2

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

L. KELLER OIL PROPERTIES/FARINA, )

)

Petitioner,

)

v.

)

PCB No. 07-147

)

(UST Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

REPLY TO PETITIONER’S RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY

JUDGEMENT

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 (“Petitioners’ response”) filed by the Petitioners. In reply

to the Petitioners’ response, the Illinois EPA states as follows:

I. INTRODUCTION

There is no genuine issue of material fact. All material facts can be found in the Administrative

Record. While the parties may not agree as to what the facts in this matter represent, all of the facts are

present and uncontroverted. The Board has all of the facts necessary to make a decision in this case.

The Illinois EPA's denial letter frames the issues on appeal. Pulitzer Community Newspapers, Inc. v.

EPA, PCB 90-142 (Dec. 20, 1990). The Illinois EPA’s decision was based upon the documents

submitted to the Illinois EPA by the Petitioner. All of the documents supporting the Illinois EPA

decision are included within the Administrative Record or have been attached to the Petitioner’s Petition

or the Illinois EPA’s Motion for Summary Judgment. The Petitioner submitted the facts in this case to

Electronic Filing, Received, Clerk's Office, August 6, 2007

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the Illinois EPA. It was upon these facts that the Illinois EPA made its decision. No genuine issue of

material fact exists.

The Petitioner claims that the issue is whether the “Petitioner performed work in accordance with

generally accepted engineering practices or principles of professional geology.” (Petitioner’s Response,

p.1). However, Petitioner fails to fully quote the statute. 35 Ill. Adm. Code 734.510 states that “the

overall goal of the technical review for plans must be to determine if the plan is sufficient to satisfy the

requirements of the Act and regulations and has been prepared in accordance with generally accepted

engineering practices or principles of professional geology.” As states above, the Illinois EPA's denial

letter frames the issues on appeal. Pulitzer Community Newspapers, Inc. v. EPA, PCB 90-142 (Dec. 20,

1990). The Illinois EPA May 17, 2007 decision letter does not state that the work performed by the

Petitioner was not done in accordance with generally accepted engineering practices or principles of

professional geology. (AR, p. 256). It is the Illinois EPA’s position that the record clearly shows that

the information submitted by the Petitioner did not comply with all of the requirements of Part 734, and

in some cases exceeded the minimum requirements of the Act and regulations making the activities

listed in the May 17, 2007 decision letter as not eligible for payment pursuant to 35 Ill. Adm. Code

Section 734.630(o).

The Petitioner lists out disputed facts on page 6 of its response. However, these are not facts in

dispute at all. The list is a list of the issues in the case which can be summarized into the two issues

presented by the Illinois EPA in its Motion for Summary Judgment. The Illinois EPA will discuss each

of these issues below. The “disputed facts”, as set forth by the Petitioner, are even phrased as issues as

they all begin with the word “Whether”. The Petitioner tries to present several red herrings throughout

its response in an attempt to divert the Board’s attention away from the real issues at hand. One red

herring is by listing facts of different appeals that have been taken at the site, but are not at issue here.

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Another is by labeling the issues as “disputed facts”. By labeling the issues in this case as “disputed

facts” the Petitioner is attempting to convince the Board that it does not have all of the facts in the case

to decide these very issues. However, all of the facts are present in the Administrative Record dealing

with each of these issues. Any additional substantive information presented by the Petitioner at this time

would not be relevant to the question of whether the Illinois EPA made the correct decision in its May

17, 2007 decision letter because the information was not presented to or reviewed by the Illinois EPA

when making its decision. The Petitioner cannot at hearing present facts that were not presented to the

Illinois EPA at the time of the decision to show that the decision was improper. The Illinois EPA

decision was made based upon the facts in the Administrative Record. The Administrative Record is

what is used to support the decision of the Illinois EPA.

Another red herring the Petitioner is attempting to present is by stating the qualifications of the

Petitioner’s consultant. The Illinois EPA is not disputing the qualifications of the consultant, and they

are not in issue in this case. Even a qualified professional can err. By admitting an error, the Petitioner

may not get reimbursed for some of the work performed, and this is all about the reimbursement.

Pursuant to 35 Ill. Adm. Code 734.630(o) costs for activities which exceed the minimum requirements

of the regulations are not eligible for reimbursement. Pursuant to 35 Ill. Adm. Code 734.630(p)

improperly installed monitoring wells (pursuant to 734.430) are not eligible for reimbursement.

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. SOIL BORINGS EXCEEDED THE MINIMUM REQUIREMENTS OF THE ACT AND

CANNOT BE REIMBURSED.

During early action, owner/operators are required to sample the floor and walls of the

excavation. They are also required to sample the piping run. 35 Ill. Adm. Code 734.210(h). Pursuant to

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35 Ill. Adm. Code 734.315, the Stage 1 investigation must be designed to gather initial information

regarding the extent of on-site soil and groundwater contamination that as a result of the release, exceeds

the most stringent Tier 1 remediation objectives for applicable indicator contaminants. During the Stage

1 investigation, owner/operators are allowed up to four borings that be “drilled around each independent

UST field where one or more UST excavation samples collected pursuant to 734.210(h), excluding

backfill samples, exceed the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for

the applicable indicator contaminants”. 35 Ill. Adm. Code 734.315(a)(1)(A). “Up to two borings must

be drilled around each UST piping run where one or more piping run samples collected pursuant to

Section 734.210(h) exceed the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for

the applicable indicator contaminants.” 35 Ill. Adm. Code 734.315(a)(1)(B).

SB4 exceeded the minimum requirements of the Act and regulations because the wall of the

excavation closest to SB4 was clean during Early Action. (AR, p.99) (See Exhibit 5 from Respondent’s

MSJ). Because the wall of the excavation was clean, SB4 did not need to be drilled under the

regulations. In their response to the initial Illinois EPA denial letter, (AR, p.157) the Petitioner agreed

that where SB4 was placed on the map they submitted to the Illinois EPA was in error. They stated that

they had moved SB4 to the correct location, however, the new map showed SB4 in the same location as

the prior map. (AR, p168, Maps AR, pp.28, 214).

SB5 and SB6 exceeded the minimum requirements of the Act and regulations because no

contamination was found during Early Action in the excavation wall in that area. (See Exhibit 5 from

Respondent’s MSJ). In their response to the initial Illinois EPA denial letter, the Petitioner again agreed

that the two borings were in the wrong place. (AR, p.170). These borings should have been drilled in

the area of the piping run and not near the excavation. In regards to SB6, the Petitioner fully agreed that

the boring exceeded the minimum requirements of the Act and regulations. (AR, p.170). In regards to

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SB5, the Petitioner disagrees that the boring was inappropriate because the boring had a slight hit for

Benzene. However, the Petitioner has not shown how this hit for Benzene was related to the diesel tank

in question when the walls of the Early Action excavation were clean in the area of SB5 and the only

contaminant of concern in the area was Naphthalene. (See Exhibit 5 from Respondent’s MSJ, p.6). The

Petitioner did make a claim that suggested their work during Early Action may not have been completed

correctly. (AR, p.170). However, when submitting the 45-day report, the Petitioner’s consultant did

certify that the activities taken were done in accordance with the regulations. (See Exhibit 5 from

Respondent’s MSJ, Early Action Certification p.4 of 4).

In their Response, the Petitioner states that the exact location and depth of the borings were

based on field observation and data samples collected from Early Action. (Response, p.11). 35 Ill.

Adm. Code 734.315(a)(1) defines the requirements for gathering the initial information regarding the

extent of on-site soil contamination that as a result of the release, exceeds the most stringent Tier 1

remediation objectives for applicable indicator contaminants. Section 734.315(a)(1) states the following

regarding field observations issues: “The borings must be advanced through the entire vertical extent,

based on field observations.

”

The Petitioner also states SB5 and SB6 were advanced in the incorrect

area in an attempt to define soil contamination from an incorrectly placed excavation sample. It is

unclear what field observation and data from sampling was used, as borings were placed in areas

previously defined by early actions samples.

The Petitioner did not submit to the Illinois EPA data regarding contamination located at 10 ft

below the surface. (Response, p.12). According to the 45-day Report, groundwater infiltrated the

bottom of the excavation so confirmation samples could not be collected in accordance with 35 Ill. Adm.

Code 734.210(h). (See Exhibit 5 from Respondent’s MSJ). These floor samples, in conjunction the

tank excavation sidewall samples usually determine if the tanks have had a release at the bottom the

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excavation. Contaminated soil in the groundwater unit is addressed as groundwater contamination. In

this case, the excavation sidewalls did not show contamination in the diesel excavation and the piping

runs samples did not demonstrate contamination migrating from the piping runs. This information,

submitted by the Petitioner, is acceptable to determine the unsaturated soils have been adequately

defined in that area without further sampling.

The soil samples that the Petitioner took in MW1 through MW5 exceed the minimum

requirements of the Act and regulations. Section 734.315(a)(2)(C) states that soil samples must be

examined from the Monitoring wells “provided that the samples must not be analyzed if other soil

sampling conducted to date indicates that soil contamination does not extend to the location of the

monitoring well installation boring.” In the case at hand, the Petitioner chose to sample soils from the

monitoring well borings in contradiction of the requirements of Section 734.315(a)(2)(C). (AR, p. 28,

90-101). Soil samples are not required from the monitoring well borings because sampling conducted to

date indicated soil contamination did not extend to that area. The soil samples taken from the soil

borings defined the area of contamination. Therefore the BTEX/MTBE soil analysis completed from

the drilling of MW1 and MW5, and the PNA soil analysis completed from the drilling of MW1, MW2,

MW4 and MW5 exceeded the minimum requirements of the Act and regulations.

The Petitioner also proposes additional soil borings. (AR, p. 29). The proposed soil boring

south of the pump island is not needed because the wall of the Early Action excavation was clean, as

was MW1. (See Exhibit 5 from Respondent’s MSJ). The soil borings east of the tank field but west of

MW2 exceed the minimum requirements of the Act and regulations because MW2 exceeds the clean up

objectives. It has, therefore, already been determined that the contamination is beyond the point of the

proposed borings. These proposed borings are not reimbursable under the Act and regulations. (AR,

p.29). The Petitioner also proposes two additional borings in the area of SB5 because SB5 had that

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slight hit for Benzene discussed above. However, as discussed previously, the Petitioner has not shown

how this hit for Benzene was related to the diesel tank in question when the walls of the excavation were

clean in the area of SB5 and the only contaminant of concern in the area was Naphthalene. (See Exhibit

5 from Respondent’s MSJ, p.6).

In regards to the additional soil borings, the Petitioner argues in their response to the original

decision letter that the piping samples are not deep enough to sample the entire vadose zone. (AR, p.

171). However, if these samples, required by 734. 210(h)(1)(C), are clean, as in this case, no further

sampling is required and a No Further Remediation letter can be obtained without further sampling.

Further, if the walls of the excavation are clean towards the piping run, as is the case here, then the depth

of the piping run samples is sufficient for the purpose at hand, which is checking to see if the piping run

leaked.

In summary, the soil borings discussed above are clearly shown by the Administrative Record to

exceed the minimum requirements of the Act and regulations. All relevant facts are contained within

the Administrative Record. No genuine issue of material fact exists.

III. MONITORING WELLS NOT SCREENED AT THE PROPER INTERVAL

35 Ill. Adm. Code 734.430(a)(3) requires that “wells must be screened to allow sampling only at

the desired interval.” The Administrative Record clearly shows that the wells at issue in this case were

not screened at the desired interval. For wells MW1 through MW5, the Administrative Record indicates

that the groundwater depth while drilling was between 10 and 11 feet. (AR, pp. 90-94). The Petitioner

did not indicate on any of these “Drilling Borehole Logs” the depth of the groundwater after drilling as

required by Section 734.425(c)(6). (AR, pp90-94). The wells were drilled and completed on July 12,

2006. (AR, pp. 90-94).

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For MW1, the record indicates that the depth to water was 97.75 feet static. (AR, p.102). The

top of the screen for MW1 is 95.50 feet. The total screen interval is 10 feet. (AR, p.102). This indicates

that the screen is submerged 2.25 feet below the surface. Section 734.430 clearly states that the wells

are to be constructed in a manner that will enable the collection of representative groundwater samples.

Further, wells must be screened to allow sampling only at the desired interval. The contaminants of

concern in gasoline and diesel fuel float on the top of water. If the screen is submerged 2.25 feet below

the surface, the well is not constructed in a manner that will enable the collection of representative

groundwater samples. Nor is it screened to allow sampling only at the desired interval.

The same can be said about MW2 through MW5. The record indicates that the depth to water

for MW2 is 96.91 feet static. (AR, p. 103). The top of the screen is at 95.83 feet. (AR, p. 103). The

top of the screen is 1.08 feet below the surface. The well closest to the surface is MW3. The record

shows that MW3 has a depth to water of 97.11 feet static. (AR, p. 104). The top of the screen is 96.97

feet. (AR, p. 104). Therefore the top of the screen at MW3 is .14 feet below the surface. The record

indicates that the depth to water for MW4 is 97.30 feet static. (AR, p. 105). The top of the screen is at

96.95 feet. (AR, p. 105). Therefore the top of the screen is .35 feet below the surface. For MW5, the

record indicates that the depth to water is 98.00 feet static. (AR, p. 106). The top of the screen is at

96.20 feet. (AR, p. 106). Therefore the top of the screen is submerged 1.80 feet below the surface.

These monitoring wells are not constructed in a manner that will enable the collection of representative

groundwater samples. None of these wells, MW2 through MW5 are constructed to allow sampling only

at the desired interval.

The Petitioner responded to the Illinois EPA’s first denial letter, (AR, p.157), by stating that the

wells were set at the groundwater table encountered at drilling. (AR, p. 173). The Petitioner went on to

state that “due to the hydro-static pressure of hydraulic head of the formation, the isostatic water levels

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rose in the monitoring wells.” (AR, p. 173). The Petitioner goes on to argue that the groundwater is still

entering the monitoring wells in the screen and that to have the wells set at shallower depths would have

resulted in no production. (AR, p. 173). The Illinois EPA disagrees with that assertion. The total well

screen interval is 10 feet. The wells could be raised the amount of distance so that the top of the screen

is above the surface and still have adequate screen interval below the surface to collect the necessary

samples of the contaminants. Further, having the top of the screens above the surface would comply

with the regulations that require that the wells are constructed to allow it to be screened to allow

sampling only at the desired interval. As constructed, the desired interval in these wells is .14 feet to

2.25 feet above the current placement of the top of the screen. The Petitioner admitted that “due to the

hydro-static pressure of hydraulic head of the formation, the isostatic water levels rose in the monitoring

wells.” (AR, p. 173). Basically, by not allowing the water in the well to recharge after drilling and by

placing the screens in the wells to the depth of groundwater during drilling, instead of placing the

screens in the wells to the depth of groundwater after drilling, the wells were not screened in a manner to

satisfy the requirements of Section 734.430. The Petitioner did not provide the groundwater depth after

drilling as required under Section 734.725(c)(6) on the soil boring log, so it is unclear if this depth was

noted during the investigation.

The Petitioner states the requirement of Section 734.430 to construct a well to allow for sampling

only at the desired interval violates Section 734.315(a)(2)(E)(ii), which requires the screen to be

submerged for hydraulic conductivity analysis. This is another red herring to distract the Board from the

real issue. The Illinois EPA did not deny the hydraulic conductivity analysis from the well with the

submerged screen. As stated above, the issues are defined by the Illinois EPA decision letter.

The Illinois EPA would also like to point out that the Illinois EPA’s reviewer notes may give

insight into the decision of the Illinois EPA, however, the reviewer notes are not the decision of the

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Illinois EPA. The decision of the project manager is reviewed by their supervisor and not all of the

comments in the reviewer notes make the Illinois EPA decision letter. This is another red herring

presented by the Petitioner in its petition. (Petitioner’s Response, p.13)

In summary, the wells discussed above are clearly shown by the Administrative Record to be

constructed in violation of the Act and regulations in that they do not allow the wells to be sampled at

the desired interval. All relevant facts are contained within the Administrative Record. No genuine

issue of material fact exists.

IV. THE REQUIRED CERTIFICATION

The Act and regulations require that all plans be certified by a Professional Engineer or

Geologist and signed by the Owner/Operator. Two certifications are necessary: one for the Site

Investigation Plan and one for the budget. The original report contained both certification required by

the Act and regulations. (AR, pp. 19-21 and 39). The second report, the one under appeal, contained

only the budget certification. (AR, p.21). The record clearly shows that the required certification was

not submitted to the Illinois EPA.

V. AFFIDAVITS ATTACHED TO RESPONSE

The information contained in the affidavits of Jeffrey R. Wienhoff and Carol L. Rowe

(Petitioner’s Response, Exhibits 26 and 27, respectively), present information either contained within

the Administrative Record or not submitted to the Illinois EPA. As the consultants for the Petitioner,

Mr. Wienhoff and Ms. Rowe are responsible for presenting all relevant information to the Illinois EPA

to make its decision. The information contained in their affidavits that is within the Administrative

Record was reviewed by the Illinois EPA during its decision making process and is present in that

Record for the Board’s consideration. The information presented for the first time in their affidavits was

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not information under review by the Illinois EPA during its decision making process and should be

disregarded.

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

_______/s/_____________________

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: August 6, 2007

This filing submitted on recycled paper.

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CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on August 6, 2007 I served true and correct

copies of a REPLY TO PETITIONER’S RESPONSE IN OPPOSITION TO MOTION FOR

SUMMARY JUDGEMENT 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 person:

Carolyn S. Hesse

Barnes & Thornburg

1 North Wacker Drive

Suite 4400

Chicago, IL 60606

and an electronic copy of the same foregoing instrument on the same date via electronic filing via the

Clerk’s Office On-Line (COOL) System, upon the following named persons:

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

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

_______/s/_____________________

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)

Electronic Filing, Received, Clerk's Office, August 6, 2007