2

Martins allegedly violated these provisions through the dry cleaning business that they

operated at the shopping center.

The Board finds that the Martins, through their dry cleaning business, violated Section

21(e) of the Act by improperly disposing of waste. The Board finds, however, that the

Martins did not conduct a “hazardous waste-disposal operation” such as would require a

RCRA permit. The Board therefore finds that the Martins did not violate Section 21(f)(1) of

the Act. The Board further finds that the Martins did not violate Section 12(a) of the Act or

Section 620.115 of the Board’s regulations because the evidence regarding contamination of

groundwater is insufficient. The Board orders the Martins to remediate the contamination on

the property to the extent that the property owner grants them access for that purpose.

PROCEDURAL HISTORY

Matteson filed its complaint on January 17, 1997. After a period of discovery,

Matteson filed a motion for summary judgment on December 24, 1997. On March 8, 1998,

the Board granted the Martins’ motion to strike references in the document to certain reports

on which the motion relied; Matteson subsequently withdrew the motion. On August 2, 1998,

Matteson filed a second motion for summary judgment, which the Board denied on

November 5, 1998. Discovery continued during and after the pendency of Matteson’s

summary judgment motions. On October 19, 1999, the parties filed a “Stipulation to

Uncontested Facts.”

2

Chief Hearing Officer John Knittle held a hearing in this matter on October 19-21,

1999. Three witnesses testified on behalf of Matteson: James Persino, one of the general

partners in Matteson; Jeffrey McClelland, project manager for Pioneer Environmental, Inc.,

who oversaw some of the soil and groundwater sampling work performed around the Martins’

store; and C. Michael Perkins, a hydrogeologist. Four witnesses testified on behalf of the

Martins: Eva Martin; Claude Stevens, an employee of the Martins who was closely involved

in the operation of the Martins’ dry cleaning equipment; David Pyles, a geologist; and

Frederick Krikau, an environmental engineer.

3

Matteson filed a brief on December 13, 1999. The Martins filed a brief on January 24,

2000. Matteson filed a reply brief on February 7, 2000.

4

2 The complaint is cited as “Comp. at _.” The stipulation is cited as “Stip. _.”

3 The transcript of the hearing is cited as “Tr. at _.” Matteson’s hearing exhibits are cited as

“Comp. Exh. _.”

4 Matteson’s first brief is cited as “Comp. Br. at _.” The Martins’ response brief is cited as

“Resp. Br. at _.” Matteson’s reply brief is cited as “Reply Br. at _.”

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3

FACTS

The Site

Matteson is an Illinois general partnership. Stip. ¶ 1. It is the operating entity of

property located at 5601-17 West Vollmer Road in Matteson, Illinois. Tr. at 15. The general

partners in Matteson are the sole beneficiaries of a land trust that holds title to the property.

Id.

; Stip. ¶ 2. An approximately 11,000 square foot convenience retail shopping center is

located on the property. Tr. at 16-17. The shopping center was constructed in 1981. Tr. at

17. The Martins were original tenants in the shopping center. Tr. at 18. The Martins leased

the store located at 5603 West Vollmer Road (the site) from 1981 to 1997. Tr. at 18-19.

Before the shopping center was built, the property was used for agriculture. Tr. at 18.

The Martins’ Operation

During their possession of the site, the Martins conducted an on-premises dry cleaning

operation. Tr. at 19. The Martins operated the dry cleaning business for five years as

franchisees of Martin Franchises, Inc., of Cincinnati, Ohio, under the name “One Hour

Martinizing.” Tr. at 216; Stip. ¶ 11. Later, the Martins operated their own dry cleaning

business at the site under the name “Martin’s of Matteson.” Stip. ¶ 11. Eva Martin was

owner of the dry cleaners at the site from 1981 until 1997. Tr. at 212-13. Eva Martin states

in an affidavit that she and her husband James Martin were responsible for every aspect of

operation of the business. Comp. Exh. R at ¶ 1.

The Martins’ dry cleaning machine used tetrachloroethene (also known as

perchloroethylene or perc).

5 Stip. ¶ 12. No other tenant at the shopping center used perc. Tr.

at 20. In the course of the Martins’ business, Eva Martin and Claude Stevens, an employee of

the Martins, were the only people who worked with the perc. Tr. at 232. Neither of them

observed any leak, spill, or other release of perc from or around any of the dry cleaning

equipment or anywhere else at the site. Tr. at 231-32, 310-11. Nobody on the staff of

Martin’s of Matteson ever reported observing any leaks of perc to Eva Martin. Tr. at 232.

Environmental Assessments

In May 1995, to help sell the business, the Martins retained Pioneer Environmental,

Inc. (Pioneer) to perform a Phase I environmental assessment. Tr. at 21; Stip. ¶ 14. A Phase

I environmental assessment includes studying past and current uses of a subject property to

determine if there are potential environmental conditions of concern. Tr. at 36. Pioneer was

recommended to Eva Martin by James Persino, one of the partners in Matteson, a 50%

beneficial owner of the property, and the sole officer of the corporation that manages the

property. In one of these capacities, Persino acted as landlord to the Martins. Tr. at 15-16,

5 Perc is a chlorinated solvent classified as a “hazardous substance” under Section 3.14 of the

Act, 415 ILCS 5/3.14 (1998).

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4

20. Persino required that he approve any environmental consultant before the consultant

performed any environmental assessment on the property. Tr. at 21, 234-35.

The Phase I assessment indicated that use of perc in the dry cleaning process

represented a potential environmental concern. Stip. ¶ 15. Eva Martin subsequently hired

Pioneer to conduct a Phase II assessment. Stip. ¶ 16. A Phase II assessment consists of soil

testing, which sometimes leads to groundwater testing, to see if recognizable environmental

conditions have impacted a subject property. Tr. at 36-37. On May 24, 1995, Pioneer bored

two holes in the site and selected one soil sample from each boring location for a laboratory to

test. Comp. Exh. B. Analysis of the two samples indicated that perc was present in the soil

under the site. Perc was present in one soil sample at 21,000 parts per billion and in the other

soil sample at 14,000 parts per billion.

Id.

Pioneer was engaged to further investigate the subsurface to more adequately

characterize the extent of perc contamination at the site. Stip. ¶¶ 22-23. On June 14, 1995,

Pioneer returned to the site. Stip. ¶ 24. This time, Pioneer bored six additional holes around

the site. Samples from two of the newly drilled borings also showed contamination by perc

and the compounds into which perc degrades. Comp. Exh. C; Stip. ¶ 27. Also, water

appeared in two of the borings. Comp. Exh. C.

Pioneer returned to the property on April 23 and 24, 1996, to further investigate the

subsurface. Stip. ¶ 31. Eva Martin engaged Pioneer to gather additional data regarding the

extent of the contamination, and to perform a pilot test for a soil vapor extraction (SVE)

remediation system. Stip. ¶ 29-30. The purpose of the SVE pilot test was to provide data

necessary to determine the feasibility, efficiency, and size requirements of a SVE remediation

system for the property. Comp. Exh. E. During its investigation, Pioneer bored ten more

holes around the site.

Id.

Samples from five of the new borings indicated contamination.

Id.

During the April 1996 investigation, Pioneer encountered groundwater at the site.

Comp. Exh. E. Pioneer had not expected to encounter any groundwater. Tr. at 122.

Concurrent with that round of soil testing, Pioneer installed nine groundwater monitoring wells

to determine the site’s groundwater elevation and whether groundwater had been impacted.

Comp. Exh. E. Elevation of the water table differed from well to well by up to six feet.

Id.

Pioneer attributed this variation to foundation footings and fill materials associated with the on-

site structure.

Id.

Pioneer took groundwater samples on several different dates, including April 24, 1996,

April 26, 1996, May 17, 1996, and June 25, 1996. Comp. Exh. E, Table 2. Water samples

from six monitoring wells indicated that perc was present in the groundwater.

Id.

Samples

from four of these wells also indicated that trichloroethylene, a compound into which perc

degrades, was present.

Id.

Pioneer’s report places the site at the center of both the soil and groundwater

contaminant plumes. Tr. at 83-84; Comp. Exh. E, fig. 3, 4.

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5

Pioneer’s Well Construction and Sampling

Methods

Pioneer’s protocol to install groundwater monitoring wells and sample them calls for

Pioneer to use a hollow stem auger to bore the hole for the well. Comp. Exh. E, App. C. A

hollow stem auger is similar to a large drill bit with an open center. Tr. at 96-97. While

drilling, a cap on the bottom prevents soil from coming up through the inside. Tr. at 97.

When drilling is complete, the cap is removed and the well casing inserted.

Id.

Due to limited

space at the site, however, Pioneer did most of the boring with a hand auger. Comp. Exh. E,

App. D; Tr. at 69. A hand auger is inserted into a hole and twisted into the soil, then pulled

up and the soil knocked out; this process is repeated until the desired depth is reached. Tr. at

98. Using a hand auger is not the preferred method to drill a groundwater monitoring well.

Comp. Exh. T; Tr. at 365-68. It allows surficial contaminants to carry down through the bore

hole repeatedly. Tr. at 335. Furthermore, the hand auger itself could smear contaminants

down the inside of a bore hole. Tr. at 99. The preferred method to drill a monitoring well is

to use a hollow-stem auger. Comp. Exh. T. Nevertheless, using a hand auger is an accepted

methodology to drill monitoring wells.

Id.

Pioneer also deviated from its protocol when it developed the monitoring wells and

collected water samples. Under the protocol, Pioneer is to develop a well by purging from

five to ten well volumes of water. Comp. Exh. E, App. C. There is no evidence that Pioneer

did this at the site. Under the protocol, Pioneer generally is to purge three to five well

volumes before sampling to ensure that the sample accurately represents groundwater

conditions.

Id.

Due to low hydraulic conductivity of the soil under and around the site,

however, Pioneer was unable to purge three to five well volumes; the wells recharged too

slowly. Tr. at 70. Instead, Pioneer purged one well volume, waited for the well to recharge,

and then took samples. Tr. at 114. This sampling procedure, while not ideal, is not

inappropriate given the circumstances at the site. Purging a single well volume before

sampling is acceptable under United States Environmental Protection Agency (USEPA)

protocols when working with wells in an area of low conductivity. Comp. Exh. T.

Finally, Pioneer’s Quality Assurance/Quality Control (QA/QC) procedure to sample

groundwater calls for Pioneer to collect a field blank between sampling events. A field blank

is rinsate water from decontaminating between sampling events to ensure proper

decontamination. The QA/QC procedure also requires that Pioneer include a trip blank with

samples transported to the laboratory for analysis. A trip blank is a de-ionized water sample to

ensure that samples are not contaminated during transit. Comp. Exh. E, App. C. When it

sampled at the site, Pioneer took only one field blank, and did not use any trip blanks. Tr. at

118-120.

ANALYSIS OF ALLEGED VIOLATIONS

The complaint has three counts. In count I, Matteson alleges that the Martins violated

Section 21(e) of the Act by improperly disposing of waste. In count II, Matteson alleges that

the Martins violated Section 21(f)(1) of the Act by conducting a hazardous waste disposal

operation without a RCRA permit. Finally, in count III, Matteson alleges that the Martins

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6

violated Section 12(a) of the Act and Section 620.115 of the Board’s regulations by causing

or allowing the discharge of contaminants so as to violate the Board’s water quality standards.

The Board will address these counts in turn.

Count I: Improper Waste Disposal

In count I of the complaint, Matteson alleges that the Martins violated Section 21(e) of

the Act. Section 21(e) provides:

No person shall:

* * *

e. Dispose, treat, store or abandon any waste . . . except at a site or facility

which meets the requirements of this Act and of regulations and

standards thereunder. 415 ILCS 5/21(e) (1998).

The Martins argue that the Board cannot find that they violated Section 21(e) because

there is no evidence that any act or omission on their part resulted in the contamination. Resp.

Br. at 6-10. Matteson asserts that the Board can infer from circumstantial evidence that the

Martins’ operation was the source of the perc in the soil, and that disposal of perc from the

Martins’ business must have occurred at or around the site. Comp. Br. at 13.

Evidence may be either direct or circumstantial. Circumstantial evidence is the proof

of facts and circumstances from which the fact finder may infer other connected facts that

usually and reasonably follow according to common experience. Direct evidence, by contrast,

is proof of a fact without the necessity of inference. See People v. Sherman, 110 Ill. App. 3d

854, 859, 441 N.E.2d 896, 900 (2d Dist. 1982). There is no legal distinction, as to weight or

sufficiency, between these two types of evidence. See People v. Robinson, 14 Ill. 2d 325,

331, 153 N.E.2d 65, 68 (1958).

In this case, Matteson presented no direct evidence that the Martins leaked, spilled,

dumped or otherwise disposed of perc at the site. Unrefuted evidence, however, shows that:

(1) the Martins’ business used perc in its dry cleaning operations; (2) no other tenant of the

shopping center used perc; (3) perc was found in the soil around and under the site; and (4) the

site is roughly at the center of the affected area. These facts constitute persuasive

circumstantial evidence that the Martins’ business was the source of the perc contamination in

the soil.

The Board finds that the Martins, through their business, disposed of perc at the site.

The evidence is insufficient to find that the disposal was knowing or intentional, but neither

knowledge nor intent is an element of a violation of Section 21(e). “Disposal” includes

“spilling” and “leaking.” 415 ILCS 5/3.08 (1998). It is undisputed that the site does not meet

the requirements of the Act or its implementing regulations for waste disposal. Accordingly,

the Board finds that the Martins, through their business, violated Section 21(e) of the Act.

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7

Count II: Hazardous Waste Disposal

Operation Without a RCRA Permit

In count II of the complaint, Matteson alleges that the Martins violated Section 21(f)(1)

of the Act. Section 21(f)(1) provides in relevant part:

No person shall:

* * *

f. Conduct any hazardous waste-storage, hazardous waste-treatment or

hazardous waste-disposal operation:

1. without a RCRA permit for the site issued by the [Illinois

Environmental Protection] Agency . . . . 415 ILCS 5/21(f)(1)

(1998).

The Board’s first inquiry is whether the Martins engaged in conduct for which a RCRA

permit was required. “Operation,” as used in this context, is not defined in the Act, the

RCRA permitting regulations that the Board adopted, the federal regulations from which the

Board derived those regulations, or RCRA itself. There are a number of indications in the

federal materials, however, that RCRA and the regulations implementing it are not intended to

require permits for unintentional releases.

USEPA stated this proposition most clearly when it promulgated the federal RCRA

regulations, from which the Board derived Illinois’ RCRA regulations. USEPA notes:

Several commentors suggested that the statutory definition of “disposal” given

in Section 1004(3) of RCRA [42 U.S.C. § 6903(3)] should be reworded to make

it clear that an unplanned release or discharge of hazardous waste does not

constitute disposal. They argued that this change is necessary because,

otherwise, accidental discharges will have to be permitted before they are

allowed to occur.

Regardless of whether a discharge of hazardous waste is intentional or not, the

human health and environmental effects are the same. Thus, intentional and

unintentional discharges are included in the definition of “disposal”.

However, [USEPA] agrees that permits logically can only be required for

intentional disposal of hazardous waste. Therefore, the definition of “disposal

facility” has been modified to indicate [USEPA’s] intent that the term does not

apply to activities involving truly accidental discharge of hazardous waste. 45

Fed. Reg. 33066, 33068 (May 19, 1980).

The Board derived Illinois’ RCRA permitting regulations, including the definition of

“disposal facility,” from the federal rules. The Board adopted them as identical-in-substance

rules, as provided for in Sections 7.2 and 22.4(a) of the Act (415 ILCS 5/7.2, 22.4(a) (1998)).

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8

Thus, if the federal scheme was not intended to impose permitting requirements on

accidental discharges of waste, that same intent underlies Illinois’ scheme.

6 The evidence in

this case fails to demonstrate that the Martins knew of or intended the waste disposal at the

site. Although leaking or spilling of perc at the site constitutes “disposal,” the Board finds that

the Martins’ drycleaning business was not a “disposal facility,” and the Martins were not

conducting a “hazardous waste-disposal operation” as that term is used in Section 21(f)(1).

Consequently, the Board finds that Matteson failed to prove that the Martins violated Section

21(f)(1).

Count III: Discharge of Contaminants So As To Violate Water Quality Standards

In count III of the complaint, Matteson alleges that the Martins violated Section 12(a) of

the Act and Section 620.115 of the Board’s regulations. Section 12(a) provides:

No person shall:

a. Cause or threaten or allow the discharge of any contaminants into the

environment in any State . . . so as to violate regulations or standards

adopted by the Pollution Control Board under this Act. 415 ILCS

5/12(a) (1998).

Section 620.115 provides:

No person shall cause, threaten or allow a violation of the Act, the [Illinois

Groundwater Protection Act] or regulations adopted by the Board thereunder,

including but not limited to this part. 35 Ill. Adm. Code 620.115.

Matteson alleges that the Martins violated these provisions by causing or allowing the

discharge of perc and trichloroethylene to groundwater so as to violate the applicable water

quality standards. The standards for these compounds are found at 35 Ill. Adm. Code

620.420(b),

7 which sets a standard of 25

µ

g/L for each.

Before deciding whether the Martins violated Section 12(a) and Section 620.115, the

Board will address whether groundwater was present at the site and, if so, whether the methods

used to sample it were adequate.

6 The Board acknowledges that states may impose more stringent requirements than the federal

counterparts. The Board did not do so in this instance.

7 Section 620.420 contains the standards for Class II groundwater, general resource

groundwater. Part 620 classifies groundwater depending on the water use or the aquifer’s

geological characteristics. Class II is the default classification. There has been no allegation

or evidence that the groundwater at the site falls into any other classification. The Board

therefore looks to the Class II standards to determine whether the Martins have violated the

provisions alleged.

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9

Presence of Groundwater at the Site

Matteson premises the Martins’ alleged violations of Section 12(a) and Section 620.115

on the supposition that the water found in the wells that Pioneer drilled was “groundwater” for

purposes of the Board’s groundwater quality standards. The Martins contest this

characterization.

The Act defines groundwater as follows:

“Groundwater” means underground water which occurs within

the saturated zone and geologic materials where the fluid pressure

in the pore space is equal to or greater than atmospheric pressure.

415 ILCS 5/3.64 (1998).

Martins’ Arguments. The Martins argue that Matteson never proved that there was

groundwater at the site. Resp. Br. at 19. The Martins contend that Pioneer’s investigation

was inadequate to establish that groundwater was present. Pyles, a geologist who testified on

behalf of the Martins, opined that the evidence that Matteson presented did not document that

groundwater was present. Tr. at 352. He noted that the presence of water could be an

intermittent event, which could not be ruled out because Pioneer did not document meterologic

conditions. Tr. 354. Further, Pyles testified that if Pioneer’s evidence of mounded water

under the site is accurate, it suggests that the water may have come from a source, such as a

sewer, that he would not characterize as groundwater. Tr. 357-358.

Matteson’s Arguments. Matteson argues that the testimony of its expert, Perkins,

established that groundwater was present at the site. Reply Br. at 5. Perkins explained that if

water collects in the monitoring wells from the saturated soil, the water is assumed to have an

internal pressure greater than the atmospheric pressure and a differential pressure head. Tr. at

157. Perkins noted that when Pioneer bailed the monitoring wells, the wells recharged,

indicating that groundwater was present.

Id.

Discussion. Groundwater is a subset of underground water that occurs within saturated

geologic material where fluid pressure is equal to or greater than atmospheric pressure.

“Saturated zone” means the part of the earth crust in which all voids are filled with water. See

35 Ill. Adm. Code 620.110. In this zone, the moisture content equals the porosity because all

pore space is filled with water and the fluid pressure is greater than atmospheric pressure. The

saturated zone occurs below the water table, which generally is defined as the surface at which

the fluid pressure in porous medium is equal to the atmospheric pressure. The water table’s

location is usually determined by the level at which water stands in a shallow well open along

its length that penetrates surficial deposits enough to encounter standing water. Under the

statutory definition of “groundwater,” underground water that occurs below the water table is

considered groundwater for regulatory purposes.

Pioneer found water in most of the monitoring wells in and around the site during the

1996 sampling events. When Pioneer purged the wells, they exhibited the ability to recharge.

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10

These facts indicate that groundwater was present. If water collects in the monitoring

wells, it generally is assumed to be flowing within the saturated zone where internal fluid

pressure is greater than atmospheric pressure.

The monitoring data from the 1996 sampling events indicate that groundwater was

present. The Board finds credible Pioneer’s observation that the variation of water table

elevations likely was due to the foundation footings and fill material associated with the on-site

structures, which could make groundwater flow unpredictable. Further, seasonal and yearly

fluctuations of the water table can significantly affect the water table observations. Regardless

of the source of the mounded water, once the water reaches the saturated zone, it is by

definition groundwater for regulatory purposes. The Board finds that the water in the wells

was groundwater.

Well Construction Methodology

The Martins also argue that the Board should not rely on Pioneer’s sampling data

because it is unreliable. The Martins assert that because Pioneer constructed most of the

monitoring wells with a hand auger, the sampling data is unreliable. Matteson argues that,

notwithstanding deviations from preferred methodology, using a hand auger was appropriate in

this case.

Martins’ Arguments. The Martins argue that Pioneer deviated from its protocols for

constructing groundwater monitoring wells. The Martins note that the protocols require

Pioneer to use hollow stem augers to install monitoring wells. Here, Pioneer used a hand

auger both inside and outside the dry cleaning facility. Resp. Br. at 13. The Martins referred

to Pyles’ testimony to argue that the wells that Pioneer constructed with the hand auger were

less reliable. Pyles stated that repeatedly inserting and removing a hand auger allows

contaminants to carry through and down the bore hole. Tr. at 335.

Matteson’s Arguments. Matteson acknowledges that Pioneer deviated from its well

construction protocols by not using hollow stem auger. However, Matteson argues that site

conditions required that Pioneer deviate. McClelland, Pioneer’s engineer, testified that a hand

auger had to be used to construct wells because space at the site was limited. Tr. at 69.

Matteson asserts that using a hand auger is not inappropriate. Comp. Br. at 21. Matteson

notes that USEPA acknowledges that a hand auger is appropriate technology to drill a bore

hole for a groundwater monitoring well. Furthermore, contends Matteson, the fact that using a

hollow stem auger may be preferred given ideal site conditions does not necessarily invalidate

the results that Pioneer obtained.

Id.

Discussion. It is evident from the record that using a hollow stem auger is the

preferred method to drill bore holes for groundwater monitoring wells. However, it is also

evident from the record that other methods, including use of a hand auger, may be used to

construct monitoring wells. Because of space limitations, Pioneer used a hand auger to install

monitoring wells instead of using a hollow stem auger. Using a hand auger has certain

drawbacks. Nevertheless, it is one of the methods listed in the USEPA’s

Handbook of

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11

Suggested Practice for Design and Installation of Groundwater Monitoring Wells

. Comp.

Exh. T at 35. The handbook states that hand augers may be used to install shallow (0-15 feet)

monitoring wells up to 2 inches in diameter with bore hole diameters ranging from 3 to 9

inches. In light of this, and the lack of any direct evidence of any impact, the Board cannot

find that the integrity of groundwater monitoring data was compromised merely because

Pioneer installed the monitoring wells with a hand auger.

Well Development and Purging

The Martins also argue that Pioneer’s practices to develop and purge the monitoring

wells before sampling resulted in unreliable data. Matteson argues that Pioneer’s practices,

while not ideal, were sufficient to generate representative data.

Martins’ Arguments. The Martins point to the fact that Pioneer failed to follow its

protocols for developing and purging groundwater monitoring wells. Resp. Br. at 16. The

Martins explain that the protocols require Pioneer (1) to remove 5 to 10 well volumes to

develop a well and (2) to remove 3 to 5 well volumes to purge the well. The Martins argue

that Pioneer removed only one well volume before sampling.

Matteson’s Arguments. Matteson argues that although Pioneer deviated from its

protocols, the procedures it followed satisfy the minimum requirements for collecting

groundwater from monitoring wells set in soils that exhibit low hydraulic conductivity. Comp.

Br. at 23-24. Further, Matteson contends that the procedures that Pioneer followed are

consistent with the practice of the Illinois Environmental Protection Agency for sampling wells

that are screened in the saturated section of clay soils. Tr. at 181.

Discussion. Developing a well is part of constructing the well. Purging a well is part

of sampling. Both developing and purging a well involve bailing the volume of water in the

well. The purpose of developing a well is to remove contaminated fines that may have been

dislodged by constructing the well. Tr. at 114. On the other hand, the purpose of purging a

well is to remove the static water collected in the well before collecting a sample. Tr. at 344.

Developing a well enhances the flow of groundwater into the well and minimizes the

amount of sediment in the water samples collected from the well. The final step in developing

a well involves removing sediment deposits caused by drilling, so that the samples collected

accurately represent groundwater conditions.

A monitoring well is purged before sampling to remove the static water, so that the

samples collected from the recharged well accurately represent groundwater conditions. The

procedure that Pioneer followed to purge the wells,

i.e.

, purging one well volume before

sampling, is consistent with USEPA protocols for wells in an area of low conductivity.

However, to develop the wells, it appears that Pioneer did nothing. Matteson argues

that Pioneer followed minimum requirements. From the record, however, exactly what those

minimum requirements are is not clear. Perkins stated that Pioneer appears to have followed

the procedures described in the

Practical Guide for Ground-Water Sampling

, which is

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12

identified at 35 Ill. Adm. Code 620.510. Comp. Exh. M at 7. While that guidance

document acknowledges that procedures to develop monitoring wells in relatively unproductive

geologic materials are somewhat limited, it does specify a methodology to develop a well in

such geology. Comp. Exh. M at 3. Pioneer did not use this methodology.

Developing a well is important because it ensures that samples obtained from the well

accurately represent the groundwater flowing through the geologic formation. Purging a well

is particularly important when a hand auger is used because there is a greater risk that

contaminated fines will deposit at the bottom of the boring. It is apparent from the record that

Pioneer assumed that purging the wells once before sampling would adequately address both

well development and sampling concerns. This is inconsistent with the method for developing

wells described in the USEPA guidance document identified in the Part 620 regulations. The

Board finds that because Pioneer failed to properly develop the wells, the sampling data is

unreliable.

Quality Assurance and Quality Control

The Martins also contend that because Pioneer failed to follow proper quality control

measures when it sampled the groundwater, the sampling data is unreliable. The Martins

assert that the sampling data therefore cannot be used to demonstrate that they violated any

groundwater standards. Matteson again argues that, while not ideal, Pioneer’s sampling

procedures were sufficient to produce reliable data.

Martins’ Arguments. The Martins note that Pioneer did not include trip blanks and

field blanks to assure quality control when it sampled the groundwater. Resp. Br. at 17. Trip

blanks are used to document that samples were not contaminated during shipment from the

field to the laboratory. Field blanks are used to demonstrate that decontamination procedures

followed during sampling of multiple wells are adequate. The Martins contend that because

Pioneer failed to include trip blanks and field blanks, its data may not be accurate. Tr. at 360.

In addition, the Martins point out that Pioneer did not follow the groundwater sampling

requirements at 35 Ill. Adm. Code 620.510(c). Resp. Br. at 13. They note that Section

620.510(c) requires a report on field quality control and chain of custody control. The Martins

assert that the Part 620 regulations and protocols impose a duty on any complainant to present

to the Board sampling data that meets these standard quality control requirements when seeking

to prove a violation of the Act.

Matteson’s Arguments. Matteson argues that the absence of field blanks does not mean

Pioneer did not follow proper decontamination procedures in the field. Matteson maintains

that even if it is inferred that Pioneer did not follow proper decontamination procedures when

it sampled on April 26 and May 17, 1996, the same cannot be said of samples that Pioneer

collected on April 24, 1996, which were accompanied by field blanks. Comp. Br. at 26.

Although Pioneer failed to use trip blanks, Matteson argues that the Martins’ suggestion that

contamination detected in the samples may be from sources other than the shallow groundwater

at the site is unfounded. Matteson asserts that because the samples were collected at the site

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13

where perc was used for many years and perc has been found in soil from the property,

another source is highly unlikely. Comp. Br. at 26.

Discussion. Trip blanks and field blanks serve to demonstrate that the samples sent for

a laboratory to analyze accurately represent the groundwater sampled at a site. The record

indicates that Pioneer used a field blank only once. There is no evidence that Pioneer ever

used any trip blanks.

The lack of quality control measures does not necessarily mean that the sample results

are invalid. However, it does raise concerns about their reliability. These concerns are

heightened when the Board is considering the data to decide whether a person has violated the

Act or Board regulations. The Board has specified minimum requirements for reporting

groundwater monitoring results at 35 Ill. Adm. Code 620.510(c). These requirements, which

include both field quality control and chain of custody control measures, constitute minimum

requirements that must be followed to show compliance with the groundwater quality

standards. By extension, they also constitute minimum requirements that must be followed to

establish a violation. Because Pioneer did not follow the Part 620 requirements, the Board

concludes that the sampling results cannot be used to demonstrate that the Martins violated the

groundwater quality standards.

Conclusion

The Board finds that groundwater was present at the site. The Board also finds that

using a hand auger to construct monitor wells did not, by itself, render the data from those

wells unreliable. However, Pioneer failed to develop the wells before sampling. This

omission did render the data unreliable, notwithstanding that Pioneer’s sampling practices may

have been appropriate. Furthermore, Pioneer did not meet the minimum quality control

requirements specified in Section 620.510 because it failed to include sufficient field blanks

and trip blanks. Accordingly, the Board cannot rely on the data to find that the Martins

violated the groundwater quality standards.

The Board finds that Matteson has failed to establish that the Martins caused or allowed

a discharge of contaminants so as to violate groundwater quality standards. The record does

not demonstrate the alleged violation of Section 12(a) of the Act or 35 Ill. Adm. Code

620.115.

In passing in its brief, Comp. Br. at 17, and more explicitly in its reply brief, Reply Br.

at 7-8, Matteson raises the theory that, if they did not cause or allow a violation of

groundwater quality standards, the Martins at least “threatened” a violation. Matteson did not

allege this in its complaint. See Comp. at 9, ¶ 16. While pleadings may be amended to

conform to proof at hearing, Matteson never sought to do so. A party must prevail, if at all,

on and according to the case made in the pleadings. See Lempa v. Finkel, 278 Ill. App. 3d

417, 424, 663 N.E.2d 158, 163 (2d Dist. 1996). The Board therefore will not consider

whether the Martins threatened to violate groundwater quality standards.

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REMEDY

Having found that the Martins, through their dry cleaning business, violated Section

21(e) of the Act, the Board turns to the question of an appropriate remedy.

Section 33(c) Factors

To determine an appropriate remedy, the Board must consider the factors listed in

Section 33(c) of the Act. Section 33(c) provides:

In making its orders and determinations, the Board shall take into consideration

all the facts and circumstances bearing upon the reasonableness of the emissions

. . . involved including, but not limited to:

i. the character and degree of injury to, or interference with the protection

of the health, general welfare and physical property of the people;

ii. the social and economic value of the pollution source;

iii. the suitability or unsuitability of the pollution source to the area in which

it is located, including the question of priority of location in the area

involved;

iv. the technical practicability and economic reasonableness of reducing or

eliminating the emissions, discharges or deposits resulting from such

pollution source; and

v. any subsequent compliance. 415 ILCS 5.33(c) (1998).

Character and Degree of Injury or Interference

The evidence is insufficient to quantify the effect of the contamination. However, it

cannot be disputed that the contamination has adversely affected the value and marketability of

the property, and may have foreclosed potential uses of the property. Furthermore, even

though this record is insufficient to find that groundwater has been contaminated, the presence

of perc in the soil presents a continuing threat of groundwater contamination. Thus, the degree

to which the contamination has injured the property and interfered with the protection of health

and general welfare is substantial.

Social and Economic Value of Pollution Source

The Board acknowledges that a dry cleaning business can have social and economic

value, but the dry cleaning business that was the source of the pollution stopped operating in

1997. The Board recognizes, however, that the shopping center has social and economic value

to the community. It is possible that remediating contamination would disrupt business at the

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shopping center, to the detriment of the community. The Board considers this in its

analysis below.

Suitability of Pollution Source

A shopping center, like that operated by Matteson, appears to be an appropriate

location for a dry cleaners. It is clearly not an appropriate location to dispose of waste;

however, the Board found that the evidence in the record did not demonstrate that the release

was intentional. The Board cannot find that the Martins’ business was unsuitably located.

Technical Practicability and Economic Reasonableness of Reducing Deposits

The parties argue at length about the extent to which remediating the contamination is

economically reasonable. Matteson argues that the Martins should be required to remediate the

contamination to background levels. (Actual background levels were never established, but

may be as low as zero or at least below the detection level of the analytical procedures that the

laboratory used to analyze Pioneer’s samples.) Matteson urges that the property owner should

not be required to accept the property back from the Martins in worse condition than when it

was delivered to the Martins. Comp. Br. at 30-31. Matteson bases this argument on language

in Section 2(b) of the Act, which establishes as one of the purposes of the Act “to assure that

adverse effects upon the environment are fully considered and borne by those who cause

them.” 415 ILCS 5/2(b) (1998).

The language of Section 2(b) is not dispositive, however. The Board still must

determine what it means to “bear” adverse environmental effects. The Martins argue that the

Tiered Approach to Corrective Action Objectives (TACO), 35 Ill. Adm. Code 742, can be

applied in this case. The Martins further argue that remediation beyond TACO levels is not

economically reasonable. Resp. Br. at 25. TACO provides a tiered approach for establishing

numeric remediation objectives based on risks to human health, allowing future use of the

contaminated site to be considered. Also, under TACO, remediating to these numeric

objectives can be avoided where routes of exposure to contaminants can be eliminated, such as

through engineered barriers or institutional controls (

e.g.

, deed restrictions). Matteson replies

that participating in the Site Remediation Program, 35 Ill. Adm. Code 740, one of the

programs that uses TACO, is voluntary, and inasmuch as the Martins are not owners of the

property, they cannot dictate conditions on the property’s use. Reply Br. at 10.

In this case, TACO can provide a benchmark for what is economically reasonable.

TACO includes tables of contaminant concentrations. The Board found these concentrations

acceptable (

i.e.

, not a threat to health) for land to be used for various purposes. The most

stringent soil remediation objectives are for residential property. See 35 Ill. Adm. Code

742.505-742.510, 742.Appendix B, Table A. Residential objectives provide, for each

contaminant, a separate remediation level for each of three exposure routes (

i.e.

, ingestion,

inhalation, and the soil component of groundwater ingestion). The most stringent of the three

levels applies unless one or more of these exposure routes are excluded. See 35 Ill. Adm.

Code 742.510(a)(6). If contaminated soil is remediated so that remaining contaminant

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concentrations meet the soil remediation objectives for residential property use, the

property is considered safe for any use. The Board finds that requiring the Martins to

remediate beyond these levels would not be economically reasonable. Similarly, requiring the

Martins to remediate any groundwater contamination beyond TACO’s most stringent

groundwater remediation objectives, Class I groundwater remediation objectives under 35 Ill.

Adm. Code 742.505-742.510, 742.Appendix B, Table E, would not be economically

reasonable.

The Martins suggest, Resp. Br. at 24-25, that it would be economically unreasonable to

require them to spend more money to remediate than the property’s diminution in value from

the contamination. The Board need not reach this question. Neither Matteson nor the Martins

introduced evidence from which the Board could quantify the contamination’s impact on the

property’s value.

The Board further finds that remediating to the TACO levels described above is

technically practicable. Krikau testified about existing technologies that could be used in this

case to clean up contaminated soil and, if necessary, groundwater. Tr. at 418-24. The

Martins suggest, Resp. Br. at 24, that a remedy is not technically practicable when it cannot be

achieved within a “reasonable time.” Even if the Board accepted this condition on

practicability, the evidence regarding the time needed to remediate is inconclusive. All

testimony on the subject assumed remediation to “background” levels, which the Board will

not require here.

Subsequent Compliance

The Martins stopped operating their dry cleaning business in 1997. There is no

evidence that any perc was disposed of after that date, at the latest. Thus, the Board cannot

find that the Martins violated Section 21(e) of the Act after they stopped operating the dry

cleaner. However, neither have the Martins taken any steps to remediate the contamination

resulting from the earlier violations.

Discussion

Matteson seeks an order:

A. Directing the Respondents to cease and desist from further

violations of Section 21(e) of the Act;

B. Mandating and directing the abatement of the continuing

violations of Section 21(e) of the Act by the Respondents

through the remediation of Complainant’s Property and

removal of all contamination on the Property resulting

from the disposal of chlorinated solvents thereon; and

C. Granting such other relief as the [Board] may deem

appropriate. Comp. at 5.

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The Board does not need to order the Martins to cease and desist from

further violating Section 21(e). As noted, the Martins stopped operating their dry cleaning

business in 1997. By all indications, the Martins will not further violate Section 21(e).

However, based on the factors discussed above, the Board finds that it is appropriate to order

the Martins to remediate the contamination.

Under TACO:

Any person . . . may elect to proceed under [the TACO rules] to the extent

allowed by State or federal law and regulations and the provisions of [Part 742].

A person proceeding under [Part 742] may do so to the extent such actions are

consistent with the requirements of the program under which site remediation is

being addressed. 35 Ill. Adm. Code 742.105(a).

Thus, the Martins, to the extent they are able, may proceed under TACO. This does

not mean, however, that the Martins can force the property owner to take any action or accept

any restriction on the property’s future use. Moreover, the extent to which the Martins must

remediate will depend on the extent to which the property owner gives them access to the

property to do so.

The Martins therefore must remediate to the most stringent remediation objectives

under TACO for which the property owner provides the Martins access to achieve. For

example, the owner might not allow the Martins to demolish the on-site buildings. In that

case, the Martins may not be able to achieve residential remediation objectives under TACO

through reasonably available technology. The most stringent remediation objectives under

TACO would be residential remediation objectives for soil and, depending on groundwater

classification, Class I or Class II remediation objectives for groundwater.

The owner of the property is not before the Board. Matteson is the “operating entity”

of the property, a relationship that was never defined. The property is held in a land trust.

Persino is a 50% beneficiary of the land trust, but the beneficiary of the other 50% was not

identified. Persino is a partner in Matteson and appeared as a witness on Matteson’s behalf,

but he is not before the Board in his individual capacity. Matteson throughout these

proceedings has argued and conducted itself as if acting on behalf of the owner. However,

there is no evidence establishing Matteson’s authority with respect to the property. Because

neither the legal owner nor the beneficiaries of the land trust are before the Board, none will be

bound by any order that the Board issues today.

The Board will order the Martins to remediate the contamination. The extent to which

they must remediate depends on the extent to which the property owner grants them access to

remediate. If the owner allows necessary access, the appropriate soil remediation objectives

will be TACO residential levels, 35 Ill. Adm. Code 742.505-742.510. Because one of the

residential levels is based on the soil component of the groundwater ingestion exposure route,

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the Martins must classify the groundwater as Class I or Class II under TACO to determine

the appropriate soil remediation objective for residential property use.

8 This is not to say that

the Martins cannot opt under TACO to remediate to less stringent levels or to eliminate

exposure routes, but rather that the Martins cannot exercise these options without the owner’s

consent. Similarly, with the property owner’s consent, the Martins must determine whether

groundwater has been impacted and, if it has been, remediate any groundwater that exceeds, as

applicable, Class I or Class II groundwater remediation objectives under TACO, 35 Ill. Adm.

Code 742.505-742.510.

The Board recognizes that remediating to these levels may mean that the property

remains more contaminated than its state before the Martins occupied the site. However, the

Board finds that remediating to these levels is all that is required under the Act in this case.

Matteson’s main objection to a remediation to levels less stringent than “background levels”

concerned impact on property value. As noted, however, Matteson presented no evidence

from which the Board could quantify that impact.

CONCLUSION

The Board finds that the Martins, through their dry cleaning business, violated Section

21(e) of the Act. Matteson has failed to prove that the Martins violated Sections 21(f)(1) or

12(a) of the Act or 35 Ill. Adm. Code 620.115. The Board will order the Martins to remediate

the soil and any groundwater contaminated with perc or any of the compounds into which the

chemical degrades. The extent to which the Martins must remediate will depend on the extent

to which the property owner gives the Martins access to the property to remediate. The

remediation must achieve remediation objectives under TACO, as explained in the order

below.

ORDER

1. The Board finds that respondents James W. Martin and Eva D. Martin, through their

dry cleaning business, violated Section 21(e) of the Act. The Board finds that the

record does not demonstrate that the Martins violated Sections 21(f)(1) or 12(a) of the

Act or 35 Ill. Adm. Code 620.115.

2. The Martins must, under TACO, 35 Ill. Adm. Code 742.510(b)(2), classify the

groundwater as Class I or Class II groundwater. The Martins are not required to

perform this work at the property beyond the extent to which the property owner grants

the Martins access to the property to do so.

8 For purposes of TACO, Class I groundwater is groundwater that meets the Class I potable

resource groundwater criteria of 35 Ill. Adm. Code 620, while Class II groundwater is

groundwater that meets the Class II general resource groundwater criteria of 35 Ill. Adm. Code

620. See 35 Ill. Adm. Code 742.200.

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3. The Martins must remediate the soil contaminated with perchloroethylene or any

of the compounds into which it degrades, including trichloroethylene, to the most

stringent soil remediation objectives under TACO, 35 Ill. Adm. Code 742, for which

the property owner provides the Martins access to the property to achieve.

Accordingly, if the property owner grants them access to do so, the Martins must

remediate the soil contamination to the most stringent TACO residential objectives (35

Ill. Adm. Code 742.505-742.510), but not to any more stringent levels.

4. The Martins must determine whether the groundwater has been contaminated by

perchloroethylene or any of the compounds into which it degrades, including

trichloroethylene, above, as applicable, Class I or Class II groundwater remediation

objectives under TACO. 35 Ill. Adm. Code 742.505-742.510. The Martins are not

required to perform this work at the property beyond the extent to which the property

owner grants the Martins access to the property to do so.

5. The Martins must remediate any groundwater contaminated with perchloroethylene or

any of the compounds into which it degrades, including trichloroethylene, to the most

stringent groundwater remediation objectives under TACO for which the property

owner provides the Martins access to the property to achieve. Accordingly, if the

property owner grants them access to do so, the Martins must remediate any

groundwater contamination to, as applicable, Class I or Class II groundwater

remediation objectives under TACO, but not to any more stringent levels.

6. Investigation and remediation under this order must be consistent with any applicable

program requirements. Nothing in this order may be construed to require that the

Martins or the property owner participate in the Site Remediation Program, 35 Ill.

Adm. Code 740, or that the property owner accept any restriction under TACO on the

future use of the property. Notwithstanding anything in this order to the contrary, the

Martins may use institutional controls and engineered barriers under TACO, but only to

the extent that the property owner consents.

IT IS SO ORDERED.

Board Member M. McFawn dissented.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this

order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d

R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the 22nd day of June 2000 by a vote of 5-1.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board