Respondent.
PRELIMINARY Kkri’EkS

0138-0096

ILLINOIS 

POLLUTION CONTROL BOARD

December

17, 1992

REX~HHOLD cHEMICALS,

INC.,

)

Petitioner,

)

v.

)

PCB92—98

(Underground

Storage 

Tank

ILLINOIS 

ENVIRONMENTAL

)

Fund Determination)

PROTECTION

AGENCY,       

)

)

Respondent.

JAMES R. MORRIN APPEARED

ON BEHALF -OF PETITXO~EH,4~*RD

TODD RETTIG 

APPEARED

BEHALF

OF RESPONDENT.

OPINION AND 

ORDER

THE BOARD (by 3. 

Anderson):

This matter 

before the Board on a stition for review

tiled 

by Reichhold

Chemicals,

Inc. 

(*.i~h.Id)on Jane

26, 1992.

R.icbhold requests

that the Board review 

tI~j~ithois

Environmental Protection Agency’s 4Agsnay)~Isy.

26, 1992

underground storage tank (UST) rS1abura~nt determination.

that

letter,

the Agency determined that

al~2gh

*sic~hhOldwas

eligible to access the

State Fund (Fund)

for~tIwa

~its USTs,

Reichhold was not eligible to access the Fund ‘~tor22 

of it. UST5

because

it failed to positively identify the contents of

those

USTs.

On September 23, 1992, hearing was held in this

*attar in

Chicago, Cook County, Illinois.. No liembers of the

public 

were

present at hearing.

Reichhold

filed

its post-~e*ring

brief on

October

.22, 1992.

On October

26, 1992,~s~Ø~ho3dfiled an

errata

sheet to its brief and

a corrected post-~ ~rief. The

Agency filed

it.

post-hearing

brief an $ov~ber U, U92

•

November 23, 1992,

Reichhold 

tiled

its post.haartng 

reply

brief.

The Board

finds 

that

Reichhold

met its Mirden

proof

identifying the contents of the 22 USTs.

Accordingly,

the

Board

reverses

the Agency’s 

Kay 26, 1992 eligibility determination

regarding the 22 USTs.

PRELIMINARY Kkri’EkS

Reichhold’s Motion to 

Supnlsmsnt

the m.cord

On August 26, 1992, Reichhold filed 

motion for leave to

supplement the record 

in this matter with a “45-Day Report”,

dated May 22, 1992, that was allegedly in

the

Agency’s possession

on or before the Agency’s

hay

26, 1992 determination.

Because

the Agency did not respond to Reichhold’s motion, the

Board

granted 

the motion on September 17, 1992.

0138-0093

2

At-the September 23, 1992 hearing in this matter,

Reichho.d’s attorney stated that be wished to withdraw his motion

to supplement. (Tr. 5.) In support

of his request, Reichhold’s

attorney stated that the Agency had

demonstrated that

the

Agency

received the report

subsequent 

to the 

Agency’s May-26, 1992 final

determination. (Tr. 5.)

Because the Board ruled on Reichhold’s 

motion 

to supplement,

Reichho.d cannot now withdraw its

motion. 

The

Board, 

however,

On

its

own

motion, will 

reconsider it.

September 

17, 1992

order.

Based upon the assertions of 

Reichhold’

$

attorney 

at bearing, 

the

Board hereby reverses it. 

September

17, 1992 ruling on

Reichhold’ s motion to 

supplement the 

record

with Reichbold’ 

$ “45

Day

Report”.

Agency’s Motion for Leave to File ReDlY Brief

Instanter

On

December

2, 1992, 

the Agency filed 

a motion for leave to

file a reply brief instanter. In support 

of. tt 

-*otion, thó-

Agency

asserts that 

Reichhold’. reply brief contains a nuaber.of

prejudicial

statements that,

left 

anc1.rifi.d,an~fair1y

characterize the Agency’s statements end positions. 

liar.

specifically,

the Agency 

argues 

that Reichholdtncotrsctly

characterizes the testimony of the Agency’s -witness

misinterprets the Agency’s statements cono~n1ng the applicable

standard of review and

burden 

of proof. -~Siahholdhas not

responded to the Agency’s motion.

The

Board hereby

grants the Agency’. 

motion.

BACKGROUND

Reichhold owns property at 3101 South California Avenue in

Chicago on which it operated an adhesives amnUfacturing

plant,

Swift Adhesives.

(Tr. 70;

Pet. Ex. 1; 

AgencyPec. 105.) --.~e

site is currently inactive.

(Tr. 70.) -Swift had three email

USTs at the site.

(Tr. 70—71.) Swift used one tank (Tank No. 1)

and

a former tenant of Swift, D&D

Cartage, 

used two other tanks

(Tank Nos.

and 5).

(Tr. 71.)

In mid-1991, Reichhold hired

two contractors, 

Laidlaw

Environmental Services (Lajdlaw) and

CB2K 

Hill

-(~2K), to remove

certain

USTB at the site.

(Tr. 10-11,72.)

At th.

time 

that the

contractors were retained,

Reichhold knew

of the presence of five

lISTs on

the

site and

believed that 

a sixth

UST

was possibly

present. (Tr. 13-14.)

Alter removing 

the

five

UST5 

(Tank Nos.

1, 2,

4, 5, and 

6),

the

contractors

conducted 

exploratory digging

and

discovered 23 10,000 gallon USTs 

(Tank 

NoB. 3, 7—28). (Tr.

13-16, 72, 106.) The 23 

lISTs 

were 

buried in 

i group away from

the five other USTs. (Tr. 73—74; P*t. Ex. 1.)

When 

the

contractors

started 

excavating to

locate 

the

lISTs, they

encountered black soil

that emitted very strong 

vapors

of diesel.

0138~oO9z~

3

(Tr. 27.) Reichhold never installed or used these lISTs and was

unaware of

the

23 lISTs prior to their d~scov.ryin 

late 1991,

because

the

piping and fill pipes to the lISTs had been

removed.

(Tr. 17, 71, 72.)

In order to determine the origin

and

ownership

the

lISTs, Reichhold obtained a title search

and

several historical

insurance maps known 

sanborn”

amps. (Tr. 41, 74—75;

Pet.

Exa. 3, 4, 5, 6.)

Based 

the documents, 

Reichhold concluded

that

the

lISTs had been

owned 

by Roxanna/Shell Oil

Company

(Shell). (Tr. 

75, 103.) Shell

operated 

the

lIST. as

abulk

distribution facility for gasoline,

heating 

oil, and 

diesel

fuel.

Roxanna Petroleum owned

the

site prior to

Shell and Thompson-

Hayward Chemical owned the property after Shell,

from the 

late

1950s

until

1965. (Tr. 97—98, 102.)

Reichhold delayed removal of the lISTs 

to request information

concerning the lISTs from Shell. (Tr. 75—76.) Shell, however,

refused to supply 

any information to Reicbhold. (Tr. 

76.)

In late 1991, Reichhold’s 

contractors 

beqan to r~ve 

the

lISTs. During the removal process, a strong 

-diesel 

odor was

predominant at the site 

and groundwater weB, flcountred 

at

approximately two feet 

below grad.. (Tr. 

16 17—18, 26, 27, 53.)

During

excavation, 

the owner

of K&K Ironvórks,~*n

adjacent

property, 

came

to the .it.

because

ha vms abl. to smell a 

diesel

odor, (Tr.

28.)

Each of 

the

lISTs 

was physically inspected as they were

removed. (Tr. 20—21, 24, 25—26.) Some of -theUsTs were tilled

with a water/product mixtur. while

others had~bSenpreviously cut

into

and partly filled

with 

soil and 

debris that-ims

saturated.

(Tr. 16—17, 18—19, 20, 24, 25, 78.) Although

most 

of the 

lISTs

smelled of 

diesel

fuel, 

some lISTs

smelled

of

gasoline. 

~(Tr.16,

26, 30.) 

When Kr. Randall Price, 

a project w~ag.r for

Laidlaw

who

oversaw 

the supervision 

of

the remOval 

Øf the UST, testd

the lIST excavation with a PlO meter, an thstr~ t

that measures

for

the

presence of

hydrocarbons 

(i..., 

petroleum product.), the

test was positive.

(Tr. 8, 10—11, 31, 32—33, 

73.)

Although .~ilsamples were taken 

from 

underneath each of the

23 lISTs, 

soil 

samples of the UST5’ contents were taken. (?r.

33-34.) 

The

samples that 

were 

obtained from the USTs that were

filled 

with

water 

had

a

visual sheen

on

-the tap a1thc~aghthere

was no odor associated with th. water. (Tx. 19—20, -~3.)

On January 14, 1992, Reicbhold filed it. application for

reimbursement with the Agency. (Joint Ex. 1;.

Agency Rec. 

pp. 37—

76; Petition Attach. 1.) Reichhold sought reimbursement for

expenses incurred in association

with the removal of 28 leaking

lISTs on its property. 

(Joint Ex. 1;

Agency

Rac. pp. 37—76;

Petition Attach. 1.)

Mr. Roger Huddleston, a 

bydrogeologist and

0138-0095

4

project manager with ~i2M 

assisted Reichhold with it. application

and with the

preparation of a N45_Day Reports required 

by the

Board’s UST regulations.

(Pr. 36, 37—38, 39, 73,

79, 82, 83;

Pet. Ex. 2.)

The

45-Day

Report 

contains the analytical

results

from the soil samples

taken beneath 

each USTs as well as the

groundwater 

remaining after 

the USTs were

removed.

(Tx. 47, 91-

92.) Those results 

indicated 

that the 

lISTs contained some

type

of hydrocarbon. (Tx. 54.)

In discussions with 

the Agency, Mr. Euddleston was 

told

that, 

reimbursement purposes, 

the Agency wanted to know

the

substance 

~ contained in each UST. 

(Tx. 46—47.) Although MrS.

Nuddleston could not determine

the

last substance

that each tank

had

contained, be reviewed

certified copies 

of Sanborn amps for

1919, 1951, 1975,

and

1991 as

well 

as certain

analytical data

that was contained in

the 45—Day Report. (Pr. 

41—45; P.t. 

Exs.

2, 3, 4, 5, and 6.)

The 1951

Sanborn

amp depicts a Shell distribution facility

with several UST. in the area of

the

site

where UST5 were

actually 

discovered 

during

the

r.a.dietion. (Pr. 

-~42~,43;

Pet.

Ex. 3.) The 

map also states, 

“10,000 

gal. qasol, kexosane and

fuel oil tanks underqr.” (Tx. 44—45, *2—83; 

Pt. Ex. 

3.)

The

1975

and

1991 Sanborn maps show the 

presence 

of Illinois

Adhesives 

Products Company and Swift 

Adhesive Ptoducts,

respectively, at 

the

site. (Tx. 42, 104;-

Pet.~s.

4, 5.) The

.1919 Sanborn map

shows

the property as being 

unoccupied. (Pr.

42; Pet. Ex. 6.) Neither

the

1919, 1975, or

the

3991

Sanborn

maps show lISTs. (Pr. 43; Pet. Exs. 4, 5,6.)

-~Sas.d-on~the

documents, 

Hr. Huddl.ston

concluded

that 

the 23 USTs

had

contained 

either gasoline,

kerosene, 

diesel

or -Susl oil and of

these,

his

“best

guess”

was gasoline

or diesel.

(Tr.-~51.)

Based. 

Mr.

lluddleston’

s understanding ~that

nly

the

last

substance could

listed on the

reiabur.aent application, but

after considering

that another

“eligible”

-aubstance could

have

been 

the last

substance in

the

UST5, 

Kr.

Huddleston

advised

Reichhold,

when

asked by the Agency to identify

the last

substance in

each

tank, to

place a question

mark *fter

the

answer

to indicate that Reicbhold

was uncertain

as to

whether

gasoline

or diesel was the last tank 

content. (Pr. 

51,

53,

82,

83, 84.)

Accordingly, in answer to 

question

8(j) on -the 

application,

Reichhold listed a single substance (i.e., 

gasoline -or diesel)

followed by a question 

mark.’ 

(Pr. 51, 53, 83, 94, 130; Joint

Ex. 1; Agency Rec. pp. 39-76; Pet. Attach. 1.) 

Reichhold 

also

answered “unknown” to questions 8(a), (b), 

and

(C) inquiring

‘When 

asked to identify 

the

contents of 

Tank 

No. 25, Reichhold

supplied the answer “gasoline”. (Pr. 94, 112.) -However,- due to

typographical error, Reichhold did not place a question mark after

the term. (Tr. 94—95.)

0138-0096

about

the address of 

the owner at the time of the lIST

installation as wel. as 

the installation and out—of—service dates

for the 

TJSTs. 

(Pr. 87, 88, 95—96, 

129—130; Joint Ex. 1; Agency

Rec. 

pp. 39-76; Pet. Attach. 1.)

Mr

•

Steve Jones,

-one of the Agency’s environmental

protection specialists, reviewed Reichhold’s reimbursement

application. (Pr. 108, 109, 126—127.) lix. 

Jones determined that

Reichhold’s answers of 

“unknown”

the

questions 

of when the

USTs were installed and when they were taken- 

out

of

service was

unacceptable.

(Tx. 100-101, 109.) He also construed

the

question mark in response to the question of tank contents a.

unsatisfactory.

(Tx. 90, 109.)

On March 17, 1992, 

the

Agency sent a -letter to 

Reiclthod

detailing

Mr. Jones’s concerns. (Pr. 109, 111—112, 128; Agency

Rec pp. 32-33.) It also 

returned

Reichhold’s application, and

requested 

additional information on R.ichhold’s answers to

question 8 for 23 of the 

USTs. (Tx.

85—86, 90, 

3.28; Agency Rec.

pp. 32—33) On April 15, 1992, and in response to the Agency’s

)iarch 

17, 1992 letter, Reicbhold .nt~itteda 

supplemental

application containing additional 

information 

to the Agency.

(Tx. 90—91, 112—113, 122, 128—129; Agency 

Rec. pp. 

34—36;

Petition Attach. 3) Although Reichhold referenced the 

1951

Sanborn 

map in its letter, 

it did not

include -the 

map in its

submitta1.~ (Tx. 99, 112—113, 118—119, 122.) &fter Mr. 

Jon..

reviewed Reicbhold’s April

3.5,

-1992

su~1~.ntal application,

be

determined that it was iapo~sible for Reichhold to know the

installation or out—of-service

dates Of the tanks 

because

Reichhold

was not in 

control 

of the 

-Shell facility. (Pr. 112.)

On May 22, 1992, Reichhold 

mailed it. “45—Day Report” to the

Agency.’ 

(Pr. 21, 91; 

Pet. Ex. 2.)

0nlIa~y36,-1992,the Agency

determined that five of the

UST5 

were .114th3s to mofl.ss 

the Fund

for reimbursement and that 22 of the UST5 (Tank Mo. 3, 7-28 with

the exception of

Tank No.

25) were ineligible bsceuse 

the

contents of the 22 USTs had not been “positively identified”.

(Pr. 110-111, 113, 116; Agency

Rec.

115—117; 

Petition Attach. 

4.)

Of the 23 lISTs, the Agency determined 

that

only Tank 

No. 25

was

eligible to access 

the Fund. (Pr. 

116.) lix.

Jones testified

that the

sole 

basis 

for such approval was th. fact a

question

mark 

had not

been 

written after

“gasoline” on line 8(j). (Tx.

3Mr. Jones did not request

any

verification 

regarding th.

map

even though he

was seeking documentation, such as 

historical 

or

inventory records, that would indicate 

what 

was held in the 

lISTs.

(Pr. 113, 114, 118—119, 122, 131.)

‘As previously stated, the 

Agency

received the 45—Day Report

after issuing its May 26, 1992 final determination. (Pr. 5, 

48,

50, 114.)

0138-00-97

6

116.)

APPLICABLE REGUL&TIONS

Section 22.18b(a)(5) of the Illinois

Environmental

Protection Act (Act) allows owners

or operators whose lISTs

contain certain, specific substances to access

the Fund.

Section

22b(a)

(5) specifically provides, in part,

as follows:

an owner or operator is eligible to receive

money from

the Underground Storage

Tank fund

for costs of

corrective action or indemnification only if all, the

following

requirements 

are

satisfied:

-* * **

(5) The released 

petroleum

within one or more of

the following

categories:

(A)

Fuel, 

as

that

term is defined in 

Section 1.19-

of the Motor 

fuel 

Tax Law.

(B)

Aviation 

fuels, heating 

oil, or kerosene.

(C) Used oil. For 

purposes 

of

this Section,

“used oil”

means any

oil

that has been

refined 

from Crude

oil

used in

motor

vehicle, as

that term

is defined in

Section

1.3 of

the

Motor Fuel Tax 

‘-Law, and

that, 

as a

result of

that use,

is contaminated b~’

physical or

chemical impurities.

The

definition at fuel in the

Motor Fuel Tax Law,

Ill.Rev.Stat.

1993.,ch.

120, par. 417.19,, is as follows:

f)uel mean, all liquids defined as

“Motor Fuel” 

Section 1.1 of thiS

Act and 

aviation fuels

and

kerosene, but excluding

liquified petroleum 

gasses.

Section

3.1

of

the Motor

Fuel 

Tax

Act,

I1l.Rev.Stat. 1991, ch.

120, par. 417.1, defines

motor

fu*l as follow.:

a.. volatile 

and

inflammable 

liquids 

produced blnded

or compounded 

for the

purpose of, 

or

which are

suit- la

practicable for, 

opeating

motor vehicles....

DISCUSSION

The issue 

in this case revolves around two differing

interpretations of Section 22. 18b(a) (5) of the Act.

The

Agency

argues that Section 

22. 18b(a) (5) requires an applicant 

identify the last contents of a lIST with certainty. Reichhold,

0138 -1J098

7

the

other hand, argues that Section 22.18b(a) (5)

contains no

such requirement.

The

Board must determine

what

level of

proof

is required to establish eligibility to access

the Fund.

The Agency’s May 26, 1992 letter states

that Reichhold

failed to “positively identify” the

contents

of

the tanks

f

which

Fund

eligibility was denied. (Agency

Rec. 

115—117;

Petition Attach. 4.) Section 22.lBb(a) of the Act sets

forth

five elements necessary for Fund eligibility, and

subsection

(a) (5) limits eligibility to

lISTs containing c.rtain subStances,

among

them gasoline, diesel fuel, heating oil, end

kerosene. The

Act does not expressly require 

“positive identification” of those

substances. The 

statute

does

not .vsn contain er 4sfin. the term

“positive identification” 

•

Moreover, 

no cOurt baa met 

the

standard of proof for

Fund reimbursement

certainty.

Rather,

Section 22.l8b(g) of the Act applies 

the same -atandard 

of

proof

that is used in

permit 

reviews pursuant to

Section 

40 of

the Act.

The

Board

has held the Section 40 standard of

proof to be

preponderance of

the

evience.

(pril 23, 

1992), -P~

88—98- at 

133

PCB

lii,

313; ~

(March 9, 1989), PCB 85—140 at 3, 97 PCB 09,91. (0S also 

..~.~

....‘...L..~

•.~

~..: ~.

...

.~....

102. 106. 

and

107 (September 

22, 1988),

R88’-S at 

21,22, ~2 P~

575, 595, 596.)

Moreover, the Agency itself

has

not

prcaulgat.d regulations

that require content identification or define the term

‘“positive

identification” even though it is authorized to so in the Act.

Section 22. l8b (f) of

the Act explicitly 

authorizes the Agency 

“adopt reasonable

and

necessary rules

‘for the administration

(the Fund)

.“

Section 

3

•

09’ of the Añ~inistrativ*

Procedure Act,

Ill. Rev. Stat. 1989, ch. 127, par. 1003.09,

defines

“rule” as

follows:

“Rule” mean, each agency

statement of general

applicability 

that implements, applies,

interprets, or

prescribes 

law or

policy, 

but.

does not include (a)

statements concerning

only the

internal management

of an agency

and

not affecting private

rights 

or procedures-

available to

persons 

entities 

outside the

agency, (b) informal

advisory 

rulings...

(c)

intra-agency

memoranda or (d) the

prescription of 

standardized

forms.

(See Flatolene 500 Inc.

IEPA 

(Nay 

7, 1992),

P~B

92—9 at 4-5,

133 PCB 234, 237-238; See also Warren’s

Service 

IEPA (June 

1992), PCB 92—22 at 3, 134

PCB

41,

43; Strube

V.

IEPA (May 21,

1992), 

~ca

91—205 at 

3, 133 PCB 477, 479).

The Agency does not 

even require content identification with

absolute certainty or define or use 

the term “positive

0138-0099

identification” in its

own UST guidance 

manual

entitled “Leaking

Underground

Storage

Tank

Manual! 

(Fall,

1991) or in 

its

UST

reimbursement application form. In tact,

- the Agency, in 

its

reimbursement application,

does 

not ask the applicant to justify

its identificationBased

on the

above~

of a UST’sthe

Boardcontents.

cannot

4

conclud, that

the

intent of the law and regulations

to determine mbich of

two

eligible substances are last in

USTs 

•

The

matter would be

different if 

the

debit. were

between 

an eligible substance-

and

non-eligible

substance

•

Then, arguably,

the Stat.’. 

interest 

protecting the

Fund

from 

invasion by parties not intended by the

General

Assembly 

to be eligible 

for the Pun4*ould come .tTtto

question.

If, however, it can be proved by

a ~pr.por~derance

of

the evidence that an eligible, substance via thS last

substance

contained in

the

USTs, Fund eligibility

shot~ldbe accorded.

In the

instant

case, Reichhold met its ~zrd.n f-proving-

that

its lISTs 

last contained an 

eligible bIteuoe~3*V1xst,

testimony elicited on 

behalf 

of

Reichhold -indicates that 

positive

identification of the tanks 

last contents -with

absolut, certainty

is

technologically infeasible. Bp.cifica11y,~.~r!ici. Clime,

an environmental chemist and project manager for ~3X, 

testified

that 

she reviewed the 

analytical data

from 

the

soil - 

samples taken

from

under 

each 

lIST. (Tr. 55, 59-60, 63.)~ Dr. Chin,

testified

that 

in

order to 

“fingerprint”

petroleum 

sampleS, a~*efrnce

lample 

is necessary 

but that, no such 

ssapli 

‘-ax.

svailable

for

specific

products.

-

(Tr. 57—59.) SkiS

concluded that,~aesidering

the, age and the

poor

condition 

of

the

UST5 -at ~

~isre is no

test that

would 

hav,

enabled Reichhold -to 

posi~i’

y—44.ntify the

last contents of

the

UST5. (Tr. 62.)

It is

important

to note 

that

despite the 

technological

inteasability of identification, Dr. Chin,

could find 

no

inconsistencies in the data with 

the conclusion that 

the USTs

contained 

either gasoline, 

diesel fuel, 

heating

Oil, or 

kerosene.

(Tr. 63.)

-

Dr. Clime

also

did

not see anything in the data

that

indicated -that a

substance other thkn

gasoline, 

diesel fuel,

heating oil., or kerosene was

contained in the .UST.. (Tr. 63.)

The

Agency did not

cross—examine Dr.

Chin.. lTr. 

64.).

Even though Dr. Chin, testified that 

positive ‘identification

of

the

USTs’ last

contents 

with 

absolute certainty 

is

technologically 

infeasible, testimony elicit ~idat 

hearing

indicatea that

the

lISTs last contained an eligible 

substance.

4The 

Board’s regulations do not require applicants to obtain

samples of the UST contents. (Tr. 

34, 50.) Nor has the Agency

promulgated regulations that require applicants to obtain such

samples.

0138-0100

Mr. Price testified that the black soil 

that

was

encountered

during 

the

excavation is indicative of diesel 

and

fuel oil

contamination (Tr. 28.) Mr. Price 

also

provided 

extensive

testimony on the 

odors that were prevalent

at th. site.

Specifically, Mr. Price testified 

follows:

A

•

On the 

tanks 

that 

were

filled with ‘later, I could not

make 

a determination 

as to what the tanks. contained,

whether

it be gasoline or diesel.

The

tanks

that bad

been filled with sand or backfill,

when

we were 

actually cleaning the tiuks out,

occasionally during that cleaning p1~Obsss“or during the

certification

process

I would 

smell

like a gasoline

odor.

The predominant odor of this

entire

site 

was a very

strong 

diesel smell. So when i.e did *aehl 

jasohine

-from the tank it was noticeable.

~ 26.)

A.

. . .

Occasionally when I would be cleaning 

cot i ‘tank, I

would smell like gasoline 

ime.dis~bly.kndIwould

say, well, 

that tank was 

gasoline,~ayb.

contained

gasoline.       

‘

-

But the 

overridin~odor 

was

diesel. ~*nd so

it

seemed

like most

of the 

tanks wore either’*$ohine or

diesel.

(Tr.30.)

In addition to the

above, when Mr. Price tsted the

UST

excavation with the PID meter for

the pr.sencs of hydrocarbons,

the test

was

positive. 

(Tr. 31, 32—33.)

i*or.over, ‘-the samples

that

were obtained from 

the

lISTs that were

filled

with 

vSter

bad

a visual sheen on the top. (Tr. 

39,

33.)

Reichhold 

also presented evidence at the b.arthg that

indicated that the lISTs, in

fact, were used

‘by~1beh1-to

store

either gasoline or diesel fuel. Th.

1951

*anborfl asp ~dpicts a

Shell

distribution facility and a nabsrøf-~Ts4Wtbe’*reaof

the site where

USTs ware 

discovered durii~ -the

~r...diation. (Tr.

42, 43; Pet. Ex. 3.) Th~

sap

also states,

‘10,000 

gal. quol,

kerosene and fuel oil tanks und.rgr.” (Tr. 44—45, 02-03; Pet.

Ex. 3.) 

There are

also no lISTs 

indicated

on

the

1919, 1975, or

1991 Sanborn maps.’ (Tr. 43;

Pet. Exe. 4, 5, 6.)

5The Banborn

maps and

the

45-Day

Report 

were not in the

Agency’s possession prior to its reimbursement determination. (Tr.

5,

48, 50, 113, 114, 118—119, 122.) The

Agency, 

however, did not

0138-0101

10

•

Bruce 

Kanzler, 

Reichhold’ s senior environmental

engineer, testified that he

concluded 

that

Shell owned 

the

USTB

at issue after examining 

the

1951

Sanborn map. (Tr. 

68, 75.)

Mr. Huddleston testified 

that

he

concluded that 

the 23 

lISTs had

contained gasoline, kerosene, 

diesel,

or fuel oil, and 

that

his

Ubest guess” was 

either 

diesel

or fuel oil after 

examining 

the

1919, 1951, 1975, 

and

1991 Sanborn 

saps, 

as well as 

the

analytical data contained in the 45-Day Report.

(Tr. 45, 51—52;

Pet. 

Exs. 2,

3, 4, 5, 6.)

In addition to 

the above,

Mr. Huddleston testified that,

although a prior adhesive operation 

bad been located 

on the site,

the large

petroleum-based lISTs were inconsistent

with such a

use.

(R. 102.) Mr. Huddleston also

testified that, 

although

it

was

possible that an owner 

subseqi~ent

to Shell could

have 

used the

lISTs, it would be commercially

unfeasible

for

subsequent

users to

have changed the

tank usage

to other 

products -due

to

contamination. (Tr. 

102—103.)

Mr.

Kanzler

also testified 

that

it

would not make 

sense for

the adhesive 

manufacturing operatibna 

at

the

site 

to use such

large

capacity

USTs because the 

businesses were small quantity

concerns, 

and

because’

any adhesive 

chemicals stored

in UST 

that

had previously contained

hydrocarbons

such as

gasoline, kerosene,

‘and

diesel would not mix with 

the

hydrocarbons.

(Tz. 102-103,

104, 106, 107.)

As can be

seen from th~ above,

there is

ample

evidence

in

the

record

that indicates that

the USTs at

-

Issue

contained’

eligible substance.

The

Agency, in

its post—hearing

briefs,

points to almost

substantiv, evidence

in its effort

to rebut

Reichhold’ S case, in chief.

In fact, testimony from

the Agency’s

object to the introduction of the

documents as -.irhibits. (Tr. 

.41,

140—141.)

permit appeals, the 

permit

application

package 

must

demonstrate compliance with

the Act.

a result,

the Board

reviews the denial of a

permit 

imposition 

-permit conditions

based on the application

submitted to 

the Agncy. 

~.Tohi.t

Sand

‘&

Gravel 

V.

PCB (3rd

Dist. 1987), 163’ Xll.App.3d~30,S16~.E.2d

955, 958.

The

Board,

however, is 

b.sitant to atrictly

apply

-this

rule in

UST

cases because

no r.gviations

exist identifying

the type

of information

necessary

complete 

a reimbursement application as

• exists for

permit

applicants. 

(-‘e Soarklina

sprina

Mineral Water

-Co. v. IEPA (May 9, 1991), PCB 91—9 at 3—4, 122 P~B115, 117—118.)

Moreover, Reichhold introduced this

evidence - 

in response to

the

Agency’s charge

that Reichhold did not prove 

that the lISTs

contained gasoline or diesel. fuel.

(see Soarklina

Soring

-at 3-4,

122

PCB

at

117-118.)

Accordingly, the Board will refer to the

documents in its review.

0138 -0 102

own

reviewer indicates that his decision was based 

solely on the

presence of the question marks 

Reichhold’s application rather

than on the issue of whether the lISTs last

contained an

eligible

substance. (Tr. 116, 123.) Specifically, Mr.

Jones 

acknowledged

that

Reichhold’s April 15, 

1992

letter to 

the Agency narrowed the

issue

the

USTs’

contents

to either

gasoline

diesel and that

both were eligible substances.

(Pr. 124—125, 138.) ‘Mr. Jones

also

acknowledged that he would have 

approved Reichhold’a entire

application

if Reichhold had

not

placed the question marks on its

application.

(Pr. 138.)

Mr.

Jones, in 

fact-, admitted

that be

approved 

reimbursement 

for

Tank

No

•

because there

was no

question mark. (Pr.

116, 138.) The Board, 

however, wishes to

specifically address certain

assertions and 

cvints

-‘that 

were

made by

the

Agency in its post-hearing briefs regarding

the above

evidence.

After reviewing the record in this case, the Agency, in it.

post-hearing

briefs, argues 

that

Rmichhold,4s using 

.J!best

guess”

standard 

even

though it

is not 

thS irnvel

of

specificity

the legislature intended.

(Agency Rasp. -Br. ~pp.

2—4.) 

The

Agency sarcastically refers to the “first al,.~nt,4r!,,

(Reichhold’s) 

“best

guess” 

standard, Randy Price’s nose.”

(Agency Rasp. Br. p. 5.

The

Agency

also

questions whether the

saturation affected the 

contents of the lISTs :aM Kr. Price’s

olfactory

observation,

and whether contamination Sr-cm other areas

reached 

the

lIST 

excavation.

(Agency rasp 

•

Br. pp

•

S~6.) 

The

Agency also notes 

that Mr. Price admitted an cross-examination

that

the

PID

meter can indic~ate

the presenc. of 

any petroleum

product, not just gasoline or diesel, and 

that Mr. 

Jones

testified ‘that

petroleum bulk facilities can -also handle

non—

eligible

substances

such as 

virgin 

motor

oil

‘end lubricating

greases 

and

oils. (Agency 

Rasp.

Br. pp. 

5, 7~citing toTr.

33,

119.).

The

Board

first wishes

to note 

that

the Agency proviass no

basis

for its assertion regarding 

the level of specificity mesded

to determine eligibility.

As for the Agency’s

characterization

of Mr. Price’s testimony, the

Board

emphasizes 

that

the Agency

did not even 

attempt 

rebut Mr. 

Price’s 

testimony regarding

odor

even though it places so little 

weight -an an expert’s

reliance on his olfactory 

senses. Mr. Price specifically

testified that

ha is able to 

distinguish among a -~vaz~~ty

of

substances

(i.e., diesel, gasoline,

acetone, tOluen.,*yl.nej

based

on

their

odor. (Pr. 

10, 34-35.) He

also testified that

he never

smelled 

any

odors

that

were inconsistent

with a gasoline

or diesel

smell and, 

specifically, did not smell 

any toluene 

xylene. (Pr. 27, 34-35.)

The Board can think 

many

professions where the use of one’s olfactory senses 

are essential

to job performance.

The Board is also at a loss to understand why the Agency

failed to

question ~y witness regarding the issues of saturation

0138-0103

12

and

possible contamination from 

other

areas but

waited

until

the

submission 

of its post—bearing brief to raise these questions in

an effort to challenge

Mr. Price’s testimony.  

-

Finally, the

Board

agrees 

with the

Agency’s arguments that

positive reading on. a PID

meter and the 

presence

of a 

petroleum

bulk distribution 

facility are 

not dispositive 

of the 

presence of

an eligible substance such as

diesel 

fuel or

gasoline. The same

can

be said of any

factor

(i.e., odor, soil

coloration,

tank

size, 

analytical

data 

indicating

the

presence 

of

hydrocarbons,

etc.), if it is examined 

in isolation. 

The Board, 

-however,

believes that several factors ~ when examined

toqether, can

create

a rebuttable presumption.

CONCLUSION

P1w Board cannot conclude 

that th~intent ‘of

the ‘Act and

regulations is to

determine which of two. 

-sligibi.

substances is

last

contained in lISTs

•

The Act

doss not 

~‘‘

iy’*Iquire nor

does 

it refer to “positive id.ntificatioit”~’

‘

-

Moreover, no court

has

set the standard ~1

pz~!

reimbursement at certainty.

Rather, SectiOn *21Bb(ç)~1bf the Act

applies 

the

same 

standard 

of

proof that is Used 4n~~~t

reviews

pursuant to Section 40 of

the Act, 

The Boardli*M hSId 

the

Section 

40 standard of 

proof

to be 

pr.pondez*nCS~f tbl~idence.

Accordingly,

Fund

eligibility 

should be acoOE~.d

‘~if

-It can be

proven,

by a 

prepOnderance

of

the evid.ncs,’tb*t

-‘an_eligible

substance 

was

the substance. last contained in .~-VST..

-

The Board

finds 

that

Reichhold’s .vid~~S~iias

the

admissions of Mr. Jones created a pre.usptiOn~t!i~m.*_Ts in

question last

contained en

eligible

substéMos 

~i~~óither

diesel fuel or gasoline).

The Agency failed to

rebut the

presumption.

Accordingly, the

Board hereby

reverses ,,the

Agency’s May 26, 1992 denial of

reimbursement qor”Reid,hold’s

lISTs.

ORDER

‘The Board hereby reverses the Agency’S

hay

26, 1992

determination

regarding

the non-reiabursability

‘of

re~iidiation

costs incurred by Reichbold

for

it.

22 -UM.r~rdUnd

$toàge tanks.

--

~

‘-~ -•

Section 41 of 

the Environmental

Protectiàñ ~&~l1. Rev.

Stat. 1991, ch. 111½ 

par. 

1041, provides 

fcr~appsl Of final

Orders 

‘~e

Board within 

35 days. 

The Rulas

of

the

Supreme

Court

of Ilinois 

establish filing requirements. 

(But