BEFORE THE POLLUTION CONTROL, BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
SANGAMON VALLEY FARM SUPPLY,
Petitioner,
ILLNOIS ENVIRONMENTAL
PROTECTION AGENCY and
VILLAGE OF SAYBROOK, ILLINOIS
Respondents.
1
1
PCB Case No. 06-43
PETITIONER'S POST HEARING BRIEF
NOW COMES the Petitioner, Sangamon Valley Farm Supply, by and through its
attorneys, Sorling, Northrup, Hanna, Cullen
&
Cochran, Ltd., Charles J. No~tl~n~p,
of counsel,
and pursuant to Sectio~l 101 of the Illinois Pollution Control Board's regulations, and the
modified
hrrcfing schedule adopted by the parties, hereby sublnits its Post Hearing Brief in the
above matter. In support hereof,
Sangamon Valley Fann Supply states as follows:
1.
Background
A.
Procedural Background
On September 19, 2005, Sailgainon Valley FS filed ils initial Petitlon pursuant to Section
14.2 of the Illinois Envirollmental Protection Act ("Act") seclting an exception to community
water well setback requirements applicable to the Village of Saybrook,
McLean County, Illinois.
On October
11, 2005, the Illinois El~virol~inelltal
Protection Agency ("Illinois EPA") filed its
Response to the Petition and concluded that it would recommend granting the exception
provided certain additional
infonllation was provided by the Petitioner.
In addition, on
Novelnber 7, 2005 the Board requested written answers to ccrtain questions about the proposal.
{SOSI
9559.2 '>I2612006 CJN
BLF)
Printed
oil
ilecycled Piiper.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
After consultations with the Illinois EPA, on March 31, 2006 Petitioner filed an "Amended
Petition for
Cornmu~~ity
Well Setback Exception." On April 24, 2006 the Illinois EPA filed its
Response to the Amended Petition
and recommended that the Petition be granted. On June 1,
2006, the Board reiterated its earlier questions and on July 28, 2006 Sangamon Valley FS
responded to those questions. On August 9, 2006 a public hearing was held in Bloomington,
McLean County on the Petition. Sangamon Valley FS presented the testimony of one witness
(Mr. Jerry Wilson,
Ideal Environmental Engineering, Inc.) and one Illinois EPA witness (Mr.
Lynn Dunaway, Bureau of Water) responded to questions from the Hearing Officer. In addition
to the testimony of Mr.
Wilson in support of the Petition, the Illinois EPA recoininended that the
Board
grant the Petition (Tr. pg. 7).
B.
Substantive Background
Altllough many of these nlatters are set forth iu the Amended Petition and were discussed
at the hearing,
some brief substantive baclcgrou~~d
may be useful for the Board.
Sangamon
Valley FS formerly owned and operated a service station at the corner of Main and Lincoln
Streets in the Village of
Saybrook (Am. Pet. at 3). The Sanganon Valley FS service station
ceased operations in
approximately 1998 and at that time a nuinber of underground storage tanks
were
removed (Tr. pg. 11). At the time of tank removal it was discovered that gasoline had
leaked
from at least some of the underground storage tanlts (Am. Pet. at 3). Sangamon Valley
FS immediately entered the Illinois EPA's lealting underground storage ta111c program (Id.).
Under this program, and with the approval of the Illinois EPA, Sanga~non Valley FS has
removed approximately 330 cubic yards of iinpactcd soil, applied oxygen release co~npound
("ORC") to the excavation, illstalled 7 groundwater monitoring wells, and injected an additional
8,000
lbs of ORC to the shallow groundwater through 317 injection points in the vicinity of the
L
Printed on Recycled Paper
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
facility (Am. Pet. at 3-4). This remediation has proven successful but additional work needs to
be done (Tr. at 12). Accordingly, Sangamon Valley FS prepared a second Corrective Action
Pian and Budget and proposed to the iiimo~s EPA that another round or ORC injections be
performed (Am. Pel. at 5). This proposal was rcjectcd because
thc proposed ORC injection
points
xvcre all located within the 400 foot community water well setback (Am. Pet. at 5-6). In
order for Sanga~ilon Valley FS lo appropr~ately place the new ORC mjection pomts and for this
rcmediation to be complctcd, Sangamon Valley FS needs to obtain an exception to the 400 foot
communlly watcr well setback (Tr. at 11). As noted above, the Illinois EPA has recommended
granting the exception
11.
Argument
A.
Applicable Statutes
and Regulations
Sectloll 14.2 of the Act states in part:
(a)
Except as provided in subsections
(b), (c) and (11) of this Section, no new
potential route or potential primary source or potential secondary source
may be placed within 200 feet of any cxisting or permittcd community
water supply well or other potable water supply well.
(c)
The Board
may grant an exception from the setback requirements of this
Section
. . .
to the owner of a new potential route. 415 ILCS 5/14/2(a), (c)
(2002).
Section 3.350 of
the Act defines "potential route" as:
[Alll injection wells
. . . .
A new potential route is:
(1)
a potentla1 route which is not in exlstcnce or for which construct~on has
not commenced at its location as of January 1, 1988, or
(2)
a
poteutial route which expands laterally beyond the c~~rrcntly
permitted
boundary or, if the potential routc is not permitted, the boundary in
existence as of January 1, 1988. 415 ILCS
513.350 (2002).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
Pursuant to Seetioil 14.2(c) of the Act, because the proposed ORC il~jection points would
be considered a "new potential source or route" of
contami~~ation,
Sangamon Valley FS was
required to file a petition with the Board that included:
(I) a description of the potential impacts
of
the potentla1 source or route on groundwater and the affected water well; and (2) an
explanation of the applicable technology-based controls
Sangamoli Valley FS would employ to
minimize the potential for
contamillatioll of the potable water supply well. Accordingly,
Sangamon Valley FS initiated this proceeding by filing such a Petition that satisfies these two
requirements.
B.
Standard of Review
Pursuant to Sectioll 14.2 of the Act, the Board must grant the requested water well
setback
exceptio~l when the following elements are established by adequate prook
[Tlhat coinpliai~ce with the setback req~~irernents
of illis Section would [I] pose
an arbitrary and unreasonable hardship upon the petitioner, [2] that the petitioner
will utilize the best available technology
coiitrols economically achievable to
ruillimize the likelihood of conla~nination of the potable water s~~pply
well, [3]
that the maximum feasible alternative setback will be utilized and [4] that the
locatioli of such potential source or potential route will not constitute a significa~~t
hazard to the potable water supply well.
415 ILCS
5/14.2(c) (2004); Paul Johnson, Inc. v. Illinois EPA and the Citv of Waterman, PCB
Xo. 05-109 (May 19, 2005). All of these elements have been satisfied in this case and Sangamon
Valley FS should be granted ihe water well exceptioil
C.
Discussion
of
Required Elerner~ts
1.
Arbitrarv and Unreasonable Hardship
in its Petltion and at hear~ng, Sangrunon Valley FS demonstrated that compliance with
the 400 foot setbaclc would pose an arbitrary and unreasonable hardship on Sangamon Valley FS.
F~rst, the sole remaming act of Sangamon Valley FS 1s to complete this remed~at~on
(Tr. at 13-
lS051955'1.2
')/26/2006
CIN B1.l;)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
14). Once the Illinois EPA issues its "No Further Remediation Letter" to Sanga~uon Valley FS
the corporation will be dissolved (Id.). Accordingly, failing to grant
tile exception will require
the corporate
form to be maintained when it is the intent of the President of the corporation to
dissolve it. Second, failure to grant the exception will not allow
Sangamon Valley FS to obtain a
No Further Remediation letter from
the Illinois EPA. The Board has previously found that such
a failure to obtain a NIX letter constitutes an arbitrary a~d
unreasonable hardship. Johnson
Controls. Inc.
v. Illinois EPA et al., PCB No 05-109 at pg. I0 (May 19, 2005). Third, granting
the exception will allow the Village to avoid
an unnecessary hardship as well. By granting the
exception,
tile Village will secure clean water for its residents and avoid the cost of drilling new
water supply wells (Tr. at 13). Finally, the only witness who testified at hearing specifically
opined that failing to grant the exception would pose
a1 arbitrary and u~ireasonable hardship (Tr.
at 14).
2.
Best Available Technology to Minimize Contamination
In its Petition and at hearing, Sanganon Valley FS demonstrated that Sanganloll Valley
FS's proposal to i~lject ORC into the groundwater as a method of completing the site remediation
utilizes the best available control technology economically achievable to minimize the likelihood
of contamination to the water supply well. The proposed ORC injection, alternatively referenced
as "enhanced natural attenuation" or "in-situ bioremediation," was compared against a nunlber of
other remedial alternatives. First, a "pump and treat"
tecln~ology was reviewed. However, this
technology was determined
not to be feasible at this site. 'The costs of such a system were
prohibitive and,
in any event, the McLean County authorities would not allow necessary work to
be performed in a County right-of-way (Tr. at 16). In addition, the length of remediation may
exceed 10 years with continual maintenance costs (Tr. at
17). Second, an "air sparging" system
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
was reviewed. Here, too, the hearing's only witness testified that "air sparging" was not the best
available technology (Tr. at 19). "Air sparging" is a technology that injects air into
containinated
groundwater which creates bubbles which in turn releases vapors which are then captured in a
soil venting system (Tr. at 17
-
18). Such a system at this site is not achievable because of the
depth of
the groundwater and the problems associated with installing a soil venting system (Tr. at
18).
In addition, "air sparging" also takes a significant amount of time to be effective and
requires substantial maintenance costs (Tr. at
18 -19). Sangamon Valley FS also reviewed the
possibility of replacing and relocating the water wells. This, however, was identified to be too
expensive
(in excess of $750,000) (Tr. at 20). Finally, only the proposed ORC i~~jection
proposal
was identified as meeting the applicable standard. It is a proven technology at this site and
elsewhere; it has no ongoing maintenance costs; it has
110 disruptive inlpact on local roadways;
coinpared to the other alternatives its cost is roughly a quarter or a third of those other
tecl~nologies; and it may require only 12 to 18 months before the site is clean (Tr. at 22-23).
3.
Use of Maximum Feasible Alternative Setback
In its Petition and at hearing, Sanganlon Valley FS demonstrated that Sanganlon Valley
FS's proposal to inject ORC into the groundwater as a method of completing the site remediation
utilizes the iaaximum feasible alternative setback. Sangamon Valley FS's technical expert
testified that the injections will stay as far away from the wells as possible, in this case
approximately 75 feet
(Tr. at 24). In addition, the closest injection points are designed as a
harrier using lesser
a~nounts of ORC than directly in the plume (Tr. at 25). Also, Sanganlon
Valley FS is committed to workicg with the Illinois EPA and the Village of Saybrook on specific
injection point placement
(Tr. at 25).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
4.
No Significalit Hazard to Water Supply Well
Finally, Sangamon Valley FS demonstrated in its Petition aiid at hearing that its proposal
to inject ORC into the groundwater as a
method of completing the site remediation will not
constitute
a significant hazard to the Village of Saybrooli's water wells. Sullganlon Valley FS
has provided a copy of the ORC MSDS
from the manufacturer as an exhibit to its Petition. At
hearing, Sangamon Valley's expert indicated that the ORC is a calcium based material, much
like an
antacid (Tr. at 26). In addition, Sanganlon Valley FS will be monitoring the well closest
to the
injection points for any impact caused by the ORC (Tr. at 46). If testing identifies any
injected materials, an
anendrneilt to the Corrective Action Plan will be prepared (Tr. at 47). On
this point, it is again important to note that the Illinois EPA has
recoiiiniended that the Board
grant the exception.
III.
Conclusion
WHEREFORE, for the above reasons, Petitioner Sangamon Valley Farm Supply
respectfully requests that the Board grant
it an exception from the setback requirements of
Section 14.2 of the Act so tliat it may complete its proposed
remedial action at the identified site.
Respectf~illy submitted,
SANGAMON VALLEY FARM SUPPLY
./
By:
One of
/
its ~ttome$s
, ----' --.--. _c--.---
<G
3-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006
Sorling, Norlhrup. Hanna,
Cullen
&
Cochran, Ltd.
Charles
J. Northritp, of Counsel
Suite 800 Illinois Building
P.O. Box 5131
Springfield, 11,62705
Telepl~one: 217.544.1 144
Fax:
217.522.3173
E-Mail: ~jj~~~:t!jr~p~~;s~~~:l.j~~gl~~~~~~~~~
PROOF OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document was
electronically filed
w~th the Pollution Control Board:
Ms. Dorothy M.
Gunn
Pollut~on Control Board
James R. Thonlpson Center
100 West Randolph St., Suite 11-500
Chicago,
1L 60601
and served on
the following by placing same in a sealed envelope addressed to:
Mr. Ronald E. Stauffer, Mayor
Ms. Carol Webb
Village of
Saybrook
Hearing Officer
234 W. Lincoln Street
Illil~ois Pollution Control Board
Saybrook,
11,
61770-03 17
1021 North Grand Ave. East
P. 0. Box 19274
Mr. Joey
Logan-Wilkey
Springfield, IL 62794-9274
Illinois Environmental Protection Agency
1021
Noit11 Grand Ave. East
P.
0.
Box I9276
Springfield, 1L 62794-9276
and by depositing same in the United States mail in Springfield, Illinois, on the2-y
rd
of
Sr,fl{c&,q
,
2006, wit11 postage fully prepaid.
8
Printed on
Recycled
Pnpcr
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 27, 2006