ILLINOIS POLLUTION CONTROL BOARD
June
2,
1994
EMRO
MARKETING
COMPANY,
)
Petitioner,
v.
)
PCB 93—122
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
KEVIN
L. KROHN OF
MARATHON
OIL APPEARED ON BEHALF OF THE
PETITIONER.’
OPINION
AND
ORDER OF THE BOARD
(by E.
Dunham):
This matter comes before the Board on a petition for review
filed by Emro Marketing
(Emro)
on June 21,
1993, pursuant to
Sections 22.l8b(g)2 and 40 of the Environmental Protection Act
(Act).
(415 ILCS 5/22.l8b(g)
& 40
(1992).)
Emro is a subsidiary
of Marathon Oil.
The petition seeks review of the Illinois
Environmental Protection Agency’s (Agency) May 17,
1993
determination that
Eniro
is ineligible for reimbursement from the
Underground Storage Tank Fund.
Emro sought reimbursement for
corrective action costs which resulted from a release of
petroleum on August 14,
1990 at
Emro’s facility in
Grayslake,
Lake County,
Illinois.
A hearing in this matter was conducted on April
12,
1994,
in
Grayslake, Illinois before hearing officer Allen Schoenberger.
At hearing the parties submitted the stipulated testimony of
Howard Sloan and an affidavit from Paul D. Hancock.
Mr.
Sloan
is
an employee of Marathon Oil and serves as an engineering
supervisor for Marathon and its subsidiaries.
Mr. Hancock is a
staff attorney with Marathon Oil.
The Petro-Tite Manual
(Pm),
describing the tightness test performed was also placed into
evidence at the hearing.
Mo members of the general public
attended the hearing.
Emro filed its closing brief on April 21,
1994.
The Agency filed its response brief on April 29,
1994.
Emro filed a reply brief on May 4,
1994.
Mr. Krohn
is
a project engineer with Marathon Oil who
appeared at hearing but did not make a statement.
The attorneys
representing Emro Marketing and the Illinois Environmental
Protection Agency did not appear at hearing but agreed to the
submission of stipulated testimony and exhibits at the hearing.
2
Section
22.18b(g)
of the Act was repealed in
H.B.
300
effective September
13,
1993.
2
BACKGROUND
In 1990,
Eniro began construction for a new convenience
store/gasoline station in Grayslake,
Illinois.
(Sloan at 1.)
Gi-
La Builders were retained to act as general contractor for
construction of the facility including installation of the
underground storage tank.
(Sloan at 2.)
Protanic Inc. was
retained to perform tightness testing of the tank.
(Sloan at 2.)
The underground storage tank was installed by Gi-La Builders in
August of 1990.
(Sloan at 2.)
The contractor elected to use Petro-Tite testing to test the
integrity of the tank system.
Petro-Tite testing requires that
the tank system be filled to absolute capacity and that the
system be purged of air.
(Sloan at 3.)
After the system is
filled to capacity, a pump and gauging mechanism is attached to a
tank opening creating a closed system.
(Sloan at 3.)
Petroleum
is then circulated through the system.
(Sloan at 3.)
Any loss of
product in the “closed” system indicates that the system is not
secure and free of leaks.
(Sloan at 3.)
Prior to the arrival of Protanic to conduct the tightness
testing, Gi—La Builders removed an automatic tank gauging device
from one tank riser, since this device could be damaged during
testing.
(Sloan at 3.)
Gi-La Builders placed a temporary loose
fitting cap on the riser.
(Sloan at 4.)
Upon arrival at the
site, Protanic noticed the loose fitting cap and determined that
it was inappropriate for the tightness test.
(Sloan at 4.)
Therefore, the Protanic employees left the site to purchase the
necessary cap.
(Sloan at 4.)
During the absence of the Protanic employees, the tank truck
driver arrived to top off the underground storage tank for the
tightness test.
(Sloan at 4.)
The petroleum level reached
maximum capacity and elevated up the riser.
(Sloan at 4.)
The
pressure of the gasoline through the riser pushed the loose
fitting cap from the riser and product was released.
(Sloan at
4.)
Some 755 gallons of product were released through the
overfill of which 700 gallons were subsequently recovered.
(Sloan
at 4.)
The remaining 55 gallons are unaccounted for and are the
subject of continuing cleanup activities.
(Sloan at 4.)
Emro Marketing submitted the Notification of Underground
Storage Tank form to the Illinois Office of the State Fire
Marshal
(OSFM)
without the installer’s signature as Gi—La
Builders refused to sign the form due to lack of payment by Emro
which was being withheld due to a dispute concerning liability of
the release.
(Sloan at
5.)
OSFM rejected the form and brought an
administrative action against Emro to force submittal of a signed
form.
(Sloan at
5.)
Gi-La Builders then agreed to sign the form
and supplied certification that
it has been certified or licensed
by the OSFM.
(Sloan at
5.)
3
DISCUSSION
The Agency decided that Emro was ineligible for
reimbursement based on its determination that the tank “was not
installed and operated in accordance with the rules adopted by
the Office of the State Fire Marshal”
(OSFM).
(Ag. Rec.
at
2.)
Section 22.18b(c)
of the Act provides:
(c)
Notwithstanding subsection
(a) or (b), no owner or
operator is eligible to receive money from the Fund for
costs of indemnification or corrective action for any
underground storage tank installed after July 28,
1989,
unless the owner or operator demonstrates to the Agency
that the tank was installed and operated in accordance
with rules adopted by the Office of the State Fire
Marshal.
For purposes of this subsection,
certification by the Office of the State Fire Marshal
that the underground storage tanks were installed in
accordance with those rules,
shall be prima facie
evidence that the owner or operator so installed such
underground storage tanks.
OSFM regulations allow several methods for an owner or
operator to prove certification of compliance.
(41 Ill.
Adm. Code
170.420(e).)
Among the certifications of installation accepted
by the OSFM is proof that the “installer has been certified by or
licensed by the Office of the State Fire Marshall.”
(41 Ill.
Adm.
170.420(e) (1).)
In Smith Oil Company v.
IEPA
(July 30,
1992),
PCB 91—243,
the Board found that the contractor’s certification of compliance
and field inspection logs represented prima facie evidence that
the tank was installed in accordance with OSFM regulations.
Similarly,
the Board finds that Emro’s certification of
compliance represents prima fade evidence that the tank was
installed in accordance with OSFM regulations.
However, the
Board must also consider additional evidence
in this matter in
rebuttal of the prima facie evidence.
In rebuttal of the prima facie case,
the Agency contends
that the Petro—Tite testing was not performed in accordance with
the manufacturer’s procedures.
The Agency contends that the
manual depicts a process where the tank truck operator fills the
tank system while other personnel purge the system of air,
determine if the system is at capacity and attach the Petro-Tite
equipment.
Because the tank truck operator was the only person
on site,
the Agency contends that the test was not conducted in
accordance with the manufacturer’s procedures.
Emro contends that leaving a riser open during the tightness
test is consistent with the requirements of the test as all air
4
is to be purged from the system while the tank
is being filled.
Emro maintains that the Agency has failed to establish any
inconsistency with OSFM regulations or which OSFM regulations
were breached.
The rules of the OSFM at 41 Ill.
Adm. Code 170.420(d)
require
All tanks and piping must be properly installed in
accordance with a code of practice developed by a
nationally recognized association or independent
testing laboratory and in accordance with the
manufacturer’s instructions.
When
Emro’s contractor elected to perform a Petro—Tite test on
the system to prove the integrity of the tank system they were
required to perform that test in accordance with the manual.
Failure to perform the test in accordance with the procedures
described in the manual represents an infraction of the OSFM
regulations.
It is true,
as. Emro asserts, that the Petro—Tite Manual does
not specify the number of personnel needed to conduct tank
filling and testing.
It is also true that the Petro-Tite test
requires that the riser be open during filling so that air may
bleed out of the system.
The Agency,
however,
is correct in its
assertion that the petro—Tite test envisions close monitoring of
the liquid level in the tank/riser system during filling.
The
tank filling procedure indicates that “The exact tank gage should
be taken.”
(PTM at 7.)
The sample Data Chart for Tank System
Tightness Test clearly indicates gauging of tank volumes and
metered fills.
(PTM at 10
& 11.)
In the example given in the
manual, the filling process was stopped at least twice while the
tank was gauged to ensure that no overfill occurred beyond the
need to fill the Petro-Tite test equipment.
(PTM at 11.)
In Emro’s case,
there is no evidence that anyone gauged the
tank prior to filling, test personnel were not on site while the
tank was overfilled, and no evidence was given to indicate how
the delivery truck driver was allowed to spill 755 gallons of
gasoline into the ground without a spill being detected.
The
Petro-Tite test methodology requires that UST systems be filled
beyond their capacity,
and the test admits the possibility that
minor correctable leaks may be detected and cured.
However,
to
lose 755 gallons of gasoline during a Petro-Tite test exceeds the
reasonable amount of loss of product that could be justified due
to the testing procedure.
The stipulated
facts in evidence indicate that the failure
to install appropriate fittings, which would have sealed the tank
system,
and the failure to appropriately gauge the tank volume
and meter gasoline delivery constituted
a failure to conduct the
5
Petro-Tite test according to manufacturer’s specifications.
This
failure rebuts the prima fade case made by petitioners that the
tank system was properly installed prior to the leak.
Petition
for access to the Underground Storage Tank Fund is therefore
denied.
In addition the Board notes that at the time of the spill,
the tank was not properly installed as the contractor had not
properly performed the tightness test to prove the integrity of
the tank.
That proper installation could be certified once the
loose fitting was replaced does not alter the fact that, when the
spill occurred, the tank installation was not certified nor was
the installation certifiable at that moment.
This opinion constitutes the Board’s findings of facts and
conclusions of law in this matter.
ORDER
For the reasons stated herein, the Board affirms the
Agency’s denial of eligibility for reimbursement for corrective
action resulting from a spill from an underground storage tank at
Emro’s
facility in Grayslake,
Illinois.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35
Ill. Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opiniom and order was
adopted on the
___________
day of
_______________
______
1994, by a vote of
~
.
Ii
Control Board