1
    1 ILLINOIS POLLUTION CONTROL BOARD
    2 TRI STAR MARKETING, INC., )
    )
    3 Petitioner, ) DOCKET NO.
    ) PCB 97-199
    4 )
    v. )
    5 )
    ILLINOIS ENVIRONMENTAL ) Ogle County
    6 PROTECTION AGENCY, ) Courthouse
    ) Oregon, IL
    7 Respondent. ) Dec. 1, 1997
    8 Hearing commenced pursuant to assignment
    at 11:00 a.m.
    9
    BEFORE:
    10
    John
    Burds, Hearing Officer
    11
    APPEARANCES:
    12
    ATTORNEY MARK P. MILLER,
    13 of the firm of
    Meyer, Capel, Hirschfeld,
    Muncy, Jahn & Aldeen,
    14 306 West Church Street, P. O. Box 6750,
    Champaign, Illinois, 61826-6750
    15
    Counsel for the Petitioner.
    16
    ATTORNEY STEPHEN C. EWART, Deputy Counsel,
    17 Illinois
    Evironmental Protection Agency,
    Public Water Supplies,
    18 Division of Legal Counsel,
    2200 Churchill Road, P. O. Box 19276,
    19 Springfield, Illinois, 62794-9276
    20 Counsel for the Respondent.
    21 Also Present: Susan
    Konzelmann, IEPA Legal Investigator;
    and Attorney Brian Brooks for City of Byron
    22
    REPORTER:
    23 Tammy S. Jones,
    Certified Shorthand Reporter,
    24
    Ashton, Illinois
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    1 INDEX
    2
    Witness Page
    3
    JOHN STEWART
    4 Mr. Miller (Direct) . . . . . . . 10
    Mr.
    Ewart (Cross) . . . . . . . . 25
    5 Mr.
    Hanson (Cross). . . . . . . . 29
    Mr. Miller (Redirect) . . . . . . 43
    6 Mr.
    Ewart ( Recross) . . . . . . . 50
    Mr. Brooks (Cross). . . . . . . . 54
    7 REBUTTAL
    Mr. Miller (Direct) . . . . . . . 113
    8 KARL F. NEWMAN
    Mr. Miller (Direct) . . . . . . . 31
    9 Mr.
    Ewart (Cross) . . . . . . . . 40
    LYNN D. DUNAWAY
    10 Mr.
    Ewart (Direct). . . . . . . . 66
    Mr. Miller (Cross). . . . . . . . 72
    11 Mr. Brooks (Cross). . . . . . . . 80
    ANDREW JACKSON
    12 Mr.
    Ewart (Direct). . . . . . . . 82
    Mr. Miller (Cross). . . . . . . . 86
    13 BRETT HANSON
    Mr.
    Ewart (Direct). . . . . . . . 88
    14 Mr. Miller (Cross). . . . . . . . 103
    Mr. Brooks (Cross). . . . . . . . 106
    15 Mr.
    Ewart (Redirect). . . . . . . 108
    Mr. Jackson (Cross) . . . . . . . 109
    16 BRIAN BROOKS
    Statement . . . . . . . . . . . . 114
    17 Mr.
    Ewart (Direct). . . . . . . . 119
    18
    19
    20
    21
    22
    23
    24
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    1
    2 EXHIBITS
    3 Exhibit Page Admitted
    4 Petitioner's Exhibit No. 1 . . . 8 57
    Petitioner's Exhibit No. 2 . . . 9 57
    5 Petitioner's Exhibit No. 3 . . . 9 58
    Petitioner's Exhibit No. 4 . . . 9 58
    6 Petitioner's Exhibit No. 5 . . . 9 59
    Petitioner's Exhibit No. 6 . . . 9 59
    7 Petitioner's Exhibit No. 7 . . . 46 60
    Petitioner's Exhibit No. 8 . . . 48 60
    8
    Respondent's Exhibit No. 1 . . . 62 111
    9 Respondent's Exhibit No. 2 . . . 63 111
    Respondent's Exhibit No. 3 . . . 63 111
    10 Respondent's Exhibit No. 4 . . . 63 112
    Respondent's Exhibit No. 5 . . . 64 112
    11 Respondent's Exhibit No. 6 . . . 64 112
    Respondent's Exhibit No. 7 . . . 65 112
    12
    13
    14 Certificate of Shorthand Reporter . . . . 129
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
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    1 HEARING OFFICER BURDS: Let's go on the record
    2 then. Let the record reflect that today's date is
    3 December 1st, 1997. We are in the Ogle County
    4 Courthouse in Oregon, Illinois. It is
    5 approximately a little after 11 a.m. in the
    6 morning. We are here pursuant to a Board order
    7 dated September 18th, 1997 requiring a hearing to
    8 be conducted in this matter. This matter is
    9 captioned
    Tri Star Marketing, Inc. as Petitioner
    10 versus the Illinois Environmental Protection Agency
    11 as Respondent, PCB No. 97-199, a water well setback
    12 exception. Pursuant to the Board order, this
    13 hearing cannot be waived pursuant to 35 Illinois
    14 Administrative Code 106-604-A; therefore, this is a
    15 public hearing to be held in this matter.
    16 As the parties know, this is a proceeding
    17 that is conducted pursuant to the well water
    18 setback hearing requirements under 106, 601 et al
    19 of the Illinois Pollution Control Board's
    20 procedural rules. Pursuant to those proceedings
    21 the hearings in this matter are conducted pursuant
    22 to Illinois Administrative Code Chapter 35
    23 102-162.
    24 This is more of an informal hearing. It
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    1 does not function like a normal court proceeding,
    2 but rather in a manner in which all parties may
    3 present testimony and present testimony in
    4 narrative fashion and anybody who so wishes may
    5 elicit questions from witnesses who testimony is
    6 presented on behalf of. Now, as far as
    7 procedurally the only thing that I would notice --
    8 and I don't think this will be a problem here, but
    9 if, in fact, you're going to present testimony all
    10 witnesses need to be sworn. I will ask that you be
    11 sworn. We'll go through the proceeding.
    12 The Petitioner will present their case in
    13 chief first. The Respondent will then present be
    14 their case. Any other questions from members of
    15 the public or other attorneys may then be asked or
    16 any other evidence that they wish to present. All
    17 right. Let's have the parties identify themselves
    18 at this time and do so for the record.
    19 Mr. Miller.
    20 MR. MILLER: Counsel for
    Tri Star Marketing,
    21 Inc., here in the form of Mark P. Miller.
    22 HEARING OFFICER BURDS: Okay. Mr. Miller, do
    23 you have any witness that you -- you are the
    24 attorney for the Petitioner, correct?
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    1 MR. MILLER: That's correct. I will be
    2 presenting two witnesses today. They are John D.
    3 Stewart, S-t-e-w-a-r-t, president of
    Tri Star
    4 Marketing. I'll also be eliciting testimony from
    5 Mr. Karl, K-a-r-l,
    Newman, N-e-w-m-a-n, who is a
    6 geologist with Midwest Engineering Services, Inc.
    7 HEARING OFFICER BURDS: Okay. Why don't we
    8 swear those witnesses at this time.
    9 (John
    Stewart and Karl
    Newman were duly sworn.)
    10 HEARING OFFICER BURDS: All right. Mr.
    Ewart.
    11 MR. EWART: Thank you. My name is Stephen
    12 Ewart. That spelled E-w-a-r-t. I'm an attorney
    13 for Illinois EPA. I plan to present two
    14 witnesses. The first one is Lynn
    Dunaway, L-y-n-n,
    15 D-u-n-a-w-a-y. He is a geologist with Illinois EPA
    16 and the other witness will be Brett
    Hanson,
    17 B-r-e-t-t, H-a-n-s-o-n. He is an environmental
    18 protection specialist with the Illinois EPA and
    19 also with me is Susan
    Konzelmann from the Division
    20 of Legal Counsel.
    21 HEARING OFFICER BURDS: Okay. Would you please
    22 have your witnesses stand up and raise your right
    23 hand to be sworn at this time.
    24 (Lynn
    Dunaway and Brett
    Hanson were duly
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    1 sworn.)
    2 HEARING OFFICER BURDS: Let the record reflect
    3 that there are members of the public present. I
    4 don't know -- Mr. Brooks, do you intend to enter an
    5 appearance on behalf of the Village of Byron -- I'm
    6 sorry, the City of Byron?
    7 MR. BROOKS: City of Byron. I believe I would,
    8 and at this point I hadn't planned on calling any
    9 witnesses other than what testimony may come from
    10 myself representing the City as far as -- like I
    11 mentioned earlier, the City's intent, what the
    12 City's looking at as far as to use those wells.
    13 HEARING OFFICER BURDS: As I indicated earlier,
    14 it is an informal process. However -- and
    15 attorneys may testify. However, attorneys
    16 themselves must be sworn as well. In fact, any
    17 testimony that's elicited and any statements made
    18 must be made under oath, so if you wish to do so at
    19 this time you'll be sworn at this time.
    20 (Brian Brooks was duly sworn.)
    21 HEARING OFFICER BURDS: I would ask just as a
    22 voir dire question that if anybody has any
    23 questions procedurally -- this isn't a normal
    24 course of events for a lot of people who have seen
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    1 courtroom proceedings perhaps. Are there any
    2 questions regarding the process or the procedure?
    3 Okay. Then -- now, as far as proceeding
    4 what we'll do is we'll go with Mr. -- the
    5 Petitioner will present their evidence first.
    6 Mr. Miller.
    7 MR. MILLER: May I assume that the exhibits
    8 offered, 1 through 6, on behalf of the Petitioner
    9 have been accepted?
    10 HEARING OFFICER BURDS: Okay. Well, let's do
    11 this. Let's go through -- and I apologize,
    12 Mr. Miller. Let's go through the exhibits one at a
    13 time so we can identify them for the record and
    14 they're on the record. I have, so the record is
    15 clear, been presented six exhibits by Mr. Miller as
    16 Petitioner's Exhibits Nos. 1 through 6; is that
    17 correct, Mr. Miller?
    18 MR. MILLER: That's correct. These are the
    19 exhibits to
    Tri Star's amended petition filed with
    20 the Board August 14, 1997 and bearing the notations
    21 Exhibit A through Exhibit F, marked for this
    22 hearing as Exhibits 1 through Exhibit 6. Exhibit 1
    23 being the site development plan for Byron, Illinois
    24 prepared by
    Tri Star Marketing. Exhibit No. 2 --
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    1 Petitioner's Exhibit No. 2 being the group exhibit
    2 B which contains the control technology to be used
    3 at this site. Exhibit No. 3 being the affidavit of
    4 Kerry S.
    Gifford, Director of Water and Waste Water
    5 Operations for the City of Byron. Exhibit No. 4,
    6 the affidavit of John
    Stewart, who is the president
    7 of Tri Star Marketing, although Mr.
    Stewart has
    8 been sworn and will be testifying here today.
    9 Exhibit No. 5 which is a report prepared by Midwest
    10 Engineering Services regarding searches that that
    11 entity provided for
    Tri Star Marketing regarding
    12 site geology and the presence of water wells in the
    13 area. That would be Exhibit No. 6.
    14 HEARING OFFICER BURDS: All right. Mr.
    Ewart,
    15 any objections?
    16 MR. EWART: I have no objections to the
    17 exhibits.
    18 HEARING OFFICER BURDS: Mr. Brooks?
    19 MR. BROOKS: No objections.
    20 HEARING OFFICER BURDS: Okay. Hearing no
    21 objections -- Mr. Miller, I do have one question.
    22 The affidavit of Mr.
    Stewart, is that the same
    23 affidavit that the Board referred to in its
    24 September 18th order or is it a different
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    1 affidavit?
    2 MR. MILLER: No, it should not be. This should
    3 be the revised and corrected affidavit, if I'm not
    4 mistaken.
    5 HEARING OFFICER BURDS: I just want to make sure
    6 that they don't skip it and if it is different, let
    7 me indicate on the record that it is so.
    8 MR. MILLER: No. This is the one that was filed
    9 with the petition of August 14th and accepted.
    10 HEARING OFFICER BURDS: Okay. All right. Then
    11 hearing no objections, those documents shall be
    12 admitted as represented.
    13 MR. MILLER: Mr. Hearing Officer, if I could
    14 have use of the exhibits for a short time while I
    15 examine the witness.
    16 HEARING OFFICER BURDS: Of course. I'm, for the
    17 record, placing exhibit stickers on each.
    18 JOHN D. STEWART,
    19 having been previously sworn, was examined and
    20 testified as follows:
    21 DIRECT EXAMINATION
    22 BY MR. MILLER:
    23 Q. John, could you state your name for the record,
    24 please?
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    1 A. John D.
    Stewart.
    2 Q. And, John, could you for the edification of the
    3 Board provide them with a brief educational and
    4 employment history?
    5 A. Sure. I have a Bachelor of Geography from the
    6 University of Illinois and an MBA from the
    7 University of Arkansas. I worked with
    Conoco in
    8 Houston between '80 and '82 and joined
    Tri Star
    9 Marketing in 1982 as vice president of supply and
    10 trading. I was promoted to president in '96.
    11 Q. And how long have you been involved with the
    12 development of gasoline service stations?
    13 A. Since 1982.
    14 Q. Okay. Could you describe your involvement with
    15 this proposed development site for Byron, Illinois?
    16 A. Yes. We purchased this property from Amoco, if
    17 I recall correctly, in '94 along with the purchases
    18 of other properties from Amoco when we became an
    19 Amoco distributor, and our objective was
    20 development -- our primary line of business is
    21 development of gasoline stations and convenient
    22 stores and our objective was to purchase this from
    23 Amoco and develop it into an updated gasoline
    24 station and convenient store. That's our primary
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    1 objective.
    2 Q. What was the status of the tanks at that site
    3 at the time of your purchase?
    4 A. When we purchased the site from Amoco, the
    5 tanks had been removed.
    6 Q. Okay, and what type of tanks were those tanks?
    7 A. To the best of my knowledge they were single
    8 wall, steel tanks and the lines were steel, if I
    9 recall correctly from the documentation.
    10 Q. It appears that Exhibit No. 1 may not clearly
    11 show the directions north, south, east and west.
    12 Could you mark on that exhibit the direction
    13 references so the Board has a better idea, please?
    14 HEARING OFFICER BURDS: Could we also let
    15 Mr. Ewart --
    16 MR. EWART: I'll watch.
    17 A. I think -- if we've got -- for the most part I
    18 think that we're dealing -- north would be -- I'm
    19 going to say this way is north. Okay.
    20 HEARING OFFICER BURDS: For the record this is
    21 Petitioner's Exhibit A, Mr. Miller?
    22 MR. MILLER: This is Petitioner's Exhibit A
    23 which has now been marked for hearing purposes as
    24 Petitioner's Exhibit No. 1.
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    1 A. I think that's close. Okay.
    2 Q. Could you provide us with your -- I guess the
    3 history and designing, the layout of this
    4 particular site? Why don't you first describe
    5 where this site is located and then proceed into
    6 the history of the design of the site?
    7 A. Well, it's located on Main Street in Byron at
    8 the corner of Walnut and Main and Main is Route 2
    9 and just -- and I think Route 70 also runs together
    10 at that point in time, so it's right in the heart
    11 of Byron. It's right in the center of the
    12 community. It's a very nice commercial parcel.
    13 Anyway, it's --
    14 Q. Where were the tank cavities at the time Amoco
    15 had the site?
    16 A. The tank cavity was to the south and east of
    17 the main building.
    18 Q. Could you mark that with an X as to the best of
    19 your knowledge as to where those tanks were
    20 previously located?
    21 A. I think right about in this general area I'm
    22 going to say.
    23 MR. BROOKS: That's the best of my recollection,
    24 too.
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    1 MR. MILLER: Let the record reflect Brian Brooks
    2 has assisted John
    Stewart in recalling the exact
    3 location of the tanks and they've now marked it on
    4 Petitioner's Exhibit 1 with an X and with the
    5 notation former tank cavity.
    6 HEARING OFFICER BURDS: Thank you very much,
    7 Mr. Miller. For the record Mr. Brooks has been
    8 sworn.
    9 Q. John, could you continue with discussion of
    10 design of the site itself?
    11 A. Yes. In a gasoline facility in the nature that
    12 is being constructed today it's common that we want
    13 to make sure that the gasoline operation is as
    14 convenient and the flow through the dispensing
    15 facilities is comfortable for our customers, so
    16 typically that is positioned on the front of the
    17 property as this one is. The four quart or the
    18 covered canopy area orients itself to Main Street
    19 or Route 2. We then have a covered walkway back to
    20 the building and -- the convenient store building
    21 and then a car wash on the east side of the
    22 property. The underground -- the new underground
    23 storage tank cavity for petroleum products would be
    24 located west and north of the former tank cavity.
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    1 Q. Would that be farther away from Wells Nos. 1
    2 and 2 or closer to Wells Nos. 1 and 2 than the old
    3 location of the cavity?
    4 A. It would be further away.
    5 Q. Could you approximate the distance that it
    6 would be further away from the old location?
    7 A. 50 feet, 50 to a hundred, 75 feet. I'm going
    8 to say 75 feet.
    9 Q. Were there alternative tank placement locations
    10 discussed or considered prior to selecting the
    11 location of the tank cavity that is proposed to be
    12 used in this site?
    13 A. Absolutely. We looked at numerous locations
    14 for the underground storage tank installation,
    15 recognizing that we do have a 20-foot setback from
    16 property, from adjoining property, so we have to
    17 deal with that off of Walnut and our piping -- our
    18 piping is also considered part of the setback, so
    19 we have to have 20 feet off of the front yard for
    20 the piping system, so within that configuration we
    21 try to get the tanks in-lot so that we can have a
    22 safe delivery with our transport and then a safe
    23 exit, so those are the things that we factor in,
    24 the 20-foot setback and safety for the delivery and
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    1 for the exit of the transport.
    2 Q. Okay. How about locations generally west of
    3 where the proposed locations are, why would those
    4 be less suitable for that site development?
    5 A. If we were to orient the tanks -- we could move
    6 them and they'd have to be oriented north and
    7 south, but they would be contiguous to the building
    8 foundation and not -- what we would consider also
    9 would be underneath our prime parking space, so it
    10 would not be a safe situation.
    11 Q. Okay. If you were to move those to that
    12 location, how many additional feet of setback from
    13 the old location and how many additional feet of
    14 setback from the Municipal Water Wells Nos. 1 and 2
    15 would that possibly be?
    16 A. I don't think it would -- it wouldn't change it
    17 at all because I have a 20-foot side yard setback,
    18 20 feet backyard setback and if you run them end to
    19 end, the tip of the furthest south portion of those
    20 tanks will be in approximately the same location,
    21 maybe --
    gosh, maybe we'd pick up 15, 20 feet
    22 maybe.
    23 Q. Okay.
    24 A. Yeah. I mean, that's a guess.
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    1 Q. Do you have an opinion as to the present value
    2 of that site for commercial development?
    3 A. We have -- I have a pretty good indication of
    4 what the commercial value of the site is.
    5 Q. Okay.
    6 A. And the situation is that there just are not
    7 that many commercial parcels of this size in the
    8 community of Byron.
    9 Q. Are there additional development parcels for
    10 Tri Star Marketing within the City of Byron
    11 available?
    12 A. No, none of this magnitude there are not.
    13 Q. Okay. What would be the value of the
    14 improvements that
    Tri Star would place on this site
    15 in developing it?
    16 A. Easily three-quarters of a million dollars, so
    17 $750,000.
    18 Q. Okay. If -- let me strike that.
    19 What would be the volume of sales that you
    20 would normally do in a site like this?
    21 A. We would probably generate close to $2 million
    22 a year in sales at this store. That is below my
    23 company average considerably.
    24 Q. Does that have a net economic benefit to the
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    1 City of Byron?
    2 A. I would think so with respect to real estate
    3 and sales tax revenues.
    4 Q. Okay. Are you familiar with the control
    5 technology being used at this site?
    6 A. Yes, I am.
    7 Q. Could you take a look at Petitioner's Group
    8 Exhibit B. Mr. Hearing Officer, at this time --
    9 HEARING OFFICER BURDS: I want to clarify just
    10 so we're not referring to 1 through 6 and A through
    11 B.
    12 MR. MILLER: Oh, I'm sorry.
    13 HEARING OFFICER BURDS: Let's identify the
    14 documents as Petitioner's Exhibits 1 through 6 and
    15 that would be --
    16 Q. Could you take a look at Petitioner's Exhibit
    17 2, which is Group Exhibit B to the amended
    18 petition.
    19 A. Yes.
    20 MR. MILLER: Mr. Hearing Officer, at this time I
    21 would like to request of the Illinois Environmental
    22 Protection Agency that they stipulate that this
    23 group exhibit marked as Petitioner's Exhibit No. 2
    24 represents best available control technology for a
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    1 site of this development type.
    2 HEARING OFFICER BURDS: All right. The document
    3 has been admitted for the record as Petitioner's
    4 Exhibit 2.
    5 Mr.
    Ewart, any objection to Mr. Miller's
    6 request regarding best available control
    7 technology?
    8 MR. MILLER: Best available control technology.
    9 HEARING OFFICER BURDS: Mr.
    Ewart?
    10 MR. EWART: The Agency has reviewed this
    11 document in detail and does conclude that this is
    12 the best available control technology.
    13 HEARING OFFICER BURDS: As far as that
    14 representation -- that would be subject to any
    15 questions from members of the public or
    16 Mr. Brooks. However, based on those
    17 representations and no objection from the Agency,
    18 the stipulation will be entered as such. Now, just
    19 so we have a clear identification of what the
    20 representation is, do we need to be more specific
    21 about what in the document constitutes best
    22 available control technology? Is there only one
    23 such technology identified?
    24 MR. MILLER: Let me go through the testimony of
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    1 Mr. Stewart regarding this point and I think it
    2 will become a little bit clearer.
    3 HEARING OFFICER BURDS: That's fine.
    4 Q. Okay. John, could you in a nutshell and
    5 without really referring to brand or product names
    6 give us an outline of the type of technology that's
    7 going to be used at this site to control releases
    8 of petroleum?
    9 A. Sure. Consistent with all of our other
    10 developments, we install double wall fiberglass
    11 tanks, double wall fiberglass lines and piping
    12 sumps underneath the dispensers as well as an
    13 electronic continuous leak detection system on the
    14 entire system and we have done so for a number of
    15 years and are proposing that type of installation
    16 here.
    17 Q. Are you aware of federal standards that have to
    18 be met regarding a release detection system for
    19 underground storage tanks?
    20 A. Yes.
    21 Q. And does this proposed system to be used at
    22 this development site meet the 1998 federal
    23 standards?
    24 A. It meets and in some areas it exceeds.
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    1 Q. Okay. Are you aware of any other service
    2 station developments that are in proximity to the
    3 City of
    Byron's Wells Nos. 1 and 2?
    4 A. To my knowledge there's an existing Amoco
    5 facility and a Mobil facility.
    6 Q. Where is the Amoco facility in relation to
    7 Wells Nos. 1 and 2?
    8 A. Did I say Amoco? I mean Marathon and Mobil, so
    9 where is our facility in relation to those?
    10 Q. No, where is the Marathon facility in relation
    11 to Wells Nos. 1 and 2?
    12 A. The Marathon facility is directly east of the
    13 well facility.
    14 Q. Can you estimate for the Board the distance
    15 from the tanks at that Marathon facility to Wells
    16 Nos. 1 and 2?
    17 A. Within 50 feet.
    18 Q. And for the Mobil facility could you estimate
    19 the distance from those tanks to Wells Nos. 1 and
    20 2?
    21 A. I would say that they would be within 200 feet.
    22 Q. And what is the proposed distance using your
    23 site development from your proposed tank location
    24 to Wells Nos. 1 and 2?
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    1 A. Our tanks would be 300 -- I think 310 feet was
    2 the correct measurement and the lines on the
    3 furthest -- or the closest line installation under
    4 the dispenser would be, I think, 260. I think it's
    5 260.
    6 Q. All right. Are you aware of the status of
    7 either the Marathon or the Mobil station as far as
    8 the design of their present tank systems?
    9 A. No, I'm not.
    10 Q. Okay. You wouldn't be aware as to whether
    11 they've upgraded to 1998 federal standards or not?
    12 A. I could speculate, but I don't have any facts.
    13 Q. What evidence would you need in order to give
    14 an opinion as to whether they have upgraded or not?
    15 A. Well, if there had been an upgrade, then there
    16 would have been a permit issued from the Office of
    17 the State Fire Marshal to allow an upgrade.
    18 Q. Okay. Had you applied to the Office of the
    19 State Fire Marshal for these tanks here at the
    20 site?
    21 A. We did not get that far because we were denied
    22 on our building permit.
    23 Q. All right. Would they have -- would either
    24 Marathon or Mobil in your opinion have needed a
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    1 building permit in order to upgrade their tanks at
    2 their site?
    3 A. Quite possibly if they had done additional work
    4 on site, non-petroleum related work on site.
    5 Q. If the petition for the water well setback is
    6 not granted by the Illinois Pollution Control
    7 Board, what will be the effect on
    Tri Star
    8 Marketing and the development of this site?
    9 A. I can't honestly answer that at this point in
    10 time. We would reassess our position on the
    11 property and make a determination at that
    12 juncture. I honestly can't tell you if or when it
    13 would be developed.
    14 Q. Do you have an opinion as to the effect of
    15 denial of
    Tri Star Marketing's petition on the
    16 potential sale price of the property should this
    17 petition be denied?
    18 A. Well, we feel that the highest and best use of
    19 this facility is for a gasoline station-convenient
    20 store combination. That's the type of operation
    21 that was there. That's the type of operation that
    22 we feel would be the most conducive. We've
    23 actually purchased additional property adjoining so
    24 that we could make sure that we could develop the
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    1 site properly, so the highest and best use of this
    2 site we feel is for our type of development. If
    3 we're unable to develop it in that mode, it's
    4 possible that there would be an economic
    5 detriment.
    6 Q. John, as you sit there today, are you aware of
    7 the status of well -- new Well No. 4 for the City
    8 of Byron?
    9 A. No.
    10 Q. As you sit there today, are you aware of the
    11 City of
    Byron's intention regarding Wells Nos. 1
    12 and 2 once Well No. 4 goes on line?
    13 A. No. I can speculate, but I don't have any
    14 facts to that.
    15 Q. Okay. What was your belief at the time of
    16 purchasing the site as to what the City of Byron
    17 might be doing with Wells Nos. 1 and 2?
    18 A. Well, when we purchased the site, water wells
    19 were -- it wasn't even an issue. We purchased a
    20 former gasoline service station, and our objective
    21 was to put it back into service as a gasoline
    22 service station, so water wells were a non-event.
    23 There was no consideration. We bought a service
    24 station and we were going to continue to operate it
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    1 as a service station. The existing underground
    2 storage tanks had been removed in '88 and our
    3 intention was to install new underground storage as
    4 we do at all other facilities, so if the tanks had
    5 been in place when we had purchased it previously,
    6 we would have removed them ourselves. Fortunately
    7 Amoco -- or unfortunately Amoco removed them
    8 earlier for us.
    9 MR. MILLER: I have no further questions at this
    10 time.
    11 HEARING OFFICER BURDS: Mr.
    Ewart.
    12 MR. EWART: Could I take just a minute to talk
    13 with my --
    14 HEARING OFFICER BURDS: We'll go off the
    15 record.
    16 (A discussion was held off the record.)
    17 HEARING OFFICER BURDS: Back on the record.
    18 Mr. Miller, you are done presenting testimony of
    19 Mr. Stewart.
    20 Mr.
    Ewart, your witness.
    21 MR. EWART: Thank you, Mr. Hearing Officer. I
    22 just have a few questions.
    23 CROSS EXAMINATION
    24 BY MR. EWART:
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    1 Q. Mr.
    Stewart, would you briefly in general terms
    2 describe the leak detection system that you have
    3 proposed for this site?
    4 A. Well, with brand numbers or how do you want
    5 it?
    6 Q. No, basically the function -- from a functional
    7 standpoint.
    8 A. Sure. Okay. We install double wall fiberglass
    9 tanks, so there's -- there are two layers of
    10 fiberglass and there's an interstice in between.
    11 On top of that tank we have a piping sump and into
    12 that piping sump the double wall lines then
    13 connect -- double wall fiberglass lines then
    14 connect to the dispenser drip boxes which are then
    15 tied in by -- into the dispensing equipment above
    16 the ground. The entire system is then monitored by
    17 an electronic leak detection system or what we
    18 commonly refer to as the
    Veeder-Root TLS 350.
    19 Q. I'm sorry, I didn't hear that.
    20 A. Veeder-Root TLS 350 and that's the model
    21 number. That is consistent with our entire chain.
    22 That's the only system that we use, so we have a
    23 good understanding of that monitoring system. That
    24 system will then monitor the tank levels of
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    1 products, temperature, the volumes, whether there's
    2 water. It will also monitor the interstice, the
    3 space between the two tanks for potential release.
    4 It will monitor the piping sump to make sure that
    5 there's no release from the inner piping. It will
    6 also perform a continuous leak detection on the
    7 line -- on the line and tank system and then it
    8 will also perform a continuous leak detection on
    9 the line system, primary line. It's a good
    10 system.
    11 Q. It sounds like it. Does this -- do you
    12 envision anywhere in this leak detection system of
    13 installing a down gradient monitoring well?
    14 A. We had not planned on one, no, had not.
    15 Q. Have you ever installed down gradient
    16 monitoring wells in other locations?
    17 A. I think we have. You know, I think we have,
    18 yes.
    19 Q. Under what circumstances did --
    20 A. It was -- we had a release at a location in
    21 Morris, Illinois on Route 47 and we installed a
    22 down gradient monitoring well.
    23 Q. So basically --
    24 A. We're familiar with the technology.
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    1 Q. So basically your -- is it true that your
    2 decision to monitor or to install a monitoring well
    3 would then be based upon a discovery of a leak?
    4 A. No, this was adjoining -- this was an old tank
    5 system that we purchased and this was not our
    6 current technology. This technology was -- we're
    7 talking about tanks that were installed in the
    8 early '80s at an older site and this well was
    9 installed 10 years ago, so no, we don't typically
    10 have down gradient wells. We do typically install
    11 a monitoring well inside the tank cavity. It's
    12 common for us to do that, so within the peat gravel
    13 of the
    backfill we typically install one or two
    14 wells so we can sample groundwater in the event
    15 there's a question.
    16 Q. Mr.
    Stewart, are you aware of the monitoring
    17 protocol that is involved in -- for monitoring of
    18 Wells No. 1 and 2 in Byron?
    19 A. No.
    20 MR. EWART: I have no further questions.
    21 HEARING OFFICER BURDS: Any other questions of
    22 Mr. Stewart from Mr. Brooks or other members of the
    23 public?
    24 MR. BROOKS: No, sir.
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    1 HEARING OFFICER BURDS: Other people on behalf
    2 of the Agency?
    3 MR. HANSON: My name is Brett
    Hanson, Illinois
    4 EPA.
    5 CROSS EXAMINATION
    6 BY MR. HANSON:
    7 Q. Are there any monitoring wells on the site at
    8 the current time?
    9 A. Yes, I think there are.
    10 Q. Is there a pump and treat well on the site
    11 also?
    12 A. No.
    13 Q. Okay. Will the monitoring well be sealed?
    14 A. The monitor -- I think there are a series of
    15 wells, Brett, but we received -- if I recall
    16 correctly, I think we received a no further action
    17 on the site, so whether those wells have been
    18 sealed off or not I can't honestly answer that.
    19 Amoco was responsible for the remediation of the
    20 site. Typically their contractors come back in and
    21 seal those wells off, but I honestly -- I honestly
    22 can't tell you whether they're done. I think Delta
    23 Environmental has done most of their work. I would
    24 assume those wells are sealed off, but I'd have to
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    1 double-check honestly. I can't tell you.
    2 HEARING OFFICER BURDS: Any other questions of
    3 Mr. Stewart?
    4 MR. MILLER: No follow-up.
    5 HEARING OFFICER BURDS: Okay. Mr. Miller, next
    6 witness.
    7 MR. MILLER: Thank you. In accordance with the
    8 Hearing Officer's request, at this time let's just
    9 clarify what the contents of Petitioner's Exhibit 3
    10 are which is the affidavit of Kerry S.
    Gifford,
    11 Director of Water and Waste Water Operations for
    12 the City of Byron. Mr.
    Gifford states in his
    13 affidavit that Wells 1 and 2 are approximately 20
    14 feet apart, located to the south and east and
    15 across Highway 2 from the former Amoco site now
    16 owned by
    Tri Star Marketing. That due to test
    17 results which exceeded the MCL for radium in Well
    18 No. 1, the City began to blend the water from Wells
    19 Nos. 1 and 2 together. The City has applied for
    20 and received a radium variance from the Illinois
    21 Pollution Control Board in proceeding PCB 93-110
    22 and it operates under that variance. The City
    23 voluntarily placed Wells Nos. 1 and 2 on standby
    24 status. As a result of placing Wells Nos. 1 and 2
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    1 on standby status, the City was removed from the
    2 restricted status list by the Illinois
    3 Environmental Protection Agency. The City has
    4 constructed a new elevated 500,000 gallon storage
    5 tower which is located next to New Well No. 4, and
    6 that the City has approved bids for completion of
    7 Well No. 4 and expects for that well to be on line
    8 in July of 1997. Once Wells 3 and 4 are both on
    9 line each should have the capacity to serve the
    10 current City water needs. When Well No. 4 is on
    11 line, it is the intent of Kerry S.
    Gifford to
    12 convert Wells Nos. 1 and 2 from standby status to
    13 inactive status.
    14 At this time, Mr. Hearing Officer, I would
    15 like to call to testify Karl
    Newman of Midwest
    16 Engineering services.
    17 HEARING OFFICER BURDS: Mr.
    Newman, you've
    18 already been sworn.
    19 KARL F. NEWMAN,
    20 having been previously sworn, was examined and
    21 testified as follows:
    22 DIRECT EXAMINATION
    23 BY MR. MILLER:
    24 Q. Could you state your name and educational and
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    32
    1 employment history for the Board's edification,
    2 Mr. Newman?
    3 A. My name is Karl F.
    Newman. I have a Bachelor
    4 of Science Degree in Geology from the University of
    5 Illinois and I did postgraduate work at the
    6 University of Utah also in geology. I'm currently
    7 environmental department manager for Midwest
    8 Engineering Services in Champaign, Illinois. I've
    9 been at Midwest for approximately five years.
    10 Prior to that I worked for another consulting
    11 engineering firm in relatively the same position
    12 and for an environmental remediation company and
    13 I've been working on environmental projects,
    14 primarily UST projects since 1989.
    15 Q. Could you describe for the Board and for people
    16 present at this hearing the work that you performed
    17 for Tri Star Marketing at the Byron site?
    18 A. Primarily the work that I performed for
    Tri
    19 Star Marketing was a cursory review of the geology
    20 pertaining to the site, reviewing different
    21 publications produced by the Illinois State
    22 Geological Survey, then also looking at a report
    23 performed on behalf of Amoco Oil Company in
    24 response to TCE contamination and gleaning some of
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    1 the information from that report and compiling a
    2 letter document containing the summary of the
    3 geology review. I'm also involved doing a query
    4 for private water wells within the various sections
    5 surrounding the subject site and also including
    6 that there was a second document --
    7 Q. Let's hold it right there for a second. When
    8 you're referring to the work up to this point in
    9 time, are you referring to that report prepared for
    10 Tri Star which has been marked and accepted as
    11 Petitioner's Exhibit No. 5?
    12 A. Correct.
    13 Q. Okay, and with regard to Petitioner's Exhibit
    14 No. 6 could you briefly review for the Board what
    15 work you performed for
    Tri Star there?
    16 A. Exhibit No. 6, similar type work in regards to
    17 private water wells, another query through the
    18 Illinois State Water Survey and then taking that
    19 information pertaining to private wells and
    20 producing a document trying to determine whether or
    21 not there were any private wells within the various
    22 radii in relation to the subject site.
    23 Q. What was your conclusion with regard to the
    24 presence of private wells?
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    1 A. That there were no private water wells within a
    2 200-foot radius of the subject site, no private
    3 wells -- or the subject site is not within the
    4 setback -- minimum setback zone of any private
    5 water wells.
    6 Q. Do you have specific knowledge of the
    7 underlying geology of this proposed development
    8 site?
    9 A. I don't have specific knowledge pertaining to
    10 the exact geology lying beneath the site. The
    11 knowledge that I have is gleaned from available
    12 public information published by the Illinois State
    13 Geological Survey, also from water well records
    14 available at the Illinois State Water Survey.
    15 Q. And is that information reflected in
    16 Petitioner's Exhibit No. 5?
    17 A. Correct.
    18 Q. Okay, and just generally what were the results
    19 shown?
    20 A. In general the geology of the site and the
    21 immediate vicinity of the site is you have
    22 predominantly sand and gravel deposits associated
    23 with a Henry (phonetic) formation overlying bedrock
    24 pertaining -- or associated with
    ancell group,
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    1 primary
    sandstones.
    2 Q. How do you spell
    ancell?
    3 A. A-n-c-e-l-l. The sand and gravel deposits can
    4 range anywhere from roughly 25 to 50 feet upwards
    5 of 200 feet at which time you would hit the bedrock
    6 surface.
    7 Q. Do you have general knowledge as to the
    8 construction of Municipal Wells Nos. 1 and 2 for
    9 the City of Byron?
    10 A. No.
    11 Q. Do you know the depths that those wells are
    12 located?
    13 A. From my review of the records at the Illinois
    14 State Water Survey I don't recall that right
    15 offhand. The wells range in depth from
    16 approximately 350 feet to 2,000 feet below ground
    17 surface.
    18 Q. Are you aware of the presence of TCE as a
    19 contaminant in either of these two municipal water
    20 wells?
    21 A. Yes.
    22 Q. Just for the record what is TCE?
    23 A. TCE is
    trichloroethylene,
    24 t-r- i-c-h-l-o-r-o-e-t-h-y-l-e-n-e. It's a
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    1 chlorinated solvent.
    2 Q. And is that used in the operations of a service
    3 station?
    4 A. No.
    5 Q. Are you aware of the source of TCE in the
    6 municipal water well system for the City of Byron?
    7 A. Not to a specific source. My review of the
    8 water well records makes reference to a plating
    9 company building which was raised in approximately
    10 the 1970s and that was suspected as a source of the
    11 TCE.
    12 Q. Could you describe the characteristics of TCE
    13 as compared to petroleum or petroleum by-products
    14 or its constituents?
    15 A. TCE, it's a chlorinated solvent and it has a
    16 specific gravity which is greater than one which
    17 is -- would be for water, so if you had TCE and
    18 groundwater it's a sinker. You would expect it to
    19 sink as opposed to a gasoline product which has a
    20 specific gravity close to that of water and that
    21 it's considered a floater, so if you had those two
    22 types of compounds, relatively speaking gasoline
    23 would float and the TCE would sink downward until
    24 it hit a migration barrier.
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    1 Q. What is the -- do you have knowledge of what
    2 the source of radium in the municipal water well
    3 system of the City of Byron is?
    4 A. Not specifically, but if I remember correctly
    5 it could be considered background.
    6 Q. What does background mean?
    7 A. Naturally occurring.
    8 Q. Okay. Karl, are you aware of the location of
    9 other potential sources of contamination to the
    10 municipal water supply, Wells Nos. 1 and 2 for the
    11 City of Byron?
    12 A. Potential sources?
    13 Q. Yes.
    14 A. Yes. As Mr.
    Stewart said, there is a Marathon
    15 service station butting Wells Nos. -- or the
    16 property of Wells No. 1 and 2. There's also the
    17 Mobil service station. There's a dry cleaning
    18 facility in the general area of the subject site of
    19 Wells No. 1 and 2. There's also an auto dealership
    20 to the west of Wells Nos. 1 and 2, which some vent
    21 pipes typical of a UST system, older system are
    22 visible.
    23 Q. Would a gasoline service station such as that
    24 proposed by
    Tri Star Marketing for the site be the
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    1 source of chromium contamination to the municipal
    2 water supply system?
    3 A. No.
    4 Q. Would your answer be different regarding the
    5 issue of nitrate contamination in the system?
    6 A. Would my answer be different --
    7 Q. Yes.
    8 A. -- from no? No, it would not be different.
    9 Q. Should there be a release from the UST system
    10 at the proposed development site of
    Tri Star, what
    11 has to happen in order for the municipal water
    12 supply system of the City of Byron to be
    13 contaminated?
    14 A. Wells Nos. 1 and 2?
    15 Q. Wells Nos. 1 and 2. I'm sorry, yes.
    16 A. Most likely the release would have to migrate
    17 most likely downward until it encounters
    18 groundwater and then that contamination in the
    19 groundwater would have to migrate it to the wells.
    20 Q. So what distance are you testifying that the
    21 contamination would have to migrate in order to
    22 reach the wells?
    23 A. Laterally it would be on the order of 300 feet,
    24 but if the well is screened I believe at an
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    1 interval deeper than 200 feet -- I can't remember
    2 my geometry right off the bat, but it would be at a
    3 distance greater than 300 feet.
    4 MR. MILLER: I'm not going to help you out with
    5 that. That's why I became an attorney. I don't
    6 think I have any other questions.
    7 HEARING OFFICER BURDS: Mr.
    Ewart.
    8 MR. EWART: Can I just take a minute?
    9 HEARING OFFICER BURDS: We'll go off the record
    10 for about -- why don't we -- let's go off the
    11 record.
    12 (A recess was taken at 11:54 a.m. and
    13 proceedings resumed at 12:04 p.m.)
    14 HEARING OFFICER BURDS: Why don't we go back on
    15 the record. Okay. Again, my name is John
    Burds.
    16 I'm a Hearing Officer with the Illinois Pollution
    17 Control Board. We are continuing the proceeding
    18 captioned
    Tri Star Marketing, Inc. versus the
    19 Illinois Environmental Protection Agency, PCB
    20 97-199. We left off with Mr. Miller concluding his
    21 questioning of Mr.
    Newman.
    22 Mr.
    Newman, you are still under oath.
    23 Mr. Miller, do you have anything else of
    24 Mr. Newman?
    IN TOTIDEM VERBIS (ITV)
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    1 MR. MILLER: No, not at this time.
    2 HEARING OFFICER BURDS: Mr.
    Ewart.
    3 MR. EWART: Thank you, Mr. Hearing Officer.
    4 CROSS EXAMINATION
    5 BY MR. EWART:
    6 Q. Mr.
    Newman, are you aware or have you reviewed
    7 anything regarding the UST remediation conducted by
    8 Amoco on the proposed site?
    9 A. No, I'm not aware of any remediation occurring
    10 at the Amoco site, no.
    11 Q. Are you aware of the -- any existing monitoring
    12 wells on site right now?
    13 A. No.
    14 Q. How about a pump and treat --
    15 A. No.
    16 Q. -- well? With regard to your characterization
    17 of the components of gasoline, you indicated that
    18 the components -- gasoline was a floater. Is it
    19 not true that there are dissolve components of
    20 gasoline?
    21 A. That is true. When I characterized it as a
    22 floater, there is a dissolve component of the
    23 floating product which would dissolve and go into
    24 the water column. What I was trying to make
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    1 reference to really in a relative term is that a
    2 sinker would -- the three-phase component of a
    3 sinker would sink and there still is a dissolve
    4 component of a sinker as well, but there's a
    5 dissolve component of a floater, correct.
    6 Q. And what would those components be?
    7 A. From a gasoline?
    8 Q. Yes.
    9 A. Illinois EPA requirements for an unleaded
    10 gasoline, we specifically test for benzene
    11 b-e-z-e-n-e -- excuse me, b-e-n-z-e-n-e,
    12 ethylbenzene, e-t-h-y-l-b-e-n-z-e-n-e, toluene,
    13 t-o-l-u-e-n-e, and
    xylenes, x-y-l-e-n-e-s.
    14 Q. Are you aware of any octane
    enhancers that are
    15 in gasolines that are sold by Amoco?
    16 A. Not specifically Amoco, but just general
    17 knowledge of gasoline products. There are
    18 different octane
    enhancers which can be added to
    19 the different formulations of gasoline, but to the
    20 specific brand, no, I don't know exactly.
    21 Q. Generally are you aware of how octane
    enhancers
    22 react with water, react in the presence of water?
    23 A. Not specifically, no.
    24 Q. Are you aware of methyl
    tert butyl ether?
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    1 A. Yes.
    2 Q. Otherwise known as MTBE?
    3 A. Correct, yes, I'm aware of it.
    4 Q. Are you aware of its solubility?
    5 A. Not offhand, no.
    6 Q. You don't have any opinion on MTBE?
    7 MR. MILLER: As to what, Steve?
    8 MR. EWART: Its solubility in water.
    9 A. No, not per se.
    10 MR. EWART: I have no further questions.
    11 HEARING OFFICER BURDS: Any other questions of
    12 Mr. Newman from any other members of the public or
    13 attorneys or members of the Agency?
    14 Okay. Mr. Miller, do you have any
    15 questions?
    16 MR. MILLER: We'd like to have a moment to
    17 confer before we rest our case. As an initial
    18 matter in order to expedite this hearing process, I
    19 did not present those portions of the petition that
    20 were uncontested by the Agency and I would request
    21 that the Agency -- that those factual matters that
    22 could have been testified to by John
    Stewart in
    23 his -- in the petition of
    Tri Star Marketing which
    24 was supported by affidavit be accepted as evidence.
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    1 MR. EWART: I have no objection.
    2 MR. MILLER: Thank you.
    3 HEARING OFFICER BURDS: There being no
    4 objection -- as far as the representations you are
    5 asking for all matters not --
    6 MR. MILLER: Not presented as live testimony
    7 here to be accepted as testimony as if read by the
    8 witness.
    9 HEARING OFFICER BURDS: Let's go off the
    10 record.
    11 (A discussion was held off the record.)
    12 HEARING OFFICER BURDS: Let's go on the record
    13 then.
    14 Mr. Miller.
    15 MR. MILLER: I'd like to recall John
    Stewart for
    16 additional testimony.
    17 HEARING OFFICER BURDS: Mr.
    Stewart, you were
    18 previously sworn. You are still under oath.
    19 REDIRECT EXAMINATION
    20 BY MR. MILLER:
    21 Q. John, have you had an opportunity to review the
    22 amended petition of
    Tri Star concerning water well
    23 setback exception which has been filed with the
    24 Illinois Pollution Control Board?
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    1 A. Yes.
    2 Q. There are certain factual matters in that
    3 amended petition to which you did not testify here
    4 today; is that true?
    5 A. That is correct.
    6 Q. If you were to testify as to those points which
    7 are contained in the amended petition in additional
    8 and further direct testimony, would those be your
    9 sworn statements?
    10 A. Yes.
    11 Q. And would those be your sworn statements as
    12 if -- strike that.
    13 Would those be your sworn statements to
    14 the same extent that you have offered the Board
    15 your affidavit in support of the amended petition?
    16 A. Yes.
    17 MR. MILLER: Mr. Hearing Officer, then for
    18 purposes of shortening the length of time for this
    19 hearing I would offer those factual representations
    20 of Mr.
    Stewart as contained in the amended petition
    21 for water well setback filed with the Board August
    22 14th, 1997 as evidence to be afforded the same
    23 consideration by the Board as if
    prefiled testimony
    24 filed with the Hearing Officer here today.
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    1 HEARING OFFICER BURDS: Mr.
    Ewart.
    2 MR. EWART: I have no objection to that. I, of
    3 course, wish the Board to recognize the
    4 cross-examination that the Agency has done of
    5 witnesses in earlier parts of this hearing and, of
    6 course, our case in rebuttal as Respondent's case
    7 that will proceed after Petitioner's case.
    8 MR. MILLER: Mr. Hearing Officer, I would
    9 stipulate for the Board's benefit and the benefit
    10 of the Illinois Environmental Protection Agency
    11 that my offer that I've just concluded is not
    12 intended to preclude the Agency's right to
    13 cross-examine witnesses nor does it in any way
    14 obviate the cross-examination of witnesses that the
    15 Agency has already conducted.
    16 HEARING OFFICER BURDS: Okay. Mr.
    Ewart, with
    17 that representation --
    18 MR. EWART: I have no objection.
    19 HEARING OFFICER BURDS: Okay. Then what we'll
    20 do is --
    21 MR. MILLER: I would like to then just for
    22 purposes of making the record clear offer to be
    23 admitted into evidence as if containing
    prefiled
    24 testimony for purposes of this hearing a copy of
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    1 the petition of
    Tri Star Marketing for a water well
    2 setback exception --
    3 HEARING OFFICER BURDS: Okay. Now, there was a
    4 petition, an amended petition, Mr. Miller. Are we
    5 referring to one or both?
    6 MR. MILLER: We are offering the amended
    7 petition for water well setback exception as filed
    8 stamped by the clerk's office of the Board on
    9 August 14th, 1997 as Petitioner's Exhibit No. 7.
    10 HEARING OFFICER BURDS: Let the record reflect
    11 that I have received a document entitled amended
    12 petition for waiver of well setback exception, a
    13 one -- eight-page document and will be marked
    14 Petitioner's Exhibit No. 7. Any objection to that
    15 document being admitted?
    16 MR. EWART: No objection.
    17 HEARING OFFICER BURDS: The document is admitted
    18 as Petitioner's Exhibit 7.
    19 Mr. Miller, has -- Mr.
    Ewart, do you have
    20 any questions of Mr.
    Stewart?
    21 MR. EWART: No, I don't.
    22 HEARING OFFICER BURDS: Any other questions of
    23 Mr. Stewart at this time based on his additional
    24 testimony? Let the record reflect that there are
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    1 no additional questions of Mr.
    Stewart at this
    2 time.
    3 Mr. Miller, do you have additional
    4 questions of Mr.
    Stewart?
    5 MR. MILLER: Just one small matter, Mr. Hearing
    6 Officer.
    7 HEARING OFFICER BURDS: Yes, Mr. Miller.
    8 CONTINUED REDIRECT EXAMINATION
    9 BY MR. MILLER:
    10 Q. John, I'm going to hand you a document and
    11 could you identify that document for me?
    12 A. It's a letter dated February 27, 1997 from Bill
    13 Bolen, United States Environmental Protection
    14 Agency, Section Chief, addressed to my father, Dean
    15 Stewart, at Tri Star Marketing concerning the Byron
    16 Municipal Well Field, Byron, Illinois.
    17 Q. Could you tell me in general terms what the
    18 contents of that letter is?
    19 A. USEPA was releasing
    Tri Star Marketing from any
    20 potential source -- groundwater source at our site
    21 and -- regarding the contamination of the wells in
    22 Byron.
    23 Q. Could you tell me what the conclusion of USEPA
    24 is as contained in that letter as far as the status
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    1 of Tri Star Marketing as a potentially responsible
    2 party for the contamination in Municipal Wells Nos.
    3 1 and 2?
    4 A. USEPA felt that we were no longer a responsible
    5 party.
    6 MR. MILLER: Okay. Mr. Hearing Officer, I'd
    7 like to offer into evidence this Petitioner's
    8 Exhibit No. 8 which is the letter dated February
    9 27, 1997 from William
    Bolen to Tri Star Marketing,
    10 Inc. I'm tendering that to Mr.
    Ewart for his
    11 examination.
    12 HEARING OFFICER BURDS: Let the record reflect
    13 that Mr.
    Ewart is reviewing the document.
    14 MR. EWART: Can we get copies made?
    15 MR. MILLER: Off the record. That's --
    16 HEARING OFFICER BURDS: Wait. I think we can go
    17 off the record and get copies made of the document
    18 at a break. That's not a problem.
    19 MR. EWART: That's no problem. I have a few
    20 questions.
    21 MR. MILLER: I have no further direct of
    22 Mr. Stewart.
    23 HEARING OFFICER BURDS: Mr.
    Ewart, do you have
    24 any questions of Mr.
    Stewart or would you like an
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    1 opportunity to review the letter?
    2 MR. EWART: Yes. I'd like just a short period.
    3 HEARING OFFICER BURDS: Why don't we take a
    4 five-minute recess.
    5 (A recess was taken at 12:25 p.m. and
    6 proceedings resumed at 12:31 p.m.)
    7 HEARING OFFICER BURDS: Let's go back on the
    8 record. Before we go back on the record and
    9 proceed, just so we know where we left off,
    10 Mr. Ewart was reviewing the document that had been
    11 marked as Petitioner's Exhibit 8; is that correct,
    12 Mr. Miller?
    13 MR. MILLER: That's correct.
    14 HEARING OFFICER BURDS: Mr.
    Ewart, have you had
    15 an opportunity to review that document?
    16 MR. EWART: Yes, I have.
    17 HEARING OFFICER BURDS: Mr. Miller, that
    18 document, am I correct, has been tendered as
    19 Petitioner's Exhibit 8?
    20 MR. MILLER: Right, correct.
    21 HEARING OFFICER BURDS: Mr.
    Ewart, any questions
    22 of Mr.
    Stewart regarding the document, Petitioner's
    23 Exhibit 8?
    24 MR. EWART: I have some questions, but more so
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    1 with regard to the condition of the site after this
    2 document.
    3 RECROSS EXAMINATION
    4 BY MR. EWART:
    5 Q. Mr.
    Stewart, are you aware of any existing
    6 monitoring wells on this site?
    7 A. I'm unaware of existing monitoring wells.
    8 There may be some, but we are not involved in
    9 remediation of the site.
    10 Q. Would that be also true that you don't --
    11 aren't aware of any pump and treat wells on the
    12 site?
    13 A. My understanding was that there was a pump and
    14 treat facility. Whether there's still an active
    15 well on site, I just don't know. I honestly don't
    16 know. I haven't inspected the site recently.
    17 There very well may be.
    18 Q. If for purposes of this cross-examination there
    19 were -- you were to review the site and to discover
    20 monitoring wells and/or pump and treat wells on the
    21 site, would these not be potential access ways for
    22 pollution to the groundwater and aquifer?
    23 A. They could be, yes.
    24 Q. Again, under the supposition if they do exist
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    1 on the site, what, if anything, would
    Tri Star do
    2 with regard to those existing monitoring wells or
    3 pump and treat wells?
    4 A. Consistent with our operation, if the
    5 monitoring wells and/or pump and treat wells were
    6 not in active service, we would make sure that they
    7 were properly sealed off and abandoned -- well,
    8 excuse me, not abandoned, properly sealed off and
    9 eliminated from use.
    10 Q. Would
    Tri Star be willing to stipulate to this
    11 as part of this proceeding before the Board?
    12 A. Yes, we would be.
    13 MR. MILLER: Let me back up here. If I
    14 understand what Mr.
    Ewart is proposing, that should
    15 the Board in its discretion feel that the petition
    16 is justified and were there an Agency
    17 recommendation as a condition to the grant of the
    18 petition for the water well setback exception that
    19 the existing monitoring wells, if any, be properly
    20 closed, then
    Tri Star would stipulate that they
    21 would do that.
    22 MR. EWART: I have no objection except that you
    23 add pump and treat wells to the monitoring wells.
    24 THE WITNESS: That's fine.
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    1 MR. MILLER: Is that acceptable?
    2 THE WITNESS: Yeah.
    3 MR. MILLER: We'd stipulate to that.
    4 HEARING OFFICER BURDS: Okay, so it's clear I
    5 don't want to discourage any stipulations at all.
    6 That would make it more convenient for the Board to
    7 decide this case or determine what they have to
    8 determine, but why don't we for the record's sake
    9 clearly stipulate or identify or articulate what
    10 the stipulation is and I'm not sure -- if you feel
    11 comfortable with what you've done, Mr. Miller,
    12 that's fine. I just want to make sure that there
    13 is a stipulation that there -- that it is
    14 represented by the stipulated -- by both parties,
    15 Tri Star and the IEPA. That is my understanding,
    16 but can we articulate then what exactly the
    17 stipulation is?
    18 MR. MILLER: The stipulation would be subject to
    19 clarification by Mr.
    Ewart that should there be
    20 existing monitoring wells or a pump and treat
    21 system on the site and in the event that the Board
    22 in its discretion would grant
    Tri Star's petition
    23 for water well setback exception, as a condition to
    24 that grant it would be acceptable for
    Tri Star to
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    1 commit in advance that it will properly close
    2 both -- any existing monitoring wells and remove
    3 any pump and treat system and associated wells with
    4 that system.
    5 HEARING OFFICER BURDS: Mr.
    Ewart, is that your
    6 understanding?
    7 MR. EWART: Yes, in accordance with the
    8 appropriate State rules and regulations that they
    9 would be -- that the wells would be abandoned and
    10 closed in accordance with the --
    11 MR. MILLER: My stipulation used the word
    12 properly and that's what it meant.
    13 MR. EWART: The well construction code of the
    14 Department of Public Health.
    15 HEARING OFFICER BURDS: Mr. Miller.
    16 MR. MILLER: So stipulated.
    17 HEARING OFFICER BURDS: Okay. Just for a
    18 moment, court reporter, are you having difficulty
    19 hearing with the adjacent noise? We're working
    20 through the lunch hour for the record. Apparently
    21 we have a lunch break going on next door, so what I
    22 want to do is make it convenient for the court
    23 reporter. Let's go off the record for a minute.
    24 (A discussion was held off the record.)
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    1 HEARING OFFICER BURDS: Let's go back on the
    2 record. All right. I'm trying to remember where
    3 we were with Mr.
    Stewart. Mr. Stewart has been
    4 called as a witness.
    5 Mr.
    Ewart, you have been given an
    6 opportunity to cross-examine Mr.
    Stewart for the
    7 third time, I believe. Do you have any other
    8 questions of Mr.
    Stewart?
    9 MR. EWART: No, I do not, sir.
    10 HEARING OFFICER BURDS: Are there any other
    11 questions from members at large or members of the
    12 public or other attorneys present for Mr.
    Stewart?
    13 MR. BROOKS: Just a couple of quick follow-up
    14 for clarification.
    15 HEARING OFFICER BURDS: Would you please
    16 identify yourself?
    17 MR. BROOKS: Mr. Brooks, City of Byron.
    18 CROSS EXAMINATION
    19 BY MR. BROOKS:
    20 Q. Mr.
    Stewart, I think you already testified that
    21 when you bought the property in '94 the tanks had
    22 already been removed, correct?
    23 A. Correct.
    24 Q. Has
    Tri Star conducted any activity on the
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    55
    1 property regarding the operation of any sort of
    2 business?
    3 A. No.
    4 Q. And was there any sort of business in operation
    5 when you bought the property?
    6 A. No.
    7 Q. Regarding the exhibit that has been tendered
    8 from Bill
    Bolen, it doesn't state what contaminants
    9 you would be released from as a potential
    10 responsible party. Do you have indication of what
    11 contaminants that he's referring to?
    12 A. No, I do not.
    13 Q. Is it possible he's referring to TCE
    14 contaminants?
    15 A. Quite possibly.
    16 Q. Because you had already stated that Amoco had
    17 gotten a release letter from Illinois EPA regarding
    18 the petroleum contaminants?
    19 A. That's correct.
    20 HEARING OFFICER BURDS: Any further questions,
    21 Mr. Brooks?
    22 MR. BROOKS: No.
    23 HEARING OFFICER BURDS: Any other questions of
    24 Mr. Stewart at this time? Let the record reflect
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    1 there are none.
    2 Mr. Miller, would you have any other
    3 questions for Mr.
    Stewart?
    4 MR. MILLER: No further questions of
    5 Mr. Stewart.
    6 HEARING OFFICER BURDS: Okay. Any other
    7 evidence or testimony, Mr. Miller?
    8 MR. MILLER: I do not believe so at this time.
    9 HEARING OFFICER BURDS: Okay. Then so we go
    10 through this -- and what I want to do is make a
    11 clear and accurate record because there have been
    12 changes made to Petitioner's exhibits previously
    13 submitted and admitted and I want to make sure
    14 those documents are referred to correctly in the
    15 record. I want to go through each of your exhibits
    16 at this time if that's satisfactory with you,
    17 Mr. Miller.
    18 Okay. What I have is Petitioner's Exhibit
    19 No. 1 which appears to be identified as a site
    20 development plan, Byron, Illinois. There was, I
    21 believe, one or -- some testimony elicited
    22 regarding the document. That document has been
    23 presented by the Petitioner.
    24 Mr.
    Ewart, do you have any objection to
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    1 that document being admitted?
    2 MR. EWART: No.
    3 HEARING OFFICER BURDS: Any other objections to
    4 that document? Okay. Now, referring to
    5 Petitioner's Exhibit No. 2, it has a cover page
    6 entitled Index to Group Exhibit B. It appears to
    7 be a group exhibit composed of several documents.
    8 That document has been tendered and previously
    9 admitted. However, testimony has been elicited
    10 regarding the document.
    11 Any objection to that document, Mr.
    12 Ewart?
    13 MR. EWART: No.
    14 HEARING OFFICER BURDS: So for the record
    15 Petitioner's Exhibit 1 and Petitioner's Exhibit 2
    16 are admitted. All right. The next two documents
    17 referred to as Petitioner's Exhibit 3 and
    18 Petitioner's Exhibit 4 are affidavits of --
    19 presented -- Petitioner's Exhibit 3 is an affidavit
    20 of Kerry S.
    Gifford. For the record Mr.
    Gifford
    21 was not present at the hearing; however, the
    22 affidavit has been submitted as if -- as read into
    23 the record as if testified to at the hearing. That
    24 document again is Petitioner's Exhibit 3, an
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    1 affidavit of Kerry S.
    Gifford, and I would refer to
    2 the summary that Mr. Miller gave regarding this
    3 document.
    4 Any objection to that document,
    5 Mr. Ewart?
    6 MR. EWART: No.
    7 HEARING OFFICER BURDS: Any other objections to
    8 the document? Hearing none, the document is
    9 admitted. Petitioner's Exhibit 4 refers to an
    10 affidavit of John D.
    Stewart who has been present
    11 for the record at the hearing and has -- testimony
    12 has been elicited and he has been questioned on
    13 numerous occasions. That document has been
    14 presented by Petitioner.
    15 Any objection, Mr.
    Ewart?
    16 MR. EWART: No.
    17 HEARING OFFICER BURDS: Any other objections
    18 regarding Petitioner's Exhibit No. 4, the affidavit
    19 of one John
    Stewart? Hearing none, that document
    20 is admitted. All right. Now, referring to
    21 Petitioner's Exhibit No. 5, that appears to be a
    22 document on Midwest Engineering Services, Inc.
    23 letterhead to a Mr. Dean
    Stewart and consists of a
    24 letter and attachment, four attachments. That
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    1 document has been submitted and referred to in
    2 testimony by, I believe, Mr.
    Newman and
    3 Mr. Stewart. I believe that document has been
    4 submitted for admission by the Petitioner.
    5 Any objection to that document,
    6 Mr. Ewart?
    7 MR. EWART: No.
    8 HEARING OFFICER BURDS: Any other objections to
    9 the document? Hearing none, that document is
    10 admitted. All right. Petitioner's Exhibit No. 6,
    11 again is a document with a cover page on Midwest
    12 Engineering Services, Inc. letterhead with
    13 attachments, again identified as Petitioner's No. 6
    14 submitted by the Petitioner.
    15 Any objection to that document,
    16 Mr. Ewart?
    17 MR. EWART: No.
    18 HEARING OFFICER BURDS: Any other objection --
    19 any objections to the document be admitted by any
    20 other party? Hearing none, the document is
    21 admitted. Finally, what we have is Petitioner's
    22 Exhibit No. 7 which is, in fact, the amended
    23 petition for water well setback exception which is,
    24 in fact, a pleading in this matter. That document
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    1 has been admitted, and I believe there was no
    2 objection by you to that document being admitted,
    3 Mr. Ewart.
    4 MR. EWART: No.
    5 HEARING OFFICER BURDS: All right. Any other
    6 objections to that document being admitted into
    7 this proceeding? Hearing none, the document is
    8 admitted. Now, there was one other document that I
    9 do not have a copy of and that was a letter which
    10 copies were made. Okay. Let the record reflect a
    11 copy of a document has been marked as --
    12 Petitioner's Exhibit 8 has been supplied to the
    13 Hearing Officer by the Petitioner. It is marked as
    14 Petitioner's Exhibit No. 8. It is what appears to
    15 be on USEPA letterhead. That document has been
    16 submitted for admission by the Petitioner.
    17 Any objection to that document being
    18 admitted?
    19 MR. EWART: No.
    20 HEARING OFFICER BURDS: Any objection to that
    21 document be admitted by any party? Hearing none,
    22 that document is admitted.
    23 All right. Any other evidence or
    24 testimony at this time, Mr. Miller?
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    1 MR. MILLER: None, Mr. Hearing Officer.
    2 HEARING OFFICER BURDS: Okay. Mr.
    Ewart.
    3 MR. EWART: Yes. I need about five minutes to
    4 get my exhibits in order.
    5 HEARING OFFICER BURDS: Mr.
    Ewart did ask
    6 previously that he be given an opportunity -- a
    7 short recess before presenting his case in chief.
    8 We'll take a recess at this time.
    9 (A recess was taken at 12:45 p.m. and
    10 proceedings resumed at 12:58 p.m.)
    11 HEARING OFFICER BURDS: Let's go back on the
    12 record. When we went off the record, and this
    13 proceeding is PCB 97-199, Mr. Miller had rested.
    14 Mr. Ewart was about to begin his case in chief.
    15 Mr.
    Ewart.
    16 MR. EWART: Thank you, Mr. Hearing Officer. At
    17 this time I would like to introduce for
    18 identification purposes certain exhibits that have
    19 been presented to the Petitioners beforehand and to
    20 which they have stipulated to or at least that is
    21 my understanding, Mr. Miller.
    22 MR. MILLER: Mr. Hearing Officer, we have no
    23 objection to stipulating to the admissibility of
    24 the Respondent's exhibits subject to our right to
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    1 cross-examine.
    2 HEARING OFFICER BURDS: Okay. Let's do this.
    3 Why won't we identify -- is there more than one
    4 Respondent exhibit? Are there -- how many exhibits
    5 are there?
    6 MS. KONZELMANN: Seven.
    7 HEARING OFFICER BURDS: Seven Respondent's
    8 exhibits, okay and, Mr. Miller, you've indicated
    9 you've had an opportunity to review all seven of
    10 the Respondent's exhibits?
    11 MR. MILLER: That's true.
    12 HEARING OFFICER BURDS: Okay, and he's already
    13 represented that there is no objection. Why
    14 don't -- Ms.
    Konzelmann, are you going to identify
    15 the exhibits?
    16 MS. KONZELMANN: Yes, I will.
    17 HEARING OFFICER BURDS: Okay. If you would --
    18 can you tender a copy to the Board at this time or
    19 Hearing Officer at this time, that way I can mark
    20 them?
    21 Ms.
    Konzelmann.
    22 MS. KONZELMANN: Respondent Exhibit No. 1 is the
    23 Byron public water supply evaluation report and
    24 it's dated November 21st, 1997.
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    1 HEARING OFFICER BURDS: Let the record reflect
    2 that I have been handed a copy of a document
    3 stapled appearing to be numerous pages in length
    4 identified as Respondent Exhibit No. 1.
    5 MS. KONZELMANN: Respondent Exhibit No. 2 is the
    6 Byron inorganic chemical samples from Well No. 1
    7 collected on July 15th, 1997 which shows chromium
    8 and nitrate levels.
    9 HEARING OFFICER BURDS: All right. Let the
    10 record reflect I've been handed a document entitled
    11 Illinois Environmental Protection Agency, Division
    12 of Public Water Supply sample verification,
    13 Respondent Exhibit 2. All right.
    14 MS. KONZELMANN: Respondent Exhibit No. 3 is
    15 Byron inorganic chemical samples from Well No. 2
    16 collected on July 15th, 1997, shows chromium and
    17 nitrate levels.
    18 HEARING OFFICER BURDS: Let the record reflect
    19 that I've had a document tendered to me entitled
    20 Respondent's Exhibit No. 3 in the right-hand corner
    21 referring to -- has reference to Well 2. It has
    22 been tendered to the Hearing Officer. All right.
    23 MS. KONZELMANN: Respondent Exhibit No. 4 is
    24 Byron volatile organic chemical samples from Well
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    1 No. 1 collected on July 15th, 1997. It shows
    2 trichloroethylene levels or TCE levels.
    3 HEARING OFFICER BURDS: Let the record reflect
    4 that Respondent's Exhibit No. 4 has been tendered
    5 to the Hearing Officer. It's entitled -- it's an
    6 eight and a half by 11 piece of paper, Illinois
    7 Environmental Protection Agency, refers to a sample
    8 number and then a sampling point description,
    9 Byron/Tap 01, Well No. 1.
    10 Ms.
    Konzelmann.
    11 MS. KONZELMANN: Respondent Exhibit No. 5, Byron
    12 volatile organic chemical samples from Well No. 2
    13 collected on July 15th, 1997, shows
    14 trichloroethylene levels.
    15 HEARING OFFICER BURDS: Let the record reflect
    16 the document entitled Respondent's Exhibit No. 5 in
    17 the right-hand, upper corner has been tendered to
    18 the Hearing Officer with the caption Illinois
    19 Environmental Protection Agency underneath the left
    20 sample number, refers to a number and then below
    21 that is a sampling point description: Byron/Tap 01,
    22 Well No. 2.
    23 Ms.
    Konzelmann.
    24 MS. KONZELMANN: Respondent Exhibit No. 6 are
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    1 Byron samples from monitoring wells near Wells No.
    2 1 and 2. These were collected on July 21st and
    3 August 18th, 1988 and this shows gasoline
    4 constituents in the upper aquifer.
    5 HEARING OFFICER BURDS: Let the record reflect
    6 that the document has been submitted as
    7 Respondent's Exhibit No. 6. It's a document
    8 consisting of multiple pages. It has been tendered
    9 to the Hearing Officer, so the record is clear
    10 Ms. Konzelmann is only identifying what the
    11 documents are regarding the Respondent's exhibits.
    12 Ms.
    Konzelmann.
    13 MS. KONZELMANN: Respondent Exhibit No. 7 are
    14 the testimony and qualifications of Lynn D.
    15 Dunaway. He's an environmental protection
    16 specialist with the Illinois Environmental
    17 Protection Agency.
    18 HEARING OFFICER BURDS: All right. Let the
    19 record reflect that Respondent's Exhibit 7 appears
    20 to be in the manner of pre -- or filed testimony;
    21 is that correct, Ms.
    Konzelmann?
    22 MS. KONZELMANN: Yes, it is. Lynn will be
    23 testifying to this.
    24 HEARING OFFICER BURDS: Okay. For the record
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    1 Mr. Dunaway is present and has been previously
    2 sworn.
    3 Mr.
    Ewart, subject to the
    4 cross-examination of Mr. Miller and his
    5 representations, can we briefly summarize this
    6 testimony for the record?
    7 MR. EWART: Yes.
    8 LYNN D. DUNAWAY,
    9 having been previously sworn, was examined and
    10 testified as follows:
    11 DIRECT EXAMINATION
    12 BY MR. EWART:
    13 Q. Mr.
    Dunaway, go ahead.
    14 A. My name is Lynn
    Dunaway. I am an environmental
    15 protection specialist for the Illinois EPA and I
    16 work in the Division of Public Water Supplies. I
    17 have a BS Degree in geology and I did some
    18 postgraduate work at Northern Illinois University.
    19 For almost the past 10 years since February of 1988
    20 I worked at the Agency in the Division of Public
    21 Water Supplies. Previously I worked for Analytical
    22 Logging Company in the oil and gas industry.
    23 I used existing data from the Division of
    24 Public Water Supply files in addition to generally
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    1 available documents from the Illinois State Water
    2 Survey and the Illinois Geological Survey to
    3 describe the geologic setting for the Byron wells
    4 as well as construction information that was
    5 available to summarize the construction of those
    6 wells. From the testimony one correction I would
    7 make, on Page 3 the second paragraph, the third
    8 sentence reads, raw water monitoring in 1986 from
    9 Well 1 indicated TCE at three parts per billion.
    10 It should actually read Well 2 in that sentence as
    11 opposed to Well 1.
    12 MR. MILLER: Lynn, could you repeat where that
    13 is?
    14 THE WITNESS: Okay. On Page 3, second
    15 paragraph, third sentence in that paragraph.
    16 MR. MILLER: Thank you.
    17 HEARING OFFICER BURDS: Let the record reflect
    18 that I have gone to Page 3 of what has been
    19 identified as Respondent's Exhibit 7 and in the
    20 second paragraph with the one, two -- third full
    21 sentence -- within the third full sentence of the
    22 second paragraph on that page raw water monitoring
    23 in 1986 from Well 2 indicated TCE at 3.0 PBP, it
    24 previously was referred to one; is that correct?
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    1 THE WITNESS: Yes, that's correct.
    2 HEARING OFFICER BURDS: Any objections to that,
    3 Mr. Miller?
    4 MR. MILLER: No objections to the correction.
    5 HEARING OFFICER BURDS: Okay.
    6 A. Essentially the wells are located in the
    7 floodplain along the Rock River. The upper
    8 formations are sand and gravel. The wells -- both
    9 Wells 1 and 2 have a casing that stems to
    10 approximately 200 feet with a total depth of Well 1
    11 being approximately 1400 feet and the total depth
    12 of Well 2 being almost 700 feet.
    13 I then responded to several aspects of the
    14 Tri Star's petition. Should I review those also,
    15 my responses to those or -- do you want to question
    16 me on these? The concerns we had in regard to the
    17 exception were in regard to the compliance, whether
    18 the setback requirements would propose arbitrary
    19 and unreasonable hardship. The Agency was
    20 maintaining the fact that Byron Wells 1 and 2 were
    21 in existence in July of 1988 when the minimum
    22 setback zones became effective in regard to
    23 potential secondary sources; however,
    Tri Star
    24 didn't purchase the property until 1994, and based
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    1 on the testimony that they've already provided the
    2 tanks had been pulled at that time and there was no
    3 operating business at that site. Therefore, the
    4 setback zones were in place and should have been --
    5 Tri Star should have been aware of the prohibition
    6 of locating new potential secondary sources within
    7 setback zones.
    8 The maximum alternative setback utilized,
    9 Mr. Stewart addressed that concern and found that
    10 by a westward orientation as opposed to the
    11 proposed southern orientation of the facility, very
    12 little additional setback distance would have been
    13 gained, and the last concern of the Agency is that
    14 the location of the potential source will not
    15 constitute a significant hazard to the well, and in
    16 reviewing other decisions by the Board and in
    17 looking at the site specific data it appears to
    18 us -- it appears to us that based on the
    19 information that we have Byron wishes to keep Wells
    20 1 and 2 available as a public supply. They may be
    21 not in frequent use, but we typically consider a
    22 well which is attached to the distribution system a
    23 community water supply to be active, and inactive
    24 status would only be acceptable to the Agency on a
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    1 very temporary basis while repairs were being
    2 sought. We wouldn't expect wells to be left in an
    3 inactive state indefinitely. We would expect them
    4 to be properly abandoned pursuant to water well
    5 construction code or that they be refurbished and
    6 be held as an active standby well. The replacement
    7 of a community well is expensive. The new well
    8 that Byron drilled cost approximately $160,000 to
    9 construct; therefore, the loss of those wells or
    10 the replacement of those wells would be expensive.
    11 Contaminants that are in the upper sand
    12 and gravel by whatever means have entered into the
    13 wells and are being produced by those wells in the
    14 water -- as the water monitoring data indicates,
    15 and based on my review of the technology controls
    16 that Tri Star submitted the monitoring system can
    17 lose anywhere from .1 to .2 gallons of product per
    18 hour without triggering the sensor. Since
    19 contaminants that are already in the upper sand and
    20 gravel formation have entered the Byron wells, it
    21 seems likely that any additional contamination that
    22 was released would also potentially impact those
    23 wells, and one of my attachments was a graph from a
    24 document called the -- Attachment 5 on Page 13
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    1 contains graphs that indicate .2 gallons of
    2 gasoline contains enough benzene to contaminate a
    3 million gallons of water, so therefore, a fairly
    4 small amount of gasoline product could impact a
    5 fairly large amount of gasoline -- excuse me,
    6 fairly large amount of water. I don't have
    7 anything else.
    8 HEARING OFFICER BURDS: Mr.
    Ewart, do you have
    9 any other questions of Mr.
    Dunaway?
    10 MR. EWART: Mr. Hearing Officer, at this time I
    11 offer him up for cross-examination.
    12 HEARING OFFICER BURDS: Okay. Any questions of
    13 Mr. Dunaway, Mr. Miller?
    14 MR. MILLER: I'll be brief, and I'm not sure we
    15 want this on the record or off. You've offered,
    16 Steve, Respondent's Exhibit No. 7, the
    prefiled
    17 testimony. It contains a signature line. Did he
    18 submit a signed copy?
    19 MR. EWART: Of course.
    20 HEARING OFFICER BURDS: I'm looking at the copy
    21 that was submitted to me. It is not signed.
    22 Thank you, Mr. Miller.
    23 MR. MILLER: Former Board attorney.
    24 MR. EWART: Thank you.
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    1 HEARING OFFICER BURDS: For the record
    2 Respondent's Exhibit No. 7, the filed testimony of
    3 Mr. Dunaway, has, in fact, now -- the copy that was
    4 previously made was unsigned; however, the document
    5 that has been submitted to the Hearing Officer as
    6 the exhibit has now been signed.
    7 Mr.
    Dunaway, that is your testimony?
    8 THE WITNESS: Yes, it is.
    9 HEARING OFFICER BURDS: Okay. Is that a true
    10 and accurate document -- is this -- I'm going to
    11 show you what's been marked Respondent's Exhibit 7
    12 and submitted to me. Is that a true and accurate
    13 copy of the document you prepared and are
    14 submitting with your signature? Let the record
    15 reflect that Mr.
    Dunaway is reviewing the document
    16 now identified as Respondent's Exhibit No. 7.
    17 THE WITNESS: Yes, it is.
    18 HEARING OFFICER BURDS: Thank you. Mr.
    Ewart,
    19 anything further of Mr.
    Dunaway?
    20 MR. EWART: Nothing further.
    21 HEARING OFFICER BURDS: Mr. Miller.
    22 CROSS EXAMINATION
    23 BY MR. MILLER:
    24 Q. Mr.
    Dunaway, you've testified that the
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    1 technical controls that
    Tri Star proposes to use
    2 can lose from .1 and .2 gallons of water without
    3 triggering a sensor. Could you tell me just
    4 briefly upon what information you base that
    5 conclusion?
    6 A. That was the -- I found that information in the
    7 submissions from
    Tri Star. Petitioner's Exhibit
    8 No. 2, there were several places within the
    9 description of the equipment depending on -- it was
    10 my understanding depending on the particular type
    11 of sensors that go into it can lose, if accurate,
    12 .1 gallons up to .2 gallons of loss which is within
    13 the precision required by USEPA; however, there is
    14 some potential for loss.
    15 Q. I think you just anticipated my question.
    16 That's actually at or exceeding the precision
    17 required for --
    18 A. Yes.
    19 Q. -- USEPA for monitoring systems of that type?
    20 You're not disputing that the type of monitoring
    21 system that
    Tri Star intends to use has several
    22 levels of redundancy to it in order to, I guess,
    23 minimize the chances of releases?
    24 A. No.
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    1 Q. In addition to a release from a UST, what has
    2 to happen in order for a water supply to be
    3 contaminated?
    4 A. The water -- the contaminated water has to
    5 reach the open end of the well and the pump.
    6 Q. Do you have specific knowledge maybe in the
    7 form of a groundwater directional flow diagram or
    8 Piezometric Study,
    P-i-e-z-o-m-e-t-r-i-c Study of
    9 this site to show which direction contaminants
    10 would likely flow in the event of a release?
    11 A. I don't have any study like that, no.
    12 Q. Okay. Do you have direct knowledge of the --
    13 other than what's contained in your
    prefiled
    14 testimony regarding the geology of the area in
    15 general, do you have direct knowledge of the
    16 geology underlying either the proposed development
    17 site or the location of Water Wells Nos. 1 and 2?
    18 A. In general based on well logs, the geology in
    19 the upper 200 feet is sand and gravel
    20 predominantly. Beneath that it's bedrock --
    21 Q. You're referring to Wells Nos. 1 and 2?
    22 A. Yes, I am.
    23 Q. Okay.
    24 A. I should probably specify Well 2. There's no
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    1 well log available for Well 1 that I'm aware of.
    2 Q. With regard to Respondent's Exhibit No. 7 --
    3 I'm sorry, Respondent's Exhibit No. 6 which is a
    4 report of a sampling result from Byron monitoring
    5 well, can you -- can you tell me what the location
    6 of that exact monitoring point is?
    7 A. I was -- I don't know the location, no.
    8 Q. Okay. With regard to that same exhibit can you
    9 tell me what the date of sampling was?
    10 A. It was July 21st of 1988.
    11 Q. Would that have been prior to
    Tri Star's
    12 purchase of the site?
    13 A. Yes.
    14 Q. Would that have been prior to any of Amoco's
    15 remediation activities at the site?
    16 A. I don't know.
    17 Q. With regard to those constituents that are
    18 reported to be present in this monitoring well, I
    19 take it that your testimony would be that this is
    20 not -- this exhibit is not confirmation that those
    21 constituents are present in either Wells Nos. 1 or
    22 2?
    23 A. Can you repeat the question?
    24 Q. Sure. The existence of these constituents
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    1 which you testified to as reflected in Respondent's
    2 Exhibit No. 6, these are not verification of the
    3 existence of those contaminants in Wells Nos. 1 and
    4 2, are they?
    5 A. This -- in my testimony I have a sample taken
    6 by IEPA staff that indicates -- or excuse me, it
    7 wasn't taken by IEPA staff. It was operator
    8 collected. That indicates that in 1988 that BETX
    9 compounds, B-E-T-X, were found in Well 2
    10 specifically in Respondent's Exhibit 4, Attachment
    11 3.
    12 MR. EWART: For the record strike that. It's
    13 Respondent's Exhibit No. 7.
    14 THE WITNESS: Oh, I'm sorry.
    15 MR. EWART: Attachment 3.
    16 HEARING OFFICER BURDS: Thank you, Mr.
    Ewart.
    17 Do you have that document, Mr. Miller?
    18 MR. MILLER: I'm still trying to locate it.
    19 Q. Was the --
    20 A. Okay. Specifically on --
    21 HEARING OFFICER BURDS: Hold on, Mr. Miller. Do
    22 you have a copy?
    23 MR. MILLER: I have the attachment, yes. Thank
    24 you.
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    1 HEARING OFFICER BURDS: Okay. Go ahead,
    2 Mr. Miller.
    3 THE WITNESS: Okay. On the sample taken -- Page
    4 8 of the monitoring.
    5 MR. EWART: It's in Page 8 of the monitoring.
    6 A. On September -- or excuse me -- July 21st of
    7 1988 a sample was taken by Mr.
    Hanson, Brett
    8 Hanson, as opposed to operator collected, from
    9 Byron Well No. 2 which indicates
    ethylbenzene and
    10 xylene were detected in that well.
    11 Q. Have there been additional sampling events in
    12 that well since that time?
    13 A. There was, yes.
    14 Q. And what's the date of that?
    15 A. There was additional volatile organic sample
    16 event 10 of '88, 1 of '89 and the other are two
    17 sample events indicated on 1 of '89. Those
    18 monitoring results are located in Attachment 3 of
    19 the monitoring of the well site survey report,
    20 which is the well site survey report, and the
    21 monitoring data Pages 6 and 7.
    22 HEARING OFFICER BURDS: For the record we are
    23 still referring to Respondent's Exhibit No. 7?
    24 THE WITNESS: Yes, that's correct.
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    1 HEARING OFFICER BURDS: Thank you.
    2 Q. That's for which well, Mr.
    Dunaway?
    3 A. That would be Well 2.
    4 Q. Okay. I'm looking at a selected sample
    5 expanded report for 1 of '89.
    6 A. Yes.
    7 Q. That's for Well No. 2 also. You're looking at
    8 the lines for benzene, toluene,
    ethylbenzene and
    9 xylene showing those below the MCL?
    10 A. Correct.
    11 Q. Okay. Which would be subsequent to the date
    12 that you just testified to; is that correct?
    13 A. That's correct.
    14 Q. And for reporting periods subsequent to 1/89 is
    15 it not true that the reported results for what's
    16 commonly referred to as BTEX were below the
    MCLs?
    17 A. I'm not aware of any
    detections of the BTEX
    18 compounds.
    19 Q. Uh-huh.
    20 A. However, these -- in my testimony -- the water
    21 analysis of my testimony are for raw water. The
    22 ones for the MCL determination for
    compliances made
    23 are from treated water.
    24 Q. For raw water do you have data for, let's say,
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    1 year 1997 to show BTEX considerations?
    2 A. To the best of my knowledge we don't have any
    3 more recent raw water monitoring data from Well 2.
    4 Q. Than what you've already testified to?
    5 A. Than what I've already testified to.
    6 Q. You're not disputing the facts, Mr.
    Dunaway,
    7 are you, that TCE is not a contaminant of concern
    8 at a gasoline station, are you?
    9 A. Typically, no. Though, a service station may
    10 have a parts washer that could use that sort of a
    11 compound. I'm not trying to indicate that TCE
    12 contamination is responsible or is coming from the
    13 Amoco site.
    14 Q. Okay. Mr.
    Dunaway, are you aware of the depth
    15 at which groundwater underlies the development
    16 site?
    17 A. No.
    18 Q. Okay. Do you have any specific knowledge as to
    19 the length of time it would take a release from the
    20 development site to affect Municipal Wells 1 or 2?
    21 A. No.
    22 Q. By your earlier testimony regarding down
    23 gradient monitoring wells, are you suggesting that
    24 as an additional control measure for
    Tri Star
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    1 Marketing?
    2 A. I didn't testify to down gradient wells.
    3 MR. MILLER: I'm sorry. That was probably
    4 Steve. Maybe you elicited that through a
    5 question. I withdraw that. I don't think I have
    6 any further questions of Mr.
    Dunaway.
    7 HEARING OFFICER BURDS: Okay. Are there any
    8 questions from members at large here at the hearing
    9 to Mr.
    Dunaway?
    10 Mr. Brooks.
    11 MR. BROOKS: Just one quick question for
    12 clarification.
    13 HEARING OFFICER BURDS: Mr. Brooks, so the
    14 record is clear if you need any of the documents
    15 that they're referring to, obviously I have copies
    16 of those documents.
    17 MR. BROOKS: Thank you.
    18 CROSS EXAMINATION
    19 BY MR. BROOKS:
    20 Q. You indicated Wells 1 and 2 are located in the
    21 floodplain. Can you describe what you mean by that
    22 for clarification?
    23 A. When I say floodplain, the Rock River --
    24 actually the area was previously -- there was a
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    1 bedrock valley. In other words, the bedrock had
    2 been previously eroded. That has actually been
    3 filled with glacial
    outwash 10 to 12,000 years
    4 ago. On top of that the modern day Rock River has
    5 cut a valley into that
    outwash and there are
    6 with -- and the floodplain, the area where the
    7 river in flood stage may reach or in the case of
    8 the Rock River these areas are frequently referred
    9 to as terraces where the deeper melt waters 10 to
    10 12,000 years ago left higher deposits than the
    11 river actually reaches.
    12 Q. So your use of the term floodplain would be
    13 different than if I were saying the 100-year
    14 floodplain --
    15 A. Yes.
    16 Q. Different standard?
    17 A. Yes.
    18 MR. BROOKS: Okay. Just clarification.
    19 HEARING OFFICER BURDS: Any others questions,
    20 Mr. Brooks?
    21 MR. BROOKS: No. Thank you.
    22 HEARING OFFICER BURDS: Are there any other
    23 questions of Mr.
    Dunaway at this time?
    24 Mr.
    Ewart.
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    1 MR. EWART: Yes. Mr. Hearing Officer, I would
    2 like to briefly bring in as a witness Mr. Andrew
    3 Jackson from Byron who I have talked to briefly on
    4 just a number of questions. I don't believe he's
    5 been sworn in.
    6 HEARING OFFICER BURDS: I do not believe so.
    7 Mr. Jackson, if you'll step forward. I think it
    8 would be easier if you have a seat up here. I
    9 think so. We'll see. I didn't realize there would
    10 be so much background noise.
    11 ANDREW JACKSON,
    12 being first duly sworn, was examined and testified
    13 as follows:
    14 DIRECT EXAMINATION
    15 BY MR. EWART:
    16 Q. Mr. Jackson, will you state your name and spell
    17 it for the record?
    18 A. Andrew Jackson, A-n-d-r-e-w, J-a-c-k-s-o-n.
    19 Q. Would you -- what is your address?
    20 A. Street address?
    21 Q. Yes.
    22 A. 820 West Second Street in Byron.
    23 Q. In Byron. Where do you work?
    24 A. I'm in zoning building permits. I'm permit
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    1 officer for the City of Byron.
    2 Q. Were you also involved with the water supply in
    3 Byron?
    4 A. Yes, I retired in 1994. Previous to that I was
    5 employed for close to 25 years with the City of
    6 Byron.
    7 Q. How long have you lived in Byron?
    8 A. 48 years.
    9 Q. Are you aware of the proposed site, the former
    10 Amoco station?
    11 A. Yes.
    12 Q. Are you also -- and where is this located?
    13 A. Route 2 and Walnut Street.
    14 Q. And Walnut Street, otherwise known as Main and
    15 Walnut?
    16 A. Main and Walnut.
    17 Q. Are you aware of what they call an underground
    18 storage tank remediation that was conducted by
    19 Amoco?
    20 A. Yes.
    21 Q. And are you aware of the monitoring wells that
    22 were installed --
    23 A. Yes.
    24 Q. -- in that, and were there any other -- was
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    1 there a pump and treat well also installed?
    2 A. There was a pump and treat well installed at
    3 the southeast corner of the property.
    4 Q. When approximately do you recall becoming aware
    5 of these wells?
    6 A. When the tanks were taken out, there was
    7 suspected pollution at the time and that's when --
    8 I believe that's when we started having the
    9 problems showing up in the wells. If I remember
    10 correctly, that's when they did it.
    11 Q. So approximately when did you become aware of
    12 these, approximately what date in terms of year?
    13 A. Offhand I can't name the year.
    14 Q. Was it before 1990?
    15 A. Yes.
    16 Q. Are you aware of the current status of these
    17 wells that you discovered prior to 1990?
    18 A. Of the monitoring wells?
    19 Q. Yes, monitoring wells.
    20 A. As far as I know the pump and treat pump (sic),
    21 I believe, was taken out. I'm not sure if they
    22 pulled the casing out on the pump and treat well or
    23 not. I believe there's still a manhole there at
    24 the corner that the well was in, the southeast
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    1 corner.
    2 Q. So that the aperture would still -- of these
    3 wells would still -- of this well, would it still
    4 be open?
    5 A. I would suppose that if they didn't pull it and
    6 seal it that -- pull the manhole cover off you can
    7 probably tell whether it's there or not.
    8 Q. Would this also be true of the monitoring
    9 wells?
    10 MR. MILLER: Would what also be true? That
    11 they're still there?
    12 MR. EWART: That they're still there.
    13 A. It's possible. I'm not sure. I haven't been
    14 over to the property lately to pay attention.
    15 Q. How many monitoring wells were we talking
    16 about?
    17 A. I'm not sure. I think there was four or five
    18 on the property site.
    19 Q. But to your knowledge they have not been
    20 abandoned?
    21 A. Not to my knowledge. They may have been, but
    22 not to my knowledge.
    23 MR. EWART: Thank you very much.
    24 HEARING OFFICER BURDS: Mr. Miller, do you have
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    1 any questions for Mr. Jackson?
    2 MR. MILLER: Yes.
    3 CROSS EXAMINATION
    4 BY MR. MILLER:
    5 Q. Mr. Jackson, you testified that there was
    6 contamination in Wells Nos. 1 and 2 at or about the
    7 time that Amoco was conducting remediation
    8 activities on its site; is that true?
    9 A. Uh-huh. My understanding was that was why they
    10 were doing the remedial work is because of the
    11 contamination in the wells. In other words --
    12 Q. Was the contamination in the wells ever linked
    13 to the Amoco site?
    14 A. It was suspected. I wouldn't say it was proven
    15 that it was. It was suspected.
    16 Q. How many gasoline stations are in the vicinity
    17 of Wells Nos. 1 and 2?
    18 A. Two right now. There were two more besides the
    19 two that are there right now, the one across the
    20 street and the one at the Ford garage, right next
    21 door to it.
    22 Q. Were they ever suspected as the source of
    23 contamination in Wells Nos. 1 and 2?
    24 A. Not to my knowledge that they were suspected.
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    1 They may have been, but not to my knowledge.
    2 Q. Okay. Do you know of any investigation that
    3 was ever done to remove either the Marathon station
    4 or the Mobil station or the two other sources that
    5 you just testified to as possible sources of
    6 contamination of Wells Nos. 1 and 2?
    7 A. There was a test well at the one across the
    8 street and there's one at the Sunoco I believe,
    9 right next to the Sunoco or the Marathon. It was
    10 formerly Sunoco.
    11 Q. Mr. Jackson, when you talk about contamination
    12 of Wells Nos. 1 and 2, what contamination are you
    13 talking about?
    14 A. Well, there were two. There were chromium
    15 and --
    16 Q. Trichloroethylene?
    17 A. And
    trichloroethylene.
    18 MR. MILLER: Okay. No further questions of this
    19 witness.
    20 HEARING OFFICER BURDS: Any other questions from
    21 members at large or the public at large for
    22 Mr. Jackson?
    23 Mr.
    Ewart, do you have any other questions
    24 of Mr. Jackson?
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    1 MR. EWART: No, I don't.
    2 HEARING OFFICER BURDS: So it's clear I made the
    3 court reporter aware that if there's something that
    4 she doesn't get that she should make me aware of
    5 that fact so we have a clear record and so for the
    6 record's sake the court reporter has not indicated
    7 such awareness at this point much to her credit.
    8 MR. MILLER: Thank you, Mr. Jackson.
    9 HEARING OFFICER BURDS: Mr.
    Ewart, do you have
    10 any other evidence or testimony to --
    11 MR. EWART: Yes, I do. I have one other
    12 witness.
    13 HEARING OFFICER BURDS: All right. Let the
    14 record reflect I've tendered back to the
    15 Respondent's attorney Respondent's Exhibits 1
    16 through 6.
    17 Mr.
    Ewart.
    18 MR. EWART: Thank you.
    19 BRETT HANSON,
    20 having been previously sworn, was examined and
    21 testified as follows:
    22 DIRECT EXAMINATION
    23 BY MR. EWART:
    24 Q. Would you state your name for the record and
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    1 spell it?
    2 A. Brett
    Hanson, B-r-e-t-t,
    Hanson, H-a-n-s-o-n.
    3 HEARING OFFICER BURDS: For the record
    4 Mr. Hanson has been previously sworn.
    5 Q. Would you state your address?
    6 A. 715 Paris Avenue, Rockford, Illinois.
    7 Q. And where have you been -- where have you
    8 worked and how long?
    9 A. For the past 17 years I've been at the Rockford
    10 Regional Office, Illinois EPA, Division of Public
    11 Water Supplies.
    12 Q. What is your current title?
    13 A. Current title is environmental protection
    14 specialist.
    15 Q. And would you briefly state your education
    16 that's pertinent to your work at EPA?
    17 A. Yes, I have a Bachelor of Science Degree in
    18 industrial technology.
    19 HEARING OFFICER BURDS: Off the record.
    20 (A discussion was held off the record.)
    21 HEARING OFFICER BURDS: Let's go back on the
    22 record. The court reporter indicated if you keep
    23 your voice up and speak slowly we can proceed.
    24 Let's go back to the last question and repeat the
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    1 last question.
    2 Q. With regard to education.
    3 A. Bachelor of Science Degree in industrial
    4 technology from Southern Illinois University.
    5 Q. Briefly describe your current position as it
    6 involves inspections of the Byron public water
    7 supply and distribution system.
    8 A. Sure. My function at the Illinois EPA is to do
    9 field work in the northwestern regional area and a
    10 part of that field work is to perform periodic
    11 reviews of the status of a public water supply.
    12 Q. And how long have you been doing this?
    13 A. 17 years.
    14 Q. I show you what has been identified as
    15 Respondent's Exhibit No. 1. Are you familiar with
    16 this document?
    17 A. Yes, I am.
    18 Q. What briefly does this document represent?
    19 A. That's a summary of findings from my last visit
    20 at the City of Byron.
    21 Q. I refer you to Item No. 7 with regard to the
    22 standby status of Wells No. 1 and 2. Would you
    23 please describe your findings and your
    24 recommendations at those wells?
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    1 A. Sure. Byron Wells 1 and 2 have had a history
    2 of radium contamination in them above the MCL.
    3 There has been a
    trichloroethylene and chromium
    4 contamination also. Recent samples we found in the
    5 raw water from the wells have shown that the
    6 trichloroethylene has increased substantially.
    7 Most recent sample was collected in July of 1997.
    8 It shows a
    trichloroethylene content in Well No. 1
    9 at 32 parts per billion and in Well No. 2 at 16
    10 parts per billion. Also chromium was found at --
    11 and excuse me, there's an error on this document
    12 also. Chromium from Well No. 1 is 85 --
    13 HEARING OFFICER BURDS: Okay. We're referring
    14 to Respondent's Exhibit -- Mr.
    Ewart?
    15 MR. EWART: No. 1.
    16 HEARING OFFICER BURDS: I apologize. I tendered
    17 that back to you.
    18 MR. EWART: Sure. No. 1.
    19 HEARING OFFICER BURDS: Mr. -- I apologize.
    20 THE WITNESS:
    Hanson.
    21 HEARING OFFICER BURDS: --
    Hanson, would you
    22 please refer to specifically where the error is in
    23 the document, what page you're referring to.
    24 THE WITNESS: The error is on Item 7 of Exhibit
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    1 No. 1 and the sixth line down from that paragraph
    2 should read chromium at 85 micrograms per liter.
    3 MR. MILLER: I'm sorry. That line states
    4 chromium at 129 and 5 --
    5 THE WITNESS: It should say 85.
    6 HEARING OFFICER BURDS: Okay. Hold on. Only
    7 one person can speak at a time.
    8 Mr. Miller, you had a question.
    9 MR. MILLER: The question was whether we were
    10 correcting the first reference to micrograms per
    11 liter on Line 6 or the second one on Line 7, and I
    12 I've been told we're correcting the first one.
    13 HEARING OFFICER BURDS: Okay. Now, is that
    14 correction being made on the document, Mr.
    Ewart?
    15 MR. EWART: It is on this document and you will
    16 be making it on the -- why don't you initial it for
    17 purposes of this record.
    18 HEARING OFFICER BURDS: Why don't we allow
    19 Mr. Miller an opportunity to review the correction
    20 to the document that will be admitted.
    21 MR. EWART: I already showed him.
    22 HEARING OFFICER BURDS: Thank you.
    23 Q. (By Mr.
    Ewart) Mr. Hanson, with regard to the
    24 levels of
    trichloroethylene, I refer you to
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    1 Respondent's Exhibits No. 4 and 5. With regard to
    2 4 what does this represent?
    3 A. This is a raw water sample, site sample that
    4 was collected from an EPA groundwater staff person.
    5 Q. This is a report, correct?
    6 A. This is a sample analysis. That was collected
    7 on July 15th, 1997 from Well No. 1.
    8 Q. And what does it show the level of
    9 trichloroethylene on this report?
    10 A. 32 parts per billion -- or 32 parts per
    11 billion.
    12 Q. I refer you to Respondent's Exhibit No. 5.
    13 What, if anything, is this report?
    14 A. It's the same sample set from Well No. 2.
    15 Q. And who took these samples?
    16 A. The Agency groundwater -- groundwater section
    17 staff member.
    18 Q. Please proceed with regard to your statements
    19 on chromium --
    20 A. During the same sample --
    21 Q. -- with regard to Respondent's Exhibit No. 1.
    22 A. Okay. Chromium content was also found to have
    23 increased greatly between the previous sample set
    24 and the current sample set of July 15th, 1997.
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    1 Q. And I refer you to Respondent's Exhibits No. 2
    2 and No. 3. With regard to Respondent's Exhibit No.
    3 2 what, if anything, is this report?
    4 A. This is a water sample analysis from Well No. 1
    5 showing inorganic chemicals. Date of collection
    6 was July 1997.
    7 Q. And who collected this?
    8 A. Agency groundwater staff.
    9 Q. And what does it show with regard to chromium?
    10 A. It shows chromium 85 parts per billion.
    11 Q. And how about nitrate?
    12 A. Let me hunt that one.
    13 MR. MILLER: It's about the sixth from the top.
    14 A. That's 8.8 milligrams per liter.
    15 Q. What's the standard for nitrate?
    16 A. 10 milligrams per liter.
    17 Q. With regard to Respondent's Exhibit No. 3 would
    18 you describe what this report it?
    19 A. Sure. This is water analysis for inorganic
    20 chemicals collected for Well No. 2 collected by the
    21 same staff person on the same date.
    22 Q. And what does it show with regard to chromium?
    23 A. It shows the chromium content to be 530
    24 micrograms per liter.
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    1 Q. And what is the nitrate on this report?
    2 A. Nitrate on that one is 4.4 milligrams per
    3 liter.
    4 Q. I would also refer you to Respondent's Exhibit
    5 No. 6, and what is this document?
    6 A. These are sample analyses that were collected.
    7 There was actually -- there are actually sample
    8 sets here collected in 1988.
    9 Q. Who collected these samples?
    10 A. They were collected by various persons,
    11 different samples were. I collected some of them.
    12 An Agency land pollution control staff member
    13 assisted in another sample collection set and I
    14 believe there's one in there from the City of
    15 Byron.
    16 Q. Okay. Why don't we go through this on a
    17 page-by-page basis. Would you describe on the
    18 first page of Respondent's Exhibit No. 1 what the
    19 results for benzene, toluene,
    ethylbenzene and
    20 xylene were?
    21 A. The first -- the first sample set was collected
    22 on July 21st, 1988 by myself and that was from a
    23 monitoring well located near Wells 1 and 2, shows a
    24 benzene content of 13 micrograms per liter, toluene
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    1 at 52,
    ethylbenzene at 470,
    xylene at 1500.
    2 Q. And what are these units?
    3 A. These are all micrograms per liter or parts per
    4 billion.
    5 Q. Thank you. Proceeding on to Page 2 there is a
    6 listing of substitute
    benzenes.
    7 A. Correct. Those vary in concentration from 5700
    8 parts to 420 parts.
    9 Q. Per?
    10 A. Per billion.
    11 Q. Thank you. Proceeding on to page -- the next
    12 analysis is dated, I believe 8/18/88. What, if
    13 anything, is this?
    14 A. This is a repeat sample set collected from
    15 monitoring well number, which is adjacent to City
    16 Wells 1 and 2.
    17 Q. Who collected it?
    18 A. They were collected by myself and an Agency
    19 land pollution control staff member.
    20 Q. And what, if anything, do those results show on
    21 the subsequent pages?
    22 A. It shows toluene at 33 parts per billion,
    23 ethylbenzene at 640 parts per billion,
    xylene at
    24 1100 parts per billion.
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    1 Q. What, if anything, about the substituted
    2 benzenes?
    3 A. Substituted benzene is 4900 parts per billion.
    4 Q. Proceeding on to the next report in this
    5 Respondent's Exhibit No. 6, that is February 12th
    6 and I cannot read the -- February 12th, 1989 --
    7 1988. Would you please briefly describe what the
    8 report represents?
    9 A. I'm trying to locate that one. Okay. My
    10 copy's not very clear.
    11 MR. MILLER: I can't read the date.
    12 HEARING OFFICER BURDS: Okay.
    13 Q. The date it was received, if you look in the
    14 lower, right-hand corner August 19th, 1988 and I
    15 believe that's by the Agency laboratory.
    16 A. Right.
    17 HEARING OFFICER BURDS: Okay. What I want to be
    18 sure of --
    19 MR. MILLER: What was received?
    20 HEARING OFFICER BURDS: Exactly. What was
    21 received, which page or is there -- we're still
    22 referring to Respondent's Exhibits No. 1?
    23 MR. MILLER: 6.
    24 HEARING OFFICER BURDS: 6. I apologize. All
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    1 right, and then as far as the page number that
    2 we're referring to?
    3 MR. EWART: It is the third sampling report in
    4 this.
    5 THE WITNESS: I believe that's August 18th.
    6 MR. EWART: Group exhibit --
    7 HEARING OFFICER BURDS: Hold on. Only one
    8 person can speak at a time, gentlemen. We've got
    9 to make a clear record here and what I'm trying to
    10 do -- I want to accommodate you in getting in the
    11 document that you're referring to, but I want to
    12 make sure, as Mr. Miller has indicated, that what
    13 we're referring to is clear for the record's sake.
    14 Respondent's Exhibit No. 6 for the record, which
    15 page of that document are we referring to?
    16 MR. EWART: Page 5.
    17 HEARING OFFICER BURDS: Page 5 of that
    18 document.
    19 Mr. Miller, are you there?
    20 MR. MILLER: Yes.
    21 HEARING OFFICER BURDS: Okay. Now, what are you
    22 eliciting specifically regarding the date on the
    23 document, Mr.
    Ewart?
    24 Q. In the lower, right-hand corner it shows date
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    1 received. What is the date received in regard --
    2 A. August 19th, 1997.
    3 Q. And who -- 19 --
    4 A. Or 1988, excuse me.
    5 Q. And what does that mean --
    6 HEARING OFFICER BURDS: If I can interrupt. Is
    7 that clear on the document, the copy that you have
    8 Mr. Hanson?
    9 THE WITNESS: Yes, it is.
    10 Q. And what does that date received represent?
    11 A. That's the date that our laboratory received
    12 samples that are the sample set.
    13 Q. And who's our laboratory?
    14 A. Illinois EPA.
    15 Q. And on the subsequent Pages 6 and 7 what does
    16 that represent?
    17 A. That's sample results from the water sample
    18 which was collected at that time.
    19 Q. And what, if anything, of note on the sample --
    20 A. This shows that the water from Monitoring Well
    21 No. 2 is -- had no
    detections of volatile
    organics
    22 in it.
    23 MR. MILLER: You said no
    detections?
    24 THE WITNESS: No
    detections.
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    1 Q. Moving on to Page 8, this again is a sampling
    2 report and who is it collected by?
    3 A. That's collected by myself.
    4 Q. Can you read the date on that?
    5 A. It's very hard to distinguish it, but it
    6 appears to be 7/21/1988.
    7 Q. And what, if anything, do the sampling results
    8 show?
    9 A. Trichloroethylene at a sample site -- at the
    10 entry point to the distribution tap one, blended
    11 water from Wells 1 and 2.
    12 Q. Moving on to Page 9 of Respondent's Exhibit No.
    13 6 what, if anything, does -- do the next two pages
    14 represent?
    15 A. That's a water sample collected by myself and
    16 Kerry
    Keller from our land pollution office.
    17 Sample results --
    18 Q. What was the date?
    19 A. Date of collection was August 18th, 1988.
    20 Sample was collected from a monitoring well
    21 approximately 50 feet north of Byron City Well No.
    22 1.
    23 Q. And what, if anything, do the results show?
    24 A. Really nothing out of the ordinary for
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    1 inorganic contamination. It does show a high level
    2 of iron.
    3 Q. Moving on to the next -- I refer you to the
    4 last page of Respondent's Exhibit No. 1.
    5 HEARING OFFICER BURDS: Respondent's Exhibit No.
    6 6; is that correct?
    7 MR. EWART: Strike that. Respondent's Exhibit
    8 No. 6. Thank you.
    9 What, if anything, does this show?
    10 A. This is a water sample collected from Well No.
    11 2 and it shows a
    trichloroethylene content at 10
    12 parts per billion. This was sample collected by
    13 the City of Byron. The water rep at the time was
    14 Harold
    Frye.
    15 Q. What's the date?
    16 A. I have trouble distinguishing that on this
    17 document.
    18 Q. What was the date it was received by our
    19 laboratory?
    20 A. Lab received this sample on April 29th, 1988.
    21 Q. Now, it's been testified by other witnesses
    22 here that
    trichloroethylene is usually not found at
    23 a site such as a gasoline station other than if
    24 they have a parts washing system in the repair,
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    1 you've heard that, have you not, in this testimony
    2 today?
    3 A. Yes, I have heard that.
    4 Q. What is your opinion with regard to that?
    5 A. For a service station which performs repair
    6 work on automobiles I think
    trichloroethylene could
    7 be found readily.
    8 Q. What about with regard to benzene,
    9 ethylbenzene, xylene, toluene with regard to the
    10 gasoline station?
    11 A. Those are all constituents of gasoline.
    12 Q. So in your opinion that would be readily found
    13 at a gasoline station?
    14 A. Yes.
    15 Q. With regard to the -- you are familiar, of
    16 course, with public water supply wells identified
    17 as No. 1 and 2 --
    18 A. Correct.
    19 Q. -- in Byron?
    20 A. Correct.
    21 Q. Are you aware of the monitoring frequency that
    22 occurs at these wells?
    23 A. Sure. At the present time these wells are in
    24 an emergency standby mode and they are not
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    1 monitored routinely for inorganic chemicals,
    2 volatile chemicals, synthetic
    organics. The only
    3 thing they're being monitored for right now is
    4 bacteria on a quarterly basis.
    5 Q. You've heard in prior testimony here that if
    6 approved the detection system would not have a
    7 monitoring well -- or that
    Tri Star would not have
    8 a monitoring well installed on its site?
    9 A. I've heard that, yes.
    10 Q. Is there any other monitoring station between
    11 these Wells No. 1 and 2 and the proposed site that
    12 would routinely monitor what is known as BTEX,
    13 benzene,
    ethylbenzene, xylene and toluene?
    14 A. There's no routine monitoring for any of the
    15 contaminants at any monitoring well that I'm aware
    16 of.
    17 MR. EWART: Okay. I have no further questions
    18 at this time.
    19 HEARING OFFICER BURDS: Mr. Miller?
    20 CROSS EXAMINATION
    21 BY MR. MILLER:
    22 Q. Mr.
    Hanson, with regard to the last page of
    23 Respondent's Exhibit No. 6 wherein you testified as
    24 to the sample results for
    trichloroethylene --
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    1 A. Yes.
    2 Q. -- do you see the sample results for the BTEX
    3 constituents there also?
    4 A. No, I don't.
    5 Q. Last four lines.
    6 A. Okay, yes.
    7 Q. And what are those?
    8 A. They are below detection.
    9 Q. What's an MCL?
    10 A. An MCL is called a maximum contaminant level.
    11 Q. What's the purpose of an MCL?
    12 A. Purpose of the MCL is to provide safe drinking
    13 water to the public.
    14 Q. Are there
    MCLs for substituted
    benzenes?
    15 A. Not that I'm aware of.
    16 Q. Okay. With regard to Respondent's Exhibit No.
    17 6 again and the first page of that exhibit I think
    18 you testified as to benzene, toluene,
    ethylbenzene
    19 and xylene. Would the
    xylene concentration
    20 reported there exceed the MCL?
    21 A. Can you tell me what --
    22 Q. It's 1500 micrograms per liter as represented
    23 on the first page of Respondent's Exhibit No. 6.
    24 A. No, this does not exceed an MCL. This is a
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    1 water sample from a monitoring well. There's not
    2 an MCL established for a monitoring well.
    3 Q. If that were present in a municipal water well
    4 system, would that exceed the MCL?
    5 A. Yes.
    6 Q. Do those report of results exceed groundwater
    7 quality standards for those constituents?
    8 A. I don't know.
    9 Q. Okay. With regard to Respondent's Exhibit No.
    10 1 --
    11 A. Yes.
    12 Q. -- again referring to your Paragraph 7 entitled
    13 wells/source protection.
    14 A. Yes.
    15 Q. What is the significance of your statement in
    16 here at the second to last sentence that the
    17 gasoline components found in the upper aquifer have
    18 not been found in the wells?
    19 A. Based on the sample results I have not seen any
    20 consistent
    detections of benzene, toluene,
    xylene
    21 in the Byron Wells No. 1 and 2.
    22 Q. And the last sentence of that Paragraph 7
    23 states that radium naturally occurs in the
    24 aquifer.
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    1 A. Yes.
    2 Q. And that's the probable source of the radium in
    3 Wells 1 and 2?
    4 A. Correct.
    5 Q. Okay. It's not your testimony that chromium is
    6 a contaminant commonly found in a service station,
    7 is it?
    8 A. No.
    9 Q. Do you have any idea as to the likely source of
    10 the chromium?
    11 A. There are a couple of potential sites.
    12 Q. Would that be consistent with the plating
    13 operation that's been referred to earlier?
    14 A. That's a possible source.
    15 Q. As with the TCE?
    16 A. That's a possible source also.
    17 MR. MILLER: Okay. No further questions.
    18 HEARING OFFICER BURDS: Any other questions at
    19 large of Mr.
    Hanson, Mr. Brooks?
    20 MR. BROOKS: Briefly.
    21 CROSS EXAMINATION
    22 BY MR. BROOKS:
    23 Q. Do you know when those Wells 1 and 2 went on
    24 standby status or emergency standby status?
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    1 A. I don't recall when they were placed on standby
    2 status.
    3 Q. If I said it was the summer of 1996, would that
    4 be approximately correct?
    5 A. That's within reason, yes.
    6 Q. So to your knowledge how much activity have
    7 those wells seen since that time?
    8 A. Virtually none other than quarterly operations
    9 for bacteria collection.
    10 Q. So they haven't be used to put any water into
    11 the municipal water supply since that time?
    12 A. No.
    13 Q. Would the fact that the wells have been
    14 inactive for the last, oh, approximately a year
    15 since those July samples were taken in '97, would
    16 that -- could that possibly attribute to the
    17 escalated results for the chromium and the TCE?
    18 A. That is possible.
    19 Q. Because there wasn't a chromium problem when
    20 the wells were active prior to the last several
    21 years when they went on standby status?
    22 A. No, not in the last several years; however, in
    23 the early '70s there was a chromium problem.
    24 Q. But after consistent monitoring --
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    1 A. After use these levels went -- appeared to go
    2 down unless we have a new source of chromium, TCE
    3 entering the site.
    4 HEARING OFFICER BURDS: Mr. Brooks, anything
    5 further?
    6 MR. BROOKS: I think that's it.
    7 HEARING OFFICER BURDS: Mr.
    Ewart?
    8 MR. EWART: I have one question on redirect.
    9 REDIRECT EXAMINATION
    10 BY MR. EWART:
    11 Q. I have here a regulation, Sub Title F
    12 regulations for Public Water Supplies and I refer
    13 you to a Board regulation that is 35 Illinois
    14 Administrative Code 624-10-B as in boy. What, if
    15 anything, are those regulations?
    16 A. These are volatile organic
    MCLs and SOCs also.
    17 Q. And referring briefly to your prior testimony
    18 as to the groundwater that is taken from a
    19 water -- from a monitoring well, in your opinion,
    20 what class would that water be subject to under
    21 Part 620?
    22 A. Well, these are groundwater standards. Excuse
    23 me.
    24 Q. What, if anything, would those standards be
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    1 subject to in the vicinity of Walnut and Main?
    2 A. I'm not familiar with these groundwater
    3 standards.
    4 MR. EWART: I see. Okay. Thank you.
    5 HEARING OFFICER BURDS: Mr. Miller?
    6 MR. MILLER: No
    recross.
    7 HEARING OFFICER BURDS: Mr. Jackson, you had a
    8 question.
    9 MR. JACKSON: Mr.
    Hanson, isn't there still a
    10 monitoring well about 15 feet north of 1 and 2
    11 wells?
    12 MR. HANSON: Yes.
    13 MR. JACKSON: There in between the former
    14 Standard property and the well.
    15 HEARING OFFICER BURDS: Mr. Jackson, just for
    16 our purposes it's important that you let him answer
    17 the question. Would you please repeat your
    18 question, your second question.
    19 MR. JACKSON: I asked Mr.
    Hanson if we still
    20 don't have a monitoring well approximately 50 feet
    21 north of Well No. 1 and 2 which is between the
    22 former Standard Oil property and Well No. 1 and 2.
    23 MR. HANSON: I believe the monitoring well is
    24 still there.
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    1 HEARING OFFICER BURDS: Any other questions?
    2 MR. JACKSON: The question was asked a while ago
    3 if we had any monitoring wells between and I think
    4 we do.
    5 HEARING OFFICER BURDS: Okay. Any other
    6 questions for Mr.
    Hanson?
    7 Okay. Any other questions for Mr.
    Hanson,
    8 Mr. Miller?
    9 MR. MILLER: No
    recross.
    10 HEARING OFFICER BURDS: Any other questions for
    11 Mr. Hanson?
    12 All right. Mr.
    Ewart.
    13 MR. EWART: I conclude our case, Respondent's
    14 case in this matter.
    15 HEARING OFFICER BURDS: Mr. Miller, are you
    16 going to have rebuttal?
    17 MR. MILLER: Just one question, one witness.
    18 HEARING OFFICER BURDS: Sure. Okay. Why don't
    19 we proceed then. Before we proceed to rebuttal,
    20 the documents that have been submitted, there have
    21 been corrections made on Respondent's exhibits
    22 with -- rather than going -- well, let's go through
    23 Respondent's Exhibits 1 through 7. I'm asking now
    24 as far as those documents -- they have been
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    1 previously admitted and conditionally accepted upon
    2 your cross and any questions that you may have.
    3 I'm going to ask at this time individually for each
    4 of the Respondent's exhibits that have been
    5 tendered based on the testimony elicited or
    6 corrections made thereto. Are there any objections
    7 to those documents being admitted into the record
    8 at this time? I'm going to ask that as to
    9 Respondent's Exhibit No. 1.
    10 Mr. Miller?
    11 MR. MILLER: None.
    12 HEARING OFFICER BURDS: Any other parties?
    13 Hearing none, the document is admitted.
    14 Respondent's Exhibit No. 2, Mr. Miller?
    15 MR. MILLER: None.
    16 HEARING OFFICER BURDS: Hearing none -- any
    17 objection to Respondent's Exhibit No. 2? Hearing
    18 none, the document is admitted. Respondent's
    19 Exhibit No. 3, Mr. Miller?
    20 MR. MILLER: None.
    21 HEARING OFFICER BURDS: Any objections to
    22 Respondent's Exhibit 3? Hearing none, the document
    23 is admitted. Respondent's Exhibit No. 4,
    24 Mr. Miller?
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    1 MR. MILLER: No objection.
    2 HEARING OFFICER BURDS: Any objection to
    3 Respondent's Exhibit No. 4? Hearing none, the
    4 document is admitted. Respondent's Exhibit No. 5?
    5 MR. MILLER: No objection.
    6 HEARING OFFICER BURDS: Any objection to
    7 Respondent's Exhibit No. 5? Hearing none, the
    8 document is admitted. Respondent's Exhibit No. 6?
    9 MR. MILLER: No objection.
    10 HEARING OFFICER BURDS: Any objection to
    11 Respondent's Exhibit No. 6? Hearing none, the
    12 document is admitted. Respondent's Exhibit No. 7,
    13 Mr. Miller?
    14 MR. MILLER: No objections.
    15 HEARING OFFICER BURDS: Any objection from any
    16 other parties regarding Respondent's Exhibit No.
    17 7? Hearing none, the document is so admitted. I
    18 believe that is all the documents submitted for
    19 admission by the Respondent.
    20 Is that correct, Mr.
    Ewart?
    21 MR. EWART: Yes, it is.
    22 HEARING OFFICER BURDS: Okay. Those documents
    23 will be admitted into the record.
    24 Mr. Miller, you indicated that you had
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    1 some rebuttal.
    2 MR. MILLER: Yeah, I'd like to recall John
    3 Stewart.
    4 HEARING OFFICER BURDS: Mr.
    Stewart, you were
    5 previously sworn. You are still under oath.
    6 Mr. Miller.
    7 DIRECT EXAMINATION
    8 BY MR. MILLER:
    9 Q. Just for a point of clarification, John, when
    10 we refer to service stations and
    Tri Star's
    11 operation of service stations, that may be a bit of
    12 a misnomer; isn't that true?
    13 A. That's correct.
    14 Q. And why is that?
    15 A. The term service station is misused. We our
    16 company does not perform service work. We would
    17 not be constructing a facility that would be
    18 involved in the automobile repair and service.
    19 This would be self-service gasoline only.
    20 Q. So you would not have a service center on site
    21 that would use a parts washer or solvents to
    22 degrease parts?
    23 A. Absolutely not.
    24 MR. MILLER: That's all I have.
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    1 HEARING OFFICER BURDS: Okay. I'm going to ask
    2 at this time if any member of the public at large
    3 or anyone else has evidence or testimony or
    4 statements they would like to make at this time?
    5 Mr. Brooks.
    6 BRIAN BROOKS,
    7 having been previously sworn, testified as follows:
    8 MR. BROOKS: Briefly on behalf of the City of
    9 Byron, for its importance to the Board to make a
    10 determination I think a little background from the
    11 City may be helpful here. Back in the late -- in
    12 the '80s a super pump site was established on the
    13 south side of the Rock River known as the salvage
    14 yard. Part of the remedy of that was that the
    15 Byron public water supply was piped out to what's
    16 known as the Rock River Terrace to provide them
    17 with drinking water. Wells 1 and 2 at that time
    18 were a vital part of our municipal water supply
    19 system. When the radium was detected and we were
    20 put on restricted status, the City did apply for --
    21 in the early '90s for a variance for that and was
    22 granted that variance. Wells 1 and 2 had to be
    23 blended for the high radium level in No. 1 and then
    24 the TCE level in No. 2.
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    1 The City in 1996, by taking those wells
    2 out of the system and not having them produce water
    3 in the system, was given -- was removed from the
    4 restricted status list of Illinois EPA. Those
    5 wells have not been used as part of the drinking
    6 water system since then. I need to make the Board
    7 aware that although the affidavit of Kerry
    Gifford
    8 at the time was accurate, Mr.
    Gifford is no longer
    9 employed with the City of Byron, but that's not to
    10 say that his affidavit is incorrect. The facts as
    11 contained in there are still valid facts as some of
    12 the background I've just explained.
    13 When Well No. 4 comes on line -- and there
    14 were questions about that earlier. Well No. 4 is
    15 not yet on line, although it has passed the
    16 required test from Illinois EPA and it will provide
    17 a safe drinking water system. We're waiting for
    18 some final tests to make sure it's going to
    19 cooperate with the system. Wells 1 and 2 at that
    20 time were not necessarily -- will not be necessary
    21 to the system; however, the City at this point
    22 can't say that we're going to abandon those wells.
    23 The reason I gave the background on the USEPA
    24 involvement is that because the drinking water
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    1 supply was part of their remedy and, in fact, they
    2 were given as a remedy water that contained TCE,
    3 USEPA has been conducting a survey of the area to
    4 see if they can determine where the TCE is coming
    5 from and that is an ongoing investigation by them.
    6 They have sent out letters to potentially
    7 responsible parties asking for inquiries. Part of
    8 the City's reluctance to say that we can abandon
    9 Wells 1 and 2 is that those are a potential remedy
    10 for the TCE contaminant that's in there.
    11 It's been explained to me by Mr.
    Bolen of
    12 USEPA that one way to get rid of the TCE is simply
    13 to pump it out and not into the drinking water
    14 supply, but into a treatment facility and then
    15 out. There are several ways to do that, but
    16 certainly we are not going to put those wells --
    17 especially when Well No. 4 comes on line we are not
    18 going to put those wells into the drinking water
    19 system until we can take care of the contaminants
    20 that are in there.
    21 The City very much wants to see this
    22 property developed. This property has been
    23 abandoned since -- and abandoned, not in use, since
    24 the mid to late 1980s probably for a good 10 years
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    1 now, almost 10 years. No disrespect to
    Tri Star,
    2 but the place is an eyesore in that it's located
    3 right on our commercial frontage, right at the --
    4 half a block off the intersection of the two major
    5 highways that run through town. Last information
    6 we received from the Illinois Department of
    7 Transportation was that approximately 13,000 cars a
    8 day go through that intersection. It is one of the
    9 most highly traveled intersections in Northern
    10 Illinois. They're ready to do some reworking of
    11 that intersection to create for Route 2 turn lanes
    12 both right and left as well as left turn lanes on
    13 Route 72 there. It's a very high volume area and
    14 to have a site like this go unproductive for a city
    15 for this long a period of time is inexcusable in
    16 our respect. We want to see the property
    17 developed.
    18 We worked with USEPA and with
    Tri Star. I
    19 personally was involved in trying to see what we
    20 could do to get the property up and moving and be
    21 developed. That's what the City wants to see.
    22 Is the City absolutely thrilled and
    23 ecstatic that another gas station is going in
    24 there? I can't honestly say, but we do want to see
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    1 the property developed.
    Tri Star is the legal
    2 owner of that property. They have a right to
    3 develop it as they see fit within whatever
    4 guidelines are established, so I guess from a City
    5 standpoint -- I don't know that I can take a stance
    6 one way or the other because there is some
    7 disagreement about whether a gas station should or
    8 should not go there, but we do want to see the
    9 property developed. It is probably one of the most
    10 valuable commercial properties in the City of Byron
    11 right now given its location and high traffic and
    12 it sits vacant. We want to see it developed.
    13 Maybe a gas station is or is not the best for that,
    14 but Tri Star is the current owner, and so from the
    15 City standpoint, a little background and a little
    16 information and, as I say, I worked with
    17 Mr. Gifford when he did prepare that affidavit and
    18 I don't want -- we don't want that affidavit to
    19 imply that the City was going to abandon those
    20 wells. I think his use of the term inactive meant
    21 that it was not going to be part of the drinking
    22 water system, but that's not to say if those wells
    23 are rehabilitated and gotten properly tested that
    24 they may or may not come on line at some point, but
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    1 right now given the test results that we've just
    2 recently received there's no way we're going to
    3 pump that type of water into our drinking water
    4 system to our residents.
    5 HEARING OFFICER BURDS: Anything further,
    6 Mr. Brooks?
    7 MR. BROOKS: No.
    8 HEARING OFFICER BURDS: Okay. As far as the
    9 record Mr. Brooks has been sworn, the statements
    10 that have been made. Is there anybody that would
    11 like to ask Mr. Brooks questions at this time?
    12 Mr. Miller?
    13 MR. MILLER: No questions.
    14 HEARING OFFICER BURDS: Mr.
    Ewart?
    15 MR. EWART: Yes, I have one question.
    16 DIRECT EXAMINATION
    17 BY MR. EWART:
    18 Q. Do you have an estimate as to when Well No. 4
    19 will be coming on line?
    20 A. Any day now. It's -- basically what has
    21 happened is -- because the way the system is
    22 designed we now have an upper loop and a lower
    23 loop. Well No. 3 provides water to the lower loop,
    24 Well No. 4 and there is a pressure reducing valve
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    1 that works because the -- Well No. 4 is located on
    2 high ground above the City. I can't even
    3 guesstimate how far up elevation-wise it is, but
    4 we're working out the logistics of a pressure
    5 reducing tube to ensure that we're not -- with the
    6 new well and tower -- the tower is located right
    7 next to the new well -- it's going to flood the
    8 slower system, so those are ready to be tested.
    9 Basically I think -- in fact, I think tomorrow is
    10 the day that they're going to be tested to make
    11 sure the system works, so it's ready to come on
    12 line.
    13 MR. EWART: Thank you.
    14 HEARING OFFICER BURDS: Any other questions of
    15 Mr. Brooks from anyone? Hearing none, any other
    16 statements to be made? Okay. I guess --
    17 MR. EWART: I just have one point of
    18 clarification.
    19 HEARING OFFICER BURDS: Yes.
    20 MR. EWART: In prior questioning I used the
    21 word -- used the term MTBE and I didn't define it.
    22 It's methyl
    tert butyl, b-u-t-y-l, ether.
    23 HEARING OFFICER BURDS: Court reporter, would
    24 you like to have that spelled out?
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    1 THE REPORTER: Yes.
    2 MR. EWART: Methyl, m-e-t-h-y-l,
    tert, t-e-r-t,
    3 butyl, b-u-t-y-l, ether e-t-h-e-r. Those are four
    4 separate words.
    5 HEARING OFFICER BURDS: Any objection to that
    6 clarification? Mr. Miller, any objection?
    7 MR. MILLER: None.
    8 HEARING OFFICER BURDS: Hearing none, so noted.
    9 At this point a statement -- I think we're going to
    10 procedurally -- a little -- I want to give
    11 Mr. Miller an opportunity to have the last word.
    12 It is his burden. I want to make sure that he has
    13 the opportunity.
    14 Mr. Miller, is there anything else that
    15 you would like to submit in the form of evidence
    16 and testimony after the statement of Mr. Brooks
    17 regarding -- in re-rebuttal?
    18 MR. MILLER: None.
    19 HEARING OFFICER BURDS: Thank you. All right.
    20 At this time I'm going to ask if anybody has any
    21 closing remarks.
    22 Mr. Miller?
    23 MR. MILLER: Waive.
    24 HEARING OFFICER BURDS: Mr.
    Ewart?
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    1 MR. EWART: I waive.
    2 HEARING OFFICER BURDS: Any closing statements?
    3 All right. What I would like to do at this point
    4 is first make a statement as to credibility of
    5 witnesses. I don't think credibility of witnesses
    6 is an issue in this case. Based upon my legal
    7 judgment and experience, all of the testimony that
    8 has been elicited has been credible from all
    9 witnesses.
    10 Now, what I would like to do at this point
    11 is set up a briefing schedule. It doesn't mean you
    12 have to take advantage of that briefing schedule,
    13 but I would like to set a briefing schedule so we
    14 can know when the record will close in this case.
    15 What we usually account for is 10 to 14 days for a
    16 transcript to be prepared. You should be aware
    17 that when the Board -- pursuant to Board rule it is
    18 provided a copy of the transcript 14 days from that
    19 date according to the Board rule and it's very
    20 specific. 14 days from that date any corrections
    21 or notations need to be made by the parties if they
    22 feel that's necessary.
    23 MR. MILLER: I'm sorry to interrupt. Do the
    24 parties -- the attorneys for the parties receive a
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    123
    1 copy of the transcript at the time that the Board
    2 does?
    3 HEARING OFFICER BURDS: You can contact -- my
    4 understanding is as far as -- I don't know just --
    5 practically I don't think that's possible, but I
    6 know that you can contact the Board. They will
    7 supply you copies once they have it and they can
    8 certainly make you aware when the transcript is
    9 available, unless you'd like to make alternative
    10 arrangements --
    11 MR. MILLER: All right. Thank you.
    12 HEARING OFFICER BURDS: -- which is certainly
    13 agreeable as well. Now, let me ask this, is there
    14 an intent to brief this case?
    15 MR. MILLER: Yes.
    16 HEARING OFFICER BURDS: Mr.
    Ewart?
    17 MR. EWART: As far as we're concerned there
    18 hasn't been a great deal of information that is new
    19 that hasn't been presented -- that the Agency
    20 hasn't already submitted in terms of its
    21 recommendations, but we will be happy to respond to
    22 Petitioner's brief.
    23 HEARING OFFICER BURDS: So it's clear there's no
    24 obligation -- I'm not imposing any obligation on
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    1 either party. It's entirely up to you. What we'll
    2 do here is if, in fact, you do want to brief the
    3 case -- I've been trying to look at dates and I
    4 don't know if all of you have calendars with you.
    5 I'm looking -- obviously today is December 1st. If
    6 we assume the record or the transcript, I would
    7 assume, would be available no later than December
    8 15th, dependent on the parties, we're in the
    9 holiday period as well and I want to accommodate
    10 the parties as best I can. I certainly will, but I
    11 don't know what your needs are and how soon you
    12 want a transcript as well.
    13 Mr. Miller, any idea how long you would
    14 like to have in reviewing the transcript in
    15 preparing your initial brief?
    16 MR. MILLER: I'll need no longer than 14 days.
    17 HEARING OFFICER BURDS: All right. Then why
    18 don't we -- do you want to look at the 1st of the
    19 year? I'm looking at the 15th as the date the
    20 transcript should be -- no later than I would think
    21 it would be available. 14 days from that date
    22 would be approximately January 2nd. Is that --
    23 MR. MILLER: Well, let's take it outside of the
    24 holiday period and move it to --
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    1 HEARING OFFICER BURDS: Is January 9th --
    2 MR. MILLER: January 9th.
    3 HEARING OFFICER BURDS: That would be
    4 approximately one week later. Let's do this, why
    5 don't we make the Petitioner's brief due January
    6 9th. Then as far as response time what I'd like to
    7 do is obviously give the State at least the
    8 two-week period to the 23rd if that's not
    9 objectionable, Mr. Miller.
    10 MR. MILLER: That's fine with me.
    11 HEARING OFFICER BURDS: Mr.
    Ewart, any objection
    12 to that?
    13 MR. EWART: I have no objection to that.
    14 HEARING OFFICER BURDS: And then that would be
    15 for any briefs due from the Respondent January 23rd
    16 and then reply, assuming that you do want to reply,
    17 Mr. Miller --
    18 MR. MILLER: Seven days.
    19 HEARING OFFICER BURDS: Why don't we make that
    20 due January 30th?
    21 MR. MILLER: Would you put all this down in
    22 your --
    23 HEARING OFFICER BURDS: What I will do is I will
    24 enter a record referring to all of the documents
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    126
    1 admitted at the hearing. I'll refer to how they
    2 were individually admitted and refer to -- what I
    3 will then do is obviously put in the briefing
    4 schedule as well referring to these dates and,
    5 again, that would be January 9th for Petitioner's
    6 brief to be due, January 23rd for Respondent's,
    7 January 30th for any reply brief. All right. Any
    8 motions before we go off the record?
    9 MR. MILLER: Yes.
    10 HEARING OFFICER BURDS: Mr. Miller.
    11 MR. MILLER: I would like to make an oral motion
    12 to be carried to the Board.
    13 HEARING OFFICER BURDS: Yes.
    14 MR. MILLER: To expedite decision in this
    15 matter. It's my understanding this is a
    16 non-decision deadline case and the Board can -- has
    17 the opportunity to decide this at their
    18 convenience. Because of timing on development of
    19 this property and also the wish on behalf of the
    20 Petitioner and the City of Byron to see this
    21 property developed, the best time to do that would
    22 be in the spring of 1998; therefore, I would
    23 request that the Board attempt to at its earliest
    24 possible time to decide this case, but to decide it
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    1 no later than March 15, 1998 so that we can take
    2 advantage of the full construction season.
    3 HEARING OFFICER BURDS: Mr.
    Ewart, any reply or
    4 response to that comment?
    5 MR. EWART: I have no problem with that.
    6 HEARING OFFICER BURDS: Any other statements or
    7 comments or motions? Okay, so noted, Mr. Miller.
    8 I would indicate to you that there are at least
    9 three Board hearing dates prior to that date. I
    10 would also note to you that they do like to have
    11 the record complete a full 30 days prior to the
    12 decision. This deadline would give them at least
    13 that 30-day period and that's where we'll go from
    14 there. All right. Off the record for one moment.
    15 (A discussion was held off the record.)
    16 HEARING OFFICER BURDS: Back on the record. All
    17 right. We are back on the record after having a
    18 discussion regarding one of the stipulations
    19 entered into. Now, I'm going to ask one last time
    20 if there are any motions or evidence or testimony
    21 that you want to be presented at this time.
    22 Mr. Miller?
    23 MR. MILLER: None.
    24 HEARING OFFICER BURDS: Mr.
    Ewart?
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    1 MR. EWART: None.
    2 HEARING OFFICER BURDS: Any other parties that
    3 would like to make a statement or present any other
    4 evidence or testimony? I would thank you all for
    5 your patience mainly for the background noise that
    6 we've had at various times. Thank you all for your
    7 patience, and this hearing is adjourned.
    8 (The hearing was concluded at 2:28 p.m.)
    9
    10
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    14
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    1 ILLINOIS POLLUTION CONTROL BOARD
    2 TRI STAR MARKETING, INC., )
    )
    3 Petitioner, ) DOCKET NO.
    ) PCB 97-199
    4 )
    v. )
    5 )
    ILLINOIS ENVIRONMENTAL ) Ogle County
    6 PROTECTION AGENCY, ) Courthouse
    ) Oregon, IL
    7 Respondent. ) Dec. 1, 1997
    8
    9
    I, Tammy S. Jones, hereby certify that I
    10 am a Certified Shorthand Reporter of the State of
    Illinois; that I am the one who, by order and at
    11 the direction of the Hearing Officer, John
    Burds,
    reported in shorthand the proceedings had or
    12 required to be kept in the above-entitled case; and
    that the above and foregoing is a full, true and
    13 complete transcript of my said shorthand notes so
    taken.
    14
    Dated at
    Ashton, Illinois, this 5th day of
    15 December, 1997.
    16
    17 Tammy S. Jones
    Registered Professional Reporter
    18 Certified Shorthand Reporter
    Illinois License No. 084-003947
    19 8991 South Prairie Road
    Ashton, Illinois 61006
    20
    21
    22
    23
    24
    IN TOTIDEM VERBIS (ITV)
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