top

of riser pipe

Ground surface

Top

of Annular

Sealant

Casing Stickup

Bottom

of

Screen

Bottom

of

Borehole

100.70 ft.

100.45 ft.

100.70 ft.

100.20 ft.

100.20 ft.

Top ofSeal

N/A

3.0

ft.

Total Seal interval

97.20 ft.

Top of Sand

96.20 ft

Top of Screen

10.0 ft.

86.20 ft.

86.70 ft.

Total Screen

_____ Interval

High-Yield

Bentonite

Concrete

Coarse 20-20

completed by:

MKC

Type of Surface Seal

Type of Annular Sealant

Type of Bentonite

Type of Sand Pack

Measurements

106

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

APPENDIXC

Electronic Filing - Received, Clerk's Office, January 11, 2008

---

CW'M Company, Inc.

Stage

II

Site Investigation Plan and Budget

L.

Keller Oil Propenies, Inc. (Farina 7i

1)

LPC #0514155011/lncident Numbers 2005-]539/2006-0153

3.4 SITE SPECIFIC PHYICAL PARAMETERS

In accordance with 35 Ill. Adm. Code 734.410, remediation objectives will be determined

in accordance with 35 Ill. Adm. Code 742. Therefore, during the Stage I Site

Investigation, the following site-specific parameter was determined:

Hydraulic Conductivity (K):

9.61

*

10-

7

During Stage II activities a Tiered Approach to Corrective Action Objectives (TACO) Tier

II sample will be collected to determine the other site-specific parameters, which will be

obtained fQf the analytical results.

It

will be collected in the vicinity of MW-1.

In order to determine the hydraulic conductivity, a slug test was performed. The test was

performed by lowering a "slug" constructed

of polyvinyl chloride (PVC) into a monitoring

well. When the slug is lowered i'nto the well, the groundwater

is displaced by the volume

of the slug. As the water within the well equilibrates, water depth changes are recorded in

relation to the time interval that has passed since the test was initiated.

The hydraulic conductivity calculations are based on the total well depth, screen length and

radius, initial water depth and the water depth change over time. The depth-to-water

changes over time will be plotted on a semi-logarithmic graph and the curve will be

evaluated. The slope

of the straight-line portion of the curve, along with the other slug test

data, is used to calculate the hydraUlic conductivity.

Velocity was calculated using the hydraulic conductivity results determined at the site, as

well as the hydraulic gradient. The hydraulic gradient was found by

~alculating

the change

in gradient between the most up-gradient well (MW-6, 98.10 feet) and the most down-

gradient well (MW-2, 96.91 feet), then dividing this answer by the distance

in

feet between

the two wells (445 feet). Formula R24,

(Ugw

=

K

•

i)

of 35 Ill. Adm. Code § 742

Appendix C, Table C. The resulting velocity

is 3.00 x

10-

9

em/sec.

7

13

Electronic Filing - Received, Clerk's Office, January 11, 2008