ILLINOIS POLLUTION CONTROL BOARD

May 18,

1995

KATHE’S AUTO SERVICE CENTER,

)

Petitioner,

)

v.

)

PCB 95—43

(UST-Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

PHILLIP MANDELL AND SIGI OFFENBACH APPEARED ON BEHALF OF

PETITIONER;

JOHN BURDS AND DANIEL P.

MERRIMAN

APPEARED ON BEHALF OF

RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by E. Dunham):

On January 23,

1995 Kathe’s Auto Service Center

(Kathe)

filed an appeal pursuant to Sections 57.7(c) (4) (D) and 40(á)

of

the Environmental Protection Act

(Act)

concerning the Illinois

Environmental Protection Agency’s

(Agency) rejection of Kathe’s

Site Classification Completion Report

(Site Report).

(415 ILCS

5/57.7(c) (4) (D) and 5/40(a)

(1993).)’

A hearing was conducted in

this matter by Hearing Officer June Edvenson on March 13 and 14,

1995, at the Board’s Chicago offices.

At the hearing Kathe

presented one witness,

Mr. Ronald Schrack, the consultant who

prepared the Site Report for Kathe.

The Agency presented two

witnesses,

Mr. Todd Rowe and Ms. Kendra Brockamp, at the second

day of hearings.

Background

Kathe owns a facility located at 835 Milwaukee Ave.

Glenview,

Illinois.

On November 28,

1992 Kathe filed an Illinois

Emergency Management Agency

(IEMA)

report as a result of a

‘On February 7,

1995, Kathe filed an appeal of the Agency’s

reimbursement determination concerning early action activities at

the site which was docketed as PCB 95-48.

Kathe’s petition in

this case and the Agency’s Post-Hearing Brief argue the question

of early action reimbursement which is no longer before the Board

in this matter.

---

2

leaking waste oil tank.

(Ag.

Rec. at 2.)2

Kathe filed a

Corrective Action Plan on January 22,

1993 pursuant to the

underground storage tank

(UST)

regulations which were in effect

prior to the passage of P.A. 88-496,

often referred to as H.B.

300, which created Title XVI Petroleum Underground Storage Tanks.

(415 ILCS 5/57 et seq.

(1993).)

Governor Edgar signed

11.8.

300

into law on September 13,

1993, which became effective

immediately.

(Ag. Brief at 5-8.)

However, regulations

effectuating the new program were to be proposed by the Agency

within six

(6) months of the effective date of the law and

finally adopted by the Board within six

(6) months of the Agency

proposal.

Therefore no regulations were adopted until September

13,

1994 and were not in effect at the time of Kathe’s filing of

its Site Report.

Kathe filed a revised Corrective Action Plan

and Site Report pursuant to Title XVI, on October 14,

1993, which

classified the site a “Low Priority” site.

(Ag. Rec.

at 108—149,

151—190.)

However, on November 8,

1993, Kathe filed a letter

stating the site should be re-classified as a “No Further Action”

site pursuant to Title XVI.

(Ag. Rec.

at 151—190,

191-192.)

On February 10,

1994 the Agency rejected the revised

Corrective Action Plan and Site Report filed by Kathe on October

14,

1993.

(Ag.

Supp. Rec.

at 1.)~ Among other reasons the

Agency rejected the Site Report because it failed to demonstrate

that the site is located in an area where the physical soil

classification is consistent with areas designated D,

E,

F and G

on the Berg Circular4

it failed to demonstrate whether the

underground storage tank is within the minimum or maximum setback

zone of a potable water supply well or regulated recharge area of

a potable water supply well; and it failed to submit a

certification from a Licensed Professional Engineer verifying the

site’s classification as a “High Priority, Low Priority,

or No

Further Action” site in accordance with Section 57.7(b)

of the

Act.

(Ag.

Supp. Rec. at 4-6.)

The Agency’s rejection letter

also set forth the activities necessary for Kathe to satisfy the

requirements of the Act which were identified as lacking in the

2The Agency’s record in this matter will be referenced as

“Ag.

Rec. at

“.

3The Agency filed a supplement to its record on March 13,

1995 which will be cited to as “Ag.

Supp. Rec. at

“.

4AS noted in Section 57.7(b) (2) (A)

of the Act, the Berg

Circular is a combination of hydrogeologic properties and

stratigraphic position of geologic materials which demonstrate in

map form the potential for contamination for aquifers.

Richard

C.

Berg, John P. Kempton, Keros Cartwright,

“Potential for

Contamination of Shallow Aquifers in Illinois,”

(1984),

Circular

No.

532.

---

3

Site Report.

The following are some of those activities:

1.

To demonstrate a site has geology consistent with a No

Further Action Area the following items should be performed

and the supporting documentation should be supplied to the

Agency:

a.

At least one soil boring per tank field should be

performed to a depth sufficient to classify:

(1)

50 feet of native soil or;

(2)

soils to the point bedrock is encountered.

(A

sample of bedrock must be collected to determine

permeability or an in-situ hydraulic conductivity

test must be conducted.

Additional information

about this is located in Item (b)(5)

below.)

A tank field includes all USTs which reside within a

circle with a 100 foot radius.

If anomalies are encountered, additional soil boring(s)

may be necessary to verify the site geology.

The soil

boring(s) must be continuously sampled.

The boring(s)

should be performed within 200 feet of the outer edge

of the tank field or at the property boundary,

whichever is

less.

Reasonable attempts should be made

to limit vertical migration of contamination.

If sand or gravel lenses or seams are encountered,

additional investigation will be required to determine

if such conditions are continuous and/or extend off—

site.

Continuous sand and gravel

lenses and seams were

mapped in the circular and may indicate inconsistency

with areas D and E.

Any water bearing units encountered must be sealed

during drilling.

b.

The following tests shall be performed on a

representative sample of each stratigraphic unit

encountered at the site:

(1)

Particle—Size Analysis of Soils

——

ASTM D 422—63

and ASTM D 1140—54

(2)

Moisture Content

--

ASTM D 2216-90 or ASTN D 4643-

87

(3)

Soil Classification

—-

ASTM D 2488-90 or ASTM D

2487—90

---

4

(4)

Unconfined compression strength using a hand

penetrometer

(5)

Hydraulic Conductivity

c.

In the event that the licensed Professional Engineer

determines during the course of investigation that the

soil classification is consistent with other than area

D,

E,

F, or G, physical soil classification activities

may cease.

The Site Classification Completion Report

should document the soil conditions which were

encountered and explain the basis for determining the

site geology is not consistent with area D,

E,

F, or G.

Soil boring logs should be provided for all borings

performed at the site.

Borings should be logged on the

Agency’s standardized boring log or using a similar

format which includes all required information listed

below:

(1)

sampling device,

sample distance, and amount of

recovery

(2)

total depth of boring to nearest

6 inches

(3)

detailed field observations describing materials

encountered in the boring.

Such description

should include soil constituents, consistency,

color,

density,

moisture, and any odors.

Sand and

for gravel lenses/seams must be recorded if

greater than or equal to

1 inch in thickness

(4)

Soil borings should be continuously screened with

field instruments capable of detecting petroleum

hydrocarbon vapor

(5)

Indicate location of sample(s) used for physical

and/or chemical analysis

(6)

Groundwater levels—-while boring and at completion

(7)

Moisture content

(8)

Unconfined compression strength using a hand

penetrometer

(9)

USCS soil classification of all stratigraphic

units

2.

To satisfy the requirements of Section 57.7(b) (3) (B)

of

the Act the following activities may be performed:

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5

a.

An investigation must be conducted to determine

the location of all potable water supply wells

within 2500 feet of the site.

This investigation

should include, but not be limited to contacting

the Illinois State Geologic Survey and the

Illinois State Water Survey.

All local units of

government must be contacted to determine

ordinances concerning potable water supply wells.

In addition, regulated recharge areas are

designated by the Illinois Pollution Control Board

and would be published in the Illinois Register.

A description of all sources consulted to make a

determinations should be provided.

b.

Provide a map to scale showing the locations of

potable water supply wells within 2500 feet of the

site.

Radii of 200,

400, and 1000 feet from the

site should be indicated on the map.

c.

Provide a table that indicates the setback zone

for each well and the distance of the well from

the site.

Map locations should be numbered

consistently with the information in the table.

Kathe, pursuant to Section 57.13(b)

of the Act, elected to

proceed under Title XVI of the Act on February 20,

1994,

instead

of the prior UST regulations.

(415 ILCS 5/57.13(b)

(1993).)

(Ag. Rec.

at 202.)~ On March

9,

1994 Kathe submitted a letter

regarding budget and billing forms which contained a site

classification work plan.

(Ag. Rec at 203-237.)

On June 23,

1994, the Agency responded by sending a letter to Kathe modifying

the Physical Soil Classification and Groundwater Investigation

Plan that was submitted on March 9,

1994.

(Ag. Rec.

at 238—243.)

Pursuant to a phone conversation between Kathe and the Agency,

Kathe filed a revised Table

1 of the Site Classification Work

Plan on June 21,

1994.

(Ag. Rec.

at 244—245.)

On August

18,

1994, Kathe filed with the Agency the Site

Report which is the subject of this appeal.

Kathe states that

the Site Report was “...completed in accordance with the

requirements of Title

XVI

of the Act and the first proposed

regulations as stipulated in Illinois Title 35

-

Part 732,

Subpart C

—

Site Evaluation and Classification (March 17, 1994).”

(Ag. Rec.

at 246-284.)

The Agency issued its rejection of the

5Although Kathe’s filing of October

13,

1994 states that it

was completed in compliance with Title XVI, Section 57.13(b)

requires a written statement by the owner or operator stating its

election to proceed under Title XVI to be submitted to the

Agency.

---

6

Site Report on December 20,

1994.

(Ag.

Rec. at 288—299.)

Pursuant to Section 57.7(c) (4) (D)

of the Act, the Agency’s

rejection letter must contain an explanation of the sections of

the Act and/or Board regulations which may be violated if the

plan were approved.

(415 ILCS 5/57.7

(c)(4)(D)(1993).)

The Agency’s letter sets forth in detail the reasons for

rejection.

The following is a brief summary of the Agency’s

reasons for its rejection of the Site Report.

The Agency

believes the Site Report as submitted failed to demonstrate that:

1)

the soil borings were continuously sampled to ensure

that no gaps appears in the sample column as required by 35

Ill.

Adm. Code 732.307(c) (1) (E);

2)

any water bearing units encountered will be protected as

necessary to prevent cross—contamination of water bearing

units during drilling as required by 35 Ill. Adm. Code

732.306(c) (1) (G);

3)

the requirement of 35 Iii. Adm. Code 732.307(c) (2)

for

Method One for Physical Soil Classification was completed;

4)

the requirement of 35

Ill.

Adm. Code 732.307(c) (3) for

Hydraulic Conductivity was completed;

5)

the survey for water wells were conducted pursuant to 35

Ill. Adm. Code 732.307(f)

6)

a groundwater investigation report was performed by the

Licensed Professional Engineer as required by 35

Ill. Adm

Code 732.307(j) (1);

7)

all soil borings were submitted as required by

732.308(a);

8)

the bore hole was abandoned pursuant to 77 Iii.

Adm.

Code 920.120 as required by 35 Ill. Adm.

Code 732.308(b);

and

9)

the physical soil classification procedure confirmed the

Berg Circulator designation of a “No Further Action” site

classification and that the UST is not within the minimum or

maximum setback zone of a potable water supply well or

regulated recharge area of

a potable water supply well as

is

required by 35 Ill. Adm. Code 732.302(a)

to classified as a

“No Further Action.”

In summary, the Agency believed that the soil boring was

inadequate, the boring log did not contain the necessary

information,

and it could not be determined whether the UST was

within the minimum or maximum setback zone for a potable water

---

7

supply well or regulated recharge area of a potable water supply

well.

On January 23,

1995, Kathe appealed the Agency rejection

letter to the Board.

In Kathe’s petition to the Board,

it

responds to each of the Agency’s reasons and attaches a revised

Water Table

2 and soil boring

log.

(Pet.

at 2_5.)6

Kathe

is

requesting the following forms of relief:

“upon

review of a

revised water well Table and Soil Boring Log provided in

Attachment

3 from the petitioner,

sic)

the IEPA approve the ‘No

Further Action’ Classification certified by the petitioner’s

licensed professional engineer”,

“....acknowledge

that the early

remedial actions proposed to be completed at the site will be

conducted in accordance with the minimum allowable actions

stipulated in 35 IAC 732.202 and will be eligible costs for

reimbursement’from the UST Fund”,

“...g)rant

the petitioner

financial relief for the legal and professional representation

costs incurred for the filing of this appeal based on the grounds

that the Agency acted in an arbitrary and capricious manner

during review of this Site Classification Completion Report”,

“grant

such other and further relief as may be appropriate.”

(Pet.

at 10.)

Regulatory Background

The Board’s authority to review the Agency’s determination

in UST Site Classification appeals arises from Section

57.7(c) (4) (D)

of the Act.

Section 57.7(c) (4) (D)

grants

individuals the right to appeal an Agency determination to the

Board in accordance with the procedures of Section 40 of the Act.

Section 40 of the Act is the general appeal section for permits

and has been used by the legislature as the basis for other types

of appeals to the Board,

including this type of appeal.

There is

a large body of case law developed concerning the respective

roles of the appealing party, the Agency and the Board under

Section 40 appeals.

Summarizing those roles and authority,

the

Board stated in City of Herrin v. Illinois Environmental

Protection Agency,

(March 17,

1994),

PCB 93-195

Petition for review of permit denial is authorized by

Section 40(a)(1)

of the Act

415

ILCS 5/40

(a)(1)) and

35 Ill. Adm. Code Section 105.102(a).

The Board has

long held that in permit appeals the burden of proof

rests with the petitioner.

The petitioner bears the

burden of proving that the application,

as submitted to

the Agency, would not violate the Act or the Board’s

regulations.

This standard of review was enunciated in

Browning—Ferris Industries of Illinois,

Inc.

v.

6Kathe’s appeal petition will be referenced as “Pet. at

“.

---

8

Pollution Control Board,

179 Ill. App.

3d

598,

534 N.E.

2d 616,

(Second District 1989)

and reiterated in John

Sexton Contractors Company v.

Illinois

(Sexton), PCB

88—139, February 23,

1989.

In Sexton the Board held:

...that the sole question before the Board is

whether the applicant proves that the application,

as submitted to the Agency, demonstrated that no

violations of the Environmental Protection Act

would have occurred if the requested permit had

been issued.

Therefore, the petitioner must establish to the Board

that the permit would not violate the Act or the

Board’s rules

if the requested permit was to be issued

by the Agency.

In addition, the Agency’s written

response to the permit application frames the issues on

appeal from that decision.

(Pulitzer Community

Newspapers,

Inc.

v.

Illinois Environmental Protection

Agency, PCB 90—142, at

6

(December 20,

1990); Centralia

Environmental Services,

Inc.

v. Illinois Environmental

Protection Agency, PCB 89—170, at

6

(May 10,

1990);

City of Metropolis v. Illinois Environmental Protection

Agency, PCB 90—8

(February 22,

1990).

Additionally,

in Clarendon Hills Bridal Center

(Learsi and

Company,

Inc.)

v. Illinois Environmental Protection Agency,

(February 16,

1995), PCB 93-55, the Board ruled that it would not

consider evidence that was not before the Agency prior to its

final determination concerning corrective action cost

reimbursement.

In doing so, the Board recognized the fact that

in prior cases

it has admitted evidence which was not contained

in the Agency record, because the Agency had not promulgated

regulations identifying for petitioners the type of information

necessary to complete a reimbursement application.7

In those

prior cases the Board reasoned that without such regulations,

petitioners could not anticipate what information the Agency

would require, and therefore petitioners should be allowed to

supplement the record in order to clarify why a disputed cost

should be reimbursed.

However,

in Clarendon the Board found that

“...petitioner knew or was obligated to know that,

at a minimum,

it was required to demonstrate that the disputed cost was for

corrective action.”

(Id. at 10.)

The Board reasoned that

“Section 22.18(b)

of the Act clearly states that an owner or

operator can only recover from the Fund the costs

of corrective

7See Sparkling Spring Mineral Water Co.

v.

Illinois

Environmental Protection Agency

(August 26,

1993)

PCB 92—203, and

Chuck

& Dan’s Auto Service v.

Illinois Environmental Protection

Agency (August

26,

1993)

PCB 92—203.

---

9

wtion” and that “the

initial burden on the party seeking

reimbursement is to demonstrate that the remediation costs

3atisfy the definition of corrective action.

(Platolene 500.

tnc.

V.

IEPA (May 7,

1992)

PCB 92—9,

133 PCB 259 at 7.)

Thus,

~he Board stated that if the petitioner, who carries the burden

f proof, knew what was required or was obligated to know the

3oard would not allow the petitioner to admit evidence after the

~etermination had been made.

In the instant case,

the Board is confronted with an appeal

)f

a UST Site Report which the Agency has rejected for lack of

information necessary to demonstrate that the site is indeed a

‘No Further Action” site as defined by Section 57.7(b)

of the

~ct.

Section 57.7(b)

states:

i)

Site Classification.

1)

After evaluation of the physical soil classification

and groundwater investigation results, when required, and

general site information, the site shall

be classified as

“No further Action”,

“Low Priority”,

or “High Priority”

based on the requirements of this Section.

Site

classification shall be determined by a Licensed

Professional Engineer in accordance with the requirements of

this Title and the Licensed Professional Engineer shall

submit a certification to the Agency of the site

classification.

The Agency has the authority to audit site

classifications and reject or modify any site classification

inconsistent with the requirement of this Title.

2)

Sites shall be classified as No Further Action if both

of the following are met:

A)

The site is located in an area designated D,

E, F

and G on the Illinois Geological Survey Circular

(1984)

titles “Potential for Contamination of Shallow Aquifers

in Illinois,” by Berg, Richard C.,

et al.;

a site

evaluation under the direction of a Licensed

Professional Engineer verifies the physical soil

classification conditions are consistent with those

indicated on the Illinois Geological Survey Circular

(1984)

titles “Potential for Contamination of Shallow

Aquifers in Illinois,” by Berg, Richard C., et al.; and

the conditions identified in subsections

(b) (3) (B),

(C),(D), and

(E)

do not exist.

B)

No groundwater investigation monitoring shall be

required to demonstrate that a site meets the criteria

of a No Further Action site.

---

10

Section 57.7(b) (3)

states in pertinent part:

B)

The underground storage tank is within the minimum

or maximum setback zone of a potable water supply well

or regulated recharge area of a potable water supply

well.

C)

There is evidence that, through natural or manmade

pathways, migration of petroleum or vapors threaten

human health or human safety or may cause explosions in

basements, crawl spaces, utility conduits,

storm or

sanitary sewers,

vaults or other confined spaces.

D)

Class III special resource groundwater exists

within 200 feet of the excavation.

E)

A surface water body is adversely affected by the

presence of a visible sheen or free product layer as

the results of an underground storage tank release.

Throughout the Agency’s rejection letters and the transcript

of the hearing, both parties reference 35 Ill. Adm. Code Part

732.

However, as stated previously, Kathe filed its Site Report

on August 18,

1994,

prior to the Board’s adoption of those

regulations.

The Board subsequently adopted regulations at 35

Ill. Adm. Code Part 732 on September 13,

1994, which set forth

the informational requirements of the Site Classification

Completion Report.

Therefore, the Board’s review is limited to

the requirements of the Act.

Arguments

Preliminary to its arguments concerning the soil boring

method, setback zone, and the boring log, the Agency questions

the credibility and qualifications of Kathe’s witness, Mr.

Schrack.

The Agency challenges the witness on grounds that he

was not a Licensed Registered Professional Engineer at the time

of the hearing, and that certain evidence admitted after its

determination should be stricken from the record before the

Board.

(Ag. Brief at 8-12.)

Additionally, the Agency makes

arguments concerning reimbursement for early action activities in

its Post-Hearing Brief on pages 42-48.

As stated previously

(supra p.1, n.l), the issue of reimbursement for early action

activities is not before the Board in this matter, and therefore

we will not address those arguments.

The Agency argues that,

as

Mr. Schrack was not a Licensed

Registered Professional Engineer at the time of the hearing and

since it was not allowed to voir dire Mr. Schrack, as to his

expertise,

the credibility of his testimony is diminished.

(Ag.

Brief at

8.)

As proof,

the Agency offers a certification from

the Illinois Department of Professional Regulation that states

---

11

that Mr. Schrack’s license expired as of November 30,

1994 and

has not renewed.

(Ag. Brief Attachment A.)

Based on these

reasons the Agency objects to Mr. Schrack’s qualifications as an

expert and requests that the Board strike those portions of his

testimony that were offered based upon his qualifications as a

Licensed Professional Engineer.

(Ag. Brief at 9.)

Additionally, the Agency argues that Kathe presented

evidence that was not before the Agency prior to the Agency’s

final determination of December 20,

1994.

(Ag. Brief at 10.)

The Agency requests that the evidence should be treated as an

amendment of the August 18,

1994 Site Report and remanded to the

Agency for review pursuant to Section 57.7(b) (1)

of the Act.

(Ag. Brief

at 12.)

The Agency argues that the Board should apply

the same standard as it did in Clarendon Hills Bridal Center

(Learsi and Company,

Inc.)

v. Illinois Environmental Protection

Agency,

(February 16,

1995), PCB 93—55.

In Clarendon the Board

found that it would only consider evidence that was before the

Agency prior to its final determination.

(Ag. Brief at 11—12.)

The Agency argues to rule otherwise “...would: destroy the

obvious remedy of submitting an amended report or plan to the

Agency...render the Agency’s review meaningless.. .violate all

concepts of fundamental fairness....”

(Ag. Brief at 11.)

The

Agency concludes that it should be allowed to view the very

information it determined was missing.

(Ag. Brief at 42.)

The main information which the Agency believes is lacking in

the Site Report concerns;

(l)whether the soil boring conducted by

Kathe demonstrates that the site conditions correlate with a Type

E designation of the Berg Circular;

(2)does the soil boring log

contain sufficient information for an Agency determination; and,

(3)whether the Agency could determine from the Site Report

whether the UST was within the minimum or maximum setback zone

for public water supply well or regulated recharge area of a

potable water supply well.

The following is a summary of the

arguments concerning those three questions.

Soil Boring

Kathe argues that the sample soil boring was completed and

continuously sampled to fifty

(50) feet in depth to classify the

soil types.

(Pet at 2.)

At the hearing, Mr. Schrack testified

that in his opinion the fifty

(50) foot boring was continuously

sampled, that any sampling gaps were the result of normal

industry practice and that this soil sampling method is the same

method he utilized at other sites which the Agency has approved.8

(Tr. at 84,

48,

37-39.)

Kathe further states that it had

8The transcript of the hearings held on March 13 and 14 will

be referenced as “Tr.

at

“.

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12

“...completed one continuous 50 foot soil boring for site

classification prior to collection of the two Shelby Tube samples

from a second 50 foot soil boring...” and that although it had

not documented this “thorough approach”, the Agency does not

specify under Method One or

Two

that such documentation is

required.

(Pet.

at 3.)

In addition, Kathe states that pursuant

to 35 Ill. Adm.

Code 732.307(c) (1) (H) (2)

it is allowed to utilize

techniques other than those specified in subsection

(C)

(1) of 35

Ill.

Adm. Code 737.307(c) (1)) “...for soil classification

provided that the techniques have been successfully utilized in

applications similar to the application.”

(Pet.

at 2.)

Kathe

asserts that the procedures utilized at its site are identical to

procedures utilized at several sites where the Site Report was

approved by the Agency.

(Pet. at

2, Post-Hearing Brief at 2-5.)

Therefore, Kathe concludes that,

since the Agency has approved

those soil classifications where the applicant utilized the same

procedures as in the instant case, the requirements have also

been met here.

(Pet.

at

9, Post-Hearing Brief 5—11.)

The Agency asserts that since the soil boring contains

sampling gaps,

the site was not continuously sampled making it

impossible to determine how many stratigraphic units might be at

the site.

(Ag. Brief at 18.)

As a result of these sampling gaps

the Agency argues that it cannot be verified that the site’s

conditions meet the Type E designation of the Berg Circular.

(Ag. Brief at

22.)

At the hearing the Agency’s witness, Mr.

Rowe,

specifically testified that without information on the soil

for certain portions of the fifty

(50)

foot boring sample, they

cannot determine if the actual soil classification is Type E as

indicated by the Berg Circular.

(Tr. at 443-446.)

The Agency

argues that the sampling must be continuous because a sampling

gap of even an inch in thickness may overlook a sand or gravel

seam that would result in the actual physical soil classification

at the site to be something other than a Type E designation.

(Ag. Brief at 22,

Tr. at 445,472.)

Furthermore, the Agency

asserts that a sampling gap may also miss a manmade pathway.

(Ag. Brief at 22.)

The Agency also states that the fifty

(50)

foot site classification boring actually constituted only twenty—

one

(21)

feet with documentation for only fifteen

(15)

feet of

the total

soil.

(Ag. Brief at 27,

Tr. at 452—466.)

Additionally, the Agency notes that Mr. Schrack testified that

the Shelby Tube samples listed within the log were not obtained

from the boring identified as KAB23,

but rather from a different

boring taken three feet away.

(Ag. Brief at 27)

Finally, the

Agency argues that Kathe agreed to conduct the activities set

forth in the February 10,

1994 rejection letter by its submission

of the revised Site Classification Work Plan dated March 9,

1994

and that Kathe failed to perform an analysis for each

stratigraphic unit as required by the approved Site

Classification Work Plan.

(Ag. Brief at 22—25,

31.)

For these

reasons, the Agency concludes that the sampling method does not

provide the necessary information for it to make a determination.

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13

Soil Boring Log

Kathe asserts that the format for its soil boring logs in

this Site Report contains the same information and format as the

soil boring logs submitted in other cases in which the Agency

approved the classification.

(Pet.

at 6.)

Mr. Schrack

specifically testified that the soil boring log contains all the

information necessary and is the same format as in other sites

which the Agency approved.

(Tr. at 37-39.)

Additionally, as Mr.

Schrack testified and Kathe asserts, specific information that

may not be in the soil boring log is contained elsewhere in the

Agency record and was before the Agency prior to its

determination.

(Tr. at 85-105, Post-Hearing Brief at 2.)

Kathe

concludes that the Agency cannot now deny the adequacy of this

Site Report which contains the same information and has been

prepared in the same format as other Site Reports that have been

approved.

However, Kathe does state that information concerning

the name of the drilling company, depth to groundwater levels

while boring,

and the Unified Soil Classification Symbol group

symbol was not provided.

(Pet.

at 6.)

Kathe asserts, however,

that the symbols used by Schrack Environmental Consulting,

Inc.

provide more information than the Unified Soil Classification

Symbols and therefore exceed the minimum requirements of 35 Ill.

Adm. Code 732.

(Pet. at 6.)

The Agency simply argues that the prior approvals are not

relevant to this matter and should not be admitted by the Board.

(Ag. Brief at 33-34.)

However, the Agency asserts that those

prior approvals are distinguishable and that the Board has

correctly found that the applicable law, and not Agency policy,

appropriately decides the matter citing to State Bank of

Whittington v.

IEPA,

(June

3,

1993), PCB 92-152.

(Ag. Brief at

36-37.)

The Agency argues that the three site approvals,

argued

to be identical,

Fortune, Mertes and Complete, are

distinguishable.

The Agency states that the Complete and Fortune

cases were “High Priority” site classifications and were not

approved until February 3,

1995 and January 5,

1995,

respectively, which is much after the August

18,

1994 date that

Kathe filed its Site Report.

(Ag. Brief at 34.)

Therefore,

the

Agency concludes that it was impossible for Mr. Schrack or Kathe

to rely on the approval in those approvals in filing the Site

Report in this matter.

(Ag. Brief at 34.)

Finally, the Agency

asserts the Mertes case utilized a different evaluation method

and therefore is substantially different than this case.

(Ag.

Brief at 35—36.)

Thus, the Agency concludes that those approvals

are substantially different and, pursuant to State Bank of

Whittington, are irrelevant to the Board’s decision of this issue

in this case.

(Ag. Brief at 36.)

Water Well Survey

Kathe argues in its petition that the revised Table

2

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14

attached to its petition demonstrates where the UST is not within

the minimum or maximum setback zone for public water supply wells

and the distance of the

iJST

in relation to the public water

supply wells.

(Pet. at 4.)

Additionally, Kathe states that Mr.

Schrack contacted the Illinois State Water

Survey

(ISWS) to

locate and map out potable wells prior to the determination of

the Site Report and that after the Agency determination he

contacted the Illinois State Geological Survey

(ISGS).

(Post-

Hearing Brief at 9.)

Kathe also states that the employee at the

ISGS stated that its information is based on that of the ISWS.

(Post-Hearing Brief at 9.)

Kathe argues that the Agency’s

emphasis on the fact that the ISGS was not contacted by Kathe

prior to the Agency’s determination

is “emphasizing a useless

act.”

(Post-Hearing Brief at 10.)

Kathe asserts that since the

information of the ISWS is the same as that of ISGS,

it should

not have to contact the ISWS.

(Post-Hearing Brief at 10.)

Therefore Kathe argues that it has met the informational

requirements concerning the water well survey.

The Agency asserts that Kathe was aware of the type of

information necessary to demonstrate whether the UST is within

the minimum or maximum setback zone of a potable water supply

well or regulated recharge area of a potable water supply well.

(Ag. Brief at 38.)

The Agency argues that its rejection letter

of February 10,

1994, which was issued six

(6) months prior to

Kathe’s submission of the Site Report, set forth the

informational requirements necessary for the Site Report.

(Ag.

Brief at 38.)

In addition, the Agency states that the Table

2

submitted by Kathe is deficient and that Kathe’s filing of a

revised Table

2 corroborated this fact.

(Ag. Brief at 41.)

The

Agency asserts that the Table

2 filed on August

18,

1994 failed

to provide the location of the UST in relation to the minimum or

maximum setback zones of the listed wells and that Kathe failed

to contact the ISGS.

(Ag. Brief at 42.)

Finally, the Agency

states that even Mr. Schrack testified that, based on the Site

Report,

it is difficult to determine whether the UST was within

the maximum setback zone of a potable water supply well or

regulated recharge area of a potable water supply well.

(Ag.

Brief at 42.)

In general, Kathe argues that its submittal,

prepared by Mr.

Schrack,

is the same type of submittal which the Agency has

approved in at least three other sites completed by Mr. Schrack,

the Fortune, Mertes, and Complete sites.

Kathe asserts that for

the Agency to now say that the submittal is inadequate is

arbitrary,

capricious and fundamentally unfair.

(Post—hearing

Brief at 11.)

Alternatively, Kathe argues that the techniques

utilized by Mr. Schrack meet the requirements of 35 Ill. Adm.

Code 732.307(c) (1) (H) for the use of alternative techniques and

should be accepted by the Agency.

(Post-hearing Brief at 4.)

Additionally, Kathe argues that the information contained in the

revised Table

2 and the revised soil boring log, demonstrates

---

15

that its site meets the “No Further Action” classification

requirements of Section 57.7(b)

of the Act.

(Pet. at 4.)

The Agency in its Post-Hearing Brief states that “nowhere

in the Agency’s Technical Record,

in Petitioner’s consultant’s

testimony at the hearing or in Petitioner’s Post-Hearing Brief

does the Petitioner—or his consultant—offer any real explanation

for the failure to continuously sample or to otherwise comply

with the terms and conditions of the approved March

9,

1994 Site

Classification Work Plan.”

(Ag. Brief at 33.)

The Agency argues

that Kathe’s first explanation given, that the Agency has

approved prior sites utilizing the same techniques

in the past,

can be distinguished and that the Board in State Bank of

Whittinaton v.

IEPA,

(June

3,

1993),

PCB 92-152, correctly found

that the applicable law and not Agency policy determines the

issue at hand.

(Ag Brief at 36.)

The Agency also asserts that

Kathe’s argument that it is utilizing a new technique pursuant to

35 Ill. Adm. Code 732.307(c) (1) (H)

is misplaced.

(Ag. Brief at

37.)

The Agency states that the “...provision allows the use of

techniques other than those specified in Physical Soil

Classification Method One, but only upon the owner and operator

obtaining prior written approval from the Agency before starting

its classification investigation.”

(Ag. Brief at 37.)

The

Agency argues that the provision does not apply to a particular

consultant’s techniques and therefore rejects Kathe’s claim that

the Agency’s action on other sites involving Mr. Schrack

validated his approach at the Kathe’s site.

(Ag. Brief

at 37.)

Finally, the Agency argues that “given

the detailed

sic

particularly of the Agency’s February 10,

1994 correspondence

(Supp Rec. pp.

1-12)

and the Petitioner’s March

9,

1994 Site

Classification Work Plan (Tech.

Rec. pp.

203-237),

it is

difficult to imagine a more clear and precise standard.”

(Ag.

Brief at 38.)

Thus the Agency asserts that Kathe’s claim that

the Agency interpretation of the law is arbitrary and the

requirements of the law are vague and uncertain are unfounded.

(Ag. Brief a 37—38.)

Discussion

Prior to our decision of the issue on appeal, there are

three evidentiary matters that the Agency presents to the Board:

(l)whether the evidence entered into the record after its

decision should be allowed;

(2)whether the testimony of Mr.

Schrack should be stricken; and,

(3)whether evidence of other

Site Reports should be allowed into the record.

There is also one matter raised by Kathe concerning the use

of alternative techniques set forth in 35 Ill. Adm. Code

732.307(c)(1)(H).

As discussed previously,

since the Board did

not adopt 35 Ill.

Adm. Code Part 732 until September 13,

1994

those regulations do not apply to Kathe’s Site Report.

Therefore, any arguments made by either the Agency concerning

---

16

what information is required and by Kathe concerning this issue

are inapplicable.

Thus the Board will not make a decision as to

whether Kathe properly utilized 35 Ill. Adm. Code

732.307(c) (1) (H).

Concerning the first evidentiary issue, the Board finds that

the evidence entered into the record after the Agency made its

final determination of December 20,

1994, should be stricken and

will not be considered by the Board in its ruling.

As the Board

held in Clarendon, we will not consider evidence that was not

before the Agency prior to its final determination.

The initial

burden on the applicant seeking site approval pursuant to Section

57.7(b) of the Act is to demonstrate that the Site Report

verifies that in—situ soil meets the appropriate designation of

the Berg Circular.

(Platolene 500,

Inc.

v. IEPA (May 7,

1992)

PCB 92—9,

133 PCB 259 at 7.)

This case is distinguishable from

the cases where the Board held that where petitioners could not

anticipate what information the Agency would require, petitioners

should be allowed to supplement the record in order to clarify a

disputed question.

Here, Kathe knew what information the Agency

required in the Site Report.

The Agency’s rejection letter of

February 10,

1994 listed the information

it required and what

activities were necessary for Kathe to undertake to fulfill those

informational requirements of the Site Report.

To allow

supplemental evidence would undermine the statutory role of the

Agency in making such determinations.

Kathe can amend its Site

Report with the new information in the revised Table

2 and

revised soil boring log,

along with any other information it

acquired for the purposes of this appeal,

in a new submittal to

the Agency.

Therefore, the revised Table

2 and revised Soil

Boring log submitted as Attachment

3 of its petition and any

testimony alleging new facts that were not before the Agency at

the time of its determination will be stricken from the record in

this case.

Concerning the second evidentiary issue,

the Board will not

strike Mr. Schrack’s testimony because his license lapsed in

November 1994.

Although the Hearing Officer may have erred

in

not allowing the Agency to voir dire the witness since he was

being offered as an expert, the Agency rejection of the Site

Report is not based on Mr. Schrack’s qualifications,

and they are

not dispositive of the issues before the Board.

Therefore,

the

Board will not strike the testimony given by Mr. Schrack based

upon his qualifications as a Licensed Professional Engineer as

requested by the Agency, but the appropriate weight will be given

to the fact that he was not a Licensed Professional Engineer at

the time of the hearing.

Concerning the third evidentiary issue, the Board will allow

Kathe’s submission of the other Site Classification Approvals,

entered into the record as Petitioner’s Exhibits A,

B, and C.

This information is allowed for the limited purposes of Kathe’s

---

17

argument that the Agency is bound by its prior approvals.

These

approvals are not new information to the Agency and are not being

entered into the record as information that goes specifically to

the Agency’s final determination of December 20,

1994, regarding

Kathe’s site.

Therefore,

the first issue remaining before the Board is

whether the Agency’s prior practices,

i.e.

Site Report approvals,

should be considered in determining whether Kathe’s Site Report

demonstrates that it is a “No Further Action

“

site.

We find

that the Agency’s prior approvals at other sites do not limit the

Board in making a determination in this case.

While the Board is

mindful of the potential confusion that may occur if the Agency

utilizes inconsistent reviewing practices from site to site,

in

this case, Kathe failed to object to the Agency’s rejection

letter of February 10,

1994 which established the informational

requirements of the Site Report for its site.

Pursuant to

Section 57.7(c)(4)(D)

of the Act Kathe elected to incorporate the

Agency’s modification contained in its February 10,

1994 letter

by submitting a revised plan on March

9,

1994, which incorporated

those modifications.

(Ag. Rec.

at 121.)

Although the Agency

cites to 35 Ill. Adm. Code 732, which is not applicable to this

case,

Section 57.7(c)(4)(D)

allows for the Agency to modify

plans,

i.e.

Site Reports, and did so by describing the specific

actions that it requires Kathe do perform in developing its Site

Report.

Thus, Kathe was aware of the requirements applicable to

it and waived any review of them by failure to timely appeal.

While the Board will hold the Agency to its prior practices in

some instances,

as we stated in State Bank of Whittington, the

Board will determine the issue based on applicable

law and not

Agency policy.

Therefore reliance on the other site reviews

is

not compelling in this matter.

The remaining issue

is a factual question as to whether

Kathe’s Site Report,

as submitted to the Agency, demonstrates

that the site should be designated as

a

“No Further Action” site

pursuant to Section 57.7(b)

of the Act.

The parties’ focus their

arguments on the soil boring method on what does

it mean,

by the

requirement, to take a continuous sampling for fifty

(50)

feet in

demonstrating that the site should be designated as a “No Further

Action” site.

The term “continuous” refers to a geologic column being

characterized without any significant gaps.

Continuous sampling

involves the collection of samples, typically from

1 to

2 feet in

length,

from the ground surface down to the desired depth

(in

this case fifty

(50)

feet).

However, continuous sampling does

not necessarily mean complete recovery of every inch of sampled

material.

We agree with Kathe that, even in properly conducted

“continuous” sampling, some amount of material would be lost back

into the bore hole itself during boring and pounding and some

material would be lost during extraction process.

---

18

However,

in order to develop detailed site geologic profiles

at remediation sites or landfills, one or more soil borings are

sampled continuously to a specified depth.

The purpose of the

site characterization is to verify, based on site-specific data,

that the site geology meets Type E classification or other

applicable classification.

Therefore,

it is important to

identify all significant stratigraphic units.

Particularly with

regards to a UST site,

since the site classification determines

whether or not any corrective action is required at the site.

Large sampling gaps may overlook significant stratigraphic units

such as sand or gravel seams which may result in a site being

classified as a “Low Priority” or “High Priority” site instead of

being classified as a “No Further Action” site.

Here, Kathe indicates the boring was continuously sampled at

a 2-foot interval to a depth of

15 feet, but from 15 to 50 feet,

the boring was sampled at five—foot intervals while no sample was

taken between 40 to 50 feet.

Thus,

the boring log includes

a

number of sampling gaps between the depths of

15 to 50 feet.

Since there are significant gaps in the information, we find that

the Site Report as submitted does not provide enough information

to demonstrate that the site conditions meet the Type E

designation of the Berg Circular.

Finally, Kathe’s Table

2 and Exhibit

7 of its Site Report do

not state whether the UST is within the maximum setback zone of

a

potable water supply well or regulated recharge area of a potable

water supply well.

Mr. Schrack admitted that it could not be

determined whether the UST was within a maximum setback zone.

Section 57.7(b)

of the Act requires that the UST not be within

the minimum or maximum setback zone of

a potable water supply

well or regulated recharge area of a potable water supply well.

Thus in order for the Agency to make such a determination this

information is required.

We find that the Site Report

is lacking

this information.

For these reasons, we affirm the Agency’s determination that

Kathe’s Site Classification Completion Report of August

18,

1994,

is lacking information necessary to demonstrate that the site is

a “No Further Action” site pursuant to Section 57.7(b)

of the

Act.

Additionally, Kathe requested the Board to award legal and

consultant fees in this matter.

Since the Board is affirming the

Agency’s determination this issue is moot.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

Order

---

19

The Board affirms the Agency’s determination dated December

20,

1994, disapproving Kathe’s Site Classification Completion

Report dated August 18,

1994.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS

5/41) provides for the appeal of final Board orders within 35

days of the date of service of this order.

(See also 35 Ill.

Adm. Code 101.246, Motion for Reconsideration.)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby cer~J~fy

that the above opinion and order was

adopted on the

/y4(~i

day of

_____________,

1995,

by a vote of

Dorothy M7jGunn, Clerk

Illinois(~~ól1utionControl Board