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 October 22, 2007, there was filed
    with
    the Clerk of
    the Illinois Pollution Control Board of the State of Illinois
    an
    original, executed copy of
    Petitioner's Motion
    to
    File Post-Hearing Reply Brief and Reply
    in
    Support of Post-Hearing
    Brief.
    Dated: October
    22,2007
    Respectfully submitted,
    Carolyn
    S. Hesse
    Barnes & Thornburg LLP
    One North Wacker Drive
    Suite 4400
    Chicago, lllinois 60606
    (312) 357-1313
    By:
    L. KELLER OIL PROPERTIES
    I
    FARINA
    ~jHSi.J.WZ
    (This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    BEFORE THE POLLUTION CONTROL BOARD
    OF THE STATE OF ILLINOIS
    L. KELLER OIL PROPERTIES
    I
    FARINA
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    ) PCB No. 07-147
    )
    )
    )
    )
    )
    MOTION OF PETITIONER
    L.
    KELLER OIL PROPERTIESIFARINA TO FILE
    POST-HEARING REPLY BRIEF
    Pursuant to 35 Illinois Administrative Code 101.500(e), Petitioner,
    L.
    Keller Oil
    PropertiesfFarina ("KellerlFarina" or "Keller") by its counsel Barnes
    &
    Thornburg LLP
    hereby moves the Illinois Pollution Control Board (''Board'')for leave to file a Reply
    in
    Support of its Post-Hearing Brief.
    In
    support ofthis motion, Keller states as follows:
    1.
    On June 27, 2007, Keller filed a Petition for Review challenging the
    Agency's May 17,2007 letter that rejected a Site Investigation Plan and Budget for work
    by Keller related to UST leaks.
    2.
    On August 22,2007, the Board held a hearing in this appeal.
    3.
    On September 18, 2007, Keller timely filed its post-hearing brief.
    4.
    On October 9, 2007, the Illinois Environmental Protection Agency (the
    "Agency") filed its Response to
    Keller'sPost-Hearing Brief. In its Response, the Agency
    raised a number
    of issues for the first time, including but not limited to the Agency's
    improper application
    of a definition from the Part 732 Rules to the site owned by Keller,
    which
    is regulated under Part 734, not Part 732. The Agency also raised for the first time
    in its brief issues that the Agency did not raise in its denial letter, such as an allegation
    (This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
    that certain infonnation is not included on certain fonns. The Agency raises additional
    arguments in its brief that Keller had not raised in its post-hearing brief and that the
    Agency had not raised previously.
    5.
    Accordingly, Petitioner, Keller/Farina seeks leave pursuant to 35 Ill.
    Admin. Code 101.500(e) to file a Reply in Support
    of its Post-Hearing Brief, in order to
    address the above narrow issues and to prevent the material prejudice that
    will result from
    the Agency's misleading submissions.
    6.
    Attached to this Motion as Exhibit A is a proposed Reply in Support of
    the Post-Hearing Briefthat Keller seeks to file.
    WHEREFORE, Petitioner
    L. Keller Oil PropertieslFarina respectfully requests the
    Board grant this Motion for Leave
    to
    file the attached Reply in Support of Post-Hearing
    Brief, and grant all other relief the Board deems fair and just.
    Respectfully submitted,
    Carolyn
    S. Hesse, Esq.
    Jonathan P. Froemel, Esq.
    David
    T. Ballard, Esq.
    Barnes
    &
    Thornburg LLP
    One North Wacker Drive
    Suite 4400
    Chicago, Illinois 60606
    (312) 357-1313
    CHDSOI CSH4249J7vl
    By:
    L. Keller
    Oil
    Properties (Farina)
    ~~
    Pi
    c1
    e of Its Attorneys
    (This filing submitted on recycled paper as defined in 35 Ill. Adm. Code lO1.202J
    -2-
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    EXHIBIT A
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    BEFORE THE POLLUTION CONTROL BOARD
    OF mE STATE OF ILLINOIS
    L. KELLER OIL PROPERTIES
    IF
    ARINA
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    ) PCB No. 07-147
    )
    )
    )
    )
    )
    REPLY OF PETITIONER L. KELLER OIL PROPERTIESIFARINA
    IN SUPPORT OF POST HEARING BRIEF
    Now comes the Petitioner,
    L.
    Keller Oil PropertieslFarina ("Keller or "KellerlFarina"),
    by
    its counsel Barnes
    &
    Thornburg LLP and hereby submits its reply to the Illinois
    Environmental Protection Agency's ("IEPA" or the "Agency") Post Hearing
    Brief to the Illinois
    Pollution Control Board ("Board").
    INTRODUCTION
    Keller has met its burden of proof that the Stage 1 site investigation and the proposed
    Stage 2 site investigation plan and budget comply with applicable regulations and that the
    Agency improperly rejected certain aspects
    of this work in a final decision letter dated May 17,
    2007 (the "Letter").
    In sharp contrast, the Agency failed to present any testimony or evidence at
    hearing and failed to cite to any portions
    ofthe Administrative Record in its Response to support
    its decisions contained in the Letter.
    For example, the Agency did not provide any witnesses to
    explain or other evidence to support its erroneous interpretation
    ofwhat the term "desired ground
    water interval" means,
    or where monitoring wells should be screened.
    [Tbis filing submitted on recycled paper as defined in 35 D1. Adm. Code 101.2021
    1
    Further, the Agency for the first time in its post-hearing brief erroneously attempted to
    apply a
    definition in the Part 732 regulations
    to
    this site. However, the site is instead subject to
    Part 734.
    In addition, the Agency at hearing and in its brief raised new issues that were not
    included in the Letter that is the subject
    ofthis appeal, such as the hydraulic conductivity test that
    was performed at the Keller site. The Agency also ignores information
    in the record such as
    documentation that the monitoring wells and soil borings were drilled on the same day so that the
    data from the soil boring samples were not available to Keller when soil samples from drilling
    the monitoring wells had to be submitted for analysis.
    See
    35 Ill. Admin. Code 734.315(a)
    (2)(C). Therefore,
    as ofthe date
    the soil samples were taken from the monitoring wells, no other
    soil sampling indicated the extent
    of soil contamination in the location ofthe monitoring well.
    Keller contests IEPA's decisions on the following issues: installation
    of the monitoring
    wells, analysis
    of soil samples from monitoring wells MWl through MW4, the drilling of soil
    borings SB4 and SB5 and the Agency's rejection
    of the proposed Stage 2 site investigation and
    budget. Contrary to the Agency's assertions, Keller's monitoring wells were installed
    in
    accordance with all applicable regulatory requirements, the soil boring samples were drilled in
    compliance with Part 734, soil samples that were collected while the monitoring wells were
    being installed were correctly submitted for analysis, and the proposed additional Stage 2 site
    investigation plan and budget comply with applicable regulations. In the very limited instances
    where KellerlFarina recognized that it made an error, Keller corrected the error, and those few
    issues are not part
    of this appeal to the Board. Even so, the Agency attempts in its brief to use
    those errors
    to argue that Keller is wrong on all the issues before the Board.
    [Tbis filing submitted on recycled paper as defined in 35 Ul Adm. Code 101.2021
    2
    Keller met its burden of proof, the Agency presented no credible evidence to the contrary,
    and the Agency failed to support its Response with appropriate citations to the Record. Thus, the
    Board must find
    in favor of Keller
    and
    approve Keller's Stage 1 site investigation work and
    proposed Stage 2 site investigation plan and budget.
    BURDEN OF PROOF AND STANDARD OF REVIEW
    KellerlFarina agrees with IEPA that UST appeals before the Board are treated in the same
    manner
    as permit appeals. KellerlFarina also agrees that it has the initial and ultimate burden of
    proof for establishing that it should prevail on the issues raised in its Petition for Review.
    However, when a petitioner presents a
    prima facie
    case on an issue, the burden then shifts to
    IEPA
    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 [pennit] conditions were unnecessary, it became incumbent upon the
    Agency
    to refute the
    primafacie
    case.");
    Marathon Petroleum Co.
    v.
    fEPA,
    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
    primafacie
    case.");
    fEPA
    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.
    fa.
    KellerlFarina proved its case. IEPA
    presented no credible or other evidence to rebut Keller's case. Accordingly, Keller is entitled
    to
    an order in its favor on its Petition for Review.
    STATEMENT OF FACTS
    In its opening brief, Keller presented a detailed Statement of Facts. including background
    information about the site and numerous submissions to and from the Agency, (See pp. 2-7
    of
    (This filing submitted on recycled paper as defined in 35 Dl Adm. Code 101.2021
    3
    Keller's Post Hearing Brief) That Statement of Facts will not be repeated in its entirety here.
    Rather, KellerlFarina wishes to emphasize the following relevant facts:
    1.
    Keller presented four Qualified witnesses, while the Agency presented none.
    At hearing Keller presented four witnesses, two of whom are professional engineers and
    two
    of whom are professional geologists. Each of them have had years of experience in
    investigating remediation sites. (T.
    14, 87, 175; Ex. 3, 7, 10,
    13i
    Collectively, they have
    installed or supervised the installation
    ofthousands of monitoring wells.
    (Id)
    Keller'switnesses
    testified that the work that was done at the site complied with applicable Agency rules and
    generally accepted professional engineering practices and professional geologist procedures.
    (T.58-59, 96-97, 150, 180-182) In sharp contrast, the Agency presented no witnesses or
    evidence at hearing to show that the work did not comply with applicable rules, or generally
    accepted engineering or geology practices (T. 185-186)
    2.
    The Record shows the wells were screened at the appropriate interval.
    The Administrative Record (the "Record") that was before the Agency shows that the
    wells were screened to intersect the desired groundwater interval.
    Moisture was first
    encountered at approximately
    10 feet below ground surface ("bgs''),and between approximately
    12 and 1312 feet below ground surface the lithology was wet sand. (T. 90; See bore hole logs for
    the monitoring wells at R. 90-94)
    Specifically, the bore hole log for monitoring well 1 (MWI) is located at R. 90 and
    documents that the lithology was clayey silt between
    2~
    and about 12 feet bgs, where fine
    I
    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.
    IThis filing submitted on reqcled paper as defined in 35 Ill. Adm. Code 101.202]
    4
    grained sand started, and at a depth of 1
    O~
    to 12 feet bgs it was moist and became wet, very fine
    sand at a depth
    of 12 to 13
    ~
    feet bgs.
    The bore hole log for monitoring well 2 (MW2)
    is located at R. 91 and documents that
    the lithology
    was clayey silt from about 2
    Y2
    to 11
    ~
    feet bgs that was moist at
    9~
    to 10 feet bgs
    and was wet, very fine sand at a depth
    of 12 to
    13~
    feet bgs.
    The bore hole log for monitoring well 3 (MW3) is located at
    R.
    92 and documents that
    the clayey silt was located between 2 and
    12 feet bgs that became moist at 1
    O~
    feet bgs and
    changed to wet, very fine sand at
    12 feet bgs; the wet sand continued to
    13~
    feet bgs.
    The bore hole log for monitoring well 4 (MW4) is located at
    R.
    93 and documents that
    the lithology
    was clayey silt between 3 and about 12 feet bgs, was moist clayey silt that started to
    include some sand at
    10~
    to 12 feet bgs, and was wet, very fine sand at 12 to
    13~
    feet bgs.
    The bore hole log for monitoring well 5 (MW5)
    is located at R. 94 and documents that
    the lithology was clayey silt between
    2Y:z and 12 feet bgs, was moist at
    1O~
    to
    12 feet bgs and
    became wet, very fine sand at
    12 to 13
    ~
    feet bgs.
    Thus, it
    is clear from the record that there is a saturated zone at a depth of 12 to BY; feet
    bgs where the wet sand is located. (T. 30, 90;
    R. 90-94) Further, the moist layer that was
    encountered is likely the capillary fringe, which is an
    area above an aquifer that becomes moist
    due
    to
    capillary action of water rising into the soil layer.
    (See
    Ex. 4)
    Keller presented testimony at hearing and presented the well completion reports in the
    Record documenting that the well screens intersected both the wet, sandy zone and the moist
    clayey silt zone above that.
    (T. 34, 48, 88-91, 123-124; R.90-94, 102-106) Thus, because the
    wells were screened where the wet sand was located, they were screened in accordance with
    rrbls filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202]
    5
    IEPA regulations (T. 34) and samples from the desired groundwater interval could be and,
    in
    fact, were collected. (T. 34,47-48,94,96-97)
    In response to this evidence, the Agency presented no testimony, no citation to the
    Record, and no other evidence to explain why the Agency asserts that the wells were not
    screened at the correct intervals,
    or why the Agency claims that the wells should have been
    screened at the water levels in the wells, which is the static water level.
    3.
    The Record shows that groundwater is not present in the lithology at the level of the
    water in the wells.
    The static water levels in the monitoring wells 1 through 5 are at the relative elevation
    range of96.91 to 98.00 feet, where the 100 foot level is the ground surface at monitoring well I.
    (R.I02-106) By calculating the depth to groundwater
    in
    each well (subtract the elevation of the
    static water level from the elevation
    of the ground surface), the depth to the static water level in
    each well can be determined as follows:
    MWI - static water level is 2.25 feet bgs (R. 102);
    MW2 - static water level is 3.42 feet bgs (R. 103); MW3 - static water level is 4.36 feet bgs (R.
    104); MW4 - static water level is 4.15 feet bgs (R. 105); and MW5 - static water level is 2.7 feet
    bgs (R. 106).
    When the depth to the static water level in each well is compared to information for the
    respective drilling bore hole logs, information in the Record documents that the clayey silt
    located at the same elevation as the static water level is not
    wet and is not even moist. Thus,
    there is no water
    in
    the lithology at the same level as the static water level.
    4.
    The saturated sand seam is a confined aquifer.
    Because moisture was fIrst encountered at approximately 10 feet bgs, more than 5 feet
    below the static water levels (compare information at R. 90-94 with R. 102-106), the saturated
    sand seam meets the definition
    of "confined water."
    (See
    Ex. 4).
    (This filing submitted on reqtled paper as defined in 35 01. Adm. Code 101.202)
    6
    5.
    The soil samples from the monitoring wells were taken on the same date as the soil
    boring samples.
    The chain of custody report in the Record documents that the Stage 1 soil samples from
    the monitoring wells were collected on the same day, July 12, 2006, that the other soil boring
    samples were collected. (R. 125-126) The samples were collected
    on the same day because the
    monitoring wells and soil borings were drilled on the same day. (T. 153, 155, 161; R. 125-126)
    ARGUMENT
    I. IEPA May Not Raise Issues Now That Were Not Raised
    in
    the Letter and Must Not Be
    Allowed to Use Rules That Do Not Apply.
    KellerlFarina agrees with IEPA that the May 17, 2007 IEPA decision letter frames the
    issues on appeal.
    Ayers
    v.
    IEPA,
    PCB No. 03-214, p. 8 (Apr. 1, 2004). Indeed, principles of
    fundamental fairness dictate that IEPA cannot raise new issues before the Board that were not
    included in the denial letter:
    Principles
    of fundamental fairness require that an applicant be
    given notice
    of the statutory and regulatory bases for denial of an
    application for reimbursement and that the Agency be bound on
    review
    by those cited bases for denial given
    in
    its denial statement.
    Fundamental fairness would be violated
    if the Agency were free to
    cite additional statutory and regulatory reasons for denial for the
    first time at the Board hearing.
    Pulitzer Community Newspapers, Inc.
    v.
    IEPA,
    PCB 90-142, p. 7 (Dec. 20, 1990).
    Nevertheless, the Agency raises issues
    in
    its Response that were not raised
    in
    the Letter,
    including the hydraulic conductivity tests that were performed at the site, and the application
    of
    the definition of "tank field"
    in
    Part 732 to a site governed by Part 734. Based on the standard
    established in
    Pulitzer,
    the Agency cannot now raise such issues.
    A.
    The Agency cannot use the definition of "tank field" under Section 732 to
    reject Keller's soil borings.
    ITbis filing submitted on recycled paper as defined in 35 Dl Adm. Code 101.2021
    7
    The Agency, for the first time
    in
    its brief, tries to apply the defInition of the term "tank
    field" in Section 732.103 to the work performed by Keller pursuant to Part 734. While 732.103
    does define the term "tank: field" as
    ..allunderground storage tanks at a site that reside within a
    circle with a 100 foot radius," there is no similar definition
    in
    Part 734. Further, the tenn
    '~
    field" is not even used in Part 734. When IEPA proposed new regulations at Part 734 and
    amended Part 732,
    if IEPA had wanted to include a definition of"tank field" in the new Part 734
    rules, it could easily have included it, but the Agency did not do so. Because the term "tank
    field" does not appear
    in the Part 734 rules, and this site is not subject to Part 732, IEPA should
    not
    be allowed to use the definition.
    The relevant rules in Part 734 to which the Agency attempts to apply the definition of
    .'tank. field" are found at Section 734.315(a)(I). Part 734 instead uses the term "each
    independent UST
    2
    field" in the context of describing work to
    be
    done during Stage 1 site
    investigations. Section 734.315(a)(1)(A) requires that up to four borings
    be
    .'drilledaround each
    independent UST field where one or more UST excavation samples," excluding
    backfIll samples,
    exceed the most stringent TACO Tier 1 Remediation Objectives. Because
    ''tank
    field" and "each
    independent UST field" are different terms, they should be given different meanings.
    As the term "each independent UST field" is not defined in Part 734, the term should be
    given its
    plai~
    ordinary meaning.
    Alhambra-Grant/ark Tel. Co.
    v.
    Rl. Commerce Comm., 358
    Ill. App. 3d 818, 822, 832 N.E.2d 869,
    873 (5
    th
    Dist. 2005) ("The word 'customer'is not defined
    in the statute, and so we apply the rules of statutory construction and afford the statutory
    language its plain and ordinary meaning.");
    O'Loughlin
    v.
    Village ofRiver Forest,
    338 Ill. App.
    3d 189, 195, 788 N.E.2d 157, 162
    (5
    th
    Dist. 2003) ("The Act does not define the term. As such,
    2
    The
    tenn
    "underground storage tank" or "UST" includes one or a combination of tanks "including undergrOlDld
    pipes connected thereto" 35 Ill. Achnin. Code 734.115.
    [This filing submined on recycled paper as defined in 3S OJ. Adm. Code 101.202]
    8
    the rules of statutory construction require us to frrst look to the plain language of the statute and
    interpret the language according to its plain and ordinary meaning.") The plain meaning
    of this
    tenn is that each separate
    tank
    basin that contains one or more USTs and associated piping is
    considered an independent UST field. Thus, the gasoline, heating oil, and diesel
    tank basins are
    independent
    of each other, and therefore constitute
    three
    independent UST fields.
    Since there were three independent UST fields at this property (gasoline
    tanks, diesel
    tank
    and heating oil
    tank
    3
    )
    and excavation samples from two of them contained indicator
    contaminants at concentrations greater than TACO Tier 1 Remediation Objectives, pursuant to
    Section 734.315(a)(l )(A) an owner/operator could drill up to eight soil borings, four around the
    gasoline UST excavation and four around the diesel UST excavation. In addition, Section
    734.314(a)(I)(B) requires that up to two borings be drilled around each UST piping
    run ifat least
    one piping
    run sample exceeds the most stringent Tier 1 Remediation Objectives. Because
    releases were associated with both the diesel and gasoline piping runs (Ex. 11), Keller would be
    pennitted pursuant to Section 734.315(a)(I)(B) to collect up to four soil borings during its Stage
    1 investigation
    of piping run contamination. Thus, under Section 734.314 (a)(l)(A) and (B),
    Keller would be allowed to drill up to 12 soil borings during the Stage 1 site investigation.
    In fact, Keller drilled a total
    of 8 soil borings, less than the maximum number pennitted.
    4
    In
    short, the Agency's last minute attempt to apply a definition in the Part 732 rules to a Part 734
    site must be stricken for three reasons: (1) Part 732 rules and definitions do not apply here, (2)
    the use
    of the definition of "tank field" was not raised in the Letter as a basis for denying and
    3 While there were releases from the heating oil tank, early action activities removed the contamination. (R. 8, Ex.
    11) Hence, the heating oil tank did not require further investigation, and was not investigated as part
    ofStage I.
    4 Further, Keller is not contesting that SB6 was drilled in error, and the only soil borings at issue in this appeal are
    SB4 and SB5. The Agency has not disputed the appropriateness
    ofSBI, SB2, SB3, SB7 or SB8.
    (This filing submitted on recycled paper as defined in 35 U1. Adm. Code 101.2021
    9
    rejecting Keller's work at the site, and (3) Keller collected fewer than the maximwn number of
    samples allowed under Part 734.315(a)(I).
    B.
    The Agency's arguments about the monitoring weDs are internally
    inconsistent and inaccurate.
    Throughout its brief, the Agency continuously and erroneously argues that the desired
    ground water interval for sampling is the water level in the
    well, which is the same as the static
    water leveL The Agency claims on page
    29
    of its brief, without citing to specific sections of the
    Record to support its unfounded claim, that "All documentation submitted
    by the Petitioner
    regarding groundwater, indicates that the groundwater producing layer is the silty clay layer
    depicted in the Administrative Record
    ...." As Keller
    has
    pointed out at hearing and in its brief,
    that is not what the Record demonstrates. The Record clearly demonstrates, and Ms. Rowe and
    Mr. St. John testified, that the moist layer begins at a depth
    of about 10 feet bgs and becomes
    saturated at
    12 to
    13~
    feet bgs. (T. 81, 97; R. 90-94) There is nothing in the Record that
    indicates that groundwater exists in the lithology above the
    9~
    foot level.
    In
    fact, Keller
    presented testimony that very little,
    if any, water would flow into the well above the saturated
    zone, where the clayey silt is located. (T. 81)
    On page 21 of the Agency's brief, the Agency correctly states "the Geologist (sic) must
    determine in the field the specific ground water bearing unit which would most likely be
    impacted by the release, hence the requirement for representative ground water sample." Keller
    did exactly that. Contrary to the Agency's arguments about where groundwater is located, the
    desired ground water interval for sampling at this site is the
    wet sand seam (T. 97), which is
    located at
    12 to
    13~
    feet bgs. (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
    [fbis filing submitted on recycled paper as defiDed in 35 IU. Adm. Code 101.2021
    10
    contaminated by releases from USTs. (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) The Agency never
    presented any evidence that the desired groundwater interval is located anywhere else.
    Although the Agency produced no witnesses to explain what the Agency believes
    regarding the location
    of the water producing zone in the lithology, it appears from the
    argwnents
    in
    its briefand the Agency's statement
    in
    the 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 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 water in the wells. (R. 90-94, 102-106) As shown above, the static water level
    is between 2.25 and 4.36 feet bgs and at least 5 feet above the saturated zone. The bore hole logs
    do not indicate wet or even moist conditions at that level.
    (ld.)
    The Agency has provided no
    evidence to show that water is present
    in
    the lithology at the level
    to
    which water rose in the
    wells.
    If water is not
    in
    the lithology at that level, it cannot enter the well at that level through
    the well screen.
    As discussed in more detail in Keller's opening brief, the static water level is the level to
    which ground water will rise
    in
    a well.
    (See
    Ex. 4). Confined groundwater is under pressure and
    hydrostatic pressure on the
    water will cause the static water level to rise above where the water
    enters the well. (T. 29-30, Ex. 4) The static water level is used to determine the hydraulic
    gradient and which way the ground water will flow
    (T. 95), but the static water level for a
    confined aquifer, such as the one at this site, is no more representative
    of the location of the
    desired groundwater interval
    in
    the lithology for sampling purposes, than is groundwater that is
    (This filing submitted on recycled paper as defined in 3S D1. Adm. Code 101.2021
    11
    pumped from the well, contained in a sample jar; and placed on a table. In both cases the
    position
    ofthe water is different than where it was originally located in the lithology.
    In its Response (pp. 18,23), the Agency twists Ms. Rowe'stestimony and argues that the
    wells were not screened as she intended because they were submerged because the top
    of the
    well screen was below the static water level. Yet the fact that the well screens were submerged
    is
    of no import and the Agency has presented no evidence to the contrary. nor cited any relevant
    regulations.
    5
    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
    in
    the lithology.
    The Agency's arguments that the monitoring wells should have been screened at the level
    of the
    water
    in
    the wells are erroneous and are contrary to generally accepted professional engineering
    practices and principles
    ofprofessional geology.
    6
    II.
    Work at the Site Met Generally Accepted Engineering Practices and Principles of
    Professional Geology.
    The Agency's brief is internally inconsistent in that, on page 7, the briefstates:
    The IEPA May 17, 2007 decision letter does not state that the work
    performed by the Petitioner was not done
    in
    accordance with
    generally accepted engineering practices or principles
    of
    professional geology. (AR, page 256).
    Yet
    on page 8, the briefsays:
    During Section 734.510 (a) review, the IEPA determined that the
    Stage 1 Site investigation was not conducted
    in
    accordance with
    the approved plan and Stage 1 monitoring wells were not installed
    in the manner consistent with the regulations and generally
    accepted engineering practices. (AR page 256)
    5 The Agency also states without any support that "contaminants associated with petroleum releases are lighter than
    groundwater." (Response p. 15) This statement ignores that testimony of Mr. St. John that petroleum contaminants
    are soluble in water and will move through an aquifer with water. (T. 54-57)
    6 Contrary to the Agency's position, the regulations do not prohibit submerging the well screens. (Response, 33).
    Further, Ms. Rowe and Mr. St. John testified that the well screens were
    propei"ly placed. (f4748, 94, 96-97)
    [This filing submitted on recycled paper as defined in 35 1lI. Adm. Code 101.2021
    12
    Not only are these two quotes inconsistent, but as discussed above and as the Agency
    acknowledges
    in its brief, the Agency's Letter frames the issues on appeal. lf during the
    Section 734.510(a) review, the Agency thought the work was not done in a manner consistent
    with generally accepted engineering practices, why was this issue not raised in the Letter? The
    bottom line is that Keller performed the contested work at the site
    in compliance with applicable
    rules, including in accordance with generally accepted engineering practices and professional
    geology principles. (T. 58-59, 96-97, 150,
    180-182) The Agency presented no evidence at
    hearing
    or
    in
    its Response to the contrary.
    III. The Agency Attempts to Cloud the Issues by Raising Points That Were Not in the
    Agency's Final Decision Letter and
    are Not on Appeal
    A.
    The hydraulic conductivity tests were not raised as an issue
    in
    the
    Letter
    and do not indicate depth to groundwater.
    The Agency accuses Keller of "cherry picking". (Response, p. 28) However, the Agency
    is confusing "cherry picking" with Keller's desire to stick
    to the relevant issues, namely the
    issues listed
    in
    the Letter, that are the subject of this appeal, and the relevant portions of the
    Record. Contrary to the Agency's assertions, Petitioner's expert witness,
    Ron St. John, did
    review the relevant documents, which included all documents
    in
    the Record. (T. 97) His
    testimony about this site is based
    on the Record; throughout his testimony he used information
    from and referenced the bore hole logs and well construction reports found at R. 90-94 and 102-
    104. Prior
    to
    the hearing, however, he had not examined
    in
    detail the records related to the
    hydraulic conductivity test because the Letter did
    not raise any issues related to this test.
    Accordingly, the Agency accepted the hydraulic conductivity test and, thus,
    it is not one of the
    issues on appeal to the Board.
    Nevertheless, the Agency now attempts to discredit Mr. St. John's testimony because
    he
    did not examine
    in
    detail, prior to hearing, information about a test that is irrelevant to this
    [Tbis filiDg submitted OD recycled paper 85 defined in 35 01. Adm. Code 101.2021
    13
    Appeal. Even so, in response
    to
    the Agency'scross examination, Mr. 81. John explained that the
    water that flowed into the well came from the sandy saturated zone at 12 to
    131h feet bgs. (T.
    58) Even though the well screen extended into the dry, less permeable clayey silt above that
    zone, water
    was
    not located at that elevation to enter the well. (R. 90-94, 102-104)
    The record shows that hydraulic conductivity calculations are 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
    131Jz bgs, they also extended into the dry layer above that. 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) Rather than discredit Mr. 81. John, the Agency's cross
    examination
    ofrum supports Keller's position.
    7
    B.
    Groundwater depth after drilling is the same as the static water level if
    equilibrium with atmospheric pressure has been reached.
    The Agency also grasps at straws by trying to make an issue out ofKeller/Farina'sfailure
    to
    include on the bore hole logs the groundwater depth after drilling. (Response, p. 18) This was
    not one
    of the bases for rejection that the Agency listed in the Letter and the Agency should not
    be allowed to raise this issue now.
    Further, asking for the groundwater depth after drilling demonstrates the Agency's lack
    of experience and understanding of hydrogeology. The question about the depth of water after
    drilling a well, especially in a confined aquifer is not relevant. "Generally, static groundwater
    7 The Agency also attempts to discredit
    Mr.
    St. John'stestimony because he never visited the Keller site. Yet, Carol
    Hawbaker, the
    Agency's project manager for this site also never visited it before drafting the Letter. The Agency
    also takes out
    of context a portion of a court opinion
    in
    another case
    in
    an attempt to discredit
    Mr.
    St. John because
    he
    was not found to be an expert in wastewater treatment. (Response, pp. 27-28) However, that court did fmd him
    to be an expert
    in
    hydrogeology and Keller presented him as an expert
    in
    hydrogeology.
    LeClercq
    v.
    The
    Lockformer Co.,
    No. 00 C 7164, 2005 WL 1162979 at *3 (N.D. Ill. April 28, 2005) ("The Court concludes that St.
    John is qualified
    to provide expert testimony on hydrogeologic issues relating to the sewer line contamination
    theory.") Keller did
    not present him as an expert
    in
    wastewater treatment.
    [Tbis filing submitted on recycled paper as defined in 35 m. Adm. Code 101.2021
    14
    elevations do not stabilize on the date of well installation and well development procedures
    interfere
    with determination of static elevation." (T. 32-33; R. 11) In a confined aquifer, such
    as the one at the Keller site. after a well is installed and developed, water will continue
    to slowly
    rise in the well until eventually the static water level is reached. Typically, well development
    involves causing water levels to fluctuate by surging and removing water from the well
    to
    remove fIne grained material that gets smeared down to the level of the saturated zone. (T. 35,
    92) In other words, in a confined aquifer and depending on site-specifIc lithology and soil
    penneability, there will likely
    be differences in the water level in the well immediately after the
    well is drilled and developed, one hour later, two hours later, and
    fIve hours later as the water
    continues
    to rise until the hydrostatic pressure on the water equilibrates with atmospheric
    pressure,
    in
    other words, when the static water level is reached. There is nothing
    in
    the Record
    and the Agency presents no evidence
    to
    support why a separate entry for depth
    to
    groundwater
    after drilling is significant or why that value differs from the static water level after equilibrium
    is reached. Further, the Agency did not raise this issue in the Letter and should be precluded
    from raising it now.
    IV. Soil Borings SB4
    and SB5 Complied With Part 734.
    In
    its opening brief, Keller provided detailed arguments and cites
    to
    the Record and
    applicable regulations that the soil borings that the Agency objected to, SB4 and SB5, were
    drilled
    in
    compliance with applicable regulations.
    Keller will not repeat those detailed
    arguments here. As discussed above, rather than point to evidence in the Record or present
    witnesses at hearing to explain its position, the Agency
    in
    it briefargues for the first time that the
    definition for
    ''tankfIeld"
    in
    Part 732 applies
    to
    a Part 734 site. The Agency did not raise this
    IThis filing submitted on recycled paper as defined in 35 m. Adm. Code 101.2021
    15
    issue in the Letter and should not be allowed to apply inapplicable rules or be allowed to raise
    issues that were not contained in the Letter or
    in
    the Record.
    Further, on page 22 of the Agency'sbrief, the Agency argues that:
    Since only one
    tank. basin excavation sample exceeded the most
    stringent remediation objectives, soil sample
    El, only one soil
    boring (SB3) is needed per the minimum. requirements
    of Section
    734.315(a)(1)(A). Any other soil borings such as SB4 exceeds the
    minimum requirements
    ofthe Act and its regulations.
    Section 734.315(a)(1)(A) does not say that only one additional soil boring should be drilled
    if
    there is only one contaminated excavation sample. Rather, that section ofthe regulations clearly
    states that
    "up to four borings must be drilled around each independent UST field where one or
    more ... excavation samples ... exceeds the most stringent Tier 1 Remediation Objectives of
    [TACO]." Keller/Farina correctly drilled two borings in directions away from the contaminated
    excavation sample
    to
    defIne the extent of contamination. (T. 134; Ex. 11) SB4 was located
    to
    the north of the contaminated sample and SB3 was located to the east of the contaminated
    sample. (T. 134; Ex. 11)
    No other data was available when those samples were collected as they
    were drilled
    on the same day. (R. 125-126) The Agency provides no evidence to support its
    position.
    Collecting samples from soil borings around contaminated
    tank
    fields is important to
    determine the extent
    of contamination. As explained to the Agency previously (R. 9),
    KellerlFarina was not able to collect floor samples from the bottom
    of the
    tank
    excavations
    because groundwater infiltrated into the bottom
    of the excavation. Section 734.21O(h)(1)
    provides: "The Agency
    must allow an alternate location for, or excuse the collection of, one or
    more samples if sample collection in the following location is made impracticable by site-
    specifIc circumstances."
    (Tbisfiliog submitted on recycled paper
    u
    defined in 35 m. Adm. Code 101.202)
    16
    The listed locations include the excavation floor.
    See
    35 Ill. Admin. Code 734.210(h)(I)(B).
    Thus, SB4 and SB5 did not exceed minimum requirements as the Agency argues. The lack of
    samples collected from the bottom of the excavation cannot be used to demonstrate that there
    were no leaks from the diesel tanks nor can the lack of samples be used to determine that
    unsaturated soil
    had
    been adequately defined in that area. Additional samples were needed near
    the excavations to document whether a release occurred or not. In other words, SB5 which is
    located near the diesel tank excavation is needed because there was a release associated with the
    diesel UST piping (T. 134; Ex. 11) and samples could not be collected from the bottom
    of the
    diesel
    tank
    excavation to show that it was clean. (T. 176; R. 9) Likewise. SB4 was needed
    because no other data was available to document whether contamination migrated north from the
    sidewall sample E1
    in
    the gasoline tank excavation. Accordingly. borings SB4 and SB5 were
    correctly drilled and samples from them analyzed for contamination.
    V.
    Analysis of Soil Samples From Monitoring Wells MWI-MW4 Complied With Part
    734.
    The Agency continues to argue that soil samples collected when the monitoring wells
    were installed did not need to be analyzed. (Response, p. 23). Yet the Agency fails to point to
    anything in the Record to support the Agency position that there
    was
    data available on the date
    the samples were collected to document that contamination did not extend to the locations
    of the
    monitoring wells.
    As discussed above, it is clear from the chain of custody forms in the Record
    that the monitoring wells and soil borings were drilled on the same day. (R. 125-126) Thus,
    Keller did not have available the results
    of the soil boring analyses before it was necessary to
    submit the soil samples from the monitoring wells to the lab for analysis. (T. 136-142) In order
    to be certain that a sample is contaminated
    or not. one must submit the sample to a laboratory for
    analysis. Indeed, numerous regulations. including the TACO regulations at Part 742 require
    [Thb filing sublDitted on recycled paper as defined in 35 III. AdlD. Code 101.202]
    17
    laboratory analysis of samples. Further, Keller is not aware of any rules that allow an
    owner/operator to certify that his or her site is clean based solely
    on visual or olfactory
    observations and the Agency
    has
    cited no such provisions. Thus, soil samples from the
    monitoring wells were properly submitted for analysis because there were no sample data
    available on the date the samples were collected that indicated that soil contamination did not
    extend to the location where the monitoring wells were installed. KellerlFarina met the
    requirements
    of 734.315(a)(2)(C).8
    VI. The Proposed Stage 2 Site Investigation Plan Should Be Approved.
    On page 10 of its Response, the Agency states that:
    Illinois
    EPA did not reject the plan based on the additional
    proposed borings which exceed the minimum requirements. The
    plan
    was denied because the monitoring wells did not satisfy the
    requirements
    of 35 111. Admin. Code 734.430.
    As demonstrated elsewhere in this and Keller's opening brief, the monitoring wells do comply
    with
    Section 734.430. Thus, the proposed Stage 2 plan must be approved.
    A.
    The proposed soil borings to delineate contamination from piping runs did
    not exceed
    the minimum requirements of Part 734.
    Mr. Wienhoff explained at hearing (T. 142-145, Ex. 12) that a release from a piping run
    could sink into the ground and then spread and that would not be detected with an adjacent
    piping run sample that is only 2 to 3 feet bgs. Instead, it is necessary
    to
    install a soil boring
    in
    the area where the deeper contamination plume might be located in order
    to
    detennine if it is
    present
    or not. This is one of the pmposes for conducting additional investigations during Stage
    1 and Stage 2.
    8 The Agency asserts without citation to the Transcript that
    Mr.
    Wienhoff"admitted" that the soil sampling from the
    monitoring wells violated the regulations. (Response, p. 13) To the contrary,
    Mr.
    Wienhofftestified that the soil
    sampling complied with the regulations. (T. 136.142)
    (This filing submitted on recycled paper liS defined in 35 ilL Adm. Code 101.2021
    18
    The Agency's arguments related to this point are
    in
    error as the Agency asserts that clean
    piping run samples can be used to obtain an
    NFR Letter. The Agency conveniently ignores the
    fact that the rule at Section 734.210(h)(3) that allows such use of piping run samples to obtain a
    no further remediation letter only applies when all of the Early Action samples meet the most
    stringent TACO tier I cleanup objectives.
    In
    contrast, if any of the Early Action samples exceed
    the most stringent TACO Tier 1 remediation objectives, Section 734.210(h)(4) requires that the
    owner
    or operator must continue in accordance with Subpart C. Among other requirements,
    pursuant to Section 315, a Stage 1 site investigation must be performed and additional samples
    must be collected. The Agency also ignores the plain language
    of Section 734.315(a)(I)(B)
    which requires that soil borings be drilled through the entire vertical extent
    of contamination,
    based on field observations,
    if a sample from the piping excavation is contaminated. This rule
    does not say that additional samples do not need to be collected any deeper than the depth
    of the
    excavation to remove the piping, which is generally 2
    to 3 feet bgs. (R. 171)
    In its brief, the Agency also takes issue with testimony about diving phunes and states
    there was no evidence that a diving plume is located on this site. (Response, p. 29) The Agency
    is correct
    that there is no such evidence. However, the Agency'slogic fails because the purpose
    of the site investigation is to fmd out if such a plume exists. Without performing a subsurface
    investigation it is impossible to determine whether contamination from a
    tank
    or piping run
    release sank into the ground and then spread out into a plume. (T. 143-145; Ex. 12) The purpose
    of the testimony about diving plumes was to explain that contamination tends to migrate
    downward as it also moves laterally
    with groundwater.
    Because contamination from piping runs was found during Early Action, pursuant to
    Section 734.315(a)(1)(B) soil borings must be drilled; shallow piping run samples cannot be used
    IThis filiog submitted 00 rttytled paper as defined in 3S D1. Adm. Code 101.2(2)
    19
    to detennine if contamination exists throughout the entire vadose zone. Without installing soil
    borings at greater depths than piping run samples, a site owner/operator will have no way
    of
    knowing whether a diving plume exists or not. The only way to know if one exists is to conduct
    the Stage 1 and Stage 2 investigations ancl.
    to
    sample in areas where a diving plume would most
    likely be located.
    B.
    Proposed soil samples between the gasoline pump island and MW2 do not
    exceed the minimum requirements of
    Part 734.
    On page 25 of its brief, the Agency takes issue with the proposed soil samples to be
    located between the pump island and MW2. As KellerlFarina argued before, it appears
    to
    KellerlFarina's consultant that the contamination at monitoring well 2 might meet Tier 2
    Remediation Objectives after additional
    data is collected and the appropriate calculations are
    made to determine Tier 2 Remediation Objectives. (T. 147-150) Accordingly, the purpose of
    collecting samples between the pump island and monitoring well 2 is to begin
    to
    delineate the
    area that will likely exceed Tier 2 Remediation Objectives because those are the remediation
    objectives that are generally needed to meet the minimum requirements
    of the Act.
    (Id)
    Such
    samples can either be collected as part
    of the Stage 2 Site Investigation when the consultant will
    be at the site to collect the Stage 2 samples, or the consultant can make a separate trip to the site
    at some point in the future when the Agency asks the consultant
    to
    perform further delineation of
    the contamination in order to reduce the size of the area that must be remediated. Since in all
    likelihood the samples will need
    to
    be collected at some point in the future, it makes more sense
    and it is more cost effective to collect the samples as part of the Stage 2 Site Investigation.
    (Id)
    Accordingly, the proposed samples should be approved.
    [Tbis filing submitted on recycled paper as defined in 3501. Adm. Code 101.202]
    20
    VII.
    The Proposed Budget Must Be Approved.
    Because the Agency'sdenial of the proposed budget is based on the Agency's erroneous
    denial
    ofthe proposed Stage 2 site investigation, the Board should approve the proposed budget.
    VIII.
    Mr. St. John'sTestimony Should Not Be Stricken.
    The Agency appears to be confused by Mr. St. Jolm's testimony. The purpose of his
    testimony was to explain generally accepted principles of hydrogeology that are relevant
    to
    the
    KellerlFarina site. The reason for this is simple. The Agency does n ot understand basic
    hydrogeology. In order
    to make correct decisions about how monitoring wells are constructed,
    the Agency should understand these principles. There is no information in the record as to
    whether anyone from the Agency that reviewed the documents sent in by KellerlFarina
    understood any
    of these principles.
    In
    fact, the Agency's Response refers to the bore hole logs
    (Response p. 26) that clearly say "moist" around the 10 foot bgs level (R. 90-94) and argues that
    the water
    in
    the wells came from the silty clay layer above the "moist" level." (Response, p. 29)
    There is no information
    in the record and no testimony was presented at hearing regarding the
    qualifications
    of the Agency's project manager for this site. In fact,
    had
    the Agency presented
    the project manager as a witness, Keller's attorney would have questioned her about her
    qualifications. Further, the Agency presented no witnesses
    or other evidence to contradict Mr.
    St. John's testimony, the hearing officer admitted his testimony, and Mr. St. Jolm is a qualified
    expert
    in
    hydrogeology with years of experience who has installed thousands of monitoring
    wells. (Ex. 3,
    T. 11-14) His testimony should not be stricken.
    (This filiog submitted OD rtcyclcd paper as defilled in 35 III. Adm. Code 101.202]
    21
    CONCLUSION
    Keller met its burden of proofthat the work performed at the site that is the subject of this
    appeal complied with applicable laws and regulations. The Agency presented no credible
    evidence to the contrary. Accordingly, the Board must
    find in favor of Keller/Farina and against
    the Agency and award Keller its attorney'sfees and costs.
    Respectfully submitted,
    L. Keller
    Oil Properties (Farina)
    By:
    ~'-"'~
    One of Its Att eys
    N~
    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
    423986vl
    (This filiog submitted 00 recyded paper as defined in 35 IU. Adm. Code
    101.20Z]
    22
    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
    )
    )
    )
    )
    )
    REPLY OF PETITIONER L. KELLER OIL PROPERTIESIFARINA
    IN SUPPORT OF POST HEARING BRIEF
    Now comes the Petitioner,
    L.
    Keller Oil PropertieslFarina ("Keller or "KellerlFarina"),
    by its counsel Barnes
    &
    Thornburg LLP and hereby submits its reply to the Illinois
    Environmental Protection Agency's ("!EPA"
    or the "Agency") Post Hearing Brief to the Illinois
    Pollution Control Board ("Board").
    INTRODUCTION
    Keller has met its burden of proof that the Stage 1 site investigation and the proposed
    Stage 2 site investigation plan and budget comply with applicable regulations and that the
    Agency improperly rejected certain aspects
    of this work in a final decision letter dated May 17,
    2007 (the "Letter"). In sharp contrast, the Agency failed to present any testimony
    or evidence at
    hearing and failed to cite
    to
    any portions ofthe Administrative Record
    in
    its Response to support
    its decisions contained
    in the Letter. For example, the Agency did not provide any witnesses to
    explain
    or other evidence to support its erroneous interpretation ofwhat the term "desired ground
    water interval" means, or where monitoring wells should be screened.
    lThis filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021
    1
    Further, the Agency for the first time
    in
    its post-hearing brief erroneously attempted to
    apply a defInition in the Part 732 regulations to this site. However, the site is instead subject to
    Part 734.
    In
    addition, the Agency at hearing and
    in
    its brief raised new issues that were not
    included in the Letter that is the subject
    of this appeal, such as the hydraulic conductivity test that
    was performed at the Keller site. The Agency also ignores information in the record such as
    documentation that the monitoring wells and soil borings were drilled on the same day so that the
    data from the soil boring samples were not available to Keller when soil samples from drilling
    the monitoring wells had to be submitted for analysis.
    See
    35 Ill. Admin. Code 734.315(a)
    (2)(C). Therefore,
    as
    ofthe date
    the soil samples were taken from the monitoring wells, no other
    soil sampling indicated the extent
    ofsoil contamination in the location ofthe monitoring well.
    Keller contests IEPA's decisions on the following issues: installation of the monitoring
    wells, analysis of soil samples from monitoring wells MWI through MW4, the drilling of soil
    borings SB4 and SB5 and the Agency's rejection of the proposed Stage 2 site investigation and
    budget. Contrary to the Agency's assertions, Keller's monitoring wells were installed in
    accordance with all applicable regulatory requirements, the soil boring samples were
    drilled in
    compliance with Part 734, soil samples that were collected while the monitoring wells were
    being installed were correctly submitted for analysis, and the proposed additional Stage 2 site
    investigation plan and budget comply with applicable regulations. In the very limited instances
    where KellerlFarina recognized that it made an error, Keller corrected the error, and those few
    issues are not part of this appeal to the Board. Even so, the Agency attempts in its brief to use
    those errors to argue that Keller is wrong on all the issues before the Board.
    rrhi$ filing submitted 00 recycled paper as defined in 3S DI. Adm. Code 101.2021
    2
    Keller met its burden of proof, the Agency presented no credible evidence to the contrary,
    and the Agency failed to support its Response with appropriate citations to the Record. Thus, the
    Board must find in favor of Keller and approve Keller's Stage 1 site investigation work and
    proposed Stage 2 site investigation plan and budget.
    BURDEN OF PROOF AND STANDARD OF REVIEW
    KellerlFarina agrees with IEPA that UST appeals before the Board are treated in the same
    manner as permit appeals. KellerlFarina also agrees that it has the initial and ultimate burden
    of
    proof for establishing that it should prevail on the issues raised in its Petition for Review.
    However, when a petitioner presents a
    prima facie
    case on an issue, the burden then shifts to
    IEPA 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
    primafacie
    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
    primafacie
    case.");
    lEPA
    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.
    ld.
    KellerlFarina proved its case. IEPA
    presented no credible
    or other evidence to rebut Keller's case. Accordingly, Keller is entitled to
    an order in its favor
    on its Petition for Review.
    STATEMENT OF FACTS
    In its opening brief, Keller presented a detailed Statement of Facts, including background
    infonnation about the site and numerous submissions to and from the Agency, (See pp. 2-7
    of
    IThis filing submitted on recycled paper as defined in 35 m. Adm. Code 101.2021
    3
    Keller's Post Hearing Brief) That Statement of Facts will not be repeated in its entirety here.
    Rather, KellerlFarina wishes to emphasize the following relevant facts:
    1.
    Keller presented four qualified witnesses, while the Agency presented none.
    At hearing Keller
    p~sented
    four wilnesses, two of whom are professional engineers and
    two of whom are professional geologists. Each of them have had years of experience in
    investigating remediation sites. (T. 14, 87, 175; Ex. 3, 7, 10,
    13i
    Collectively, they have
    installed or supervised the installation ofthousands of monitoring wells.
    (Id.)
    Keller'switnesses
    testified that the work that was done at the site complied with applicable Agency rules and
    generally accepted professional engineering practices and professional geologist procedures.
    (T.58-59, 96-97, 150, 180-182) In sharp contrast, the Agency presented no wilnesses or
    evidence at hearing to show that the work did not comply with applicable rules, or generally
    accepted engineering or geology practices (T. 185-186)
    2.
    The Record shows the wells were screened at the appropriate interval.
    The Administrative Record (the "Record") that was before the Agency shows that the
    wells were screened to intersect the desired groundwater interval.
    Moisture was first
    encountered at approximately 10 feet below ground surface ("bgs''),and between approximately
    12 and
    13~
    feet below ground surface the lithology was wet sand. (T. 90; See bore hole logs for
    the monitoring wells at R. 90-94)
    Specifically, the bore hole log for monitoring well 1 (MWl) is located at R.90 and
    documents that the lithology was clayey silt between
    2~
    and about 12 feet bgs, where fine
    I
    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.
    rTbis filing submitted on recycled paper as defined In 35 D1. Adm. Code 101.2021
    4
    grained sand started., and at a depth of
    10Y2.
    to 12 feet bgs it
    was
    moist and became wet, very fine
    sand at a depth
    of 12 to 13Y2. feet bgs.
    The bore hole log for monitoring well 2 (MW2) is located at R. 91 and documents that
    the lithology was clayey silt from about 2
    Y2
    to 11 Y2 feet bgs that
    was
    moist at 9Y2. to 10 feet bgs
    and was wet, very fme sand
    at a depth of 12 to 13Y2. feet bgs.
    The bore hole log for monitoring well 3 (MW3) is located at
    R. 92 and documents that
    the clayey silt was located between 2 and 12 feet bgs that became moist at
    10Y2.
    feet bgs and
    changed to wet, very fine sand at
    12 feet bgs; the wet sand continued to 13Y2. feet bgs.
    The bore hole log for monitoring well 4 (MW4) is located at
    R. 93 and documents that
    the lithology was clayey silt between 3 and about 12 feet bgs, was moist clayey silt that started to
    include some sand at
    10Y2. to 12 feet bgs, and was wet, very fme sand at 12 to
    13Y2.
    feet bgs.
    The bore hole log for monitoring well 5 (MW5) is located at R. 94 and documents that
    the lithology was clayey silt between
    2Y2
    and 12 feet bgs, was moist at 10Y2 to 12 feet bgs and
    became wet, very fine sand at
    12 to 13Y2. feet bgs.
    Thus, it is clear from the record that there is a saturated zone at a depth
    of 12 to 13Y2. feet
    bgs where the wet sand is located. (T. 30, 90;
    R.
    90-94) Further, the moist layer that was
    encountered is likely the capillary fringe, which is an area above an aquifer that becomes moist
    due to capillary action of water rising into the soil layer.
    (See
    Ex. 4)
    Keller presented testimony at hearing and presented the well completion reports in the
    Record documenting that the well screens intersected both the wet, sandy zone and the moist
    clayey silt zone above that.
    (T. 34,48, 88-91, 123-124; R. 90-94, 102-106) Thus, because the
    wells were screened where the wet sand
    was
    located, they were screened in accordance with
    IThis filing submitted OD reeycJed paper as defined in 35 D1. Adm. Code 101.2021
    5
    IEPA regulations (T. 34) and samples from the desired groundwater interval could be and, in
    fact, were collected. (T.
    34,47-48,94, 96-97)
    In response
    to
    this evidence, the Agency presented no testimony, no citation to the
    Record, and no other evidence to explain why the Agency asserts that the wells were not
    screened at the correct intervals, or why the Agency claims that the wells should have been
    screened at the water levels in the wells, which is the static water level.
    3.
    The Record shows that groundwater
    is
    not present in the lithology at the level ofthe
    water
    in
    the wells.
    The static water levels in the monitoring wells 1 through 5 are at the relative elevation
    range of 96.91 to 98.00 feet, where the 100
    foot
    level is the ground surface at monitoring well 1.
    (R.I02-106) By calculating the depth to groundwater in each well (subtract the elevation of the
    static water level from the elevation of the ground surface), the depth to the static water level
    in
    each well can be determined as follows: MWI - static water level is 2.25 feet bgs (R. 102);
    MW2 - static water level is 3.42 feet bgs (R. 103); MW3 - static water level is 4.36 feet bgs (R.
    104); MW4 - static water level is 4.15 feet bgs
    (R. 105); and MW5 - static water level is 2.7 feet
    bgs
    (R.
    106).
    When the depth to the static water level
    in each well is compared to information for the
    respective drilling bore hole logs, information in the Record documents that the clayey silt
    located at the same elevation as the static water level is not wet and is not even moist. Thus,
    there is no water in the lithology at the same level as the static water level.
    4.
    The saturated sand seam
    is
    a confined aquifer.
    Because moisture
    was
    first encountered at approximately 10 feet bgs, more than 5 feet
    below the static water levels (compare information at
    R. 90-94 with R. 102-106), the saturated
    sand seam meets the definition of "confmed water."
    (See
    Ex. 4).
    (This filing submitted on recycled paper as defined in 3S m. Adm. Code 101.202)
    6
    5.
    The soil samples from the monitoring wells were taken on the same date as the soil
    boring samples.
    The chain of custody report in the Record documents that the Stage 1 soil samples from
    the monitoring wells were collected on the
    same day, July 12, 2006, that the other soil boring
    samples were collected.
    (R.
    125-126) The samples were collected on the same day because the
    monitoring wells and soil borings were drilled
    on the same day. (T. 153, 155, 161;
    R.
    125-126)
    ARGUMENT
    I. IEPA May Not Raise Issues Now That Were Not Raised in the Letter and Must Not Be
    Allowed to Use Rules That Do Not Apply.
    KellerlFarina agrees
    with
    IEPA that the May 17, 2007 IEPA decision letter frames the
    issues on appeal.
    Ayers
    v.
    IEPA,
    PCB No. 03-214, p. 8 (Apr. 1, 2004). Indeed, principles of
    fundamental fairness dictate that IEPA cannot raise new issues before the Board that were not
    included in the denial letter:
    Principles
    of fundamental fairness require that an applicant he
    given notice
    of the statutory and regulatory bases for denial of an
    application for reimbursement and that the Agency
    be bound on
    review
    by those cited bases for denial given in its denial statement.
    Fundamental fairness would be violated
    if the Agency were free to
    cite additional statutory and regulatory reasons for denial for the
    first time at the Board hearing.
    Pulitzer Community Newspapers, Inc.
    v.
    IEPA,
    PCB 90-142, p. 7 (Dec. 20, 1990).
    Nevertheless, the Agency raises issues in its Response that were not raised
    in
    the Letter,
    including the hydraulic conductivity tests that were performed at the site, and the application
    of
    the definition of '"tank field"
    in
    Part 732 to a site governed by Part 734. Based on the standard
    established in
    Pulitzer,
    the Agency cannot now raise such issues.
    A.
    The Agency cannot use the definition of "tank field" under Section 732 to
    reject Keller's soil borings.
    jThls filiDg submitted OD recycled paper as defined in 35 1lI. Adm. Code 101.2021
    7
    The Agency, for the first time
    in
    its brief, tries to apply the definition of the term "tank
    field"
    in
    Section 732.103 tq the work performed by Keller pursuant to Part 734. While 732.103
    does
    define the term "tank field" as "all underground storage tanks at a site that reside within a
    circle with a 100 foot
    radiu$," there is no similar definition in Part 734. Further, the term ''tank
    field" is not even used
    in Part 734. When IEPA proposed new regulations at Part 734 and
    amended Part 732,
    ifIEPA had wanted to include a definition of "tank field"
    in
    the new Part 734
    rules, it could easily have included it, but the Agency did not do so. Because the term
    ''tank
    field" does not appear in the Part 734 rules, and this site is not subject to Part 732, IEPA should
    not be allowed to use the definition.
    The relevant rules
    in
    Part 734 to which the Agency attempts to apply the definition of
    "tank field" are found at Section 734.315(a)(I). Part 734 instead uses the term "each
    independent UST
    2
    field" in the context of describing work to be done during Stage 1 site
    investigations. Section 734.315(a)(l)(A) requires that up to four borings be "drilled around each
    independent UST field where one or more UST excavation samples," excluding backfill samples,
    exceed the most stringent TACO Tier 1 Remediation Objectives. Because ''tankfield" and "each
    independent UST field" are different terms, they should
    be given different meanings.
    As the term "each independent UST field" is not defined
    in
    Part 734, the term should be
    given its plain, ordinary meaning.
    Alhambra-Grantfork Tel. Co.
    v.
    Ill. Commerce Comm., 358
    Ill. App. 3d 818,822,832 N.E.2d 869,873 (5
    th
    Dist. 2005) ("The word 'customer'is not defined
    in
    the statute, and so we apply the rules
    of statutory construction and afford the statutory
    language
    its plain and ordinary meaning.");
    O'Loughlin
    v.
    Village ofRiver Forest,
    338 Ill. App.
    3d 189, 195, 788 N.E.2d 157, 162
    (5
    th
    Dist. 2003) ("The Act does not define the term. As such,
    2 The term "underground storage tank" or "UST" includes one or a combination of tanks "including underground
    pipes connected thereto" 35 Ill. Admin. Code 734.115.
    (This filing submitted on
    re~cled
    paper as defined in 35 m. Adm. Code 101.202]
    8
    the rules of statutory constrUction require us to first look to the plain language of the statute and
    interpret the language according to its plain and ordinary meaning.
    'J
    The plain meaning of this
    tenn is that each separate _
    basin that contains one or more USTs and associated piping is
    considered an independent UST field. Thus, the gasoline, heating oil, and diesel
    tank basins are
    independent
    of each other, and therefore constitute three independent UST fields.
    Since there were three independent UST fields at this property (gasoline tanks, diesel
    tank
    and heating oil
    tank
    3
    )
    and excavation samples from two of them contained indicator
    contaminants at concentrations greater than TACO Tier 1 Remediation Objectives, pursuant to
    Section 734.315(a)(1)(A) an owner/operator could drill up to eight soil borings, four around the
    gasoline UST excavation and four around the diesel UST excavation.
    In addition, Section
    734.314(a)(1)(B) requires that up to two borings be drilled around each UST piping ron
    if at least
    one piping run sample exceeds the most stringent Tier I Remediation Objectives. Because
    releases were associated with both the diesel and gasoline piping runs (Ex. 11), Keller would be
    permitted pursuant to Section 734.315(a)(1)(B) to collect up to four soil borings during its Stage
    1 investigation
    of piping run contamination. Thus, under Section 734.314 (a)(l)(A) and (B),
    Keller would be allowed to drill
    up to 12 soil borings during the Stage 1 site investigation.
    In fact, Keller drilled a total
    of 8 soil borings, less than the maximum nwnher permitted.
    4
    In short, the Agency'slast minute attempt to apply a defInition in the Part 732 rules to a Part 734
    site must be stricken for three reasons: (1) Part 732 rules and definitions do not apply here, (2)
    the use
    of the definition of "tank field"
    was
    not raised in the Letter as a basis for denying and
    3 While there were releases from the heating oil tank, early action activities removed the contamination. (R. 8, Ex.
    11) Hence, the beating oil
    tank
    did not require further investigation, and was not investigated as part of Stage 1.
    4 Further, Keller is not contesting that SB6 was drilled in error, and the only soil borings at issue
    in
    this appeal are
    SB4 and SB5. The Agency has not disputed the appropriateness of SB I, 8B2, SB3, SB7 or 8B8.
    lThis filing submitted on neyded paper as defined in 35 D1. Adm. Code 101.202)
    9
    rejecting Keller's work at the site, and (3) Keller collected fewer
    than
    the maximum number of
    samples allowed Wlder Part 734.315(a)(1).
    B.
    The
    Agency~s
    arguments about the monitoring wells are internally
    inconsistent
    and inaccurate.
    Throughout its brief, the Agency continuously and erroneously argues that the desired
    ground water interval for sampling is the water level in the well, which is the same
    as
    the static
    water level. The Agency claims
    on page 29 of its brief, without citing
    to
    specific sections of the
    Record to support its unfounded claim, that
    "All
    documentation submitted by the Petitioner
    regarding groundwater, indicates that the groundwater producing layer is the silty clay layer
    depicted in the Administrative Record
    ...." As Keller
    has
    pointed out at hearing and in its brief,
    that is not what the Record demonstrates. The Record clearly demonstrates, and Ms. Rowe and
    Mr. 81. JOM testified, that the moist layer begins at a depth of about 10 feet bgs and becomes
    saturated at
    12 to
    13~
    feet bgs. (T. 81, 97; R. 90-94) There is nothing in the Record that
    indicates that groundwater exists in the lithology above the
    9~
    foot level. In fact, Keller
    presented testimony that very
    little. if any. water would flow into the well above the saturated
    zone. where the clayey silt is located. (T. 81)
    On page 21 of the Agency's brief, the Agency correctly states "the Geologist (sic) must
    determine in the field the specific ground water bearing unit which would most likely be
    impacted by the release, hence the requirement for representative ground water sample." Keller
    did exactly that. Contrary
    to
    the Agency's arguments about where groundwater is located, the
    desired ground water interval for sampling at this site is the wet sand seam (T. 97), which is
    located at 12 to 13
    ~
    feet bgs. (R. 90-94) In addition, the moist foot and one halfabove 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
    (Tbis filing submitted OD ruyded paper as defined in 35 IU. Adm. Code 101.2021
    10
    contaminated by releases from USTs. (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) The Agency never
    presented any evidence that the desired groundwater interval is located anywhere else.
    Although the Agency produced no witnesses to explain what the Agency believes
    regarding the location
    of the water producing zone in the lithology, it appears from the
    arguments
    in
    its brief and the Agency's statement
    in
    the 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 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 water in the wells. (R. 90-94, 102-106) As shown above, the static water level
    is between 2.25 and 4.36 feet bgs and at least 5 feet above the saturated zone. The bore hole logs
    do not indicate wet or even moist conditions at that level.
    (Id)
    The Agency
    has
    provided no
    evidence
    to show that water is present in the lithology at the level to which water rose in the
    wells.
    If water is not in the lithology at that level, it cannot enter the well at that level through
    the well screen.
    As discussed in more detail in Keller's opening brief, the static water level is the level to
    which ground water will rise in a well.
    (See
    Ex. 4). Confmed groundwater is under pressure and
    hydrostatic pressure on the
    water will cause the static water level to rise above where the water
    enters the well. (T. 29-30, Ex. 4) The static water level is used to determine the hydraulic
    gradient and which way the ground water will flow (T.95), but the static water level for a
    confined aquifer, such as the one at this site, is no more representative
    of the location of the
    desired groundwater interval in the lithology for sampling
    pUlposes, than is groundwater that is
    IThis filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021
    11
    pumped from the well, contained in a sample jar, and placed on a table.
    In
    both cases the
    position
    ofthe water is different than where it was originally located in the lithology.
    In
    its Response (pp. 18,23), the Agency twists Ms. Rowe'stestimony and argues that the
    wells were not screened as she intended because they were submerged because the top
    of the
    well screen was below the static water level. Yet the fact that the well screens were submerged
    is
    of no import and the Agency
    has
    presented no evidence to the contrary, nor cited any relevant
    regulations.
    S
    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 in the lithology.
    The Agency's arguments that the monitoring wells should have been screened at the level of the
    water in the wells are erroneous and are contrary to generally accepted professional engineering
    practices and principles
    ofprofessional geology.6
    II.
    Work at the Site Met Generally Accepted Engineering Practices and Principles of
    Professional Geology,
    The Agency'sbrief is internally inconsistent in that, on page 7, the briefstates:
    The IEPA May
    17,2007 decision letter does not state that the work
    performed
    by the Petitioner was not done in accordance with
    generally accepted engineering practices
    or principles of
    professional geology.
    (A~
    page 256).
    Yet on page 8, the briefsays:
    During Section 734.510 (a) review, the IEPA determined that the
    Stage 1 Site investigation
    was
    not conducted in accordance with
    the approved plan and Stage 1 monitoring wells were not installed
    in the marmer consistent with the regulations and generally
    accepted engineering practices. (AR page 256)
    5 The Agency also states without any support that "contaminants associated with petroleum releases are lighter than
    groundwater." (Response p. 15) This statement ignores that testimony of Mr. St. John that petroleum contaminants
    are soluble
    in
    water and will move through an aquifer
    with
    water. (T. 54-57)
    6 Contrary
    to
    the Agency's position, the regulations do not prohibit submerging the well screens. (Response, 33).
    Further, Ms. Rowe and
    Mr.
    St. John testified that the well screens were properly placed. (T47-48, 94, 96-97)
    IThis filiog submitted on recycled paper as defined in 35 m. Adm. Code 101.2(2)
    12
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    Not only are these two quotes inconsistent, but as discussed above and as the Agency
    acknowledges in its brief, the Agency's Letter frames the issues
    on appeal.
    If
    during the
    Section 734.51O(a) review, the Agency thought the work was not done
    in
    a manner consistent
    with generally accepted engineering practices, why
    was
    this issue not raised
    in
    the Letter? The
    bottom line is that Keller performed the contested work at the site
    in compliance with applicable
    rules, including in accordance
    with
    generally accepted engineering practices and professional
    geology principles. (T. 58-59, 96-97, 150,
    180-182) The Agency presented no evidence at
    hearing or in its Response to the contrary.
    HI. The Agency Attempts to Cloud the Issues by Raising Points That Were Not
    in
    the
    Agency's Final Decision Letter and are Not on Appeal.
    A.
    The hydraulic conductivity tests were not raised as an issue in the
    Letter and do not indicate depth to groundwater.
    The Agency accuses Keller of "cherry picking". (Response, p. 28) However, the Agency
    is confusing "cherry picking" with Keller's desire to stick to the relevant issues, namely the
    issues listed in the Letter, that are the subject
    of this appeal, and the relevant portions of the
    Record. Contrary
    to
    the Agency's assertions, Petitioner's expert witness, Ron St. John, did
    review the relevant documents, which included all documents
    in the Record. (T. 97) His
    testimony about this site is based
    on the Record; throughout his testimony he used information
    from and referenced the bore hole logs and well construction reports found at
    R. 90-94 and 102-
    104. Prior
    to
    the hearing, however, he had not examined in detail the records related
    to
    the
    hydraulic conductivity test because the Letter did not raise any issues related to this test.
    Accordingly, the Agency accepted the hydraulic conductivity test and, thus, it is not one of the
    issues
    on appeal to the Board.
    Nevertheless, the Agency now attempts to discredit Mr. St. John's testimony because he
    did not examine
    in
    detail, prior
    to
    hearing, information about a test that is irrelevant to this
    (This filing submitted on recycled paper as defined in 3S III Adm. Code 101.202)
    13
    Electronic Filing, Received, Clerk's Office, October 22, 2007
    Appeal. Even so, in responSe to the Agency'scross examination, Mr. St. John explained that the
    water that flowed into the well came from the sandy saturated zone at 12 to 13'12 feet bgs. (T.
    58) Even though the well screen extended into the dry, less permeable clayey silt above that
    zone, water was not located at that elevation to enter the well. (R. 90-94, 102-104)
    The record shows that hydraulic conductivity calculations are 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
    13Y2.
    bgs, they also extended into the
    dry
    layer above that. 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) Rather than discredit Mr. S1. John, the Agency's cross
    examination of him supports Keller'
    5
    position.
    7
    B.
    Groundwater depth after drilling is the same as the static water level if
    equilibrium with atmospheric pressure has been reached.
    The Agency also grasps at straws by trying to make an issue out of Keller/Fariha'sfailure
    to include on the bore hole logs the groundwater depth after drilling. (Response, p. 18) This
    was
    not one of the bases for rejection that the Agency listed
    in
    the Letter and the Agency should not
    be allowed to raise this issue now.
    Further, asking for the groundwater depth after drilling demonstrates the Agency's lack
    of experience and understanding of hydrogeology. The question about the depth of water after
    drilling a well, especially
    in a confined aquifer is not relevant. "Generally, static groundwater
    7 The Agency also attempts to discredit
    Mr.
    St. John's testimony because he never visited the Keller site. Yet, Carol
    Hawbaker, the Agency's project manager for this site also never visited
    it before drafting the Letter. The Agency
    also takes out
    of context a portion of a court opinion
    in
    another case
    in
    an attempt to discredit
    Mr.
    St. John because
    he was not found to be an expert
    in wastewater treatment. (Response, pp.
    27~28)
    However, that court did find him
    to be an expert
    in
    hydrogeology and Keller presented him as an expert in hydrogeology.
    LeClercq
    v.
    The
    Lockformer Co.,
    No. 00 C 7164,2005 WL 1162979 at *3 (N.D. Ill. April 28, 2005) ("The Court concludes that St.
    John
    is qualified to provide expert testimony on hydrogeologic issues relating to the sewer line contamination
    theory.") Keller did not present him as an expert
    in
    wastewater treatment.
    (This
    filing
    submitted on recycled paper as defined in 35 m. Adm. Code 101.2021
    14
    elevations do not stabilize on the date of well installation and well development procedures
    interfere with determination
    of static elevation." (T. 32-33; R. 11) In a confined aquifer, such
    as the one at the Keller site,:
    after
    a well is installed and developed, water will continue to slowly
    rise in the well
    Wltil eventually the static water level is reached. Typically, well development
    involves causing water levels to fluctuate by surging and removing water from the well to
    remove fine grained material that gets smeared down to the level
    of the saturated zone. (T. 35,
    92) In other words,
    in
    a confIned aquifer and depending on site-specifIc lithology and soil
    permeability, there will likely be differences
    in
    the water level in the well immediately
    after
    the
    well
    is drilled and developed, one hour later, two hours later, and five hours later as the water
    continues to rise until the hydrostatic pressure on the water equilibrates
    with atmospheric
    pressure, in other words, when the static water level is reached. There
    is nothing
    in
    the Record
    and the Agency presents no evidence to support why a separate entry for depth to groundwater
    after drilling is significant or why that value differs from the static water level after equilibrium
    is reached. Further, the Agency did not raise this issue in the Letter and should
    be precluded
    from raising it now.
    IV. Soil Borings SB4
    and SB5 Complied With Part 734.
    In its opening brief, Keller provided detailed arguments and cites to the Record and
    applicable regulations that the soil borings that the Agency objected to, SB4 and SB5, were
    drilled in compliance with applicable regulations.
    Keller will not repeat those detailed
    arguments here. As discussed above, rather than point to evidence
    in the Record or present
    witnesses at hearing to explain its position, the Agency
    in
    it brief argues for the fIrst time that the
    definition for "tank field"
    in
    Part 732 applies to a Part 734 site. The Agency did not raise this
    (This filing submitted on recycled paper as defined iu 35 D1. Adm. Code 101.202)
    15
    issue in the Letter and should not be allowed to apply inapplicable rules or be allowed to raise
    issues that were not
    contain~d
    in the Letter or in the Record.
    Further, on page 22
    ofthe Agency'sbrief, the Agency argues that:
    Since only one
    tank
    basin excavation sample exceeded the most
    stringent remediation objectives, soil sample
    El, only one soil
    boring (SB3) is needed per the minimum requirements
    of Section
    734.315(a)(I)(A). Any other soil borings such as SB4 exceeds the
    minimum requirements
    ofthe Act and its regulations.
    Section 734.315(a)(l)(A) does not say that only one additional soil boring should be drilled
    if
    there is only one contaminated excavation sample. Rather, that section of the regulations clearly
    states that "up
    to
    four borings must be drilled around each independent UST field where one or
    more . . . excavation samples . . . exceeds the most stringent Tier 1 Remediation Objectives
    of
    [fACO)." KellerlFarina correctly drilled two borings in directions away from the contaminated
    excavation sample to defme the extent
    of contamination. (T. 134; Ex. 11) SB4 was located to
    the north
    of the contaminated sample and SB3 was located to the east of the contaminated
    sample.
    (T. 134; Ex. 11) No other data was available when those samples were collected as they
    were drilled on the same day. (R. 125-126) The Agency provides no evidence to support its
    position.
    Collecting samples from soil borings around contaminated
    tank
    fields is important to
    determine the extent
    of contamination. As explained to the Agency previously (R.9),
    KellerlFarina
    was
    not able to collect floor samples from the bottom of the
    tank
    excavations
    because groundwater infiltrated into the bottom
    of the excavation. Section 734.21 O(h)(I)
    provides: "The Agency must allow an alternate location
    for~
    or excuse the collection of, one or
    more samples
    if sample collection in the following location is made impracticable by site-
    specific circumstances."
    (Dis filing submitted on recycled paper as defined in 35 m. Adm. Code 10l.202)
    16
    The listed locations include the excavation floor.
    See
    35 Ill. Admin. Code 734.21O(h)(1)(B).
    Thus, SB4 and SB5 did not exceed minimum requirements as the Agency argues. The lack of
    samples collected from the bottom of the excavation cannot be used to demonstrate that there
    were no leaks from the diesel tanks nor can the lack
    of samples be used to determine that
    unsaturated soil had been adequately defined in that area. Additional samples were needed near
    the excavations to document whether a release occurred or not.
    In other words, SB5 which is
    located near the diesel tank excavation is needed because there was a release associated
    with
    the
    diesel UST piping (T. 134; Ex. 11) and samples could not be collected from the bottom
    of the
    diesel
    tank
    excavation to show that it
    was
    clean.
    (T.
    176; R. 9) Likewise, SB4
    was
    needed
    because no other data was available to document whether contamination migrated north from the
    sidewall sample E1
    in the gasoline tank excavation. Accordingly, borings SB4 and SB5 were
    correctly drilled and samples from them analyzed for contamination.
    v.
    Analysis of Soil Samples From Monitoring Wells MWI-MW4 Complied With Part
    734.
    The Agency continues to argue that soil samples collected when the monitoring wells
    were installed did not need to be analyzed. (Response, p. 23). Yet the Agency fails to point to
    anything in the Record to support the Agency position that there was data available
    on the date
    the samples were collected to document that contamination did not extend
    to
    the locations of the
    monitoring wells. As discussed above, it is clear from the chain
    of custody forms
    in
    the Record
    that the monitoring wells and soil borings were
    dril~ed
    on the same day. (R. 125-126) Thus,
    Keller did not have available the results
    of the soil boring analyses before it was necessary to
    submit the soil samples from the monitoring wells to the lab for analysis. (T. 136-142) In order
    to be certain that a sample is contaminated
    or not, one must submit the sample to a laboratory for
    analysis. Indeed, numerous regulations, including the TACO regulations at Part 742 require
    IThis filing submitted on recycled paper as defined in 3501. Adm. Code 101.202]
    17
    laboratory analysis of samples. Further, Keller is not aware of any rules that allow an
    owner/operator to
    certify that his or her site is clean based solely on visual or olfactory
    observations and the
    Agency
    has
    cited no such provisions. Thus, soil samples from the
    monitoring wells were properly submitted for analysis because there were no sample data
    available
    on the date the samples were collected that indicated that soil contamination did not
    extend
    to the location where the monitoring wells were installed. KellerlFarina met the
    requirements
    of 734.3 I5(a)(2)(C).8
    VI. The Proposed Stage 2 Site Investigation Plan Should Be Approved.
    On page 10 of its Response, the Agency states that:
    Illinois
    EPA did not reject the plan based on the additional
    proposed borings which exceed the minimum requirements. The
    plan was denied because the monitoring wells did not satisfy the
    requirements
    of 35 111. Admin. Code 734.430.
    As demonstrated elsewhere in this and Keller's opening brief, the monitoring wells do comply
    with Section 734.430. Thus, the proposed
    Stage 2 plan must be approved.
    A.
    The proposed soil borings to delineate contamination from piping runs did
    not exceed the minimum requirements
    of Part 734.
    Mr. Wienhoff explained at hearing
    (T.
    142-145, Ex. 12) that a release from a piping run
    could sink into the ground and then spread and that would not be detected with an adjacent
    piping run sample that is only 2 to 3 feet bgs. Instead,
    it is necessary to install a soil boring in
    the area where the deeper contamination plume might be located in order to determine
    if it is
    present or not. This is one of the purposes for conducting additional investigations during Stage
    1
    and Stage 2.
    8 The Agency asserts without citation to the Transcript that Mr. Wienhoff "admitted" that the soil sampling from the
    monitoring
    wells violated the regulations. (Response, p. 13) To the contrary, Mr. Wienhofftestified that the soil
    sampling complied with the regulations.
    (T.
    136~142)
    lThis filing submitted on recycled paper 35 defined in 35
    nl.
    Adm. Code 101.2021
    18
    The Agency'sarguments related to this point are in error as the Agency asserts that clean
    piping run samples can be used to obtain an NFR Letter. The Agency conveniently ignores the
    fact that the rule at Section 734.21O(h)(3) that allows such use
    of piping run samples to obtain a
    no further remediation letter only applies when
    aU of the Early Action samples meet the most
    stringent TACO tier I cleanup objectives.
    In
    contrast, if any of the Early Action samples exceed
    the most stringent TACO Tier 1 remediation objectives, Section 734.210(h)(4) requires that the
    owner or operator must continue
    in
    accordance with Subpart C. Among other requirements,
    pursuant to Section 315, a Stage 1 site investigation must
    be performed and additional samples
    must
    be
    collected. The Agency also ignores the plain language of Section 734.315(a)(l)(B)
    which requires that soil borings be drilled through the entire vertical extent
    of contamination,
    based on field observations,
    if a sample from the piping excavation is contaminated. This rule
    does not say that additional samples do not need to be collected any deeper than the depth
    of the
    excavation
    to remove the piping, which is generally 2 to 3 feet bgs. (R. 171)
    In its brief, the Agency also takes issue with testimony about diving plumes and states
    there was
    no evidence that a diving plume is located on this site. (Response, p. 29) The Agency
    is correct that there is no such evidence. However, the Agency's logic fails because the purpose
    of the site investigation is to find out if such a plume exists. Without performing a subsurface
    investigation it
    is impossible to determine whether contamination from a
    tank
    or piping run
    release sank into the ground and then spread out into a plume. (T. 143-145; Ex. 12) The purpose
    of the testimony about diving plumes was to explain that contamination tends to migrate
    downward as it also moves laterally
    with groundwater.
    Because contamination from piping runs was found during Early Action, pursuant
    to
    Section 734.315(a)(1)(B) soil borings must be drilled; shallow piping run samples cannot be used
    rrbls filing submitted on recycled paper lIS defiued iu 35 DL Adm. Code 101.2021
    19
    to determine if contamination exists throughout the entire vadose zone. Without installing soil
    borings at greater depths than piping run samples, a site owner/operator will have no way of
    knowing whether a diving plume exists or not. The only way to know if one exists is to conduct
    the Stage 1 and Stage 2 investigations and
    to
    sample in areas where a diving plume would most
    likely be located.
    B.
    Proposed soil samples between the gasoline pump island and MW2 do not
    exceed the minimum requirements of
    Part 734.
    On page 25 of its brief, the Agency takes issue with the proposed soil samples to be
    located between the
    pump island and MW2. As KellerlFarina argued before, it appears to
    KellerlFarina's consultant that the contamination at monitoring well 2 might meet Tier 2
    Remediation Objectives after additional data is collected and the appropriate calculations are
    made to determine Tier 2 Remediation Objectives. (T. 147-150) Accordingly, the purpose
    of
    collecting samples between the pump island and monitoring well 2 is to begin to delineate the
    area that will likely exceed Tier 2 Remediation Objectives because those are the remediation
    objectives that are generally needed to meet the minimum requirements
    of the Act.
    (Id.)
    Such
    samples can either be collected as part of the Stage 2 Site Investigation when the consultant will
    be at the site to collect the Stage 2 samples, or the consultant can make a separate trip to the site
    at some point
    in
    the future when the Agency asks the consultant to perfonn further delineation of
    the contamination in order to reduce the size of the area that must be remediated. Since in all
    likelihood the samples will need to be collected at some point in the future, it makes more sense
    and it is more cost effective to collect the samples as part of the Stage 2 Site Investigation.
    (Id. )
    Accordingly, the proposed samples should be approved.
    (This filing submitted on recycled paper as defined in J5 m. Adm. Code 101.2021
    20
    VII.
    The Proposed Budget Must Be Approved.
    Because the Agency's denial of the proposed budget is based on the Agency's erroneous
    denial
    ofthe proposed Stage 2 site investigation, the Board should approve the proposed budget.
    VIII.
    Mr. St. John's Testimony Should Not Be Stricken.
    The Agency appears to be confused by Mr. St. John's testimony. The purpose
    of his
    testimony was to explain generally accepted principles
    of hydrogeology that are relevant to the
    KellerlFarina site. The reason for this is simple. The Agency does n ot understand basic
    hydrogeology. In order to make correct decisions about how monitoring wells are constructed,
    the Agency should understand these principles. There is no infonnation in the record
    as
    to
    whether anyone from the Agency that reviewed the documents sent in by KellerlFarina
    understood any
    of these principles. In fact, the Agency's Response refers to the bore hole logs
    (Response
    p. 26) that clearly say "moist" around the 10 foot bgs level (R. 90-94) and argues that
    the water
    in the wells came from the silty clay layer above the "moist" level." (Response, p. 29)
    There is no information in the record and no testimony was presented at hearing regarding the
    qualifications
    of the Agency's project manager for this site.
    In
    fact,
    had
    the Agency presented
    the project manager as a witness, Keller's attorney would have questioned her about her
    qualifications. Further, the Agency presented no witnesses or other evidence to contradict
    Mr.
    S1. John's testimony, the hearing officer admitted his testimony, and Mr. St. John is a qualified
    expert in hydrogeology with years
    of experience who has installed thousands of monitoring
    wells. (Ex. 3, T. 11-14) His testimony should not be stricken.
    lDis filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2(2)
    21
    CONCLUSION
    Keller met its burden
    ofproof that the work perfonned at the site that is the subject ofthis
    appeal complied with applicable laws and regulations. The Agency presented no credible
    evidence to the contrary.
    Accordingly, the Board must find in favor of KellerlFarina and against
    the Agency and award Keller its attorney'sfees and costs.
    Respectfully submitted,
    L. Keller Oil Properties (Farina)
    By:
    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
    423986vl
    [Tbis filing submitted
    on recycled paper as defined in 3S nl Adm. Code 101.2021
    22
    CERTIFICATE OF SERVICE
    I, on oath state that I have served the attached Petitioner's Motion to File Post-Hearing
    Reply Brief and Reply in Support of Post-Hearing Brief bye-mail and 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 North Grand Avenue East
    P.O. Box 19274
    Springfield, Illinois 62794-9274
    from One North Wacker Drive, Suite 4400, Chicago, Illinois, before the hour of 5:00 p.m., on
    this 22nd day
    of October, 2007.
    Carolyns:~e
    42~207vl
    [This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.202]
    2

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