PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution Control
Board a RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE RECORD AND MOTION TO STRIKE,
MOTION FOR LEAVE TO FILE REPLY TO PETITIONER'S RESPONSE IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT, and REPLY TO PETITIONERS' RESPONSE IN OPPOSITION TO MOTION FOR
SUMMARY JUDGEMENT AND RESPONSE TO PETITIONER'S CROSS-MOTION FOR SUMMARY JUDGMENT
copies of which are herewith served upon you .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
.R~e$p\~ondye/~n/(t~
VYOJ AAA
Melanie A. Jarvis
Assistant Counsel
Division of Legal Counsel
1021 North Grand Avenue, East
P.O
. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 19, 2006
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
KNAPP OIL COMPANY, DON'S 66,
)
Petitioner,
)
v
.
)
PCB 06-52
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent . )
NOTICE
Dorothy M
. Gunn, Clerk
Carol Webb, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R . Thompson Center
1021 North Grand Avenue East
100 West Randolph Street, Suite 11-500
P. O. Box 19274
Chicago, IL 60601
Springfield, IL 62794-9274
Carolyn S
. Hesse
Barnes & Thornburg, LLP
One North Wacker Drive,
Suite 4400
Chicago, IL 60606-2833
This filing submitted on recycled paper
.
RECEIVED
DEC 2 12006
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE POLLUTION CONTROL BOARD
CLERK'S
OFFICE
DEC 2 1 2006
STATE OF ILLINOIS
Pollution Control Board
KNAPP OIL COMPANY, DON'S 66,
)
Petitioner,
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent . )
V .
RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE RECORD AND
MOTION TO STRIKE
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, Melanie A
. Jarvis, Assistant Counsel and Special Assistant
Attorney General, and, pursuant to 35 Ill. Adm. Code 101 .500(d) and 101 .504, hereby requests
that the Illinois Pollution Control Board ("Board") deny the Petitioner's motion to supplement
the record . In support of this response, the Illinois EPA states as follows
:
1 .
Section 105 .212 of the Board's Regulations, 35 Ill . Adm
. Code 105 .212, sets forth the
requirements of the Illinois EPA's record
. Subsection (b) states that the record must
include the following :
a)
Any permit application or other request that resulted in the Agency's final
decision ;
b)
Correspondence with the petitioner and any documents or materials submitted by
the petitioner to the Agency related to the permit application
.
c)
The permit denial letter that conforms to the requirements of Section 39(a) of the
Act or the issued permit or other Agency final decision ;
1
OF THE STATE OF ILLINOIS
R
ECEIVED
PCB 06-52
(UST Appeal)
d)
The hearing file of any hearing that may have been held before the Agency,
including any transcripts and exhibits ; and
e)
Any other information the Agency relied upon in making its final decision .
2 .
The Illinois EPA filed the Administrative Record on December 30, 2005
. After
discussion with Illinois EPA staff, it was determined that several documents that were relied
upon in making the final decision were missing from the record
. The Illinois EPA supplemented
the record with these documents on September 22, 2006 .
3
.
The Illinois EPA technical staff did not rely upon the documents the Petitioner is
requesting to use in supplementing the record in making its final decision
. (See Exhibit 1)
4.
The Illinois EPA does not have the OSFM application in its file and therefore it could not
have been relied upon in making the Illinois EPA's final decision
.
5 .
If every document in the Illinois EPA files pertaining to a site is required to be included
in the Illinois EPA's record, the records would become vast and would contain superfluous
documents
. If these documents are included, the Illinois EPA would then have to move to
supplement the record further with related documents in order to give the Board a clearer picture
of the situation
. (See Exhibit 2) If the Illinois EPA were required to file numerous copies of
records containing all of the documents within its file, Illinois EPA resources would be wasted
.
6.
The documents should be excluded from the Illinois EPA record and their mention
should be stricken from the Petitioner's Response in Opposition to Motion for Summary
Judgment and any future filings in this case .
2
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that the Board enter an order denying Petitioner's Motion for Leave to Supplement
Administrative Record and striking mention of said documents from pleadings in this case
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A. Jarvis
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue East
P .O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated
: December 19, 2006
This filing submitted on recycled paper
.
3
STATE OF ILLINOIS
)
SS
SANGAMON COUNTY )
1 .
I am employed as an Environmental Protection Specialist for the Illinois Environmental
Protection Agency ("Illinois EPA").
2.
1 am the project manager of the Knapp Oil site at issue in PCB 06-52 .
3 .
1 have reviewed the documents attached to Petitioner's Motion for Leave to Supplement
Administrative Record .
4.
The aforementioned documents were not relied upon by the Illinois EPA in making the
decision at issue in PCB 06-52.
5.
The Application to the OSFM is not a document that can be located within Illinois EPA files .
6.
To the best of my knowledge, the information provided herein is true and accurate
.
FURTHER AFFIANT SAYETH NOT .
Subscribed and sworn to before me
this
"
+ day of
2006.
Public
MY
NOTARY
CATHERINE
COMMISSION
PUBLIC,
EXPIRES
STATE
R
. HUNTEROF
3
.14IWNOIS.2008
.
:
•
'
:
;
•
AFFIDAVIT
I, Carol Hawbaker, upon my oath, do hereby state as follows :
Carol Hawbaker
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST, P.O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276
RENEE CIPRIANO, DIRECTOR
217/782-6762
CERTIFIED MAIL
'loon- "'a"5IO
-
oooa,- 33-1501
RAY 1 5 2002
Knapp Oil Company
Attention : Bill Knapp
Box 2
Xenia, IL 62899
Re:
LPC # 1590200007 --
Richland County
Olney / Knapp Oil Company
700 East Main
LUST Incident No . 901831
LUST Technical File
Dear Mr. Knapp :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority Corrective
Action Plan Budget submitted for the above-referenced incident
. This information, dated February 14,
2002, was received by the Illinois EPA on February 14, 2002
. Citations in this letter are from the
Environmental Protection Act (Act) and 35 Illinois Administrative Code (35 IAC).
Pursuant to 35 IAC Sections 732 .405(e) and 732 .503(b) and Sections 57 .7(a)(1) and 57.7(c)(4)(D) of the
Act, the budget is rejected for the reasons listed in Attachment A .
Pursuant to 35 IAC Section 732 .401, the Illinois EPA requires a revised High Priority Corrective Action
Plan and budget if applicable be submitted within 90 days of the date of this letter to :
Illinois Environmental Protection Agency
Bureau of Land - #24
LUST Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, IL 62794-9276
RELEASABLE
MAY 2 9 2002
REVIEWER MM
Please submit all correspondence in duplicate and include the "Re:" block shown at the beginning of this
letter .
An underground storage tank owner or operator may appeal this final decision to the Illinois Pollution
Control Board (Board) pursuant to Section 57.7(c)(4)(D) and Section 40 of the Act by filing a petition
for a hearing within 35 days after the date of issuance of the final decision . However, the 35-day period
may be extended for a period of time not to exceed 90 days by written notice from the owner or operator
GEORGE H . RYAN, GOVERNOR
PRINTED oN RECYCLED PAPER
E.x 111 b ,J
2--
Page 2
I
t
and the Illinois EPA within the initial 35-day appeal period
. If the owner or operator wishes to receive a
90-day extension, a written request that includes a statement of the date the final
decision was received,
along with a copy of this decision, must be sent to the Illinois EPA as soon as possible
.
For information regarding the filing of an appeal, please contact
:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
312/814-3620
For information regarding the filing of an extension, please contact
:
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
Springfield, IL 62794-9276
217/782-5544
If you have any questions or need further information, please contact Carol Hawbaker at
217/782-5713 .
Sincerely,
A . Chappel, P .E.
Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
HAC :CLH
Attachment
:
Attachment A
cc:
CW3M Company
Division File
I
Re:
LPC
tt 1590200007 -- Richland County
Olney / Knapp Oil Company
700 East Main
LUST Incident No . 901831
LUST Technical File
NOTE
: Citations in this attachment are from 35 Illinois Administrative Code (35 IAC) and the
Environmental Protection Act .
I .
A budget must include a copy of the eligibility and deductibility decision(s) made for the above-
referenced occurrence(s) for accessing the State Underground Storage Tank Fund (35 IAC
Sections 732
.305(b)(2) and 732 .405(b)) .
2.
The Illinois EPA has not approved the plan with which the budget is associated
. Therefore, the
Illinois EPA cannot determine whether these costs exceed the minimum requirements necessary
to comply with Title XVI (Section 57
.5(a) of the Act) and 35 IAC Part 732 (35 IAC Section
732 .505(c)) . Costs for corrective action activities and associated materials or services exceeding
the minimum requirements necessary to comply with the Act are not eligible for reimbursement
from the Fund (35 IAC Section 732 .606(o))
. It also cannot be determined whether the costs are
corrective action costs
. "Corrective action" means an activity associated with compliance with
the provision of Section 57 .6 and 57 .7 of the Act (Section 57
.2 of the Act and 35 IAC Section
732
.103). One of the eligibility requirements for accessing the UST Fund is that costs are
associated with "corrective action" (Section 57 .9(a)(7) of the Act). In addition, it cannot be
determined whether these costs are reasonable as submitted (Section 57.7(c)(4)(C) of the Act and
35 IAC Section 732 .505(c) 732 .606(hh)) .
3 .
One of the overall goals of the financial review is to assure that costs associated with materials,
activities and services are reasonable (35 IAC Section 732 .505(c)) .
The budget includes costs that are not reasonable as submitted (Section
57.7(c)(4)(C) of the Act
and 35 IAC Section 732 .606(hh)) . Please note that additional information and/or supporting
documentation may be provided to demonstrate the costs submitted are reasonable
.
The following costs in the budget are unreasonable : mobilization, monitoring well installation
time (which should be included in the soil boring per foot cost), PID rental and BTEX soil .
In additional the excessive use of Personnel is unreasonable
. For example, 6 different titles on
site to perform drilling, sampling, surveying and sampling is unreasonable . Also, 12 different
titles to perform SAR, CAP Dev
., Boring logs and Well Completion Reports is unreasonable . In
addition, 5 different titles for Reimbursement is unreasonable as well .
Attachment A
I
U .S
. Postal Service
CERTIFIED
(Domestic Mail Only
MAIL
;
No Insurance
RECEIPT
Cover, ge Provided)
Postage
A `
Cenlned Fee
(Endorsement
Return Receipt
Required)Fee
(Endorsement
Restricted Delivery
Required)Fee
•
Complete items 1 . 2, and 3
. Also complete
item 4 if Restricted Delivery Is desired
.
•
Print your name and address on the reverse
so that we can return the card to you .
•
Attach this card to the back of the mailpiece,
or on the front if space permits .
Knapp
Oil Company
Attn :
Bill Knapp
Box 2
Xenia,
IL. 62899
3
1?"(
Knapp
Oil Company
Attn : Bill Knapp
Box 2
Xenia.
IL. 62899
1~3110n 170101 59100b
uenl3U 9H110
r
3H1013do33At;3
;0 dO : m a7MJIls 2]7 m
SENDER :
COMPLETE THIS SECTION
COMPLETE THIS SECTION ON DELIVERY
0
Agent
4
0 Addressee
a. Received by
(Plfnted Name) -v C . Date o1
-0a
Delivery
D
. Is delivery address different horn item 1?
0 Yes
If YES, enter delivery address below :
0
No
Se ce Type
enified Mail 0 Express Mail
Ci Registered
0
Return Receipt for Merchandise
O Insured Mail
0 C.O.O
.
4 . Restricted Delivery? (Eras Fee)
0
Yes
I
2
,
tk:~t
°tb
831
PS Form
3811, August 2001
Domestic Return Receipt
102595-01'Mam9
UNITED STATES POSTAL SERVICE
•
Nl
Sender
: Please print your name, address, and ZIP+4 in fills box
Illinois Environmental Protection Agency
"
P .O . Box 19276 Mail Code M
Springfield, 11 62794-9276
s3
I IIIIII III III IIit III IIIlil,AAIII
'First-class Mail
Postage & Fees Paid
SPS
Permit No . G-10
LUST TECHNICAL REVIEW NOTES
Reviewed by : Carol Hawbaker
Date Reviewed : 05/10/02
File Heading
:LPC # 1590200007 -- Richland County
Olney / Knapp Oil Company
700 East Main
LUST Incident No. 901831
LUST Technical File
Document(s) Reviewed :
HPCAP budget dated 02/14/02, received 02/14/02
General Site Information :
See previous notes
Review Note Comments :
There is no approved CAP in house
. The budget contains "costs incurred thus far in site investigation
and CAP preparation"
. Site Investigation activities were denied, due to the fact that adequate
investigation was not done and the CAP was denied for reasons too numerous to list here (see letter
dated 11/16/01) .
As there is no approved CAP and investigation activities to date are not adequate, the budget is denied .
Other denial points to mention :
Unreasonable costs for mobilization, and monitoring well installation time (the latter should be included
in soil borings per foot charge), BTEX soil and PID rental
.
In addition the budget total is $21,812
.62 with $15,938 .00 attributed to Personnel costs . According to
the Personnel breakdown, 6 different titles were on site to install and sampling the SB's and MW's
(including the administrative asst .) and 12 different titles were involved in the denied CAP development,
boring logs and well completion reports . This is excessive use of personnel .
PMs Recommendation/Comments :
Denied for reasons listed above
Response Due :
HPCAP should have already been submitted, but it has not .
bbl
ELFcat
nARLE
MAY 2 0 2002
REVIEWER MM
217/782-6762
Knapp Oil company
Attention
: Bill Knapp
Box 2
Xenia, IL 62899
Re :
LPC #1590200007 - Richland County
Olney / Knapp Oil Company
700 East Main
LUST Incident No . 901831
LUST Technical File
Dear Mr . Knapp :
The Illinois Environmental Protection Agency (Illinois EPA) has reviewed the High Priority
Site
Investigation Report and Corrective Action Plan (plan) submitted for the above-referenced
incident . This information, dated July 27, 2001, was received by the Illinois EPA on July 30,
2001 . Citations in this letter are from the Environmental Protection Act (Act) and 35 Illinois
Administrative Code (35 IAC) .
Pursuant to 35 IAC Section 732 .405(c) and Section 57.7(c)(4)(D)
of the Act, the High Priority
Corrective Action Plan is rejected for the reasons listed in Attachment A .
Pursuant to 35 IAC Sections 732 .405(e) and 732 .503(b) and Sections 57 .7(a)(1) and 57.7(c)(4)(D)
of the Act, the associated budget is rejected for the reasons listed in Attachment B .
Pursuant to 35 IAC Section 732 .401, the Illinois EPA requires a revised High Priority Corrective
Action Plan and budget if applicable be submitted within 90 days of the date of this letter to :
bce
:
Brian Bauer
CarolHa
,.,,batcer
GEORGE I-I . RYAN, GOVERNOR
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GR,No AvENLIf E,si,
P
.O
. Box 19276 . SPRINGFIELD,
Iuwois 62794-9276
RENEE
CIPRIANO, DIRECTOR
CERTIFIED MAIL
&1!:Z8/6236fq7
PRINTFn 01
RECYCLED PAPER
Page 2
Illinois Environmental Protection Agency
Bureau of Land -
#24
LUST Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
Please submit all correspondence in duplicate and include the
"Re :" block shown at the beginning
of this letter .
Within 35 days after the date of mailing of this final decision, the owner or operator may petition
for a hearing before the Illinois Pollution Control Board (Board) to contest the decision of the
Illinois EPA
. (For information regarding the filing of an appeal, please contact the Board at
312/814-3620
.) However, the 35-day period for petitioning for a hearing may be extended for a
period of time not to exceed 90' days by written notice provided to the Board from the owner or
operator and the Illinois EPA within the 35-day initial appeal period
. (For information regarding
the filing of an extension, please contact the Illinois EPA's Division of Legal Counsel at
217/782-5544
.)
If you have any questions or need further information, please contact Carol Hawbaker at 217/782-
5713 .
Brian P. Bauer
Acting Unit Manager
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
BPB :CLH
Attachment : Attachment A and B
cc: CW3M Company
Division File
investigation
. If off site sampling is included within
an
approved corrective action
plan and if an
adjoining property owner will not allow the owner or operator
access to his or her property so as to ascertain information sufficient to satisfy this
requirement or if the owner cannot be located, adequate documentation of the
owner or operator's efforts to gain access to the property shall satisfy this Section
(732.404(b) of Part 732 ;
2 .
Provide that, after complete performance of the corrective action plan
. Class III
special resource groundwater quality standards for Class III special resource
groundwater within 200 feet of the UST system are not exceeded as a result of the
underground storage tank release for any indicator contaminant identified in the
groundwater investigation ;
3 .
Remediate threats due to the presence or migration, through natural or manmade
pathways, of petroleum in concentrations sufficient to harm human health or
human safety or to cause explosions in basements, crawl spaces, utility conduits,
storm or sanitary sewers, vaults or other confined spaces
;
4 .
Remediate threats to potable water supplies
; and
5 .
Remediate threats to bodies of surface water .
The plan submitted fails to meet the above requirements and, therefore, the requirements
of 57 .7(c)( I )(C) of the Environmental Protection Act for the following reason(s)
:
a)
The plan for excavation does not include provisions for contamination under the
station building and the canopy
. This area must be discussed in the corrective
action plan .
b)
The corrective action plan does not address contamination if the roadways, if
applicable . Once the extent has been defined and off site contamination is verified
as a factor, please include provisions for addressing these areas .
c)
The corrective action plan indicates a diesel tank may have leaked . This should be
verified prior to corrective action . If contamination from the diesel tank is found to
be present, the owner/operator must call in the tank and have an IEMA incident
number assigned to the leak .
d)
The map of the proposed area of excavation included areas that have no
contamination over Tier I remediation objectives . If contamination has been found
to not be present, there is no reason to excavate this area .
e)
The corrective action plan proposes I groundwater sampling event after
completion of excavation activities
. The Illinois EPA requires 2 groundwater
sampling events after completion of these activities .
Re:
LPC N 1590200007 -- Richland County
Olney / Knapp Oil Company
700 East Main
LUST Incident No
. 901831
LUST Technical File
NOTE
: Citations in this attachment are from 35 Illinois Administrative Code (35 IAC) and the
Environmental Protection Act
.
1 .
The Illinois EPA has not approved the plan with which the budget is associated
.
Therefore, the Illinois EPA cannot determine whether these costs exceed the minimum
requirements necessary to comply with Title XVI (Section 57
.5(a) of the Act) and 35 IAC
Part 732 (35 IAC Section 732
.505(c))
. Costs for corrective action activities and associated
materials or services exceeding the minimum requirements necessary to comply with the
Act are not eligible for reimbursement from the Fund (35 IAC Section 732
.606(o)). It
also cannot be determined whether the costs are corrective action costs
. "Corrective
action" means an activity associated with compliance with the provision of Section 57.6
and 57.7 of the Act (Section 57
.2 of the Act and 35 IAC Section 732
.103) . One of the
eligibility requirements for accessing the UST Fund is that costs are associated with
"corrective action" (Section 57.9(a)(7)
of the Act)
. In addition, it cannot be determined
whether these costs are reasonable as submitted (Section
57.7(c)(4)(C)
of the Act and 35
IAC Section 732 .505(c) 732 .606(hh)).
One of the overall goals of the financial review is to assure that costs associated with
materials, activities and services are reasonable (35 IAC Section 732
.505(c)).
The budget includes costs that are not reasonable as submitted (Section
57.7(c)(4)(C) of
the Act and 35 IAC Section 732 .606(hh)). Please note that additional information and/or
supporting documentation may be provided to demonstrate the costs submitted are
reasonable .
a)
The budget includes costs for a total of 87 trips at 350 miles per trip
. This is an
unreasonable numbers of trips .
b)
Costs associated with excavation, transportation and disposal of contaminated soils
are unreasonable for the work performed.
c)
Costs associated with backfilling activities are unreasonable for the work
performed .
3.
Costs for the removal, disposal or abandonment of an underground storage tank that was
removed or abandoned, or permitted for removal or abandonment by the Office of the
Attachment B
State Fire Marshal before the owner or operator provided notice to IEMA of the release of
petroleum are ineligible for payment from the Fund (35 IAC Section 732
.606(k)). The
budget submitted includes such costs .
The budget includes costs for the removal of tanks not associated with this incident
number
. Therefore, those tanks are ineligible for reimbursement .
4 .
The budget submitted includes costs that lack supporting documentation (35 IAC Section
732.606(gg)). A corrective action plan budget for a site classified as high priority, must
include but not be limited to, an accounting of all costs associated with the development,
implementation and completion of the applicable activities (Section
57.7(c)(l)(B) of the
Act and 35 IAC Section 732 .405(b))
. Since there is no supporting documentation of costs
the Illinois EPA cannot determine if the minimum requirements have been exceeded
.
Therefore, these costs exceed the minimum requirements necessary to comply with Title
XV I (Section 57
.5(a) of the Act and 35 IAC Section 732 .606(o)).
a)
The Illinois EPA requires monitoring well installation materials to be broken as
separate line items . One lump sum is not acceptable .
b)
The Illinois EPA requires a detailed breakdown of all hours and tasks for personnel
costs . The current task breakdown is not acceptable . Please provide a detailed
breakdown of tasks performed attributable to each personnel hour.
c)
The budget includes costs for film and film development in the site investigation
phase. No photos were included in the report .
d)
The budget includes costs for color copies
. No color copies were included in the
report .
e)
The budget includes costs for waste
. characterization sample in the site
investigation phase
. No analyses of waste characterization were submitted with the
report
.
f)
The budget includes costs for groundwater analysis of BTEX and PNA's in the
corrective action phase
. The plan states that one groundwater sample per each
monitoring well will analyzed after excavation is complete
. That would equal 7
analyses, not 28.
g)
The budget includes personnel costs for groundwater monitoring in the corrective
action phase
. The plan states that one sampling event will take place after
excavation
. Therefore, the hours assigned to groundwater monitoring exceed the
minimum requirements .
h)
The budget includes costs for canopy removal in the excavation and disposal
phase . The costs are listed at 1,500 gallons at $1
.00 each . The plan does not
provide documentation for canopy removal and it is unclear why the costs would
be listed in gallons .
i)
The budget includes costs for groundwater remediation
. The plan does not discuss
groundwater remediation
. Therefore, these costs exceed the minimum
requirements .
5 .
The budget submitted includes costs in which the owner or operator failed to justify that
all costs are attributable to each underground storage tank at the site . (Section 57 .8(m)(2)
of the Act .) The budget submitted includes costs for corrective action activities for
underground storage tanks for which the owner or operator was deemed ineligible to
access the Fund . (Section 57 .8(m)(1) of the Act.)
a)
The budget includes costs for soil PNA analysis in the excavation and disposal
phase . The only eligible tank associated with this incident number is a gasoline
tank
b)
The budget includes costs for groundwater PNA testing . The only eligible tank
associated with this incident number is a gasoline tank . PNA testing exceeds the
minimum requirements
.
BPB:CLH
LUST TECHNICAL REVIEW NOTES
Reviewed by : Carol Hawbaker
File Heading : LPC #1590200007 -- Richland County
Date Reviewed : 12/14/04
Olney / Knapp Oil
700 East Main
LUST Incident No. 901831
LUST Technical File
Document(s) Reviewed :
HPCAP and Budget dated 10/04/04, rcvd 10/05/04
General Site Information :
RF1-r:A4RAA LE
See Previous notes
JAN 1 R 2005
SWAP map generated 12/14/04
REVIEM--h MM
Review Note Comments :
Additional activities conducted to determine full extent of soil and GW contamination .
Table 3-1 UST summary -
all tanks leaked, based on site assessment . Tanks at the site 1 - 8,000 gal
and 1 - 6,000 gal gasoline, 1 -1,000 gal diesel
. Note -
Incident no
. 901831 was reported as the
result of FP found in an observation sump in the gasoline tank basin (diesel tank is in a separate
basin) . Substance released was reported as gasoline only. IC's for 901831
are BTEX
. No release
has been reported to IEMA regarding the diesel tank . If activities indicate diesel tank has leaked,
then an incident must be called in for the diesel tank
. PNA's are not applicable IC's for this
release. CAP denial letter dated 11/16/01 states that a release must be called in for the diesel tank
if diesel contamination is found to be present . This has not been done .
Activities to date to define plume :
03/27/01 : MW5, SB3, MW6, SB4, MW7, SB5 were advanced . These SB/MW's were
analyzed for BTEX only (correctly) in response to
901831 . Soil benzene exceedences were noted in
SB3,
SB4
. GW
benzene exceedences were noted in MW5 and MW6.
02/20/02 : Additional boring was drilled next to SB3 to determine PNA contamination in that
area. This is not eligible for reimbursement, because PNA's are not IC's for release 901831 .
SB7,
SB8, additional water sample from MWB for PNA's Not eligible . Soil benzene exceedences were noted
in SB7 and SB8 . In addition, SB8 had ethylbenzene and xylene exceedences . SB8 also had a naphthalene
exceedence Although this is a PNA, it is common to see this contaminant in gasoline releases
. All
other PNA's below detection limits
. Still no evidence of a diesel release. GW samples for PNA's from
MWB were below detection limits .
08/27/02 : Samples were collected from existing MW's and analyzed for PNA's . SB's were
advanced in prior locations of SB's not analyzed for PNA's . This work is not eligible for
reimbursement . See above . Soil results show exceedences for benzo(a)pyrene only in SB5a, SHIa,
SB4a and SB11 . Based on these exceedences, a release should have been called at this time,
however there is still no record of a diesel release
. MWD had only PNA GW exceedence for
Benzo(a) anthracene, Benzo(a)pyrene, Benzo(k)flouranthene, and Benzo(k)flouranthene . Note this well
is located upgradient at the edge of the property boundary . MW5 is closer to the diesel tank basin
with non-detect results
. MWD is the farthest upgradient well on the property . These PNA
exceedences
02/05/03are
:
not
SB15
associated
was advancedwith
a release
. All results
from the
ND .
diesel tank
.
Off-site Access : Soil and GW BTEX plumes extend off-site to the N and W
.
06/05/02
: McDonald's property across Route 50 (S) was investigated for GW plume only .
MW8 and MW9 were installed and sampled. Both were ND .
08/27/02
: Thomson property to the immediate N of the site was investigated for soil and GW .
SB9
dividing
and MW
the
10
site
were
and
installed
the
propertyon .
this
MWproperty10 was installed
. SB9 was
near
installed
the northernmost
near the southern
property
property
boundaryboundary
. SB9,
and MW 10 had soil benzene and ethlybenzene exceedences
. In addition MW 10 had a soil toluene
degreesexceedenceof
11.9
02/05/03
.
degreesLab
. Chain
should
.
:
VOC's
MW
of
10
not
Custody
(BTEX)
was
have
sampled,
form
will
run the
for
volatilize
and
BTEX
samples
Lawless
samples,
unless
sent
property
to
because
preserved
Prairie
to the
temp
Analytical
and
north
exceeded
maintained
of Thomson
(08/28/02)
limitsat
property
a
.
tempshows
.
wasof
a temp4
to 6
.
investigated
Lawless
propertyfor .
soil
MWand
11 had
GW ca ontaminationbenzene
soil
.
eMxceedenceW
1 I was
.
installed
MW 10 and
on
MW
the
I
northernmost
1 had GW benzeneedge
of the
exceedences . M W 10 also had a toluene exceedence
. Chain of Custody form for samples sent to
Prairie Analytical (02/06/03) shows a temp
. of 1 .7 degrees. VOC's (BTEX) will volatilize unless
preserved and maintained at a temp . of 4 to 6 degrees
. Lab should not have run the BTEX
samples, because temp exceeded limits . Lab. Cert. for samples collected after 01/01/03 must
indicate whether this lab is accredited for these constituents
. This has not been supplied .
SB13 and SB14 were advanced at the McDonald's property to assess soil conditions . Soil plume
has already been defined in that direction and the soil plume is limited to the site . This extent area
was defined in 2001 . There is no reason for these borings to be advanced. If 0/0 thought soil
analysis was necessary in this area, then it could have been sampled from MW8 and MW9 . Soil
boring logs for MW8 and MW9 state "No soil samples were collected for laboratory analysis, as
are
extent
not
of
eligible
soil contamination
for reimbursementhad
been
.
determined on site"
. Activities associated with these borings
03/24/02 : MW 12 and MW 13 were installed on Thomson property. MW14 was installed on the
Keller property, located North of the Lawless property and across York Street . MW13 had soil benzene,
ethylbenzene and xylene
exceedences . MW 12 and MW 14 were ND for GW . MW 13 had a benzene
exceedence.
Issues with soil and GW plume definition :
Across North Elliot St. to the W of the site has not been investigated . Off-site access
requests were sent to the Bank of Olney for the block across Elliot and the empty lot on the NW
corner of Elliot and York
. Access was denied . No affidavits were included. I will request the
Highway Authority responsible for Elliot road be approached to see if investigation can be
conducted in the right of way next to the bank.
CAP for soil :
Gasoline and diesel tanks will be removed (no report of release from diesel tank), along with
pumps and piping .
1,900 cy soil (est) to be removed to 10' (estimated depth of GW)
-
see proposed excavation map .
SB's included in excavation are SB2, SB3, SB4, MW 5, SB7, SB8, SB9, MW 10, MW 11 . On-site
borings included in excavation area (SB2, SB3, SB4, SB7, SBS) show contamination at 3'
. It is
unclear why this area needs to be excavated to 10'
. Soil samples will be collected every 20' .
Contaminated soils off-site will be remediated by in-situ bioremediation
. Bioremediation of
unsaturated soils has not been proven an effective technology
. Under specific circumstances, it
may assist in cleaning up GW, however there is no data supporting the use of bioremediation in
unsaturated soils
.
CAP for G W
In-situ Bioremediation .
See Section 6 .2 for reference
Proposing a combination of aerobic and anaerobic bioremediation .
09/16/04
: Soil and GW samples were collected from the most contaminated area and from the edge of
the contamination plumes
. Samples were shipped to MiL and Prairie Analytical for "aerobic treatability
testing" to determine presence and quantities of indigenous bacteria present to degrade the petroleum
and to determine the most effective microbe and nutrient blend
. Soil samples were also tested for
nutrients, pH and moisture content
.
Supporting analytical documentation
: Biofeasibility
Soil samples marked "BIO-1" and "BIO-2" were advanced 09/16/04
. No soil boring logs
. It is
unclear at what depths these samples were taken
. BIO-1 was advanced in an area of known
contamination and B10-2 appears to be in an area with little or no soil impact
. BIO-1 is located in an
area that will be excavated
.
GW samples were collected from MW6 and MWB
. Both of these wells are located in
contaminated areas proposed to be excavated
. They will be destroyed during the excavation
process.
All samples (B10- 1, Bi0-2, MW6 and MWB) were analyzed for the following
:
Microbial levels indicate an adequate population to degrade contaminants
. Additions to the
existing population are unnecessary .
Low nitrogen anions indicate an oxygen deficient atmosphere, or a low nitrogen level
.
Toc is adequate to sustain the microbial population
pH is within acceptable limits .
Moisture content is low, however it is unclear at what depth the sample was collected
.
BID-1 mg/kg BIO-2 mg/kg MW6 mg/1
MWB mg/I
Nitrate/nitrite (anions)
<2 .95
<3 .09
<0.250
<0
.250
Phosphorus
170
10
0 .31
0 .821
Toc
1940
14600
0 .3
12 .4
PH
6 .8
7
.4
6 .4
7.0
Moisture content
17 .9%
20 .3
Total Microbial Plate Count 7
.7E5
8.9E5
4 .8E2
2 .6E3
Problems with these analyses
:
There is no information regarding 02 demand
.
There is no information regarding heavy metal concentrations (iron, copper, zinc, lead) .
These metals may create an unfavorable environment for bioremediation
.
Microbial plate counts show an active population, there is no need for the addition of
microbes
.
2 soil samples is not an adequate representation of activity within plume
. At least 5 soil
samples for a plume this size is necessary to determine an appropriate method of remediation
.
These five samples should be collected from the soil below the water table as contaminants will
sorb to the soil
. We are actually treating the soil below the water table, not the GW
. By reducing
contaminants concentrations in the soil below the water table, we thereby reduce the GW
contamination .
As the soil is going to be excavated, conditions at the site will be altered dramatically
. These
samples will no longer be representative of conditions at the site
. After excavation, samples should
be collected as stated above and analyzed for the following parameters
:
Chemical 02 demand
Nutrient availability (C:N:P) from the soil
PH of the soil and GW
Heavy metal concentrations from the GW
Microbial plate count from the soil
Site-specific total soil porosity (not an estimate)
Design Specifications -
Biomass will be injected into the vadose zone and GW through injection
trenches (?)
and wells .
A slurry volume of 1% of the pore volume is generally used
. Material quantities for the biomass
will be composed of a slurry "composed of some or all the materials listed below"
: calcium and ferric
sulfates, bulking compost (?),
Micro-nutrients(?), Quick- and slow - release fertilizers
(?), biological
stimulant and liquid biological stimulant
(?), organic degrading bacteria and water
. Based on the
information supplied, there is not enough data to develop the specific nutrient and mineral
requirements for optimum degradation of contaminants
. In addition, an active microbial
population already exists at the site
. The injection of microorganisms should not be necessary once
the adequate demands of oxygen and nutrients are established
. Once demands are established, a
more-specific "ingredient" list with volume calculations will be required
.
"if the plate counts
are extremely low . . .
oxygen producing socks may be installed in the injection wells to increase bacterial
levels" .
Injection Design -
design will consist of a series of injection trenches (?)
and 3 injection wells located
within the soil and groundwater plume
. These trenches and wells will facilitate movement of
the
bioslurry to the vadose zone and contaminated groundwater
. The 3 injection wells will be placed in
excavated area on site. Injection trenches will be excavated to a 10' depth and 4' wide
. Trench will
be
backfilled with septic gravel and capped with CA6 . Access to the trenches will be through 4" perforated
pipe set vertically at each corner of the trench layout
. Injection will be achieved by gravity feeding
. If
necessary, pressure injection maybe used
. As gravity feeding vs . pressure injection will change the
radius of influence and time required for each injection, it is unclear how the system was designed
without determining the method of transport for the slurry to reach the affected areas
. For the
purposes of this review, I will assume gravity feed is the preferential method
.
Assuming the proposal is gravity feed from the injection trenches (again this is not clear), rate of
movement of the biomass from the trenches through the GW would be equal to the HC of the GW
(2
.72E-6) cm/sec
. The maximum distance biomass would have to travel through soil is estimated
from attached map
. Estimated maximum distance = 160'
Therefore,
2
.72E-6 cm/sec = 0
.0003212598 ft/hr = 0.0077102352
ft/day = 2
.8142355848 ft/yr.
With the maximum distance of 160'/2
.8142355848 ft/yr = 56
.85380459 yrs for biomass to treat full
distance of estimated plume .
This is an unacceptable time period
.
Estimated Volume of contamination = 3,493 cy
.
It is unclear how this volume was calculated
. Based on the GW contaminant plume map, L
parallel to GW is 225' (the area in US Route 50 has been subtracted as the injection trenches will
not affect GW upgradient of trenches)
. W perpendicular to GW flow is 180ft . As petroleum
constituents are lighter that water, it can be assumed that most of the contamination is located in
the upper 1 ft of the groundwater
. L x W x I ft = 40,500 cf = 1500 cy . This is the volume of
groundwater to be treated
.
PMs Recommendation/Comments
:
On-site soil excavation plan is denied, PNA's are not an indicator contaminant and explanation is
needed for why a 10' excavation depth across the site is necessary
.
Off-site soil hioremediation plan is denied, there is no data supporting the technology as a method for
remediation unsaturated soils
.
GW bioremediation plan is denied, information is insufficient to develop an appropriate remediation
design, and the estimated time for remediation (my estimate) is an unacceptable time period for
remediation to take place .
GW migrating into Main street has not been addressed and the proposed bioremediation system will not
treat upgradient GW .
Budget is denied because plan is denied
. In addition, all activities associated with PNA analysis is not
reimbursable .
Budget has not been fully reviewed because, based on all technical denial points, plan (therefore budget)
will have to be re-evaluated after denial issues and additional supporting documentation are provided
.
Response Due :
CAP and Budget is 90-days
.
I.
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BEFORE THE POLLUTION CONTROL BOARDRECEIVED
CLERK'S OFFICE
OF THE STATE OF ILLINOIS
DEC 2 1 2006
KNAPP OIL COMPANY, DON'S 66,
STATE OF ILLINOIS
)
Pollution Control Board
Petitioner,
)
v.
)
PCB 06-52
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent . )
MOTION FOR LEAVE TO FILE REPLY TO PETITIONER'S RESPONSE IN
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, Melanie A
. Jarvis, Assistant Counsel and Special Assistant
Attorney General, and, pursuant to Section 101
.500(e) of the Illinois Pollution Control Board's
("Board") procedural rules (35 111 . Adm. Code 101
.500(e)), hereby files a motion for leave to file
a reply to the Petitioner's Response in Opposition to Motion for Summary Judgment
. In support
of this motion for leave, the Illinois EPA provides as follows
.
1 .
The Illinois EPA filed it Motion for Summary Judgment on September 22, 2006 .
2 .
The Petitioner filed its Response on December 7, 2006
.
3 .
Material prejudice may result if the Illinois EPA is not allowed to reply
.
4 .
The Petitioner's arguments require a full reply from the Illinois EPA so that the
Board can be fully briefed when making its decision on the case
.
I
5 .
For the reasons stated herein, the Illinois EPA hereby respectfully requests that
the Hearing Officer allow the Illinois EPA to file a reply to the Petitioner's response to prevent
material prejudice .
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
CIO
Melanie A. Jarvis
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P
.O
. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated : December 19, 2006
This filing submitted on recycled paper
.
2
RECEIVEDCLERK'S
OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DEC 2 12006
KNAPP OIL COMPANY, DON'S 66,
)
Petitioner,
)
v
.
)
PCB 06-52
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent . )
STATE OF ILLINOIS
Pollution Control Bwzro
REPLY TO PETITIONERS' RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY
JUDGEMENT AND RESPONSE TO PETITIONER'S CROSS-MOTION FOR SUMMARY
JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois EPA"),
by one of its attorneys, Melanie A
. Jarvis, Assistant Counsel and Special Assistant Attorney General,
and, pursuant to 35 Ill . Adm . Code 101
.500(e), hereby respectfully responds to the Response in
Opposition to Motion for Summary Judgment and Cross-Motion for Summary Judgment ("Petitioners'
response") filed by the Petitioners, Knapp Oil . In response to the Petitioners' response and cross-motion
for summary judgment, the Illinois EPA states as follows
:
I. INTRODUCTION
The Petitioner argues in its response that the Illinois EPA wrongly denied a High Priority
Corrective Action Plan that includes remediation of a release that was never reported to the Illinois
Emergency Management Agency (IEMA) . The Illinois EPA strongly disagrees with the Petitioner's
assertion . Petitioner attempts to add and argue several documents that the Illinois EPA either did not
rely upon in making its decision, or were never in the Illinois EPA's files
. The Illinois EPA has filed a
separate objection to their inclusion and a motion to strike
. It should be pointed out that the included
decision letters issued by the Illinois EPA were not appealed and should not be reargued here
.
I
For the reasons that will be explained below, the Illinois EPA's decision comported with the law
and facts as presented, and the Illinois Pollution Control Board ("Board") should affirm the Illinois
EPA's decision .
II. APPLICABLE LAW
35 Ill. Adm. Code 732.202(a), Early Action, states as follows :
a)
Upon confirmation of a release of petroleum from a UST system in accordance with
regulations promulgated by the OSFM, the owner or operator, or both, shall perform the
following initial response actions within 24 hours after the release :
1)
Report the release to IEMA (e.g., by telephone or electronic mail) ;
2)
Take immediate action to prevent any further release of the regulated substance to
the environment ; and
3)
Identify and mitigate fire, explosion and vapor hazards . (Emphasis added)
35 Ill. Adm . Code 732 .404, High Priority Site, states as follows :
a)
The owner or operator of a site classified as High Priority shall develop a corrective
action plan and perform corrective action in accordance with the requirements of this
Section. The purpose of the corrective action plan shall be to remediate or eliminate each
of the criteria set forth in subsection (b) of this Section that caused the site to be classified
as High Priority.
b)
The owner or operator shall develop a corrective action plan based on site conditions and
designed to achieve the following as applicable to the site :
1)
For sites that have submitted a site classification report under Section 732 .309,
provide that
:
A) After complete performance of the corrective action plan, applicable
indicator contaminants identified in the groundwater investigation are not
present in groundwater, as a result of the underground storage tank
release, in concentrations exceeding the remediation objectives referenced
in Section 732 .408 of this Part at the property boundary line or 200 feet
from the UST system, whichever is less ;
B)
After complete performance of the corrective action plan, Class III special
resource groundwater quality standards for Class III special resource
groundwater within 200 feet of the UST system are not exceeded as a
result of the underground storage tank release for any indicator
contaminant identified in the groundwater investigation ;
2
C) After complete performance of the corrective action plan, remediation of
contamination in natural or man-made exposure pathways as a result of
the underground storage tank release has been conducted in accordance
with 35 Ill. Adm. Code 742;
D)
Threats to potable water supplies are remediated ; and
E)
Threats to bodies of surface water are remediated .
2)
For sites that have submitted a site classification completion report under Section
732
.312 of this Part, provide that, after complete performance of the corrective
action plan, the concentrations of applicable indicator contaminants meet the
remediation objectives developed under Section 732 .408 for any applicable
exposure route not excluded from consideration under Section 732 .312.
c)
The owner or operator is not required to perform corrective action on an adjoining or off-
site property to meet the requirements of this Section, even where complete performance
of the corrective action plan under subsection (b)(1)
or (b)(2) of this Section would
otherwise require such off-site action, if the Agency determines that the owner or
operator is unable to obtain access to the property despite the use of best efforts in
accordance with the requirements of Section 732 .411 of this Part .
d)
In developing the corrective action plan, if the Licensed Professional Engineer or
Licensed Professional Geologist selects soil or groundwater remediation, or both, to
satisfy any of the criteria set forth in subsection (b) of this Section, remediation
objectives shall be determined in accordance with Section 732
.408 of this Part
.
Groundwater monitoring wells shall satisfy the requirements of Section 732 .307(j)(3) and
(4) of this Part .
e)
Except where provided otherwise pursuant to Section 732 .312 of this Part, in developing
the corrective action plan, additional investigation activities beyond those required for the
site evaluation and classification may be necessary to determine the full extent of soil or
groundwater contamination and of threats to human health or the environment . Such
activities may include, but are not limited to, additional soil borings with sampling and
analysis or additional groundwater monitoring wells with sampling and analysis . Such
activities as are technically necessary and consistent with generally accepted engineering
practices may be performed without submitting a work plan or receiving prior approval
from the Agency, and associated costs may be included in a High Priority corrective
action budget plan . A description of these activities and the results shall be included as a
part of the corrective action plan .
1)
In addition to the potable water supply wells identified pursuant to Section
732.307(f)
of this Part, the owner or operator must extend the water supply well
survey if soil or groundwater contamination exceeding the Tier I groundwater
ingestion exposure route remediation objectives of 35 Ill . Adm . Code 742 for the
applicable indicator contaminants extends beyond the site's property boundary,
3
1)
g)
or, as part of a corrective action plan, the owner or operator proposes to leave in
place soil or groundwater contamination exceeding the Tier 1 groundwater
ingestion exposure route remediation objectives of 35 Ill . Adm. Code 742 for the
applicable indicator contaminants and contamination exceeding such objectives is
modeled to migrate beyond the site's property boundary . At a minimum, the
extended water supply well survey must identify the following :
A) All potable water supply wells located within 200 feet, and all community
water supply wells located within 2,500 feet, of the current or modeled
extent of soil or groundwater contamination exceeding the Tier 1
groundwater ingestion exposure route remediation objectives of 35 Ill .
Adm. Code 742 for the applicable indicator contaminants ; and
B) All regulated recharge areas and wellhead protection areas in which the
current or modeled extent of soil or groundwater contamination exceeding
the Tier 1 groundwater ingestion exposure route remediation objectives of
35 Ill. Adm. Code 742 for the applicable indicator contaminants is located .
2)
The Agency may require additional investigation of potable water supply wells,
regulated recharge areas, or wellhead protection areas if site-specific
circumstances warrant . Such circumstances must include, but is not limited to,
the existence of one or more parcels of property within 200 feet of the current or
modeled extent of soil or groundwater contamination exceeding the Tier 1
groundwater ingestion exposure route remediation objectives of 35 Ill . Adm .
Code 742 for the applicable indicator contaminants where potable water is likely
to be used, but that is not served by a public water supply or a well identified
pursuant to Section 732 .307(f)(1) of this Part or subsection (e)(1) of this Section.
The additional investigation may include, but is not limited to, physical well
surveys
(e .g.,
interviewing property owners, investigating individual properties
for wellheads, distributing door hangers or other material that requests
information about the existence of potable wells on the property, etc .).
The owner or operator shall submit the corrective action plan to the Agency for review in
accordance with Section 732.405 of this Part. If the owner or operator intends to seek
payment from the Fund, a corrective action budget plan also shall be submitted to the
Agency for review .
Within 30 days after completing the performance of the High Priority corrective action
plan, the owner or operator shall submit to the Agency a corrective action completion
report in accordance with Section 732 .409 of this Part .
h)
Within 120 days, the Agency shall review the corrective action completion report in
accordance with the procedures set forth in Subpart E of this Part and shall issue a No
Further Remediation Letter to the owner or operator in accordance with Subpart G of this
Part upon approval by the Agency
.
4
35 Ill. Adm
. Code 732 .606(o) and (n),
Ineligible Corrective Action Costs, states as follows :
Costs ineligible for payment from the Fund include but are not limited to :
n)
Costs of corrective action incurred before providing notification of the release of
petroleum to IEMA in accordance with Section 732 .202 of this Part ;
o)
Costs for corrective action activities and associated materials or services exceeding the
minimum requirements necessary to comply with the Act ;
III. THE ILLINOIS EPA CANNOT APPROVE A HIGH PRIORITY CORRECTIVE ACTION
PLAN THAT INCLUDES REMEDIATION OF A RELEASE THAT WAS NEVER REPORTED
TO IEMA.
1 .
The Petitioner repeatedly told the Illinois EPA that there was no release from the diesel tank in
question. Further, the Petitioner continued to operate its facility for many years as if there were
no release from the diesel tank . (SAR p .4, 12, 39, 65, 66, and 78)
2 .
The Illinois EPA repeatedly told the Petitioner that if there were a release in the diesel tank to
report that release to IEMA . (SAR p. 299, 323)
3 .
The Petitioner never reported the release to IEMA .
4.
Diesel contaminants were not analyzed at the site for a release from the diesel tank until 2001,
eleven years after the reporting of Incident Number 901831
. The PNA contamination found in
samples taken eleven years after the reporting of a release does not indicate that a release from
the diesel tank occurred in 1990 when the original gasoline release was reported . In fact all
documents filed by the Petitioner around that time indicate that there was no release in the diesel
tank. Further, the diesel tank was still in use between the 1990 gasoline release reported as
Incident Number 901831 and the 2001 sampling, so it is possible that a release from the diesel
tank could have occurred at any time during those eleven intervening years
.
5 .
In the March 7, 2002 amended eligibility and deductibility application completed by the
Petitioner and submitted to OSFM, the Petitioner incorrectly stated that IEMA was notified of a
5
release of all three tanks on July 3, 1990 . The IESDA, now IEMA incident report for incident
number 901831 does not mention a release in the diesel tank .
6.
The OSFM eligibility determination requirements state that "the Owner/Operator notified the
Illinois Emergency Management Agency of a confirmed release" . That was not done. The
incident report clearly states that only the 6,000 gallon gasoline tank is associated with this
incident number
.
7.
The Illinois EPA did not ignore the information provided by the Petitioner regarding the diesel
tank as stated by the Petitioner in paragraph 18 of their petition . The January 19, 2005 denial
letter referencing the previously submitted information stated that removal of the diesel tank and
excavation of areas contaminated by PNA constituents did not remediate any of the criteria set
forth in 35 Ill . Adm. Code 732 .404(b) . Because Incident Number 901831 related to a gasoline
only release, activities relating to the diesel tank exceeded the minimum requirements to comply
with Title XVI of the Act. Pursuant to 35 Ill . Adm
. Code 732 .310(b) indicator contaminants for
a gasoline release, as reported to ESDA on July 3, 1990, are BTEX constituents only
. Diesel
tank removal is not applicable when remediating a gasoline tank release .
8.
The Illinois EPA cannot approve a high priority corrective action plan when a release has never
been reported
. Further, the Illinois EPA cannot then reimburse for activities associated with the
diesel tank because those activities do not address contamination associated with a reported
release . The activities the Petitioner is requesting to have approved are not related to the release
reported in incident number 901831 .
6
IV. ADDITIONAL SAMPLING REQUIRED BY LAW
I .
There is no genuine issue of material fact
. All facts can be found within the Administrative
Records.
2.
Pursuant to 35 Ill . Adm. Code 732
.404(e), the full extent of soil and groundwater contamination
must be defined prior to developing a corrective action plan . The full extent of soil and
groundwater contamination has not been analytically verified . Therefore, the Petitioner has not
complied with the regulations .
3.
Further, the Illinois EPA has not received any details regarding why the Petitioner cannot
comply with the regulations. Off-site access refusal by a property owner, which has never been
verified by the Petitioner, does not negate the regulatory need for full contamination definition .
Properties beyond the refusing land owner must be evaluated to verify the soil and groundwater
contamination has not migrated beyond the property that refused access .
4.
Information submitted by the Petitioner shows that the greatest concentrations of contaminants
are found east of the right-of-way of Elliot Avenue, just 50 feet from the bank property which is
located on the west side of Elliot Avenue
. Soil and groundwater contamination migration trends
from this release are north/northwest
. The off-site property at issue is located west/northwest of
the release. No modeling calculations have been submitted to the Illinois EPA demonstrating
that contamination would not reach the off-site property, let alone cross it . Additionally,
modeling to determine contamination extent is not acceptable in areas where there is no
ordinance prohibiting groundwater use. Soil and groundwater plumes must be analytically
verified in areas with no groundwater ordinances .
7
5 .
The Illinois EPA merely requests summary judgment as to the point of law that the
contamination plume must be fully delineated . The Petitioner has failed to do so and the Illinois
EPA is correct in denying their High Priority Corrective Action Plan for failure to do so.
V. RESPONSE TO CROSS MOTION FOR SUMMARY JUDGMENT
The Illinois EPA is not attempting to make eligibility determination . As stated above, the Illinois EPA
cannot approve a High Priority Corrective Action Plan that includes remediation of a release that was
never reported to IEMA . Illinois EPA respectfully incorporates the arguments from Section III above in
responding to the Petitioner's Cross Motion for Summary Judgment .
VI
. CONCLUSION
For the reasons stated herein, as well as those previously made by the Illinois EPA, the Illinois
EPA respectfully requests that the Board affirm its final decision
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
`~l
0o)",A
k
Melanie A. Jarvis
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 19, 2006
This filing submitted on recycled paper .
8
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December 19, 2006 I served true and
correct copies of a RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE RECORD
AND MOTION TO STRIKE, MOTION FOR LEAVE TO FILE REPLY TO PETITIONER'S
RESPONSE IN
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, and REPLY TO
PETITIONERS' RESPONSE
IN OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT
AND RESPONSE TO PETITIONER'S CROSS-MOTION FOR SUMMARY JUDGMENT by
placing true and correct copies thereof in properly sealed and addressed envelopes and by depositing
said sealed envelopes in a U .S . Mail drop box located within Springfield, Illinois, with sufficient
First Class postage affixed thereto, upon the following named persons :
Dorothy M. Gunn, Clerk
Carol Webb, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
Illinois Pollution Control Board
1021 North Grand Avenue East
100 West Randolph Street, Suite 11-500
P. O. Box 19274
Chicago, IL 60601
Springfield, IL 62794-9274
Carolyn S. Hesse
Barnes & Thornburg, LLP
One North Wacker Drive,
Suite 4400
Chicago, IL 60606-2833
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
despondent
Melanie
L~A
. Jarvis
A
Assistant Counsel
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
This filing submitted on recycled paper .
