ILLINOIS POLLUTION CONTROL
BOARD
August 26,
1991
STATE OIL COMPANY,
)
Petitioner,
)
v.
)
PCB ~90—1O2
(Water Well Setback Exception)
)
DR.
AND
~1RS.
JAMES KRONE and
)
the ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
JOHN QUINN
AND
JOHN C.
BAUNGARTNER
(CHURCHILL, BAUMGARTNER
&
PHILLIPS,
LTD.)
APPEARED ON BEHALF OF PETITIONER;
JULENE N. PERBOHNER APPEARED ON BEHALF OF DR.
& MRS. JAMES KRONE;
AND
BOBELLA B. GLATZ
AND
STEPHEN C. EWART APPEARED ON BEHALF OF THE
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
PROCEDURAL HISTORY
This matter comes before the Board on the petition of State
Oil Company
(State Oil)
filed May 23,
1990 as amended July 20,
1990.
This case is one of first impression before the Board,
as
State Oil
is the first person to request a well water setback
exception pursuant to Section 14.2(c)
of the Environmental
Protection Act
(Act)
and 35 Iii. Adm. Code 106.601 et seq.
State
Oil seeks permission to install gasoline storage tanks within 200
feet of the drinking water well of Dr. and Mrs. James Krone
(the
Krones) whose property is located at the southeast corner of U.S.
Route 31 and Terra Cotta Road near Crystal Lake, Mcaenry County.
State Oil had sought, but had not received,
a waiver of the 200
feet setback requirement from the Krones, although it
had
received the concurrence of the Illinois Environmental Protection
Agency
(Agency) with its request for waiver.
On June 13,
1990 the Krones filed a response in opposition
to the petition.
On June 27,
1990 the Agency filed
a response in
125—463
2
opposition to the petition, notwithstanding its earlier
concurrence.
Hearing was held on June 30,
1990.
In addition to
the testimony presented by the parties,
a statement in opposition
to the petition was presented. at hearing on behalf of the McHenry
County Defenders, who had filed written objections on June 12.
Pursuant to schedule, briefs were filed by State Oil on September
11 and October 4,
1990,
and by the Agency on September 26,
1990.
On February
7,
1991 the Board granted State Oil’s January
31,
1991,motion for expedited decision noting that the Board
would “act on this case as soon as possible, consistent with the
Board’s workload and resources”.
However, also on January 31,
1991,
the Board received an unverified letter from the Krones
noting that a new well had been dug.
This fact was the subject
of an affidavit filed instanter by State Oil on April 22,
1991.
By Order of June 20,
1991 the Board allowed the filing of the
affidavit by State Oil, but disallowed the filing of a response
by the Agency.
The Order also noted that neither the Krones’
letter nor State Oil’s affidavit “state where the new well is in
relation to the old well which was the subject of testimony at
hearing, so that
it
is impossible to determine whether this
petition for exception to the Section 14.2 200 feet setback
requirement is now moot”.
The Board directed the parties to
address this issue, which State Oil did by affidavit filed July
3,
1991 and which the Agency did by filing of July 9,
1991.
WELL WATER SETBACK EXCEPTION PROCEDURES
The 200 feet minimum setback distance at issue here was
added to the Environmental Protection Act as part of the Illinois
Groundwater Protection Act,
P.A.
86—125, effective September 24,
1987.
(See also Ill.
Rev.
Stat.
ch.
111 1/2, par. 7451 et seq.)
Section 14.2(a)
of the Act provides that:
Except as provided
in subsections
(b),
(c)
and
(h)
of this Section, no new potential
route or potential primary source or
potential secondary source may be placed
within 200 feet of any existing or permitted
community water supply well or other potable
water supply well.
1
The term “potential route”
is defined at Section 3.58 of
the Act, “potential primary source” at Section 3.59, and “potential
secondary source” at Section 3.60.
The parties have not argued
which of these
terms are specifically applicable to State Oil’s
planned installation of three underground gasoline storage tanks,
although it would appear that this would qualify as a “potential
secondary source” as defined at Section 3.60(3).
125—464
3
The exception of Section 14.2(h)
is not at issue here,
as
that relates solely to excavations for stone, sand, or gravel.
Section 14.2(b) and
(c) provide the mechanism for receipt by a
facility operation of a waiver from the setback requirements from
the
owner
of a drinking water well,
or of an exception to the
setback requirements from the Board.
These subsections of
Section 14.2 provides in pertinent part:
(b)
The owner of a new potential primary source or a~
potential route may secure a waiver for a potable water
supply well other than a community water supply well.
A written request for a waiver shall be made to the
owner of the water well and the Agency.
Such request
shall identify the new or proposed potential source or
potential route,
shall generally describe the possible
effect of such potential source or potential route upon
the water well and any applicable technology-based
controls which will be utilized to minimize the
potential for contamination, and shall state whether,
and under what conditions, the requestor will provide
an alternative potable water supply.
Waiver may be
granted by the owner of the water well no less than 90
days after receipt of the request unless prior to such
time the Agency notifies the well owner that it does
not concur with the request.
The Agency shall not concur with any such request
which fails to accurately describe reasonably
foreseeable effects of the potential source or
potential route upon the water well or any
applicable technology-based controls.
Such
notification by the Agency shall be in writing,
and shall include a statement of reasons for the
nonconcurrence.***If the owner of the water well
has not granted a waiver within 120 days after
•receipt of the request or the Agency has notified
the owner that it does not concur with the
request, the owner of a potential source or
potential route may file a petition for an
exception with the Board and the Agency pursuant
to subsection
(c)
of this Section.
(c)
The Board may grant an exception from the setback
requirements of this Section***The owner seeking an
exception with respect to a potable water supply well
other than
a community water supply well shall file a
petition with the Board and the Agency,
and set forth
therein the circumstances under which a waiver has been
sought but not obtained pursuant to subsection
(b)
of
125—465
4
this Section.
A petition shall be accompanied by proof
that the owner***has been notified and been provided
with a copy of the petition.
A petition shall set
forth such facts as may be required to support an
exception,
including a general description of the
potential impacts of such potential source or potential
route upon groundwaters and the affected water well,
and an explanation of the applicable technology based
controls which will be utilized to minimize the
potential for contamination of the potable water supply
well.
The Board shall grant an exception, whenever it is
found upon presentation of adequate proof, that
compliance with the setback requirements of this
Section would pose an arbitrary and unreasonable
hardship upon the petitioner,
that the petitioner
will utilize the best available technology
controls economically achievable to minimize the
likelihood of contamination of the potable water
supply well,
that the maximum feasible alternative
setback will be utilized, and that the location of
such potential source or potential route will not
constitute a significant hazard to the potable
water supply well.
The procedural rules adopted by the Board to implement
Section 14.2 are codified at 35
Ill. Adm. Code l06.Subpart
F.
These generally track the statute, and additionally establish the
rights of response and reply to a petition in addition to
establishing hearing procedures.
AGENCY CONCURRENCE
In its March 23,
1990 letter to State Oil, the Agency
stated:
Based upon the information that you submitted to the
Agency for review, your request accurately describes
the reasonably foreseeable effects of the potential
source upon the water well and accurately describes any
applicable technology—based controls.
Therefore,
in
accordance with Section 14.2(b)
of the Act, the Agency
concurs with your request for a waiver.
Both the owner of the potential source and the owner of
the water well must keep in mind that, by concurring
with your request under Section 14.2(b)
of the Act, the
Agency is merely stating that your request accurately
125—466
5
describes the reasonably foreseeable effects of the
potential source upon thewater well and accurately
describes any applicable technology-based controls.
The Agency express no opinion on whether the potential
source can or will contaminate the water well, or on
whether installing the potential source in such close
proximity is an environmentally sound idea.
Installing
this potential sourc9 is done at your
own
risk.
(Am.
Pet.
Exh. C).
THE HEARING WITNESSES
This case reaches the Board in an unusual posture:
the
Krones’ drinking water well,
from which a setback exception was
discussed at the July,
1990 hearing,
is no longer in use.
Evidence submitted into the record since that time reveals that a
new well was installed on or about October 29,
1990.
(Pet.
Petition for Leave to File Affidavit,
4—22—91, p.
3).
Illinois
Department of Public Health documents submitted by the Agency
indicate that the new well was completed by installation of a
pump April
1,
1991,
and that the old well was abandoned and
sealed March 26,
1991.
(Agency filing of JUly 9,
1991).
This petition itself
is not moot,
as the new information
states that the Krone’s new well is located within 146 feet of
State Oil’s proposed UST site.
(a.)
However, much of the
testimony presented at hearing concerned the nature. of the old
well.
Consequently, rather than detailing the testimony of each
witness, the Board will here present a broad outline of the
nature of the witness testimony:
once having resolved questions
regarding the old well,
there are few disputed facts in this
case.
The dispute centers around whether State Oil has presented
the facts sufficient to carry its burden of proof.
State Oil presented three witnesses in support of its
petition.
The first was its operations manager, James Edward
Peters, who has been employed by the company for 23 years.
Mr.
Peters’ duties include the construction and installation of
underground storage tanks
(UST); he has been involved in the
installation of about 100 UST5.
(R.
8-9).
His testimony related
to the former and proposed use of the State Oil site,
including
the nature of State Oil’s proposed USTs, the proposed leak
detection system,
and proposed contingency plan for providing the
Krone’s an alternative water source in the event of contamination
of their well.
(R. 8—35,
202—206).
The second witness,
Ernest Varga,
is one of State Oil’s
environmental consultants.
Mr.
Varga, who is licensed in
Illinois as a professional engineer and a structural engineer,
has operated his own business in McHenry County for 20 years.
(R.
37-39).
Mr.
Vargas’ testimony related to the surface and
subsurface conditions at the State Oil site and the Krone
125—46
7
6
property, including characterization of the soil and aquifers and
direction of groundwater flow.
Given the nature of the proposed
control equipment and the nature of the site,
it was Mr. Vargas’
professional opinion that any hazard to the Krones’ well is
“essentially non-existent”.
(R.
41, and generally R.
36—118).
State Oil’s final witness, Dennis Roush, has been its
construction coordination manager for
2 years.
Based on this
experience,
as well as 20 years prior experience as a contractor,
Mr. Roush presented testimony concerning costs and procedures for
a hook u~of the Krone property to a municipal water main.
(R.
120—137)
The Agency presented two witnesses in opposition to the
petition.
The first was Richard Cobb,
a certified professional
geologist,
who has been employed by the Agency for five years and
who is the manager of the hydrogeology unit in its groundwater
section.
(R.
140).
Mr. Cobb testified to his belief that State
Oil’s proposed UST placement would pose a hazard to the Krone’s
well, that State Oil’s characterization of the groundwater is
insufficient, and that its contingency plan for replacement of
the Krones’ water supply in the event of its contamination by the
activities of State Oil
is insufficient.
(R.
153-155, and
generally R.
140—161, 210—213).
The second witness was Patrick NcNulty, an 11—year employee
of the NcHenry County Department of Health.
(R.
165-166).
As the
County’s Director of Environmental Health, Mr. McNulty provided
testimony concerning results of some private well tests performed
in the area, and explained what alternative water sources might
be in compliance with the Department’s standards.
(R.
165-178).
Dr. James V.
Krone presented testimony in his own behalf.
Dr.
Krone,
a doctor of veterinary medicine, described the
veterinary practice which he has conducted on the property which
he has owned for 25 years.
(R.
179).
Dr. Krone also described
his then existing well,
and his concerns about State Oil’s
proposal.
(R.
179-196).
Jean Krone presented a statement of
concern about the effect of water contamination on her husband’s
veterinary hospital.
(IL
179—201).
125—468
7
A statement
2
was also presented at hearing by Robert
Lonsdorf,
who
is
employed
by
the
McHenry
County
Defenders
as
its
Groundwater Coordinator.
Mr. Lonsdorf reiterated the earlier
written comments that State Oil had provided insufficient site
specific information in support of its position.
(R. 208-209).
The Agency has challenged the testimony of Mr. Varga on the
grounds that he is not a geologist, asis the Agency’s Mr. Cobb.
The Board finds that Mr. Varga’s credentials and 20 years
experience as a registered structural engineer and professional
engineer,amply qualify him to testify concerning the subjects
which he,addressed.
THE PROPERTIES
AND
PROPOSED SETBACK
The following facts are not in dispute.
Since about 1958,
Dr. James Krone has owned a
2 story
building located at 5606 South Route: 31, near its junction with
Route 176.
Dr. Krone leases the second floor of the building as
a rental apartment for
2 people, and operates a veterinary
hospital for pets on the first floor.
With the assistance of
3
employees,
on average Dr. Krone treats between 15 and 20 pets
during the day,
and boards about 17 pets overnight.
(R.
181).
All of the water needs of the building, including for human and
animal consumption,
kennel cleaning,
etc. have been served by a
private drinking water well.
Prior to the drilling of the new
well,
the exact depth,
age, and composition of the well serving
the property was unknown, as the well was drilled some 32 years
ago, prior to enactment of the Water Well Code
(R.
186,
144).
~
The Krones’ new well is drilled to a depth of 130 feet,
and has a
steel casing.
It draws water from a gravel layer at a depth of
120—130 feet.
(Agency filing of July 9,
1991)
The State Oil property is located immediately north of the
Krones’ property.
Dr. Krone testified that at some unspecified
time, other gas stations have been located in the immediate
2
The Board
notes that there was some dispute at hearing
concerning the manner in which this statement could be made and its
effect.
(R.
206-207).
Section 106.604(c)
provides that hearings
are to be conducted in these cases pursuant to 35 Ill.
Adin.
Code
102.Subpart
J.
Section
102.283 provides that all witnesses at
hearing are to be sworn, as was Mr. Lonsdorf.
This statement,
as
the Hearing Officer correctly noted,
is
“evidence”
in this case
which the Board will weigh and consider.
~ The Board notes that in such instances, written records are
typically sketchy or non—existent.
As counsel correctly noted at
hearing,
information
is
usually available only from
local
well
drillers.
(R.
44—45).
125—469
8
vicinity of this property, including a property immediately north
of the State Oil site across Route 176.
(R.
184—185).
State Oil
purchased its property sometime in 1988
(R.
24)
.“
In about 1959
or 1960, the parcel had been improved with a gas station and
restaurant.
(R.
183).
The improvements included installation of
three USTs
(two of which were removed prior to State Oil’s
purchase of the property)
and a drinking water well.
(R. 25).
It
is unclear from the record how long ago the property ceased to be
used as a gas station, but State Oil would propose to return the
property to its former use by construction of a gas station and
mnini-mnarit;
no repair garage is proposed.
(R.
29).
As part of
this project,
State Oil would propose to remove the old UST
(located 77 feet from the Krones’ old well)
and to install two
new UST5 at a distance of 146 feet from the Krones’ new well.
(R.
18,
& Pet. Ex.
1,
State Oil Affidavit, July 3,
1991).
It is
undisputed that aside from the immediate northwest and northwest
corners of the State Oil property, that there are no points more
than 200 feet from the Krones’ well, and that the corners are not
large enough to contain the LISTs.
(Pet.
Ex.
1).
The Board finds that State Oil has proposed to utilize the
maximum feasible setback,
a point which has not been disputed in
this proceeding.
PROPOSED CONTROL TECHNOLOGY
Two
of the three USTs which State Oil proposes to install
are not new, but they are unused.
They are single wall 12,000
gallon tanks which were never installed at another facility
acquired by State Oil.
The tanks have,
however, been recertified
by their maker.
(R.
31-32).
All tanks will be pressure tested in
the presence of the State Fire Marshall before placement and at
the time of backfilling.
(Am.
Pet. par. 8F).
The tanks, which
are about
8
feet high, will be buried at a depth to insure that
there are 36 inches of earthen material between the top of the
tank and the bottom of the concrete slab on which the gas pumps
will sit.
Steel,
rather than fiberglass, piping will be used as
“holding
up better in this area because of the frost.”
(R. 34).
While
the tanks will be buried and sittin~in a sand and
gravel layer located at a depth of 68 inches,
Mr. Peters
believes that a single, rather than double, wall tank is
sufficient due to the nature of the proposed leak detection
system.
(R.
32-33).
No further mention of this matter was made
As earlier mentioned,
the Groundwater Protection Act was
approved
and
effective
September
24,
1987,
before
State
Oil’s
purchase of its property.
A fuller discussion of soil layers and aquifers follows.
125—470
9
at or after hearing.
After the tanks are buried,
State Oil will
backfill with pea gravel, and will install four monitoring
suinps
around the tank site.
(R.
12).
State Oil additionally proposes
to install the D-TECH System I Monitor.
(Pet.
Ex.
2).
The system
is designed to sound an alarm in the event that any gasoline
enters the
sumps,
in either liquid or vapor form.
An alarm also
sounds if any water enters the UST.
The system also has a leak
detection system for the piping.
Among other things, the system
also provides reports of any tank overfills,
monitoring well
events as described above, and an automated tank gauge which
allows f~r“inventory control” of the amount of gasoline entering
and leaving the UST.
No evidence was presented to contradict Mr. Peters opinion
that the system is the most current available system for
monitoring”.
(R.
14).
In the event of gasoline leakage, State Oil will immediately
determine which tank is faulty and have the tank pumped out.
If
gas or vapor reaches the monitoring sumps, State Oil
w-ill contact
its special waste hauler to have them pumped out.
The~waste
hauler is located in Crystal Lake, some ten minutes away.
(R. 16—
17).
No evidence was presented challenging the adequacy of State
Oil’s proposed control technology, and the Agency has
acknowledged that it
is some of the best available.
(Response of
7—27—90,
p.
2).
Accordingly, the Board finds that State Oil has
demonstrated that it will utilize the best available technology
controls economically achievable to minimize the likelihood of
contamination of the Krone’s well.
HAZARD TO THE KRONES’
WELL
The issue of potential hazard to the Krone’s well was the
major issue discussed at hearing.
State Oil has not made a site
specific investigation of the subsurface soil and groundwater
conditions on either its own or the Krone properties.
Instead,
it relied on a survey of the area by the Illinois State
Geological Survey
(ISGS) which itself stated that the maps and
materials were intended for planning purposes only and not for
site specific use.
(R.
149-150).
The closet boring in these
materials to the Krone building is about 100 feet away.
(R.
100).
However, the well construction report for the new well
indicates that there
is a
2 foot layer of topsoil,
a 48 foot
layer of sand and gravel,
a 40 foot layer of sand and clay,
a 30
foot layer of clay and a 10 foot layer of gravel; this total
130
feet, the depth of the new well.
(Agency filing of July 9).
Based on ISGS material,
Mr. Varga testified that the surface
material
was a sand and gravel mixture about 35 feet thick.
125—47
1
10
Below this was a clay layer, composed of three clay types, about
70 feet thick.
Beneath the clay layer was another layer of sand
and gravel.
(R.
44 and Pet.
Ex.
5).
This was based on a
subsurface exploration of conditions about 400 feet south of
Terra Cotta Road and about 300 feet east of Route 31.
Water is
present in both of the sand and gravel layers.
The proposed USTs
will be resting in the upper sand and gravel layer.
Dr. Krone’s
new well draws it water from the sand and gravel layer beneath
the clay layer, and the old well has been abandoned and sealed.
(Agency filing of July 9,
1991).
This eliminates a concern
expressed by the Agency that any deterioration of the casing in
Krone’s old well itself could serve as a conduit for
contamination from the upper sand and gravel layer to the deep
aquifer.
(R.
156).
Again, based on the ISGS material,
Mr.. Varga testified that
he believed the flow of groundwater to be in a northeasterly
direction.
He further believes that if gasoline leakage were to
occur, that the liquid would float on the water in the upper sand
and gravel layer,
and would not reach the deep aquifer.
(R.
49).
State Oil argues that the historical experience at the site
butresses this conclusion.
Dr. Krone testified that in 1961, and
on two other unspecified occasions,
he had smelled gasoline in
his old brick well pit.
At that time, the USTs were located
within 77 feet of the well,
and there was a lesser degree of
concern on the part of oil companies and the public about the
overfilling of USTs.
(IL
184).
State Oil points out that Dr.
Krone may have been smelling fumes coming from the gas station
property, and not his well.
State Oil also argues that Dr. Krone
did not testify to there ever having been a problem with gasoline
in his water over the course of the years, and did not testify to
there ever having been any ill effects on humans or animals due
to consumption of water from the well.
(Reply Memorandum, pp. 4—
7).
For these reasons, State Oil does not believe that its
proposed LISTs pose a significant hazard to the well, particularly
given the state-of-the-art leak detection system it proposes to
install.
Mr. Cobb of the Agency, on the other hand, believes that a
significant hazard exists whenever a UST with a capacity of more
than 500 gallons is installed within 200 feet of
a well
(R.
159).
Mr. Cobb stated that without site specific data,
the groundwater
was not accurately characterized.
Mr. Cobb would not assume,
as
did Mr. Varga,
that the groundwater flow in the upper sand and
gravel layer would be the same as that in the deep aquifer.
Mr.
Cobb stated that he believed that any contamination would not
move to the northeast, but would instead move to the Krones’
well,
given the fact that the “lateral area of influence is shown
to be 4,000 times greater than in an unconfined water table”.
(R.
149, generally R.
142—148).
125—472
11
The Board cannot accept an interpretation of Section 14.2
which would label any installation within two hundred feet of a
well to be
a “significant hazard”.
The statute does not contain
an absolute prohibition on location of any new potential, source
within 200 feet of an existing well.
The legislature
specifically provided for a site by site evaluation of risks in
establishing the well water setback exception.
The Board agrees
with Mr. Cobb that data from three site specific groundwater
elevation points would establish as a matter of certainty the
exact direction of the flow of groundwater on the State Oil and
Krone pr~perties. (R.
145-146).
However,
given the leak
detection system State Oil plans to install, the existence of the
new Krone well and the plugging of the old well,
in this case the
Board finds the evidence submitted by State Oil on the issue of
groundwater flow to be sufficient to meet the statutory
requirement that the applicant provide a “general description of
the potential impacts
...
upon groundwaters and the affected
water well”.
Installation of new UST5 will logically always pose a hazard
to drinking water wells which would not exist if the UST5 were
not installed.
Given all of the circumstances in this case, the
Board cannot find that the hazard rises to the level of being
“significant”.
In making this finding the Board notes that the
affected persons, the Krones, have not communicated with the
Board since January,
1991, when they advised the Board that the
new well had been dug.
ARBITRARY OR UNREASONABLE HARDSHIP
AND
CONTINGENCY
PLAN
Section 14.2 of the Act does not require a potential source
to develop a contingency plan for replacement of a well owner’s
drinking water supply in the event of groundwater contamination
by the proposed new potential source.
However, another portion
of the Groundwater Protection Act provides that:
Section 6B.
Assurance of potable water supply.
Except
as provided in Section 14.2 of the Environmental
PRotection Act, the owner of every potable water supply
well which has been contaminated due to the actions of
the owner or operator of a potential primary or
potential secondary source or potential route shall be
provided an alternative source of potable water of
sufficient quality and quantity, or treatment of the
waters from such well to achieve a sufficient level of
quality and quantity appropriate to protection of the
public health, or such other remedy as may be mutually
agreed upon by the well owner and the owner or operator
of the potential source or potential route.
For
purposes of this Section, contamination shall mean such
alteration of the physical,
chemical or biological
125—473
12
qualities of the water as to render
it unfit for human
consumption, or to otherwise render it unfit for use as
potable water as measured by applicable groundwater
quality standards which are adopted by the Pollution
Control Board.
All costs of providing alternative or
treated potable water supplies under this Section shall
be borne by the responsible owners or operators of the
contamination source and route.
This Section shall
apply only to actions of an owner or operator which
occ~irafter the effective date of this Section and for
which there is adequate reason to believe that a
relationship exists between the potential source or
potential route and the contaminated well.
Ill.
Rev.
Stat.,
ch.
111 1/2, par. 116.116(b).
There was considerable discussion of the contingency plan issue
in this record.
There is no information in this record concerning the
existing well on State Oil’s property. While Mr. Varga testified
that State Oil proposes to abandon the old well and drill a new
one
(R.
102),
Mr.
Roush testified that State Oil was going to tap
back into the existing well.
(R.
124). It was also unclear as to
whether State Oil can develop a well with sufficient water
pressure to serve the needs of both its facility and the Krone’s
human tenants and animal patients.
(R.
31,
173).
Neither Mr.
Varga nor Mr. Roush knew any specifics about the existing well,
although Mr. Roush believes that the well has been tested by
either the County of the State during the previous operation of a
restaurant on the site from an unspecified time until about May
of 1989.
(R.
102-103,
124-125).
6
Assuming, however, that the
State Oil well would remain uncontaminated at a time when the
Krone well was contaminated by a release from State~Oil, State
Oil’s general plan would be to “hook
Dr.
Krone
up to our well
or drill
a new well for
him
or hook him to city water”.
(R.
17).
More specifically,
on an emergency basis, State Oil would
plan to run a garden hose from its property to the Krones’
property.
(R.
19).
Mr. NcNulty from the McHenry County Health
Department testified that this could be an acceptable plan
provided food grade materials were used,. weather conditions were
favorable, and the duration of the hose ‘arrangement were limited
to “just a few days”.
(R. 169).
A suggestion made by State Oil
for the use of a canvas holding tank with liner in which the
water would be chlorinated was not satisfactory to Mr. McNulty,
6
The Board notes that before and at the time of hearing the
Agency believed that the existing State Oil well could serve as a
potential source of contamination to any proposed new well.
Dr.
Krone testified that he had been advised that he could not replace
his then—existing well.
(R.
186,
213).
There has apparently been
a change of Agency position on this subject.
125—474
13
due to in part to potential problems of over-chlorinating the
water.
(R.
169-171).
Mr. Peters testified that a connection between State Oil
property could be made permanent within “a couple of days” by
force-running a pipe underneath the blacktop of its station from
its well to the Krone facility.
(R.
20).
Mr. Varga stated that
this option would be preferable to laying pipe prior to the
pouring of the blacktop, because whether left dry, or filled with
water,
tlie system would need to be flushed and checked to verify
that the. piping system had not been contaminated.
(R.
55).
As the Agency correctly notes, there is little evidence in
this record concerning costs and logistics of drilling a new well
on the Krone property.
(Agency Brief,
p.
3).
Mr. Peters stated
that such information could not be provided,
as the location of a
new well would be dependent upon borings taken to determine the
path of the migration of the contamination.
(R.
21).
The third option, connection of the Krone facility to a
municipal water supply,
is a feasible option, although it would
not be a quick process.
The nearest community water main is less
than 100 feet away, but it is located across Route
31, which is a
six lane highway at that point.
(R.
84).
State Oil estimates the
cost of extending the water main to Dr. Krone’s property and its
site to be $180,000.
(R.
120).
However, this would require
annexation of the properties to the City of~Crystal Lake, the
operation of the water supply system.
That process, which has
not been initiated,
could take six to eight months or longer,
assuming that the City is even interested.
(R.
122).
Additionally, permission of the Illinois Department of
Transportation would be required to cross the highway, which
would require one to two months preparation time for completion
of engineering drawings, specifications,
etc.
(R.
122—123).
A
permit to extend the water main would also be required from the
Agency, which has up to 90 days to act on the permit request.
Section 39 of the Act.
Consequently, connecting the Krone
property to municipal water could easily take a year or more,
assuming it is possible at all.
The Board agrees with the Agency that the information
supplied by State Oil concerning its preferred contingency
option—hook-up of the Krones to the State Oil well is less than
complete, given the lack of data concerning the existing State
Oil well.
State Oil argues in response, however, that in the
event of any contamination that it would be required to proceed
with remedial clean-up action as required by the Agency and the
State Fire Marshall pursuant to the LIST regulations.
State Oil
further asserts that it has provided a plan for replacement of
Dr. Krone’s water given any eventuality, and that to the extent
that there is any capacity problem with its well “Dr. Krone would
have first call on the water produced by that well.
If the well
125-475
14
could serve only one parcel, petitioner’s parcel,
being the one
which caused the problem, would have to bear the burden of that
problem...Dr. Krone would continue to operate, and petitioner
would be shut down”.
(Reply brief,
p.
7-8).
In considering the issue of arbitrary or unreasonable
hardship to State Oil in this case, the Board notes that the
“equities” are fairly evenly balanced.
While Dr. Krone’s
veterinary hospital was established prior to the installation of
the first gas station at the junction of Route 31 and Terra Cotta
Road, that intersection has been the site of one or more gas
stations from time to time for about the last 30 years.
All
evidence indicates that State Oil purchased its “too small”
property prior to enactment of the Groundwater Protection Act
with its 200 foot setback requirement,
so that the hardship it
asserts cannot be considered self—imposed.
It is also clear that
the property cannot be returned to its former use as a gas
station——the purpose for which it was purchased——unless a setback
exception is granted.
State Oil proposes to remove old, existing
UST5 and replace them with new tanks with state-of-the-art leak
detection devices, which would be overall environmentally
beneficial to the site and surrounding properties.
However,
it is also a fact that the integrity of the Krones’
water supply cannot be absolutely guaranteed if new LISTs are
installed, since any equipment may fail.
The exact steps to be
taken in the event of a contamination event also cannot be
absolutely specified,
since the nature and effects of
a release
dictate the nature of the response.
State Oil has produced evidence: that it is taking all
reasonable steps to minimize the likelihood of a release, and
that it will take all necessary steps to remedy a release and to
mitigate any damage to Dr. Krone’s business activities as
required by Ill.
Rev.
Stat.,
ch.
111 1/2, par.
116.116(b).
As
earlier noted,
Dr. Krone has ceased to be an active participant
in these proceedings since the installation of his new well.
The
Board finds that State Oil has fulfilled the requirements of
Section.
14.2 of the Act.
For the foregoing reasons, the Board believes that,
on
balance,
denial of a weliwater setback exception would pose and
arbitrary or unreasonable hardship.
The setback exception will
be granted subject to conditions,
including some similar to those
suggested by the Agency in the event the Board granted the
exception.
CONDITIONS
The crafting of appropriate conditions in this case of first
impression is somewhat problematic for a number of reasons, given
the record in this proceeding.
The language of the conditions
125—4 76
15
proposed by the agency was at no time the focus of discussion.
The issue of the inter-relationship of the LIST program and the
Safe Drinking Water Act program briefly raised by State Oil was
undeveloped in this record; both regulatory programs must, at the
state level, be “identical
in substance” to federal regulatory
programs which are constantly changing.
(See Sections 22.4
(e)
and 17.5 of the Act).
.The UST program is especially volatile.
The Board takes administrative notice of HB 1714,
adopted by the
General Assembly and awaiting signature by the Governor.
This
bill would change the division of currently existing regulatory
authority between the Board and the Office of the State Fire
Marshall
(OSFN),
limiting Board rulemaking to “corrective
action”
.~
Additionally, this record makes clear that technology is
rapidly evolving.
For example, between the filing of its amended
petition and the July,
1990 hearing, State Oil proposed to
substitute a more advanced leak detection monitoring system for
that originally contemplated (which the Board will require as a
condition of this exception).
It is possible that in the
interim,
for example, that State Oil may prefer, or be required
by
OSFN,
to install double hulled tanks rather than the single
hull tank discussed at hearing.
The Board will,
accordingly,
impose conditions of a general
nature, the Board’s intent being that State Oil installation
constructed pursuant to this exception be no less protective of
the environment than that discussed at hearing.
In the event
that the parties believe that the conditions need refinement,
they are,
as always,
free to seek reconsideration pursuant to 35
Ill. Adm. Code 101.300.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Pursuant to Section 14.2 of the Act, State Oil Company is
hereby granted a well water setback exception for its gasoline
station to be located at the intersection of Route 31 and Terra
Cotta Road near Crystal Lake, McHenry County, subject to the
following conditions:
1.
The underground storage tanks
(LISTs)
shall be installed
no’ closer than 146 feet from the drinking water well of
Dr.
and Mrs. James Krone existing on the date of this
The Board’s underground storage tanks rules are codified at
35 Ill. Adm. Code 731 and the OSFM rules are codified at 41 1AC 170
and 400.
125—477
16
Order.
Construction shall proceed
in accordance with
the plans and specifications presented by State Oil in
its July 20,
1990 amended Petition for Exception,
as
modified at the July 30,
1990 hearing in this matter,
provided they meet applicable requirements for LISTs at
41 Ill. Adm. Code 170 and 400 and 35 Ill.
Adin.
Code
731.
State Oil may, however, provide substitute plans
which provide a greater degree of environmental
protection than the 1990 plans.
2.
whenever a release of the contents from the storage
tank is detected in accordance with the requirements of
35 Ill.
Admit.
Code 731 Subpart D or equivalent
regulations adopted by the Office of the State Fire
Marshall at 41 Ill.
Admit.
Code 170 or 400, State Oil
shall meet the applicable Board ~orState Fire Marshall
regulations triggered by such detections and monitor
the Krones’ well
for volatile aromatics,
including
benzene,
toluene, xylene, and ethylbenzene and any
other constituent found in the gasoline being stored in
the State Oil tanks.
Such monitoring shall be carried
out at least once every six months until the completion
of any release response and corrective action
undertaken by State Oil pursuant to 35 Ill. Adm. Code
731 Subpart
E, or equivalent regulations adopted by the
State Fire Marshall at 35
Ill. Adm. Code 170 or 400.
The samples should be analyzed by a method providing
test sensitivity
which would detect quantity at the
level meeting any requirements of 35 Ill. Adm. Code 601
et. seq.
3.
If any chemical constituent monitored in accordance
with condition #2
is detected in Krones’ well, pursuant
to Ill.
Rev.
Stat.,
ch.
116.116(b), State Oil Company
shall develop and reduce to writing a contingency plan
to provide an immediate source of water to the Krones,
as well as a plan which would provide the Krones with a
long—term source of water.
As parts of such plan,
the
Company should ensure that, as a minimum, portable
water service may be readily extended from its property
to Dr. Krone’s property as an interim measure pending
extension of service from the community water supply.
This plan shall be filed with:
Groundwater Section
Water Division
Illinois Environmental Protection Agency
2200 Churchilll Road
Springfield,
IL
62706
125—578
17
4.
This grant of exception pursuant to Section 14.2 of the
Environmental Protection Act is not to be construed as
affecting the enforceability of any provisions of this
exception,
Board regulations, the Environmental
Protection Act,
or any other applicable law or
regulation.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987 ch.
111 1/2 par. 1041,
provides for appeal of Final
Orders
o,f
the Board within 35 days.
The Rules of the Supreme
Court of~Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member J.D. Dumelle dissented.
I Dorothy M. Gunn,
Clerk of the Illtnois Pollution Control
Board, hereby certify that the abo~Opinion and Order was
adopted on the
~7S~-’±-
day of
i/~-’
‘S~P~
,
1991,
byavoteof
~/
Dorothy M.
Gu~?n,
Clerk
Illinois Pollution Control Board
125—479
