ILLINOIS POLLUTION CONTROL BOARD
May 18,
1995
WOODSTOCK/NORTHERN FS,
INC.,
)
Petitioner,
)
V.
)
PCB 94—258
(UST Reimbursement)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
DANNY
3. LEIFEL APPEARED ON BEHALF OF PETITIONER;
MELANIE A.
JARVIS, OF ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
APPEARED ON BEHALF OF RESPONDENTS.
OPINION
AND
ORDER OF THE BOARD
(by G.
T.
Girard):
On September 19,
1994,
the petitioner, Woodstock/Northern
FS,
Inc.
(FS) filed a petition for review of a September 6,
1994,
determination by the Illinois Environmental Protection Agency
(Agency) regarding reimbursement from the underground storage
tank fund
(UST fund).
The Agency denied reimbursement for
$12,308.96 in tank removal costs,
$686.05 for excessive handling
fees and $33,834.21 for excessive early action activities.
(Book
I at 31_33.)1
FS is asking the Board to review the Agency’s
denial of these charges.
FS withdrew one issue it had raised in
its petition at hearing.
(Tr.
at 6.)
Hearing was held before Board Hearing Officer Richard Sikes
on February 28,
1995,
in Woodstock, NcHenry County,
Illinois.
No
members of the public were present at the hearing.
Briefs were
filed by the parties on April
3,
1995 and April
19,
1995 for the
petitioner and April
17,
1995 for the respondent.
For the reasons discussed below,
the Board affirms the
Agency’s decision in this matter.
STATUTORY
AND
REGULATORY
FRANEWORK
Section 57.13 of the Act provides:
The petition for review will be cited as “Pet. at
_“;
the petitioner’s brief will be cited as “Pet.
Br.
at
_“;
the
petitioner’s reply brief will be cited as “Pet. RBr.
at
_“;
the
Agency’s brief will be cited as “Ag. Br.
at
_“;
the Agency’s
fiscal record will be cited as “R.
at
____“;
the Agency’s
technical record will be cited as “Book
—
at
“;
the hearing
transcript will be cited as “Tr.
at
“.
2
a.
If a release is reported to the proper State
authority on or after the effective date of this
amendatory Act of 1993,
the owner or operator
shall comply with the requirements of this title.
b.
If a release is reported to the proper State
authority prior to the effective date of this
ameridatory Act of 1993,
the owner or operator of
an underground storage tank may elect to proceed
in accordance with the requirements of this Title
by submitting a written statement to the Agency of
such election.
(415 ILCS 5/57.13.)
35 Ill.
Adm. Code 731.161 Initial Response, provides in
pertinent part:
Upon Confirmation of a release or after a release from the
UST system is identified in any other manner,
owners and
operators shall perform the following initial response
actions within 24 hours of
a release:
b)
Take immediate action to prevent any further release of
the regulated substance into the environment.
And,
35 Ill.
Adm. Code 731.162 (a) (1)
Initial Abatement
Measures and Site Check, provides:
a)
Owners and operators shall perform the following
abatement measures:
1)
Remove as much of the regulated substance from the
TJST system as is necessary to prevent further
release to the environment.
ISSUE ON APPEAL
The sole issue on appeal before the Board revolves around
which incarnation of the UST statute should apply in this case.
If the tanks which were removed in October of 1993 were a
continuation of the release reported in February of 1992,
petitioner has elected to proceed under Section 22.18 et
seq.
of
the Act.
(415 ILCS 5/22.18 et
seq.)
Under Section 22.18 of the
Act, the Board would need to remand the case for further
determination by the Agency of the reasonableness of the costs
associated with the clean-up of the site.
If however, the tanks
removed in October of 1993 constituted a new release, then
Section 57 et
seq.
of the Act would apply to the clean-up and
reimbursement.
In this case,
the Agency has reviewed the
3
reimbursement application as controlled by Section 57 of the Act.
(Ag. Br. at 2.)
Therefore, the Board must decide if the Agency
correctly determined that the tank removal of October 1993 was a
new release and properly applied the provisions of Section 57 of
the Act in this case.
FACTS
The FS facility is located at 1001 S. Eastwood Drive, which
is north of the Chicago and Northwestern railroad tracks in
Woodstock,
Illinois.
(Book II at 504.)
The facility is
surrounded by commercial and residential properties.
(Id.)
The
area includes a metal factory to the east with residences and
office buildings to the north.
(Book II at 504.)
In November of 1991,
Dahl and Associates
(Dahi) completed a
site—assessment for the FS facility.
(Book II at 499—512.)
Dahl
had been retained in July of 1990 to provide environmental
property evaluation services for
FS.
(Book II at 505.)
Dahi
initially extracted soil samples from seven test borings around
the facility.
(Book II at 503.)
The analyses of the soil
samples confirmed the presence of petroleum hydrocarbons in six
of the test borings.
(Book II at 505.)
Dahi then performed
tightness tests on the three 10,000 gallon tanks.
After two
tests, the north and south 10,000 gallon tanks, Tank
2 and Tank
3,
at issue in this appeal, were certified as tight and no report
was given for the west (Tank
1) gasohol tank.
(Book II at 505,
626.)
A second site assessment phase was undertaken with an
additional seven test borings and three groundwater monitoring
wells.
(Book II at 505,
see also 527.)
Soil samples from all
14
test borings had field photoionization detector
(PID)
values that
ranged from less than
1 to 170 parts per million
(ppm) when
screened in the field.
(Book II at 506.)
Volatile organic
compounds were detected in six of the fourteen test borings and
the samples were submitted for laboratory analyses for benzene,
toluene, ethylbenzene, total xylenes and hydrocarbons.
(Id.)
In
two of the test borings
(TB), TB5 and TB6, the levels exceeded
the Agency cleanup levels for soils.
(Book
II at 506.)
Test
borings 5 and 6 are west northwest of Tank
1.
(Book II at 527.)
Based on the data collected, Dahl recommended that the release be
reported to the proper authorities and that the 10,000 gallon
gasohol UST (Tank
1) be removed.
(Book II at 510-511.)
On January 24,
1992 a leak from an underground tank was
reported to the Illinois Emergency Services and Disaster Agency
(known currently as Emergency Management Agency) (IEMA) by the
petitioner.
(Pet.
Br.
at
3; Book II at 628.)
The site number
issued to the site by IEMA at that time was 92-0217.
(Id.)
On
February 25,
1992, Tank 1 was removed.
(Pet.
Br.
at
3; Book II
at 626.)
Although the tank was not visibly corroded and no holes
4
were found,
the tank had failed two tightness tests.
(Book II at
626.)
Contamination was found on the north floor and north
walls.
(Id.)
On April
9,
1992, Dahi submitted a 45-day report to the
Agency on behalf of the petitioner.
(Book II at 452-470.)
The
report notes that a “significant” release for which the
petitioner would be seeking reimbursement had occurred.
(Book II
at 458.)
The report further indicates that the “only soil sample
that exceeded IEPA LUST cleanups levels was from the tank bottom
at the north end
.
.
•“.
(Book II at 463.)
Dahi stated that
overexcavation was not attempted because “a previous site
investigation
the
November 1991 assessment
indicated that
contaminated soils were found over lOOft west of the tank”.
(Id.)
The 45-day report also established that the soil, which
was suspected of contamination had been excavated and stockpiled
on plastic at the site pending laboratory analysis and then the
soil was manifested for offsite disposal.
(Book II at 464,
465.)
In February of 1993, the Agency received an “Underground
Storage Tank Fund Reimbursement Eligibility and Deductible
Application”.
(R.
at 165-168.)
On this certified and notarized
form, petitioner indicated that there had been a release from
only one tank
(Tank 1).
(R.
at 166.)
The petitioner also stated
that the other two 10,000 gallon tanks
(Tank
2 and Tank
3) had
not had a release and the tanks were still
in service.
(R. at
168.)
After the submission of the eligibility and deductible
application, several correspondences were exchanged due to some
minor confusion relating to tanks which are not at issue in this
appeal.
The confusion was resolved and on May 17,
1993,
the
Agency informed petitioner that it was eligible to seek
reimbursement.
(R. at 159-160.)
The eligibility letter
indicated that any corrective action associated with five of the
tanks at the site were eligible for reimbursement.
(R. at 159.)
The five tanks which were eligible according to the letter were:
3
—
10,000 gallon gasoline UST5
1
—
1,000 gallon diesel UST
1
—
560 gallon used oil UST
(R.
at 159.)
Only the three 10,000 gallon tanks
(Tank 1, Tank
2 and Tank 3)
are of concern in this appeal.
In the summer of 1993, FS terminated its relationship with
Dahi.
(Tr.
at 33.)
Mr. Riley Johnson, the manager for FS, hired
Environmental Contractors
(ECI),
a former subcontractor of Dahl’s
in August or September 1993 to continue the site remediation.
(Tr. at 33—34.)
On September 13,
1993,
the Office of State Fire Marshal
5
(OSFM) received from ECI and FS an application for a permit to
remove UST5.
(Book
I at 210.)
The form indicates that the
10,000 gallon tanks are still
in use.
(Id.)
The form also
indicates that the reason for removal is “property transfer”.
(Book
I at 210.)
This form was signed by Matt Warneke,
a
representative of ECI who had been on site during the removal of
Tank
1 in February of 1992.
(Tr.
at 43; Book
I at 211.)
On October 18,
1993 all the remaining tanks were removed and
it was determined that releases had occurred from at least five
of the tanks.
(Pet.
Br. at 6.)
Mr. Warneke testified that the
notification was amended because “before the state fire marshal
would leave the site, she requested that it the
release
be
called in to the Illinois EPA”.
(Tr.
at 49-50.)
On November 29,
1993, OSFM received from the petitioner an “Underground Storage
Tank Fund Eligibility and Deductibility Application”.
(R.
at
154—156.)
That application indicated that the occurrence number
for which petitioner sought reimbursement was “92-0217
ANENDED
10-18—93”.
(R.
at 155.)
On December
21,
1993,
the OSFM sent a
letter to Mr. Johnson stating that FS was eligible to seek
reimbursement for corrective action associated with three 10,000
gallon tanks.
(R.
at 151.)
On May 10,
1994,
ECI submitted a 45-day report on the
October 1993 tank removal to the Agency.
(Book
I at 159-178.)
The report indicates that gasoline had been released and the tank
system removed.
(Book I at 161.)
The report further indicates
that contaminated soil was removed from the site.
(Book
I at
164.)
FS submitted an application for reimbursement to the Agency
on May 9,
1994 and supplied additional information on August
11,
1994.
(Pet.
Br.
at 7;
R. at
6,
84.)
FS requested a total of
$89,574.53.
(R.
at 28.)
On September 6,
1994,
the Agency
notified FS that the amount the Agency would reimburse is
$32,745.31.
(R. at 28.)
ARGUMENTS
The Agency argues that there were two separate releases
occurring and confirmed at the same site;
the first release
confirmed on February 25,
1992 and the second confirmed on
October 18,
1993.
(Ag. Br.
at 4.)
In support of its position,
the Agency points to the OSFM log which indicated that the area
of contamination found when Tank
1 was removed in February 1992
was located on the north floor and the north walls of the
excavation.
(Ag. Br. at 5 citing Book II at 626 and 628.)
Further, the Agency points out that Dahl prepared a soil
contamination map indicating that the estimated area of soil
contamination encompassed test borings
5 and
6 and extended
northwest from the February 1992 excavation.
(Ag.
Br. at 5—6;
Book II at 312.)
The tanks at issue on appeal
(Tank 2 and Tank
3
6
on the maps)
are located southeast of the February 25, 1992
excavation.
(Ag.
Br.
at 6.)
The 45-day report for the February 1992 tank removal also
indicated that a south side wall,
the south tank bottom, the
southeast sidewall and the southwest sidewall of the February
1992 excavation were “clean of contamination”.
(Ag.
Br.
at 8,
citing Book II at 472.)
Thus,
the Agency maintains that “since
a clean wall existed between the two excavations,
it is clear
that two separate releases occurred at the Northern F.S. site.”
(Ag. Br. at 9.)
The Agency also argues that the site—assessment performed in
November of 1991 indicated that the tank (Tank
1)
removed in
February of 1992 was leaking but not the two tanks
(Tank
2 and
Tank
3) removed in October of 1993.
(Ag.
Br. at
7.)
The Agency
points out that Tank 2 and Tank
3 passed tank tightness tests in
1991,
while Tank
1 failed the February 1992 tank tightness tests.
(Book II at 505.)
To further bolster its argument, the Agency points out that
on February 23,
1993, petitioner submitted an eligibility and
deductibility application which indicated that there had been a
release from only one underground storage tank.
(Ag.
Br.
at
11,
citing R.
at 165-166.)
Further, the petitioner indicated that
the two tanks
(Tank
2 and Tank
3)
removed in October of 1993 were
still in service and had not had a release.
(R.
at 168.)
With regards to the tanks removed in October 1993
(Tank
2
and Tank 3), the Agency points out that the petitioner again
notified IEMA of a release and submitted
a second eligibility and
deductibility application.
(Ag. Br.
at 15; Book II at 306; R.
at
154.)
Petitioner also indicated on the permit for removal that
the reason for removal of Tank 2 and Tank
3 was property
transfer.
(Book
I at 210.)
Further, the permit removal
indicated that as of September 8,
1993 the two tanks were still
in use.
(Ag. Br.
at 21, citing Book I at 210.)2
The Agency also discusses the fact that the 45—day report
for the October 1993 tanks “indicate that the wall of the October
18, 1993 excavation in the direction of the February 25, 1992
excavation was clean of contamination.
Specifically, the
Northeast Bottom, the middle of the North Wall, the Northwest
2
The Agency also argues that if the two tanks
(Tank
2 and
Tank 3) were suspected of leaking since 1992, the failure to
remove those tanks from service violates Board regulations.
(Ag.
Br.
at 20.)
Specifically, the Agency maintains that Sections
731.161(b) and 731.162(a) (1)
require the removal of a tank from
service if a leak is suspected.
(Id.)
7
wall and the West Wall to the North were all found to be below
detection limits”.
(Book
I at 173,
283; Tr. at 73—75;
Ag.
Br. at
18.)
In summary the Agency states that it
is reasonable to
conclude from the analytical data that two releases occurred at
the site.
(Ag. Br. at 19.)
Petitioner argues that the record clearly supports the fact
that only one incident occurred and was reported in February of
1992.
(Pet.
Br. at 10.)
Mr.
Riley Johnson,
FS manager, stated
that the relationship with the original consultant, Dahl, was
terminated because FS believed that the contamination reported in
the November 1991 site—assessment was not being cleaned-up.
(Tr.
at 33—34.)
Petitioner relies on the testimony of Mr. Warneke,
a
representative of Ed.
(Pet. RBr.
at 10.)
At hearing, Mr.
Warneke stated:
At that time August/September
of 1993,
based on a review
of some of the investigation work Dahl had done and the soil
and groundwater surrounding the additional tanks that were
on site,
the two 10,000, two abandoned 500 gallon tanks,
it
appeared that there were hits in the soil surrounding those
tanks.
And we recommended that it was likely that they might be a
source of contamination and that they should be removed.
(Tr.
at 45.)
Mr. Warneke went on to state that it was his opinion that the
site could not be cleaned up without removal of the remaining
tanks.
(Tr. at 45-46.)
Further, the petitioner points out that
the fact that contamination was found when the tanks were removed
in October of 1993 also supports the fact that only one incident
occurred at the site.
(Pet. Br at 9.)
Petitioner also maintains that the Agency’s decision that
two releases occurred was based solely on the filing of the
second incident report.
(Pet.
Br.
at 10.)
Petitioner argues
that confusion over what paperwork needed to be filed after the
amendment to the UST law resulted in
a second eligibility and
deductibility form being filed.
(Pet.
RBr. at 10.)
Petitioner
states that it “should not be penalized for following the law and
insuring that state officials were made aware of the
contamination at the Woodstock Site”.
(Pet.
Br.
at 10.)
CONCLUSION
After a careful review of the record the Board affirms the
Agency’s determination.
The record supports the proposition that
the two tanks
(Tank
2 and Tank
3)
removed in October of 1993 had
not had a release in February of
1992.
Mr. John Wilson, an
employee of petitioner responsible for “all of the environmental
8
activities”
(Tr.
at 10) testified that at the time of the
submission of the eligibility and deductible application in
February 1993 “w)e
had no knowledge of any release at that point
in time” from the other tanks.
(Tr. at 27.)
Further, that
application,
a certified, notarized document, which was submitted
one year after Tank
1 was removed,
states that only one tank had
had a release and that the tanks which were later removed were
still in use.
(R. at 165—168.)
Thus,
by the petitioner’s own
admission a release was not known in February of 1992 for the
remaining tanks
(including Tank
2 and Tank 3 at issue
in this
appeal).
Further, with the exception of one test boring
(TB
3) the
record establishes that the estimated soil contamination was in
the opposite direction from the two tanks removed in October of
1993.
(Book II at 312,
499-523.)
In addition, the tightness
tests performed on Tank
2 and Tank 3 as a part of the initial
site—assessment indicated that the tanks were “tight” at the time
of the initial assessment.
(Book II at 505.)
Thus, the record
supports a determination that only Tank
1 had had a release in
February 1992.
With regards to the decision to remove the other tanks, the
Board finds highly persuasive the fact that the two 10,000 gallon
tanks removed
(Tank
2 and Tank
3)
in October of 1993 were still
in service as of September 1993.
(Book
I at 210.)
The new
consultant group Ed,
even after determining that removal of the
tanks was necessary, did not immediately remove the tanks from
service.
(Tr.
at 59.)
Further, Mr. Warneke opined that it was
necessary to remove the tanks to fully remediate the site;
however, the basis for that opinion was the data originally
collected by the first FS consultant engineer, Dahi and
Associates.
Dahl had used the same data to estimate that the
soil contamination extended northwest of Tank 1, which was the
opposite direction of Tank
2 and Tank 3 at issue
in this appeal.
Further, Dahl used the data to determine that only Tank
1 should
be removed.
Therefore, the Board finds that the tanks removed in
October 1993 were a separate incident and are properly considered
pursuant to Section 57 of the Act.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board affirms the determination by the Illinois
Environmental Protection Agency that the tank removal of October
1993 was in response to a new release,
and, therefore, the Agency
properly applied the provisions of the Section 57 et
seq.
of the
Illinois Environmental Protection Act in calculating
reimbursement from the underground storage tank fund.
9
This docket is hereby closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2,
par.
1041)
provides for the appeal of
final Board orders within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion and order was
adopted on the
/~~day of
__________________,
1995,
by a
vote of
(~-o
~
/~
Dorothy M. ~nn,
Clerk
Illinois Po~4utionControl Board
