ILLINOIS POLLUTION CONTROL BOARD

November

2,

1978

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 75—475

THOMPSON OIL CO.,

NORTHRUP OIL CO.

and TEXACO INC.,

Respondents.

MR. PATRICK CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF THE AGENCY;

MR.

THOMAS

IMMEL; BURDITT, CALKINS

AND

IMMEL APPEARED ON BEHALF

OF RESPONDENT TEXACO,

INC.

MR. LEE ZELLE APPEARED ON BEHALF OF RESPONDENTS THOMPSON OIL CO.

AND

NORTHRUP OIL CO.

OPINION

AND

ORDER OF THE BOARD

(by Mr. Dumelle):

The Environmental Protection Agency

(herinafter the Agency)

filed its Complaint in this matter on December

15, 1975 alleging

that Thompson Oil Company

(herinafter Thompson)

caused the dis-

charge of contaminants into groundwater and sanitary sewers by

allowing gasoline and fuel oil to permeate the ground around its

bulk storage facility in Springfield,

Illinois in violation of

§12(a)

and §12(d)

of the Act.

In an Amended Complaint filed

August

2,

1976, the Agency added Texaco,

Inc.

(hereinafter Texaco)

and Northrup Oil Co.

(hereinafter Northrup)

as Respondents.

There were nine days of hearings held to take evidence in

this case:

October 24,

25,

26 and 27, 1977,

December 19,

20,

21

and 22,

1977, and April

3,

1978.

In its Complaint the Agency alleges that contaminants

in the

local groundwater and sewers originated from the gasoline and oil

bulk storage facility at 2016 Republic Street

in Springfield.

It

is alleged that gasoline spills and leaks permeated the soil,

reached the groundwater, and infiltrated the sanitary sewer line

causing

fumes to enter residential basements.

cHRONOLOGY OF OWNERSHIP BY THE RESPONDENTS

The storage facility consists primarily of horizontal above

ground tanks, connected by underground pipes

to the pumps at the

loading rack for transfer to trucks

(R.850).

Operation began in

1952 at which time the facility was owned by Texaco and operated

32—3

---

by Harold Jassman

(R.40-41).

Between June 26,

1972 and April 22,

1974 Thompson operated the facility under a lease and “distributor

agreement”

from Texaco

(R,849,852)

Under the terms of the lease,

Texaco was responsible for maintenance of the storage tanks and

pumps.

Under the distributor agreement,

Thompson was required to

purchase a quantity of gasoline from Texaco and sell Texaco products

at several service stations he was operating

(R.857,852).

Thompson

purchased the property and all improvements thereon in April of

1974,

and continued to operate the storage facility until approxim-

ately April

of 1976.

At this time Northrup became the owner and

operator

(R.1174)

EVIDENCE OF CONTAMINATION OF WATERS OF THE STATE

Contamination of Groundwater:

The Agency’s allegation of groundwater contamination

is based

on data obtained from the sampling of eleven monitoring wells

constructed on and around the bulk storage facility grounds.

Six

of these wells were installed in July of 1974 and the remaining

five were installed in July of 1975

(R.375).

The wells were approx-

imately 6—7 feet deep

(R.317—l8)

.

Water samples withdrawn from

these wells were analyzed for gasoline content by use of a gas

chromatograph (R.417),

This instrument separates the gaseous

components injected into it based on phase stability and mobility,

and produces a graph which records the reactions created by ioniza-

tion of the sample.

The graph can then be used to determine what

substances are present

in a sample and their concentrations

(R.4l8—l9).

Well

#3 is located near the loading rack of the

bulk storage facility which

is the subject of this proceeding.

Test

results from this well strongly indicate the presence of gasoline

in the groundwater on a number of occasions

(Comp. Ex.

#8-21)

The results

in these laboratory reports are expressed in terms of

“Hydrocarbons in the range of gasoline”.

The Board finds that

this characterization of the chromatograph results

is sufficiently

precise to allow the conclusion that gasoline was detected.

Data

from wells

#6 and

11 on adjacent residential property also indicate

the presence of gasoline in the groundwater.

Well

#1 was installed

to replace well

#6

in July of 1975, after

it ceased to function

properly.

Well

#6 is not shown on the chart which indicates the

location of wells.

(Comp. Ex.

6)

Respondents question the

validity of the results obtained from well

#3

after 1974 due to

the sampling method employed by the Agency.

It appears that the

Agency began to take larger samples from well

#3 beginning in

January of 1975

in order to allow testing personnel to skim gas-

oline off the top of the water,

This may have produced misleading

data regarding the concentration of gasoline in the ground water

(R.299).

It is also possible that without the increased size of

samples the gas chromatograph instrument may have been unable to

detect gasoline in the water

(R.548—49).

The Board finds it unnecessary to rule on the validity of

these results because the data in Comp. Ex. 8—li clearly establish

32—4

---

the

presence

of

gasoline

in. the groundwater on five occasions in

1974.

Respondents also question the accuracy of characterizing

water in the monitoring wells as groundwater,

due to the possibil-

ity of surface water infiltration,

Testimony by the Agency’s

expert witness, Rauf Pishkin, indicates that surface water could

conceivably

infiltrate the well shaft by lateral migration at a

level below the impermeable bentonite cap.

It is his opinion,

however, that this

is 1~ighlyunlikely

(R.1040—45,

704)

The Board finds that the wells were constructed properly and

that the possibility of such infiltration is not serious enough to

taint the results

of the well samples

(R.732—703).

Additional

evidence

of

groundwater

contamination

can

be

found

in the

results

of

core

samp:Les

taken

from

wells

#3

and

#6

as

they

were

being

drilled.

The

presence

of

gasoline

was

detec-

ted at nine feet below the surface in both well

shafts.

(Comp. Ex.

7),

indicating that the contaminant had reached the water table

(R.81l)

Based on the water sample

arid core sample data the Board finds

that there was contamination of groundwater as alleged by the Agency.

Contamination of Sanitary Sewer

Witness John Hurley1

a chemist, testified that gasoline would

volatize if it came into contact with sewage water

(R.500).

Gas-

oline fumes were detected in the sewer manhole on Republic Street

(R.l51,356).

Kenneth Race,

of the Springfield Fire Department,

discovered a definite strong odor in some basements

in the area

(R.356).

He testified that fumes from the sewer could enter a

basement through the sewer line leading from the street to the

building

(R.363),

in the absence of

a proper “trap” on the sewer

line.

A trap

is a “V-shaped segment of piping with fluid in it”

(R.363-64)

used to inhibit the entry of sewer gas into basements.

It appears that these homes may have been built without such traps.

Respondents have contended that sanitary sewers are not

“Waters

of

the

State~ and therefore cannot be the subject of an

allegation

of water pollution under the Act (R.l4—23)

.

The Board

finds as a matter of law that §3(o)

of the Act

clearly

includes

sanitary sewers in its definition of “waters”.

Section 3(o)

defines

“water” as,

“all accumulations of water, surface and underground,

natural, and artificial, oublic, and private,

or parts thereof...”

The definition in §104 of the Boardis Water Pollution Regulations

(Chapter

3)

excludes

sanitary

sewers from this definition only

used

in

this

chapter”.

The

violation

of

§12(a)

and

§12(d)

of

the

Act,

alleged

in ?his case are not related to violations of

standards contained in the Regulations.

Therefore the term “water

pollution”

as defined in §3(n)

and applied in §12(a) and §12(d)

of

the Act includes contamination of a sanitary sewer.

The Board

finds,

as

a

matter

of

act,

that such contamination has occurred in

32—5

---

this

case.

The

question

of

contaraination

of

the

sanitary

sewer

is

separate

from

the

question

of

injury

caused

to

homeowners

which

is

dealt

with

below

and

goes

to

the

“reasonableness”

of

the

contamina-

tion.

Nevertheless

evidence

of

aso:Line

vapor

in

basements

indicates

the

presence

of

such

vapor

in

the

sewer

line

as

well.

EVIDENCE

THAT

CONTAMINATION

ORIGINATED

FROM

THE

BULK

STORAGE

FACILITY

AT

2016

REPUBLIC

STREET

Witness

Mary

Passmor,

a

nearby

resident,

testified

that

she

has

seen

gasoline

spilling

from

hoses.

and

truck

during

loading

operations

on

the

premises

and

on

one

occasion

in

the

summer

of

1974,

she

observed

fuel

oil

pouring

out

of

a

pipe

connected to

the

storage

tank

(R. 64,

65

L0/24/77)

.

Witness

Abe

Loudermilk

observed

leaking pumps

at.

the

facility

(:R, 153

—

10/24/77)

,

as

did

Witness

John

Snyder

(R, 243

—

10/25/77)

.

Mr.

Loudermilk

observed

stains

on

the

storage

tanks

and

nearby

ground

(R,146

—

10/24/77),

and

in

February,

1975 he observed a stain

about

30

feet

long

and

8—12

feet

wide

near

the

:ioaaing

area

~R. 147

—

10/24/77)

.

Mr.

Snyder

testified

that

the

soil

in

this

area

and

also

beneath

the

pumps

had

the

odor

of gasoline

(R,352

--

10/25/77).

Witness

John

Forneris

detected

stains and gasoline

odor

in

an

excavation

of

one

of

the

pumps

(R.255~57

—

10/25/77)

There

is

abundant

evidence

of gasoline spillage and leakage

at

the

Thompson

Oil

Co.

faci:Lrtv.

Once

introduced

into

the

soil,

such

gasoline

would

be expected to

reach

the

water

table

during

periods

of

rain,

or after

the

so~~s

absorptive

capacity

has

been

reached

(R.749).

The logical source of

the

groundwater contamination

demon-

strated

in

this case appears to

be

the

Thompson

Oil

facility

at

2016

Republic

Street.~

The

only

consistent

contamination

recorded

in

test

results was

in

well

~2

near

the

:Loaaing

rack,

and

wells

#6

and

#11

which

were

at a point “downstream”

of

Thompson

Oil

Co.

based on

the

calculated

direction

cf

groundwater

flow

(Comp.

Ex.

6)

Well

#2

and

#10

also

registered

some aroundwater

contamination

(Comp.

Ex,

12-16,

19—22)

Nevertheless

this

also

may have been

caused

by

oil

from

the

ThomPson

Oil

Co.

premises.

(R,1025—26)

The

core

samples

taken

from

well

#3

indicate

that

the

soil

at

this

location

was

contaminated

with

gasoline

at

ieast

as

far

as

the

water

table

(Comu.

Ex.

7,

R .734)

.

The

core

samples

taken

from

well

#6

indicate

cont:amination

only

at

a

depth

of

9

feet,

(Camp.

Ex.

7)

which was

below

the

water

table

(R, 994)

,

Expert

witness

Rauf

Pishkin

interpreted

the

core

samples

taken

together,

as

an

indication

that

casoline

was

carried from

the

well

#3

area

to

the

well

#6

area

at

the

top

of the

water

table

(R~734).

This

is

consistent

with

other

testimony

indicating

that

gasoline

would

float

on

top

of

the

water

table,

moving

with

the

ground

water

flow

(R.978)

,

The

direction

of

flow

would

be

from

well

#3

•to

well

#6

(R.324)

.

The possih:Liity that the

croundwater

contamination

ob-

served

originated

from

anywhere

but

the

Thompson Oil Co. facility

---

appears insignificantly small

(R.233),

ifl addition,

there is no

evidence of gasoline leakage or spillage anywhere else in the area.

In light of these facts,

the Board finds that groundwater contam-

ination occurring during the years 1974 and 1975 originated from

the Thompson Oil Co. bulk storage facility at 2016 Republic Street

in Springfield,

Illinois,

Since

the Board has found this connection,

the controversy

over the admissibility of explosimeter results and the testimony

of Mr.

Snyder need not be decided.

It remains to be proven whether this groundwater contamination

can be linked to the sanitary sewer contamination, thereby indicating

that

this

also

originated

from

the

bu:Lk

storage facility.

In order

for

infiltration

of

the

sanitary

sewer

to

have

occurred,

it must

have intersected with the top of the water table during wet

weather

(R.1087-88),

Witness Toby Frevert testified that the sewer

is

6

feet 5 inches

deep

at

the

manhole

on Republic Street

(R.l2ll).

Data from nearby well

#6

indicate water table depths of

6 feet 8

inches on August

30, 1974

(Comp.

Ex.

:Lo),

7 feet

6 inches on

August 16,

1974

(Comp. Ex.

9)

and 7 feet

10 inches on July 19,

1974

(Comp.

Ex.

8).

Although the Agency neglected to measure the

exact

level

of

the

water

table

during

wet

weather

(R.354-55)

,

the

Board

finds

that

it

is

reasonable

to

infer

that

the water table rises

three

inches

during

wet

weather,

in

light

of

the

observed

fluctua-

tion

of

1 foot,

two inches within one and a half months

(See Compi.

Reply

Brief

at

11).

There

is

evidence

that

the

sewer

could

have

been

contaminated

by

surface

runoff

entering

through

the

manhole

cover

(R.356,363).

Nevertheless this possibility is unlikely and

gasoline odor was detected in the manhole during dry weather as well

(R.15l,36l).

The Board finds that contaminated ground water infil-

trated the sanitary sewer as per the testimony of Rauf Pishkin

(R.914)

and

that

the contamination in both the ground water and the

sanitary

sewer

originated

from

the

Thompson

Oil

Co.

bulk

storage

facility on Republic Street.

DOES

THE

CONTAMINATION

PROVEN

IN

THIS

CASE CONSTITUTE A VIOLATION

OF THE ACT?

§12 (a)

In order to have a violation of

§12(a)

of the act the contam-

ination of waters of the State must be shown to constitute “water

pollution”

as defined in §3(n).

Section

3(n)

defines water pollu-

tion as

“...

.discharge..

.

.as will or

is likely to create a nuisance

or render such waters harmful or detrimental or injurious to

public

health,

safety

or

welfare...”

Testimony of Kenneth Race of the Springfield Fire Dept. indi-

cated a fear that gasoline fumes might cause an explosion in the

basements of homes in the area

(R,356).

The Board finds that

creation of a potential

fire hazard is harmful

to

the

public

safety

and welfare.

Therefore contamination of

the

sanitary

sewer

consti-

tutes water pollution and a violation of §12(a)

of the Act.

32—7

---

The

City

of

Springfield

does

not

depend

on

underground

wells

for

its

drinking

water

(R,753-62,:Lo56—58).

The contamination of

groundwater

by gasoline,

apart, from sewer infiltration,

has

not

been

shown

to

be

a

nuisance

or

danger

to

public

health

and

safety

at

the

present

time,

Therefore

the

Agency

has

not

proven

a

viola-

tion

of

§12(a)

with

respect

to this

contamination,

§12(d)

Violation

Testimony

in

the

record

indicates

that

a

person

desiring

to

dig

a

well

on

his property would be

unabLe

to

freely

drink

the

water

due

to

the

gasoline

contamination

(R. 763).

The

apparent

absence

of

public

or

private

we:L:Ls in

the

Springfield area does not

give one the right to allow the introduction

of

contaminants

into

the ground water.

Section

:L2(d)

of

the Act prohibits the depositing

of contaminants on the land which create a water pollution hazard.

This can include conduct which does not yet amount to a violation

of

§12(a)

.

Tn

County Landfill Co.

v.

Illinois Pollution Control

Board,

41

Il17App

3d

249,

353 ~

The Board

finds that

it

is

a

water pollution hazard to have

gasoline

in contact with the ground water where natural degradation and

evaporation

are inhibited, and

exact

prediction

of flow is uncertain.

There is no reason to

believe that it will merely disappear.

There

is certainly no way of assuring it will do

so before finding it’s

way into someones well or a surface water stream.

Section 12(d)

is intended to prohibit

such

“incipient

pollution

threats before

the actual harm has occurred”.

ERE

v.

James McHugh Construction Co.,

PCB 71-291,

4 PCB 511,517

-

5/17/72) (emphasis added),

Therefore

the Board finds that the contamination of ground water was a viola-

tion of §12(d)

of the Act,

LIABILITY OF THE THREE

INDIVIDUAL

RESPONDENTS

Northrup:

Northrup

was

joined

as

present

owner

of

the bulk storage

facility on

an

allegation

of

continuing

existence

of

contamination

in the soil.

The most

recent

evidence of contamination of soil or

water is from October

3,

1975

-

before purchase of the premises by

Northrup,

Witness Pishkin

testified

that

gasoline would remain in

the soil for many years and that gasoi~ne

may

he detected in wells

if they were dug now (R.i048’~50)

,

Nevertheless,

some or all of this

gasoline exists bouna to soil particles,

:Ln which case

it will not

necessarily ever

reach

the

water

table

(R.1049—30)

.

The Agency has

failed

to

meet

its

burden

of

proof

with

regard

to

a

§12(d)

violation

by

Northrup.

Without

more

solid

proof

that

water

pollution

may

continue

to

occur,

the

Board

must

dismiss

the

allegations

against

Northrup.

Texaco:

The

record

.indicates

thai:.

operations

at

the

bulk

storage

facility

were

“clean”

before

Thompson

took

over

in

1972

(R.53.,59,

61).

All

evidence

of

leaks

and

spills

and presence of

gasoline

in

soil

and

ground

water

is

from

a

point

in

time

after

Texaco

sold

the

property

to

Thompson

Oil

Co..

Nevertheless,

based

on

Witness

Pishkin’s

calculation

of travel

time

for

a

contaminant

in

the

ground water,

gasoline detected

in

well

#6

would

have

started

its

32—8

---

—7—

migration during the time when Texaco

was

lessor of the property

(R.905).

Texaco contends that a violation of §12(a)

of the Act

requires scienter and cannot be based on being the lessor of one

who causes water pollution.

The Board would like to dispel both

of these misconceptions.

The Act imposes an affirmative duty on a

lessor

if he

is

in a potential position to control the activities

on the premises.

(EPA

v. James McHugh Construction Co., PCB 71-291,

4 PCB 511,

-

5/17/72),

Where such potential exists,

there need not

be intent or even knowledge of the violation to be held liable.

Meadowlark Farms, Inc.

v, Illinois Pollution Control Board,

17

Ill. App.

3d 851,

308 N.E.

2d 829

(5th Dist,

1974)

;

I-lindxnan

v.

EPA

et al.,

42

Ill. App

3d 706,

356 N.E.2d 669,672

(5th Dist.

1976).

Tf

the water pollution occurred when Texaco owned the property, and

Texaco had the potential

to control the conduct of its lessor,

then

Texaco can be liable if

it was reasonable for Texaco to have exer-

cised this control

(McHugh supra~.

The Board does not need to

decide this issue of fact because the Agency has not met its burden

of showing that pollution occurred during Texaco’s ownership of

the property.

Witness Pishkin is a credible expert witness.

Never-

theless his estimates of ground water travel time are anything but

precise.

The range of soil permeability used

is very wide

(R.928).

In general, his margin of error may be several years

(See R.939—

49,

956-66).

In the absence of evidence that the sanitary sewer

was contaminated before April

22,

1974,

Dr.

Pishkin’s

calculations

will not carry the Agency’s burden of proof in this matter.

It

should be noted that Texaco is only alleged to have violated

§12(a)

and only the sanitary sewer contamination has been found to

be

a

§12(a) violation here.

Thompson:

All the evidence in the record of gasoline leaks and

spills,

and presence

of gasoline in the soil and ground water and

sanitary sewer relates to Thompson’s activities as operator of the

bulk storage facility

in 1974 and 1975.

These activities caused

water pollution under

§12(a)

of the Act and a water pollution hazard

under §12(d)

of the Act.

The Board finds Thompson Oil Co.

in

violation of both of these provisions.

REASONABLENESS:

§33(c)

Factors

In making its final determination in this proceeding,

the

Board

must

consider

the

reasonableness

of

Petitioner’s

“discharge”

of gasoline to the ground water and sanitary sewer, using the

criteria set forth

in

§33(c)

of the Act (Incinerator Inc.

V.

Pollution Control Board,

59 Ill.

2d 290,

319 N.E.2d 794

(1974)

Character and Degree of Injury

Respondent’s pollution of the sanitary sewer interfered with

the public safety and welfare by creating a risk of fire and explo-

sion in residential basements from gasoline fumes.

In mitigation

of this violation of §12(a)

the Board must weigh the fact that the

situation could have been avoided by installation of proper sewer

traps

in these homes

(R.364).

Testimony at the hearings indicated

32—9

---

—8—

that

it is the homeowner’s responsibility to install this item

which

is

apparently

a

standard

building

requirement

at

the

present

time

(R.364—65).

The

affected

homes

may

have

been

built prior to

this

requirement.

Although one witness did testify that the fumes

gave

her

a

headache

(R.44)

,

there

is

no

other

evidence

before

us

that

actual

injury

was

caused.

The degree of injury suffered by Thompson’s pollution of the

ground water

itself

is more difficult to characterize.

There is no

present or contemplated use of the ground water in Springfield

because the public water supply is Lake Springfield.

There

is no

evidence

that

an

unwary

citizen

drank

contaminated

water

from

a

private

well

or

that

an

alerted

citizen

had

to

pay

for

installation

of

a treatment system for such a well.

Nevertheless the presence

of gasoline in contact with the water table creates the hazard of

“water pollution” as defined in the act.

The social and economic value of the bulk storage facility

and its relationship to the surrounding area are not really at issue

in this case.

Technical Practicability and Economic Reasonableness

Respondents successfully opposed the introduction of evidence

on this matter,

on the grounds that

it was

irrevelant to the pro-

ceeding and prejudicial for the Board to

see.

(See 880-887).

Under

the Incinerator case such information is quite relevant in an

enforcement proceeding.

The issue of whether there exists a technologically feasible

method for correcting the situation is now moot because Thompson

Oil Co.

no longer owns the property.

The Agency’s offer of proof

at R.1131-32 indicates that the evidence excluded from the record

would really only be relevant against the present owner, Northrup.

There has,

of course, been no violation proven against Northrup.

Therefore there

is sufficient evidence

in the record pertaining to

§33(c)

factors to

make a final determination

in this case.

In summary the Board finds that Thompson Oil Co. has violated

§12(a)

and §12(d)

of the Act.

Due to mitigating factors pertaining

to the §12(a)

violation, no fine will be imposed.

For the viola-

tion of §12(d)

by pollution of groundwater the Board will impose a

find of $1,000 to aid

in the enforcement of the Act.

The complaints

against Texaco and Northrup are dismissed.

This Opinion constitutes the Board~sfindings of fact and

conclusions of law in this matter.

Mr.

James Young abstained.

32—10

---

ORDER

It

is the Order

of the Pollution Control Board that:

1)

The allegations

in the Complaint against Texaco,

Inc.

and Northrup Oil Company are dismissed.

2)

Thompson Oil Company has violated

§12(a)

and §12(d)

of

the Act.

3)

Within

35

days

of the date of this order, Thompson Oil

Company

shall

pay

the

penalty

of

$1,000.00,

payment

to

be made by certified check or money order to:

State of Illinois

Fiscal Services Division

Illinois Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois

62706

I, Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board,

here1~ycertify the above Opinion and Order were

adopted on the

_______

day of

~rtj,.4nJJ4.&~,

,

1978 by a vote

of3.~

Christan L.

offe

,

lerk

Illinois Pollution

trol Board

32—i 1