ILLINOIS POLLUTION CONTROL BOARD
April 19, 2001
GILBERTS CITGO L.L.C, an Illinois
corporation,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, WHEELING
TRUST & SAVINGS BANK a/k/a COLE
TAYLOR BANK, successor trustee, as
trustee under Trust No. 73-314 and JOHN
CAPORASO, as beneficiary of Trust No. 73-
314,
Respondents.
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PCB 01-50
(Water Well Setback Exception)
TIMOTHY P. DWYER, OF THE LAW OFFICES OF TIMOTHY P. DWYER, APPEARED
ON BEHALF OF PETITIONER; and
STEPHEN C. EWART, APPEARED ON BEHALF OF RESPONDENT, THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
On September 8, 2000, Gilberts Citgo L.L.C. (Citgo), filed a petition for a water well
setback exception (WWSE) relating to installation of underground storage tanks (USTs) at a
site located at the southeast corner of Route 72 and Center Road in the Village of Gilberts
(Village of Gilberts), Kane County, Illinois. Citgo requested a WWSE pursuant to Section
14.2(a) of the Environmental Protection Act (Act) (415 ILCS 5/14.2(a) (1998)) and 35 Ill.
Adm. Code 106, Subpart F. Citgo seeks to develop and operate a gas station and
convenience store at the site.
Citgo purchased the site, which was previously undeveloped, in April of 2000. Tr. at
19.
1 The site plan contains a convenience store, as well as pumps, lines, and tanks for the sale
of regular and premium gasoline and diesel fuel. The development plans of Citgo would place
the USTs approximately 112 feet from an off-site well owned by John Caporaso. Citgo was
aware of the existence of this well prior to purchasing the site. Tr. at 19. Since the placement
1
The petition and amended petition assert Citgo purchased the property in August of 1999.
The transcript from the November 22, 2000 hearing in this matter will be referred to as “Tr. at
___.”
2
of the UST would be within the applicable statutory setback zone set forth in the Act, such
placement is only authorized if Caporaso waives the setback or the Board grants a WWSE
pursuant to Section 14.2(c) of the Act. For the reasons expressed below, the Board grants
Citgo’s request for a WWSE, subject to conditions.
STATUTORY AND REGULATORY FRAMEWORK
Section 14.2 of the Act establishes provisions designed to protect community and
potable water supply wells from possible contamination. Among these provisions is the
establishment of a setback zone around a potable water supply well. 415 ILCS 5/14.2(a)
(1998). Within the setback zone, no “new potential source” nor “new potential route of
groundwater contamination” may be sited, unless this Board has granted an exception. 415
ILCS 5/14.2(c) (1998). USTs are potential sources of groundwater contamination. 415 ILCS
5/3.60 (1998).
The Act also requires that an owner seeking an exception to a potable water supply well
other than a community water supply well file a petition with the Board and the Agency, and
describe the circumstances under which the owner sought a written request for a waiver from
the water well’s owner and the Agency. 415 ILCS 5/14.2(c) (1998).
Proceedings in this matter were conducted pursuant to the Board’s former water well
setback exception procedures codified at 35 Ill. Adm. Code 106.601
et seq
. These have been
superseded as of January 1, 2001, by rules codified at 35 Ill. Adm. Code 106.300
et. seq
.
The Board must grant a requested exception when the Board finds that adequate proof
has been presented “that compliance with the setback requirements . . . would pose an
arbitrary and unreasonable hardship upon the petitioner, that the petitioner will utilize the best
available technology controls economically achievable to minimize the likelihood of
contamination of the potable water supply well, that the maximum feasible alternative setback
will be utilized, and that the location of such potential source . . . will not constitute a
significant hazard to the potable water supply well.” 415 ILCS 5/14.2(c)(1998) and 35 Ill.
Adm. Code 106.310 (effective January 1, 2001).
PROCEDURAL HISTORY
Once Citgo determined that a well was located within 200 feet of the proposed USTs,
Citgo attempted to obtain the well owner’s consent and a waiver to locate the well within the
setback zone. These attempts failed and, on September 8, 2000, Citgo filed its WWSE request
with Board. In its original petition, Citgo did not name the well owner as a respondent, but
identified the well owner to be Marcia Caporaso. On September 21, 2000, the Board issued an
order mandating that she be named a respondent to the action. See 35 Ill. Adm. Code
106.300(b) (effective January 1, 2001). On September 29, 2000, Citgo filed an amended
petition naming Marcia Caporaso.
3
On October 19, 2000, the parties participated in a status conference with Hearing
Officer Brad Halloran. Subsequent to that conference call, on October 23, 2000, Citgo filed
its second amended petition. This petition was filed for the sole purpose of clarifying the
ownership of the property upon which the wells are located. Accordingly, the second amended
petition changed the name of respondent from Maria Caporaso to Wheeling Trust and Savings
Bank a/k/a Cole Taylor Bank, successor trustee under Trust No. 73-314 and John Caporaso as
beneficiary of Trust No. 73-314, as now reflected in the caption of this opinion and order.
On October 17, 2000, the Illinois Environmental Protection Agency (Agency) filed its
response to Citgo’s WWSE request, see Resp. at 5-7,
3
and on November 22, 2000, a public
hearing was held in this matter. Attorney Timothy Dwyer appeared on behalf of Citgo.
Attorney Diana Larson, design builder Michael Maude, Jr., and part-owner of the site Edward
Newby testified on behalf of Citgo. Attorney Stephen Ewart appeared on behalf of the
Agency. Lynn Dunaway testified on behalf of the Agency. There were no representatives
present on behalf of respondent Wheeling Trust & Savings Bank or respondent John Caporaso.
No members of the public attended the hearing.
On January 18, 2001, the Board issued an order in which the Board found that Citgo
had not yet proven the necessary elements for the granting of a water well setback exception.
The order granted Citgo 60 days to provide more specific information and to demonstrate that
an exception would not cause a significant hazard to the affected well and that Citgo would
suffer an arbitrary or unreasonable hardship if the setback exception were denied. On
March 15, 2001, Citgo filed a supplemental petition for WWSE. On April 2, 2001, the
Agency filed a response to the supplemental petition for WWSE recommending grant of the
WWSE.
Motion to Substitute Counsel
On March 19, 2001, Citgo filed a motion to substitute counsel pursuant to 35 ILCS
101.400(d). The Board grants the motion.
MERITS OF EXCEPTION REQUEST
Each of the four issues that the Board must consider in its review of a water well
setback request is discussed below.
Maximum Feasible Alternative Setback
Citgo provided site layouts, including the tanker truck access plan. Site design and UST
placement is based on IDOT criteria for safety during fuel delivery by large tanker trucks.
Citgo contends, and the Agency does not disagree, that the site design incorporates the
3
The Agency’s October 17, 2000 response in support of Citgo’s petition will be referred to as
“Resp. at ___.”
4
maximum feasible alternative setback. Tr. at 58. The Board has reviewed the evidence
regarding the maximum feasible alternative setback. As stated in the January 18, 2001 order,
the Board finds that Citgo has met its burden on the issue.
Significant Hazard to the Well on the Adjacent Property
Prior to the Board’s January 18, 2001 request for additional information, Citgo asserted
that it had taken all the steps within its control to minimize the potential of any type of leak
from the tanks or lines as potential sources of contamination. Am. Pet. at 8.
4
Further, Citgo
stated that the well logs it received from the Illinois State Water Survey indicated that most of
the wells in the area of Citgo’s property are deep wells which are located in soil formation of
clay to a depth of at least 20 feet.
Id.
However, the well logs submitted by Citgo did not
include a log for the Caporasos’ well, and the petitioner’s attempts to obtain any information
from the well owner or conduct a well inspection were not successful. Pet. Br. at 8.
5
Dunaway testified about the geologic logs from the area near the proposed site. Tr. at
58. Based on the review of the available logs, Dunaway determined that the geologic
conditions at the site consisted of bedrock surface overlain by unconsolidated glacial materials
ranging from 150 to 200 feet in thickness. Tr. 59-61. Dunaway stated that clay is the most
common glacial material noted in the logs, and because clay has a low permeability
contaminants that may enter the ground tend not to move very far nor do they move rapidly.
Id.
Dunaway further testified that there is glacial material in this area with sand and gravel
layers of adequate thickness which contains Class I groundwater. Tr. at 60. These sands and
gravel layers are fairly common and are occasionally used as a source of water in the area.
However, Dunaway testified the layers did not appear to be laterally extensive.
Dunaway testified if the Caporasos’ well utilizes the bedrock and is properly
constructed and maintained, the site would not pose a significant hazard to a well utilizing the
bedrock formation.
Id.
However, Dunaway noted the possibility that the Caporasos’ well was utilizing one of
the localized sands as its source of water, and that the same sands could exist on the site. Tr.
at 61. If this were the case, the USTs could pose a significant hazard to the well.
Id.
Dunaway noted that Citgo had committed to sample and analyze the Caporasos’ well water
annually for petroleum contaminants to ensure that it does not become contaminated.
Id.
Dunaway testified that annual groundwater monitoring would provide sufficient protection to
prevent a significant health risk to the water users and would keep the site from being a
significant health risk.
Id.
As noted in the last Board order, the Board agreed with the Agency that a significant
hazard might be present if the Caporasos’ well draws water from a localized sand layer and the
same sand layer exists on the site.
Gilbert’s Citgo v. IEPA (January 18, 2001), PCB 01-50, slip
4
Citgo’s September 29, 2000 amended petition will be referred to as “Am. Pet. at ___.”
5
Citgo’s December 8, 2000 post-hearing brief will be referred to as “Pet. Br. at ___.”
5
op. at 4-5.
The Board noted that the petitioner did not provide a geologic log of the
Caporasos’ well to ascertain whether the well is drawing water from the protected bedrock
aquifer or from any localized sand layer.
Id.
While the geologic logs submitted by Citgo
indicated that a large number of wells in the vicinity of Citgo’s site draw water from the
bedrock aquifer, the logs did not provide assurance that the proposed placement of USTs
would not pose threat of contamination to the Caporasos’ well, especially considering that the
occurrence of sand and gravel layers of adequate thickness to contain Class I groundwater are
fairly common in the area.
While the petitioner’s commitment to monitor the Caporasos’ well provided a measure
of safety for the well water users, the Board, in its last order, noted that such monitoring does
not protect the well from contamination since any detection of indicator contaminants in the
Caporasos’ well would mean that the well is already contaminated.
Gilbert’s Citgo v. IEPA
(January 18, 2001), PCB 01-50, slip op. at 4.
Further, since the petitioner proposed to monitor
the Caporasos’ well on an annual basis, if contaminants reach the well within a short period
time after a monitoring event, the water well users would be exposed to contaminated water for
a significant period of time. In this regard, Citgo had not offered to perform any groundwater
monitoring on its property to ensure that any potential contamination would be detected before
it moves beyond the property line. Further, Citgo had not provided any site hydrogeologic
information such as direction and rate of groundwater flow or site geologic characterization to
support its claim that the proposed activity does not pose a significant threat to the Caporasos’
well. In light of this, the Board found that the petitioner did not provide sufficient proof to
demonstrate that the proposed site would not constitute a significant hazard to the Caporasos’
well.
Gilbert’s Citgo PCB 01-50, slip op. at 4.
Rather, the Board concluded that a significant hazard might be present if the affected
well draws water from the same sand layer where Citgo’s proposed USTs would be located at
its new service station. Gilbert’s Citgo PCB 01-50, slip op. at 4.
Citgo supplied the following information in its March 15, 2001 supplemental petition.
To demonstrate that the new USTs will not constitute a significant hazard to the offsite potable
water supply, Citgo examined the affected well for depth, installed monitoring wells,
committed to performing annual well testing, and upgraded leak prevention features on the
proposed UST.
In its exploration of the affected well, Citgo determined the well’s depth to be 210 feet,
pumping from a level of 185 feet deep. Information from the Illinois State Water Survey
indicates that most of the wells in the general vicinity are in limestone strata at 185-200 feet in
depth. Water samples were also taken and analyzed. Supp. Pet. at 3; Exh. 1 at 2; Exh. A.;
Exh. D.
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Citgo’s March 15, 2001 supplemental petition will be referred to as “Supp. Pet. at ___.” The
engineer’s report, prepared by Wight Consulting, will be referred to as “Exh. 1 at ___.” The
report prepared by A.C. Snelton, Inc., will be referred to as “Exh. A.” The test results from
Suburban Laboratories, Inc., will be referred to as “Exh. D.”
6
Citgo installed two monitoring wells on its property between the proposed USTs and
the affected well at a depth of 21 feet. In addition, Citgo plans to install two additional
monitoring wells in the underground storage tank field at the time of the tank installation. A
fifth well is also planned on Citgo’s property to supply potable water to the service station and
will be drilled to approximately the same depth as the affected well. Supp. Pet. at 5, Exh. 1 at
3.
Citgo proposed to conduct annual monitoring of the first two monitoring wells, Citgo’s
potable well, and the affected well. Supp. Pet. at 5.
Although the Board found that Citgo satisfied criteria for best available technology
controls, Citgo is also planning to upgrade its proposed UST leak prevention features to
include double-hulled tanks and interstitial monitoring. Supp. Pet. at 4; Exh. 1 at 3-4.
Citgo has demonstrated that the affected well is not located in the same sand layer as
the proposed USTs and will not share the same groundwater. As an additional measure of
protection, Citgo has proposed to monitor the water supply by sampling shallow monitoring
wells, the affected well, and its own potable well. Initial water quality tests of the affected
well conducted by Citgo during the investigation will provide a baseline for water quality if
changes occur in the future. The Board finds that Citgo’s efforts to investigate the affected
well for depth and provide monitoring removes the significant hazard the USTs might pose to
the affected well.
During the investigation of the affected well, Citgo observed a second well five feet to
the west of the affected well measuring 45 feet deep. Supp. Pet. at 3. Citgo noted that the
second well appeared to be abandoned with no cap or pumping equipment.
Id.
The discovery
of this second well is within the scope of this WWSE since it is also located within the 200-
foot setback.
7
The Board finds the measures taken by Citgo to remove any significant hazard
posed by the USTs to the firstidentified well also apply to the second identifiedwell on the
Caparosos’ property.
Arbitrary and Unreasonable Hardship
Given the insufficient proof on the significant hazard issue, the Board did not address
the issue of arbitrary or unreasonable hardship in the last order.
A showing of arbitrary and unreasonable hardship is a necessary element to the Board's
grant of water well exceptions. 415 ILCS 5/14(c) (1998). In the environmental context, both
the Board and the Illinois Appellate Court have found that a hardship is arbitrary or
unreasonable when it outweighs the injury to the public or environment. Marathon Oil Co. v.
IEPA and PCB, 242 Ill. App. 3d 200, 610 N.E.2d 789, 793 (5th Dist. 1993). (“The petitioner
must . . . show that the hardship it will encounter from the denial of the variance will outweigh
7
Citgo offered to cap this well, but the well owner rejected the offer. Supp. Pet. at 3-4.
7
any injury to the public or environment from the grant of the variance. Only if the hardship
outweighs the injury does the evidence rise to the level of an arbitrary or unreasonable
hardship.”) Therefore, to grant a water well setback exception, the Board must find that any
hardship outweighs any injury to the public or environment.
During the hearing on November 22, 2000, Citgo’s witnesses, Larson and Newby,
supported the claim that denial of the exception would constitute an arbitrary or unreasonable
hardship. Tr. at 21;Tr. at 42-43. Citgo’s witnesses further stated that, as of the
November 22, 2001 hearing, over $237,000 has been spent to purchase the property plus an
additional $125,000 in engineering, legal, and permit fees. Tr. at 42, 47. Citgo’s witnesses
stated at hearing that denial of the exception would devalue Citgo’s economic investment in the
site, emphasizing that construction of a convenience store without the gasoline station is not a
viable economic option. Tr. at 48. If the exception is denied, unrecoverable costs would
include the $125,000 in engineering, attorney, and permit fees in addition to devaluation of the
property since it could not be developed as reflected in its “premium” purchase price. Tr. at
43-45. Citgo noted that no other piece of local real estate was available or better suited for
Citgo’s proposed business venture from a marketing or access standpoint. Tr. at 20-21; Tr. at
43-45. Citgo concluded that the site, if developed, would be an important project to the
Village of Gilberts because it would be the only gas station in, or within nine miles of, the
Village of Gilberts.
The Board finds that the inability to develop the site would cause hardship to Citgo. If
properly installed, maintained, and monitored, Citgo’s USTs should not constitute a significant
hazard to the Caporasos’ potable water supply, and hence should pose no significant potential
injury to the public or environment. The Board accordingly also finds that the hardship to
Citgo caused by denying the water well exception rises to the level of arbitrary and
unreasonable hardship.
Best Available Technology Controls
Citgo has demonstrated that it will use what the Agency agrees are the best available
technology controls for its USTs. Pet. at 2-3.
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Citgo’s UST systems will be equipped to use
the best available technology controls as follows: double wall tanks with steel inner tanks and
fiberglass reinforced plastic outer tanks; intestitial monitoring of the annular space; double wall
direct burial product pumping, containment sumps; spill containment manholes to collect
excess fuel in the hoses of the tanker at the time of filling; positive overfill prevention valves;
line leak detection and automatic tank gauging system; non-discriminating liquid sensors in the
submersible pump sumps for detecting any liquid that may accumulate in the containment
sumps; a leak trigger alarm system; and two continuously monitored tank field monitoring
wells. Exh. H; Exh. I; Am. Pet. at 3.
9
Accordingly, as stated in the January 18, 2001 order,
the Board finds Citgo has met its burden on this issue.
8
Citgo’s September 8, 2001 petition will be referred to as “Pet. at ___.”
9
The Permantank brochure, will be referred to as “Exh. H” The Veeder-Root brochure will be
referred to as “Exh. I”
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CONCLUSION
The Board concludes that Citgo has proven the necessary elements for the grant of a
water well setback exception. The Board accordingly grants the exception, subject to the
conditions stated in the order. These conditions are designed to insure that the USTs are
properly maintained and monitored, so that any harm caused by an unintended release can be
mitigated expeditiously.
Regardless of the grant of the exception, the Caporasos’ water rights under 415 ILCS
30/6b of the Illinois Water Well Construction Code are preserved. If contamination occurs
because of Citgo’s USTs, Citgo must provide the Caporasos an alternate water supply 415
ILCS 30/6b. This section of the code provides assurance of a potable water supply:
Except as provided in Section 14.2 of the Environmental Protection Act,
the owner of every potable water supply well which has been
contaminated due to the actions of the owner or operator of a potential
primary or potential secondary source or potential route shall be
provided an alternative source of potable water of sufficient quality and
quantity, or treatment of the waters from such well to achieve a sufficient
level of quality and quantity appropriate to protection of the public
health, or such other remedy as may be mutually agreed upon by the
well owner and the owner or operator of the potential source or potential
route.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
Citgo is granted a water well setback exception for the property located at the southeast
corner of Route 72 and Center Road in the Village of Gilberts, Kane County, subject to the
following conditions:
1. Citgo must sample and analyze groundwater for the appropriate indicator
contaminants found at 35 Ill. Adm. Code 732.Appendix A as follows:
a. The Caporasos’ well annually, and within 30 days of a detected release
from the petroleum USTs or piping, contingent upon right of entry
granted by the well owner for such purposes.
b. Citgo’s onsite potable water well annually and within 30 days of a
detected release from the petroleum USTs or piping.
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c. The existing two monitor wells on a quarterly basis.
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2. Citgo must provide copies of laboratory test results from the Caporasos’ well
and Citgo’s wells to the Caporasos and the Agency within seven days of receipt.
Citgo must indicate on the results if any tested indicator contaminants exceed the
Class I Potable Resource Groundwater criteria set forth in 35 Ill. Adm. Code
620. Citgo must send all monitoring results from the Caporasos’ well and
Citgo’s wells within seven days of receipt to:
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276; and
Mr. and Mrs. John and Marcia Caporaso
c/o Abatron Incorporated
5501 95th Avenue
Kenosha, Wisconsin 53144.
IT IS SO ORDERED.
Board Member McFawn dissented.
If Citgo chooses to accept this exception, subject to the above conditions, within
45 days of the date of this order, Citgo must certify that it accepts the terms of the
exception by executing a certificate of acceptance and agreement to be bound by all of
the terms and conditions of the granted exception and forwarding such certificate to:
Stephen C. Ewart,
Division of Legal Counsel,
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276, Springfield
Illinois 62794-9276
Such acceptance must be signed by an officer of Citgo duly authorized to bind
Citgo to all of the terms and conditions of the final Board order in this matter. The 45-
day period must be held in abeyance during any period that this matter is appealed.
Failure to execute and forward the certificate within 45 days renders this exception void
and of no force and effect as a shield against enforcement of rules from which the
Board has granted relief. This form of the certificate is as follows:
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CERTIFICATION
I (We), _________________________________, hereby accept
and agree to be bound by all terms and conditions of the order of the
Pollution Control Board in PCB 01-50 dated April 19, 2001.
______________________________________
Petitioner
______________________________________
Authorized Agent
______________________________________
Title
______________________________________
Date
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
service of this order. Illinois Supreme Court Rule 335 establishes such filing requirements.
See 172 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.520, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 19th day of April 2001 by a vote of 5-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
