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.

)

NOTICE

John Therriault, Acting 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

1 North Wacker Drive

Suite 4400

Chicago, IL 60606

PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution Control

Board a RESPONSE TO PETITIONER’S POST-HEARING BRIEF, copies of which are herewith served upon

you.

Respectfully submitted,

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)

Dated: October 9, 2007

Electronic Filing, Received, Clerk's Office, October 9, 2007

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1

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.

)

RESPONSE TO PETITIONER’S POST-HEARING BRIEF

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 hereby submits its Response to the Petitioner’s Post-Hearing Brief to the Illinois Pollution

Control Board (“Board”).

I. BURDEN OF PROOF

Section 105.112(a) of the Board’s procedural rules (35 Ill. Adm. Code 105.112(a)) provides

that the burden of proof shall be on the petitioner. In reimbursement appeals, the applicant for

reimbursement has the burden to demonstrate that costs are related to corrective action, properly

accounted for, and reasonable. Rezmar Corporation v. Illinois EPA

, PCB 02-91 (April 17, 2003), p. 9.

The primary focus of the Board must remain on the adequacy of the permit application (or, as is

the case here, the site investigation plan) and the information submitted by the applicant to the Illinois

EPA. John Sexton Contractors Company v. Illinois EPA

, PCB 88-139 (February 23, 1989), p. 5.

Further, the ultimate burden of proof remains on the party initiating an appeal of an Illinois EPA final

decision. John Sexton Contractors Company v. Illinois Pollution Control Board

, 201 Ill. App. 3d 415,

425-426, 558 N.E.2d 1222, 1229 (1

st Dist. 1990).

Electronic Filing, Received, Clerk's Office, October 9, 2007

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Thus L. Keller Oil Properties/Farina (“Farina” or “Petitioner”) must demonstrate to the Board

that it has satisfied its burden before the Board can enter an order reversing or modifying the Illinois

EPA’s decision under review. While the Petitioner appears to be attempting to shift the burden of

proof to the Illinois EPA the burden remains with the Petitioner. The record in front of the Board

clearing supports the Illinois EPA decision. In this case, Farina simply failed to meet their burden of

proof.

II. STANDARD OF REVIEW

Section 57.8(i) of the Environmental Protection Act (“Act”) grants an individual the right to

appeal a determination of the Illinois EPA to the Board pursuant to Section 40 of the Act (415 ILCS

5/57.8(i)). Section 40 of the Act (415 ILCS 5/40) is the general appeal section for permits and has

been used by the legislature as the basis for this type of appeal to the Board. When reviewing an

Illinois EPA decision on a submitted corrective action plan and/or budget, the Board must decide

whether or not the proposals, as submitted to the Illinois EPA, demonstrate compliance with the Act

and Board regulations. Broderick Teaming Company v. Illinois EPA, PCB 00-187 (December 7,

2000).

The Board will not consider new information not before the Illinois EPA prior to its

determination on appeal. The Illinois EPA’s final decision frames the issues on appeal. Todd’s Service

Station v. Illinois EPA, PCB 03-2 (January 22, 2004), p. 4. In deciding whether the Illinois EPA’s

decision under appeal here was appropriate, the Board must therefore look to the documents within the

Administrative Record (“Record”), along with relevant and appropriate testimony provided at the

hearing held on August 22, 2007, in this matter.

1

The Petitioner in this case has attempted to present

evidence not before the Illinois EPA prior to its determination that is the subject of this appeal. The

1

Citations to the Administrative Record will hereinafter be made as, “AR, p. ___.” References to the transcript of the

hearing will be made as, “TR, p. ___.” References to the Supplemental Administrative Record will be made as “Supp. AR,

p. ___.”

Electronic Filing, Received, Clerk's Office, October 9, 2007

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Illinois EPA requests that the Board disregard this information in making its decision. Based on the

information within the Record and the relevant and appropriate testimony, along with the relevant law,

the Illinois EPA respectfully requests that the Board enter an order affirming the Illinois EPA’s

decision.

III. INTRODUCTION

The information submitted to the Illinois EPA by Farina that led to the issuance of the final

decision under appeal fully supports the content and conclusion of the final decision, in that the

Petitioner failed to demonstrate that the information they submitted to the Illinois EPA and upon which

the Illinois EPA based its decision supported any other conclusion than that reached by the Illinois

EPA when it issued its May 17, 2007 decision letter. The fact that the Petitioner at hearing had to

present evidence outside of the record in front of the Illinois EPA at the time the decision was made

further confirms the correctness of the Illinois EPA’s decision.

The Board’s review of the

Administrative Record, as well as the hearing transcript, should yield the same conclusion as that

reached by the Illinois EPA. The Illinois EPA relies upon the owner/operator and their consultants to

provide full information regarding the on-site conditions and remediation activities. It is this

information that the Illinois EPA relies upon to form its decisions. In this case, the information

submitted by the Petitioner supports the decision of the Illinois EPA. The Petitioner tries, at this late

date, to add additional information not contained within the Administrative Record and not before the

Illinois EPA prior to its decision. This information needs to be disregarded because the Illinois EPA

did not rely upon it when making its decision. It is important to point out that what information the

Illinois EPA reviews is totally within the control of the owner/operator and their consultant. Simply, if

it is not submitted to the Illinois EPA, the Illinois EPA cannot review it.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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IV. STATEMENT OF FACTS

The facts in the Illinois EPA record supporting this motion are as follows:

1.

Keller Farina was the owner of tanks located at a gasoline service station located at

1003 West Washington Avenue, Farina, Fayette County, Illinois. The underground storage tanks at

issue were located on the property which stored gasoline, diesel fuel and heating oil. (AR, p.7)

2.

LUST Incident Numbers 20051539, 20060136, 20060153 and 20060346 were obtained

by Keller Farina. The site has been assigned LPC #0514155011 – Fayette. (AR, p.7)

3.

The 20-Day Certification for Incident Number 20060153 was submitted to Illinois EPA

by the Petitioner on February 21, 2006. (AR p. 7)(Exhibit 1)

4.

On December 5, 2005, the Illinois EPA approved an extension of the early action period

through April 30, 2006. (AR, p. 7)(Exhibit 2)

5.

The Petitioner submitted the 45-Day Report and Stage 1 Certification on December 20,

2005. (AR, p. 7) (Exhibit 3)

6.

The Illinois EPA rejected the 45-Day Report on May 22, 2006. (AR, p. 7)(Exhibit 4)

7.

Petitioner submitted a 45-Day Addendum Report to the Illinois EPA on July 6, 2006.

(AR, p.7)(Exhibit 5)

8.

The Illinois EPA approved the 45-Day Report on March 8, 2007. (Exhibit 6)

9.

On August 7, 2006, Petitioner sent a Stage 1 Report/Stage 2 Site Investigation

Plan and Budget to the Illinois EPA. (AR, p. 1)

10.

The Illinois EPA issued a decision letter on October 5, 2006 denying the Stage 1

Report/Stage 2 Site Investigation Plan and Budget. (AR, p.157)

Electronic Filing, Received, Clerk's Office, October 9, 2007

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11.

On January 24, 2007, the Illinois EPA received a Stage II Site Investigation Plan and

Budget, Additional Information and Reconsideration. (AR, p.167)

12.

The Stage II Site Investigation Plan and Budget, Additional Information and

Reconsideration was not a complete Stage II Site Investigation Plan and Budget, but merely

responded to the denial points the Illinois EPA listed in its October 5, 2006 denial letter. (AR, p.

168)

13.

On May 17, 2007, the Illinois EPA issued a decision letter rejecting the State 2

Plan and Budget, which is the subject of this appeal. (AR, p. 256)

V. ISSUES

The issues before the Board are framed by the Illinois EPA decision letter and are as follows:

1)

Whether the Petitioner, by drilling soil borings during Stage 1 in excess of the soil

borings required in 35 Ill. Adm. Code 734.315, exceeded the minimum requirements

of the Act and regulations thereunder.

2)

Whether the Petitioner’s wells were constructed in a manner that allows for samples to

be taken at the desired interval pursuant to 35 Ill. Adm. Code 734.430.

VI. ARGUMENT

On August 7, 2006, the Petitioner filed its Stage 1 Report/Stage 2 Site Investigation Plan and

Budget. The Illinois EPA issued a decision letter on October 5, 2006 rejecting this submittal. The

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

PCB 90-142 (Dec. 20, 1990). In the October 5, 2006 decision letter, the Illinois EPA cited to the

requirements of the Act and regulations that the Petitioner did not comply with. The Petitioner filed a

response to the October 5, 2006 letter on January 24, 2007 attempting to justify the work performed at

the site that the Illinois EPA found exceeded the minimum requirements of the Act and regulations.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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On May 17, 2007, the Illinois EPA issued a decision letter regarding the January 24, 2007 submittal

and that letter is the subject of this appeal.

Pursuant to 35 Ill. Adm. Code 734.320, a Stage 2 site investigation must be designed to

complete the identification of the extent of soil and groundwater of the site that, as a result of the

release, exceeds the most stringent Tier 1 remediation objective of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants. Additionally, pursuant to 35 Ill. Adm. Code 734.320(b), the Stage 2

plan must consist of the following:

1)

An executive summary of Stage 1 site investigation activities and actions proposed in

the Stage 2 site investigation plan to complete the identification of the extent of soil and

groundwater contamination at the exceeds the most stringent Tier 1 remediation

objectives of 35 Ill. Adm. Code 742.

2)

A characterization of the site and surrounding area,

3)

The results of Stage 1 site investigation,

4)

A stage 2 sampling plan that includes, but is not limited, the following:

A)

A narrative justifying the activities proposed as part of the Stage 2 investigation,

B)

A map depicting the location of additional soil borings and groundwater

monitoring wells proposed to complete the identification the extent of soil and

groundwater contamination at the site that exceeds the most stringent Tier 1

remediation objectives of 35 Ill. Adm. Code 742 for the applicable indicator

objectives.

C)

The depth and construction details of the proposed soil borings and groundwater

monitoring wells.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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While the Petitioner continually chooses to cherry pick the portion of 35 Ill. Adm. Code

734.510(a) that suits them best, in actuality, pursuant to 35 Ill. Adm. Code 734.510(a), a technical

review must consist of a detailed review of the steps proposed or completed to accomplish the goals of

the plan and to achieve compliance with the Act and regulations. Under this regulation, items to be

reviewed, if applicable, must included, but are not limited to, number and placement of wells and

borings, numbers and types of samples and analysis, results of sample analysis, and protocols to be

followed in making determinations. The overall goal of the technical review for plans is 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. The overall goal of the technical review for

reports is to determine if the plan has been fully implemented in accordance with generally accepted

engineering practices or principles of professional geology, if the conclusions are consistent with the

information obtained while implementing the plan, and if the Act and regulations have been satisfied.

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 Illinois EPA conducted a review in accordance with the procedures set forth in 734.510(a),

to determine if the activities certified in the Stage 1 plan and budget certification had been conducted in

accordance with the regulations and generally accepted engineering practices. Information regarding

the Stage 1 activities was presented in the Stage 2 Plans in accordance with 35 Ill. Adm. Code 734.320.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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(AR, pp. 1-13) During its Section 734.510(a) review, the Illinois EPA determined that the Stage 1 site

investigation was not conducted in accordance with the approved plan and the Stage 1 monitoring

wells were not installed in a manner consistent with the regulations and generally accepted engineering

practices. (AR, p. 256)

The staged site investigation process is designed to provide a systemic approach to define the

full extent of soil and groundwater resulting from the release of the underground storage tank system.

Each stage builds upon the prior stages. Therefore, Stage 2 and Stage 3 must include the information

collected from the prior stage or stages in order to develop a plan for additional activities and locations

based on the information gathered from the previous activities. The Stage 1 monitoring well

construction diagrams provided in the Stage 2 plans indicate the wells were not screened properly to

allow for sampling at the desired interval. (AR, p. 89) Due to this fact, a Stage 2 plan for determining

the full extent of groundwater contamination resulting from the release can not be formulated based on

the data provided from these improperly screened wells.

Additionally, 35 Ill. Adm. Code 734.315(b) requires that a Stage 1 Site Investigation Plan must

consist of a certification by a Licensed Professional Engineer or a Licensed Professional Geologist that

Stage 1 will be conducted in accordance with this section. This certification was included as Section G

of the 45-day Report Form. (Supp. AR, p.4) This certification is actually a part of the 45-Day Report

and not a separate document. This Certification is the only Stage 1 information “reviewed” and

“approved” by the Illinois EPA prior to the Stage 1 activities taking place. The 45-Day Report, itself,

often only gets a cursory review. By approving the 45-Day Report that includes the Stage 1

certification, the Illinois EPA is not approving the Stage 1 activities at the site foreclosing further

review of said activities. In fact, the certification makes it clear that the Petitioner must submit a

summary of such activities with the Stage 2 Site Investigation Plan and Budget for review by the

Electronic Filing, Received, Clerk's Office, October 9, 2007

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Illinois EPA to make sure that the provisions of Section 734.315 were followed as the owner or

operator certified. The Certification states,

“UST owner or Operator and Licensed Professional Engineer or Licensed

Professional Geologist Certification of Stage 1 Site Investigation Plan and Budget

(applies to Part 734 sites continuing beyond early action): Pursuant to 35 Ill. Adm.

Code Part 734.315(b), I certify that the Stage 1 site investigation will be conducted in

accordance with 35 Ill. Adm. Code 734.315 and that costs of the Stage 1 site

investigation will not exceed the amounts set forth in 35 Ill. Adm. Code 734 Subpart

H, Appendix, D and Appendix E. This certification is intended to meet the

requirements for a plan and budget for Stage 1 Site Investigation required to be

submitted pursuant to 35 Ill. Adm. Code 734.310.

A summary of the actual costs for conducting the Stage 1 site investigation will be

submitted concurrently with the results of the Stage 1 site investigation and the Stage

2 site investigation plan and budget.”

This certification, which the petitioner signed, states that the Petitioner will conduct Stage 1

activities in accordance with 35 Ill. Adm. Code 734.315. However, the Petitioner failed to do so.

Activities performed at the site and submitted as part of the Stage 1 Executive Summary in the Stage 2

proposed plan, showed that activities for Stage 1 were not conducted in accordance with the minimum

requirements to comply with Section 734.315.

ISSUE 1: THE SOIL BORINGS EXCEEDED THE MINIMUM REQUIREMENTS OF THE

ACT AND CANNOT BE REIMBURSED.

The question before the Board is whether the Petitioner, by drilling soil borings during Stage 1

in excess of the soil borings required in 35 Ill. Adm. Code 734.315, exceeded the minimum

Electronic Filing, Received, Clerk's Office, October 9, 2007

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requirements of the Act and regulations thereunder. The requirements of Stage 1 are very specific and

are prescribed by Section 734.315. The regulation allows little, if any, deviation from its prescribed

activities. The Petitioner exceeded this regulation by performing activities in addition to those allowed

in the regulation.

Under 35 Ill. Adm. Code 734.210(h), the owner/operator is required to collect excavation

samples and piping run samples during underground storage tank removal to determine if the soil

contamination exposed as a result of early action excavation meets the most stringent Tier 1

remediation objectives pursuant to 35 Ill. Adm. Code Part 742.

Under 35 Ill. Adm. Code

734.210(h)(3), if the samples (including piping run samples) meet the most stringent Tier 1

remediation objectives pursuant to 35 Ill. Adm. Code Part 742, the owner/operator may submit a report

demonstrating compliance with those remediation objectives. If the Illinois EPA determines those

remediation objectives have been met, the Illinois EPA will issue a No Further Remediation letter to

the owner/operator. This provides regulatory authority for the Illinois EPA to accept piping run

samples as acceptable samples to determine if soil surrounding the underground storage tank system

meets remediation objectives.

Additionally, the regulations at 35 Ill. Adm. Code 734.315(a)(1)(B), allow for up to two

borings to be drilled around each piping run where one or more piping run samples exceed the most

stringent Tier 1 remediation objectives under 35 Ill. Adm. Code Part 742. Although it may be

technically acceptable to further investigate piping runs, for purposes of reimbursement from the fund,

those activities exceed the minimum requirements of the Act and regulations pursuant to 35 Ill. Adm.

Code 734.630(o). It should be noted that the Illinois EPA did not reject the plan based on the

additional proposed borings which exceeded minimum requirements. The plan was denied because the

monitoring wells did not satisfy the requirements of 35 Ill. Adm. Code 734.430. Under 35 Ill. Adm.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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Code 734.505(a), the Illinois EPA conducted the review based on all technical and financial

information relied upon by the owner/operator and the Licensed Professional Engineer or Licensed

Professional Geologist in developing any plan, budget or report. The Illinois EPA, pursuant to Section

734.505(b), notified the owner/operator that the additional soil investigation exceeded the minimum

requirements and was therefore not eligible for reimbursement.

In regards to the specific soil borings at issue in this case, 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) (Supp. AR, p. 4). 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). At

the hearing, Jeff Wienhoff, from the Petitioner’s consultant, CW3M admitted that the soil boring map

had not been updated and that the information submitted to the Illinois EPA, even after this error was

found, was incorrect. (T, p.152-153). The Illinois EPA can only review what is submitted to it and is

in the position that it must assume that the information is correct as submitted. If the Illinois EPA

made a decision based upon information the Petitioner now claims is incorrect, the Petitioner has no

one to blame but themselves because it was their incorrect information.

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. (Supp. AR, p. 4). 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

Electronic Filing, Received, Clerk's Office, October 9, 2007

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the minimum requirements of the Act and regulations. (AR, p.170). In regards to 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. (Supp. AR, p. 4). 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. (Supp. AR, p. 4).

The Petitioner argues that the exact location and depth of the borings were based on field

observation and data samples collected from early action. 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 action

samples.

Further, the Petitioner did not submit to the Illinois EPA data regarding contamination located

at 10 ft below the surface. 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). (Supp. AR, p. 4). These floor samples, in conjunction the tank excavation sidewall

samples usually determine if the tanks have had a release at the bottom the excavation. Contaminated

Electronic Filing, Received, Clerk's Office, October 9, 2007

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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.

Moving on to the soil samples collected from MW1 through MW5, at the hearing the Petitioner

stipulated that the analysis of the soil samples collected from MW5 was not necessary. (T., p.8) The

soil samples remaining at issue that the Petitioner took in MW1 through MW4 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

from the soil borings 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 the PNA soil analysis completed from the drilling of MW1,

MW2, and MW4 exceeded the minimum requirements of the Act and regulations. At the hearing, Jeff

Wienhoff offered a new explanation for taking the monitoring well samples. He explained that it was

more convenient to take all of the samples at once and not wait for the results to see if more sampling

was needed as required under the regulations. (T., p.167) Mr. Wienhoff admitted that he knew this

was against the regulations.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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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. (Supp. AR, p.4). 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 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. (Supp. AR, p.4).

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. The Petitioner’s consultant seems to be saying that the Board’s regulations are not

expansive enough to cover contamination throughout the vadose zone if piping samples are used to

determine the extent of contamination. This discussion would be better left for a regulatory hearing on

Part 734. It should be noted that the Petitioner’s consultants, CW3M, were active participants in the

last hearings for Part 734 and could have brought up these concerns at that time. (

See

the Board’s

docket and record from R04-23)

Electronic Filing, Received, Clerk's Office, October 9, 2007

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The Administrative Record, along with the Act and the Board’s regulations, clearly supports

the decision of the Illinois EPA that the soil borings exceeded the minimum requirements of the Act

and cannot therefore be reimbursed.

ISSUE 2: THE MONITORING WELLS WERE NOT SCREENED AT THE PROPER

INTERVAL

The question before the Board is whether the Petitioner’s wells were constructed in a manner

that allowed for samples to be taken at the desired interval pursuant to 35 Ill. Adm. Code 734.430.

Pursuant to 35 Ill. Adm. Code 734.430(a), monitoring well installation requirements, the well

must be screened at an interval to allow sampling only at the desired interval. In the instance of

gasoline indicator contaminants, specifically benzene, the well must be screened at the interval where

the screen intersects the groundwater in the well. This is because the contaminants associated with

petroleum releases are lighter than the groundwater. Due to this fact, the contaminants “float” on top

of the groundwater, as evidenced in the sheen on water produced when petroleum products and water

co-mingle. This top layer in the wells is the intended target for groundwater sampling. When the well

screen is submerged in the well, the groundwater being sampled is below where most petroleum

contaminants are likely to be observed. Ten-foot well screens are installed to allow for groundwater

hydrostatic pressure and seasonal fluctuations. The wells in question were installed on July 12, 2006.

(AR, p. 102-107) Normally, this means that the screen was inserted and the well was sealed with

bentonite to prevent surface water infiltration. Once the well is installed, the consultant usually waits

for a few days for the well to stabilize to a natural groundwater flow state after boring into the soil and

setting the well, which can disrupt the groundwater in that location. Next, the consultant returns to the

well after it is stabilized to record groundwater elevation readings and collect samples. (T. p. 93-94) In

this case, this was conducted on 07/14/06. (AR, p.111) The monitoring well construction diagrams

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state the groundwater elevation after stabilization, i.e., 2 days after the well was installed, show the

well screens to be submerged. (AR, p. 89)

The Illinois EPA disagrees with the assertion that the wells would be dry if they had been

installed as the Illinois EPA stated. According to the monitoring well construction diagrams provided

by the Petitioner in the Stage 2 Site Investigation plan dated August 7, 2006, the groundwater could

have dropped significantly without causing a dry well. (AR, p. 89) Since the Petitioner claims,

without any evidence to support their conclusion that “due to hydro-static pressure of hydraulic head of

the formation, the isostatic water levels rose in the monitoring wells” (AR, p. 173), it is very unlikely

that the screen, if raised as the Illinois EPA suggests, would be dry.

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, pp.90-94). The wells were drilled and completed on July 12,

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

See,

Section VII of this brief for a discussion regarding Carol Rowe’s

admission that this required information was not submitted.

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

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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

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

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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 a 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.

Carol Rowe, CW3M, who supervised the field work, testified at hearing that the wells were not

screened as she intended. (T. p.123) In fact, Ms. Rowe herself states she’s not sure what strata is

producing the groundwater. (T. p.122)

This was surprising to the Illinois EPA since all

correspondence submitted for review by the Illinois EPA stated the groundwater was located in the

silty clay layer. Frankly, the Illinois EPA can only review that which is submitted. If the consultant

sends in information stating a definite location for groundwater and the Illinois EPA relies on that

during its review, the Petitioner is stuck with that information. The Board will not consider new

information not before the Illinois EPA prior to its determination on appeal. Changing their

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information at hearing to say they now do not know where the groundwater was found is irrelevant to

the question before the Board as to whether the Illinois EPA made the correct decision based upon the

record it had in front of it at the time.

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

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.

The Administrative Record, along with the Act and the Board’s regulations, clearly supports

the Illinois EPA decision that the Petitioner’s wells were not constructed in a manner that allows for

samples to be taken at the desired interval pursuant to 35 Ill. Adm. Code 734.430.

ADDITONAL ARGUMENT: REJECTION OF BUDGET

The Illinois EPA and the Petitioner resolved the certification issue prior to hearing with the

Petitioner submitting the required document. (T., p.7)

In regards to the rejection of the budget, a proposed budget may not be approved unless the

corresponding plan is approved. The corresponding plan has not been approved. Further, the Stage 1

Investigation did not meet the requirements of the regulations in regard to the screening of the

monitoring wells. Activities for Stage 2 may not proceed until all the requirements of Stage 1 have

been satisfied. Activities which exceed the minimum requirements of the Act and regulations were

conducted and all associated costs associated with activities conducted that exceed the minimum

requirements to comply with the Act and regulations are ineligible for payment from the fund.

The regulations at 35 Ill. Adm. Code 734.625 and 734.630 provide detailed items which are

considered eligible and ineligible for payment from the Fund. Pursuant to 734.630(o), costs for

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corrective action and associated materials or services exceeding the minimum requirements necessary

to comply with the Act are not eligible for payment from the Fund.

Part 734 describes the requirements necessary to comply with the regulations. Sections

734.315 and 734.320, state the specific requirements for Stage 1 and Stage 2 Site Investigation that are

necessary to comply with the Act in order to receive payment from the Fund. Any additional

corrective action activities, materials or services provided that are not specifically required in the

734.315 and 734.320 requirements exceed the minimum requirements necessary to comply with the

Act and its regulations. All costs for activities outside the scope of work required by the regulations

must be denied payment from the Fund.

Additionally, the regulations require that the Stage 1 site investigation must be conducted from

data acquired during early action as described in Section 734.210. The Illinois EPA must rely on the

owner/operator and their consultants to comply with early action requirements including the early

action sampling procedures described in Section 734.210(h)(1) in order for site investigation to

proceed in accordance with the Board’s regulations. Site Investigation requirements are specifically

based on UST excavation samples collected pursuant to 734.210(h). The Petitioner claimed at haring

that they missed the contamination. (T., p.131-134, 157) “Missing contamination” during early action

sampling violates Section 734.210(h). Further it is not an acceptable excuse that would allow the

Illinois EPA to approve reimbursement for these costs associated with a non-compliance of the

regulations.

Additionally, work conducted as the result of clerical errors is not eligible for

reimbursement because it exceeds the requirements of Sections 734.315 and 734.320. (See testimony

of Jeff Wienhoff starting T. p. 125)

Pursuant to Section 734.630(p), costs associated with improperly installed sampling or

monitoring wells are not eligible for payment from the Fund. Part 734 sets forth the requirements for

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monitoring well construction and sampling. Section 734.430 specifically prescribes the requirements

for monitoring well construction. The monitoring wells were not constructed in a manner that allows

for the screen to be placed at the desired interval. The length of the screens may be 5 foot, 10 foot, or

15 foot, or longer, as determined by the Geologist in the field. The Illinois EPA must rely on the

owner/operator and its consultant to make determinations in the field, as to how the wells are drilled,

provided the regulations are satisfied. If aspects of the well are not constructed in accordance with the

regulations, the Illinois EPA cannot make a determination on the validity of the samples. The

Geologist must determine in the field the specific groundwater bearing unit which would most likely

be impacted by the release, hence the requirement for a representative groundwater sample. The

Illinois EPA must rely on the expertise of the person performing the fieldwork to ensure that these

requirements are satisfied.

The Administrative Record, along with the Act and the Board’s regulations, supports the final

decision of the Illinois EPA in denying the budget.

VII. THE PETITIONER’S BRIEF IS IN ERROR AND THE HEARING TESTIMONY

SUPPORTS THE FINAL DECISION

As noted in the above argument, the Petitioner’s brief fails to present any tangible or persuasive

argument on which the Board could rely in reversing the Illinois EPA’s final decision. Further, there

are numerous passages of testimony from the hearing that either support the Illinois EPA’s final

decision or weaken the Petitioner’s arguments.

ISSUE 1: THE SOIL BORINGS EXCEEDED THE MINIMUM REQUIREMENTS OF THE

ACT AND CANNOT BE REIMBURSED.

Illinois EPA directs the Board to the requirements of Section 734.315(a) in the appendix of this

Brief. This section sets forth the requirements for soil borings and uses the term “UST field”.

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Although Part 734 does not defined the term “UST field”, Section 732.103 does define “tank field” to

means all underground storage tanks at a site that reside within a circle with a 100 foot radius. Section

732.103 begins with the statement, “Except as stated in this Section, or unless a different meaning of a

word or term is clear from the context, the definitions of words or terms in this Part shall be the same

as that applied to the same words or terms in the Environmental Protection Act [415 ILCS 5]”. The

two tank excavations at issue in this case encompass one UST field under 734.315(a), as they both

reside within a 100 foot radius of one another.

Section 734.315(a) states that up to four boring must drilled around each independent UST

field. Mr. Wienhoff stated at hearing that he understood the interpretation of the regulations was that

up to 4 borings were acceptable for Stage I Investigation, and those borings should be placed in the

direction of contamination emanating from tank excavation (T. page 163). SB4, as it originally placed

(AR, page 28), exceeded these requirements. The contamination found in excavation samples N1 and

N2 was demonstrated by the Petitioner as

not

emanating from the tank excavation in the northern

direction. The amended placement of SB4, as testified to by Mr. Wienhoff, still attempts to further

define contamination emanating northward. Since only one tank basin excavation sample exceeded the

most stringent remediation objectives, soil sample E1, only one soil boring (SB3) is needed per the

minimum requirements of Section 734.315(a)(1)(A). Any other soil boring such as SB4 exceed the

minimum requirements of the Act and regulations.

Soil borings that exceed the minimum

requirements are not reimbursable. SB4 exceeded the minimum requirements of the Act and therefore

is not eligible for reimbursement pursuant to Section 734.630(o).

Regarding soil boring SB5, Mr. Wienhoff stated in his testimony, that both SB5 and SB6 were

drilled to fulfill the requirements of Section 734.315(A). He also admitted that SB5 and SB6 were

drilled as the result of “clerical error” (T. page 154). The drilling and sampling of SB6 is no longer

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part of the appeal. In regards to SB5, Mr. Wienhoff, stated that contamination noted as the result of

drilling SB5 should make the boring an acceptable location for fulfilling the requirements of Section

734.315(a)(1)(A). Mr. Wienhoff stated that the contamination found at SB5 was “most likely” the

result of diesel tank overfills. However, soil sampling of the tank diesel excavation sidewalls

demonstrated that contamination from the tank, including overfills, had been successfully excavated to

the most stringent Tier 1 remediation objectives during early action requirements. Therefore, under

Section 734.315(a)(1)(A), drilling and sampling did not comply with the regulations as it states “[u]p

to four borings must 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.” No

excavation samples from that area exceeded the most stringent remediation objectives. Drilling and

sampling of borings other than those prescribed as fulfilling the minimum requirements, are not

reimbursable. SB5 exceeded the minimum requirements to fulfill the regulations and therefore is not

eligible for reimbursement pursuant to Section 734.630(o).

In regards to the monitoring well soil samples, the minimum requirements of Part 734 are

spelled out in 734.315(a)(2)(C). This states, that one soil sample must be collected from each five-foot

interval of each monitoring well installation boring drilled pursuant to subsection (a)(2)(B). Each

sample must be collected from the location within the five-foot interval that is the most contaminated

as a result of the release. If an area of contamination cannot be identified within a five-foot interval,

the sample must be collected from the center of the five-foot interval. All soil samples exhibiting signs

of contamination must be analyzed for the applicable indicator contaminants. For borings that do not

exhibit any signs of soil contamination, samples from the following intervals must be analyzed for the

applicable indicator contaminants,

provided that the samples must not be analyzed if other soil

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

monitoring well installation boring:

i)

The five-foot intervals intersecting the elevations of soil samples collected pursuant to

Section 734.210(h), excluding backfill samples, that exceed the most stringent Tier 1

remediation objectives of 35 Ill. Adm. Code 742 for the applicable indicator

contaminants.

ii)

The five-foot interval immediately above each five-foot interval identified in subsection

(a)(2)(C)(i) of this Section; and

iii)

The five-foot interval immediately below each five-foot interval identified in subsection

(a)(2)(C)(i) of this Section

The Illinois EPA’s denial of these samples is specific only to monitoring well soil samples

collected and analyzed for indicator contaminants. Collecting and analyzing soil samples from the

wells exceeded the minimum requirements to comply with the Act and regulations.

The Petitioner states that monitoring wells MW2, MW4 and MW5 were sampled to further

define the contamination from sample D10 (the diesel piping excavation). (AR, p. 171) However,

when these wells were sampled for soil contamination, it was believed by the Petitioner that it was

sample D7, a tank excavation sidewall sample located at 8 feet, that they were determining

contamination from, not D10, located at 3 feet. The additional argument was an attempt at justifying

allowing reimbursement for what the regulations state expressly not to do. In order to further define

the piping run sample D10, SB7 and SB8 where advanced pursuant to 734.315(a)(1)(B), after the

Illinois EPA’s denial letter of October 15, 2006. (AR, page 157-164) These soil borings were omitted

from the original activities and required to fulfill the soil sampling requirements of 734.315(a)(1)(B),

and are the borings conducted to further define the contamination emanating from piping sample D10.

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Conducting additional sampling because the first set of sample locations were not placed in accordance

with the regulations does not make the additional activities eligible for reimbursement.

As stated above, pursuant to Section 734.320, the Stage 2 site investigation must be designed to

complete the identification of the extent of soil and groundwater contamination at the site that, as a

result of the release, exceeds the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742

for the applicable indicator contaminants. The investigation of any off-site contamination must be

conducted as part of the Stage 3 site investigation. The requirements state that Stage 2 activities are

conducted to complete the identification of soil and groundwater contamination as the result of the

release. It specifically states that activities must collect all samples necessary to identify the extent of

soil and groundwater occurring at the site. Soil and groundwater samples from Stage 1 investigation

have identified the contamination extent to extend to monitoring well MW2. Therefore, in order to

meet the minimum requirements contained in the regulations, samples should not collected in areas

where contamination is already found to occur, rather it is to identify the further extent of the soil and

groundwater plume. Any additional sampling not identifying the further extent of the soil and

groundwater plume exceeds the minimum requirements to comply with the Act and its regulations (See

Section 734.630(o)).

The Administrative Record, along with the Act and the Board’s regulations, clearly supports

the decision of the Illinois EPA that the soil borings exceeded the minimum requirements of the Act

and cannot therefore be reimbursed.

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ISSUE 2: THE MONITORING WELLS WERE NOT SCREENED AT THE PROPER

INTERVAL

The Illinois EPA determined the monitoring wells were not installed properly based on the

information provided in the plan. The following documents provided in the Administrative Record

support the Illinois EPA decision.

1.

A narrative discussing the in-situ hydraulic conductivity on the groundwater located at the site.

The narrative regarding site-specific parameters stated the hydraulic conductivity of the groundwater is

9.61E-7 cm/sec. This low hydraulic conductivity is representative of a silty clay type soil. (AR, p. 13)

2.

Groundwater Elevation Map. This map represents the static water elevation of groundwater

across the site. (AR, p. 35)

3.

Geologic Cross-Section. This cross-section depicts the GW interval while drilling to be located

in the silty clay layer. (This is in opposition to the testimony of Mr. St. John.) (AR, p. 37)

4.

Soil Boring Logs indicating groundwater was encountered in the silty clay unit at 10.5 ft below

surface grade. Data was not provided as required as to the groundwater depth after drilling. (AR, p. 90-

101, 224-225)

5.

Monitoring Well Construction Diagrams, indicating the depth to water, and the screened

interval. All screens appear to be placed below the static water level. (AR, p. 102-107)

6.

Hydraulic Conductivity Data and Results. The information supplied in these pages provides the

supporting documentation regarding the hydraulic conductivity determination. The groundwater

hydraulic conductivity documentation states that CW3M personnel conducted 2 slug tests in

monitoring well 4 (MW4). The hydraulic conductivity determined from the first slug test was 1.31E-6

cm/sec. The hydraulic conductivity from the second slug test was 9.61E-7 cm/sec. (AR, p. 227-230)

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The testimony of Ronald St. John:

The testimony of Ronald St. John did not prove that the Illinois EPA was incorrect in its

decision. Ronald St. John was offered as an expert witness by the Petitioner. It was clear from the

testimony at hearing that Mr. St. John was not hired to work closely with the Petitioner and its

consultant in order to render an opinion in this case. He was merely hired by the Petitioner’s counsel.

(T. p.61) Thus, it was impossible for the Illinois EPA to get into what he discussed with his client,

because his client was the Petitioner’s counsel. Mr. St. John was also found unreliable by a federal

judge in the United States District Court for the Northern District of Illinois, Eastern Division.

See

LeClercq v. The Lockformer Co., 2005 WL 1162979 (N.D. Ill. 2005). Judge Leinenweber stated in

his opinion as follows:

“The Court agrees that St. John’s testimony is unreliable. In pertinent part, St.

John opines that the contaminants TCE, PCE, and TCA traveled in relatively equal

proportions from Defendant’ facilities to the DGSD WWTP, passed through the DGSD

WWTP into the effluent line, leaked out of the effluent line, migrated downward through

the soil to contaminate the soil and groundwater beneath the effluent line, and then

contaminated groundwater then carried the TCE, PCE, and TCA to the

LeClercq

and

Mejdrech

class areas. The 17 effluent samples that ST. John ignored reflect non-detects

for TCE, PCE, and TCA-this data clearly is material and would be relevant to St. John’s

conclusions. Mestek concedes that ST. John did not include these 17 samples in his

hydrogeological analysis. St. John testified that he was aware of the DGSD effluent data

when he prepared his reports.

The Court concludes the St. John’s failure to discuss the import of, or even

mention, these material facts in his reports amounts to “cherry-pick[ing] the facts he

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considered to render his opinion, and such selective use of facts fail[s] to satisfy the

scientific method and

Daubert

.

Holden Metal & Aluminum Works v. Wismarq Corp.,

No.

00 C 0191, 2003 WL 1797844, at *2 (N.D.Ill. Apr.2, 2003). This disregard of relevant

data undermines the reliability of St. John’s entire opinion in this matter. Accordingly,

TPDs motion to bar the testimony of St. John is granted.”

While Mr. St. John was found to be an expert in his field in

LeClercq

, it was also clear that the

Court found him to be nothing more than a hired gun that would cherry pick his facts in order to reach

the conclusion of the party that hires him. Under cross examination in this case, it became clear that

Mr. St. John didn’t visit the site in question and either didn’t review the entire Administrative Record,

or simply choose to once again cherry pick the facts he found useful to make a conclusion in favor of

the Petitioner. Even in the Petitioner’s brief, they state that “Mr. St. John testified at hearing that he

reviewed the various reports in the record and that the monitoring wells were constructed properly.”

(Petitioner’s Brief, p.9) It states that he reviewed “various reports” not all reports, yet he was able to

make a determination that the wells were “constructed properly” without a full review of the

Administrative Record nor a visit to the site. Mr. St. John is once again cherry picking his facts, this

time just from a different tree.

No where within the Administrative record is there any indication that the saturated

groundwater is located in the 12-13.5 feet sand layer as stated during the testimony of Mr. St. John. (T.,

p.21) Mr. St John’s asserted that the sand layer is the only layer capable of producing water.

However, he was unable to explain the hydraulic conductivity provided by the Petitioner in

Administrative Record. (T. p.72) In fact, it seemed that he had not even reviewed this information in

forming his opinion, or if he had reviewed it, he merely chose to ignore it. Under cross examination,

Mr. St. John admitted that he would expect the hydraulic conductivity of the porous grain found in the

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aquifer at 12-13.5 foot to be in the order of 10E(-3) cm/sec, indicating the increased permeability of

sands versus the slower permeability of silty clay. (T., p.72) Mr. St. John also admitted, once directed

to the page in the Administrative Record, that a silty clay layer (identified in the plan as being the

groundwater producing layer) would more likely have a hydraulic conductivity similar to the hydraulic

conductivity presented in the plan (T. p.72-73). Additionally, Mr. St. John, agreed under cross

examination, that groundwater can infiltrate the silty clay layer (T. p.72), thereby contradicting his

direct testimony and indicating that the groundwater may be infiltrating the well at a level somewhere

above the sand layer. All documentation submitted by the Petitioner regarding groundwater, indicates

that the groundwater producing layer is the silty clay layer depicted in the Administrative Record, not

the sand layer on which Mr. St. John’s testimony is based. In his review of the data regarding the

activities at the Farina site, Mr. St. John apparently ignored the hydraulic conductivity data and the

geologic cross-section maps provided in the Administrative Record, all of which point to the

groundwater producing layer being the silty clay layer. Once again, Mr. St. John cherry picked the

facts that supported his conclusions and ignored others.

During Mr. St. John’s testimony, the Petitioner attempted to admit two documents. One

successfully and one unsuccessfully. The first document is a Glossary of Hydrogeology. The Illinois

EPA notes that the Petitioner did not attempt to admit the entire glossary, just certain pages that fit

their needs. More cherry picking? The other document Mr. St. John relied upon in basing his opinion

that indicator contaminants found in gasoline and diesel generally migrate downward when dissolved

in groundwater. The document was written concerning diving plumes. There was no testimony at the

hearing that those were the conditions at the site. While the contaminants may migrate downward in a

diving plume situation, there was no testimony or other evidence presented that they do so during the

conditions at the Farina site. The hearing officer took it as an offer of proof while stating that it’s not

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necessarily relevant. (T., p.185) Mr. St. John cherry picked an article that supported his opinion in

favor or the Petitioner even though the same conditions the article was discussing were not present at

the site.

The Illinois EPA has generally found the most representative sample of indicator

contaminants for gasoline and diesel should be from the uppermost water layer as found in the well.

Indicator contaminants from gasoline and diesel each have a specific gravity of <1. That means the

contaminants weigh less that water. Therefore they will not mix equally in the aquifer, rather the

uppermost layer of the aquifer will be the most representative of the contamination located at the site.

As stated repeatedly throughout this brief, the Illinois EPA can only review that which is

submitted to it prior to making its determination. Mr. St. John’s testimony should be ignored by the

Board for its unreliability. Mr. St. John, as in

LeClercq

disregarded relevant data when making his

decision. Further, what he testified to is in no way found within the Administrative Record and was

not before the Illinois EPA when it conducted its review. Mr. St. John’s testimony should be stricken.

The testimony of Carol Rowe:

The testimony of CW3M’s Carol Rowe regarded only the monitoring wells and nothing in her

testimony contradicted the decision of the Illinois EPA. In fact it confirmed the portions of the record

used by the Illinois EPA in making its decision. The following exchange during cross examination is

telling:

Ms. Jarvis Q: * * * “Okay. Let's go to page 90 of the Agency record. Do you see the

section all the way down at the bottom where it says Groundwater Depth

After Drilling? I'd like you to look at pages 90 through 94. That section

wasn't filled in by you; is that correct?”

Ms. Rowe A: “No, it wasn't.

Q.

Did you determine the groundwater depth after drilling?

A.

No, we did not.

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Q.

And if we could go to pages 102 and look for Monitoring Wells 1 through 5.

On page 102 if you could read the depth to water.

A.

10 to 11 well drilling, 97.75 feet static.

Q.

Okay. And the top of the screen?

A.

95.5 feet.

Q.

So the top of the screen in this well is below water; correct?

A.

Yes.

Q.

It's below the static water level?

A.

Yes.

Q.

Okay. And if you could look through, we'll just try to shortcut this a little bit,

that's true for the following wells to Monitoring Well 5?

A.

Correct.

Q.

Now you testified that when you hit moisture around 10 feet you thought you

had hit the groundwater level; correct? You thought you had hit groundwater?

A.

Yeah, 10 feet we hit moisture and then it became virtually saturated and we

thought we hit groundwater.

Q.

And that's the information you presented to the Agency; correct?

A.

Correct.

Q.

And you never presented any information in opposition to that to the

Agency; correct?

A.

Correct.

(emphasis added)

Q.

So you never told the Agency, hey, we were wrong. This isn't where we hit.

Groundwater is actually down here, as Mr. St. John testified in the 12 foot

area; is that correct? That was never submitted to the Agency; correct?

A.

Well, we're -- we're still not sure that that unit didn't produce some water. It

was either capillary or it was -- it was groundwater.

Q.

But you do understand the Agency relies on the information you submit to it –

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A.

Correct.

Q.

-- in order to make its decision? And for the Agency to understand what you

submitted was that groundwater was at 10 feet; correct?

A.

Uh-huh. Because it was saturated --

Q.

Right.

A.

-- you know.

Q.

That's the information you submitted to us?

A.

Yeah. There's not a magic blue line that says that, okay, you've gone from the

capillary fringe to groundwater. And when it's saturated we're saying we're in

groundwater --

Q.

Okay.

A.

-- or at the top of the groundwater table.

Q.

When you set the well screen, did you intend the well to be submerged?

A.

No

.” (emphasis added)

During the above exchange, Ms. Rowe admitted that the regulations were not followed when

she said that groundwater depth after drilling was not determined prior to the installation of the

monitoring wells as required per Section 734.425(c)(6). (T. p.120) Determining this information

should have been helpful in setting the screens to the correct depth, yet it was not done.

Ms Rowe also agreed that no information was submitted to the Illinois EPA contradicting the

original submittal by the Petitioner which stated that groundwater was located in the silty clay layer.

(T. p.122) She therefore admitted that the Petitioner never submitted anything to the Illinois EPA

which stated that the groundwater was located in the sand layer instead. In fact, Ms. Rowe’s testimony

states that the possibility exists that the silty clay layer is producing water, as she is “unsure that that

layer didn’t produce some water” (T. p.122). This appears to contradict the testimony of the

Petitioner’s own expert witness Mr. St. John. Ms. Rowe also testified that the information submitted to

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the Illinois EPA stated that groundwater was located in the silty clay layer because it was saturated

during drilling. (T. p.122)

In reviewing plans under the Act, the Illinois EPA must rely on the Professional Engineer or

Geologist hired by the owner/operator to make determinations in the field based on conditions

encountered at each site. In this case, one such determination would be whether groundwater

encountered at the site and depicted in the soil boring logs, monitoring well construction diagrams, and

geologic cross-sections is present under confined conditions, causing the hydrostatic pressure to

increase the rise of the water column in the well. These determinations are an important component

when determining whether the activities in the field are consistent with generally accepting engineering

practices. However, as Ms. Rowe testified at the hearing, the Petitioner never submitted this

information to the Illinois EPA prior to making its determination.

Finally, Ms. Rowe, states that she did not intend for the well screen to be submerged within the

well. (T. p.123) This is consistent with the position of the Illinois EPA. If Ms. Rowe knew the well

screen was going to be submerged, she would not have placed the well screen in that manner. The

testimony of this professional geologist confirms the decision of the Illinois EPA. The wells were

submerged, Sections 734.430(a)(1) and 734.430(a)(3) were not complied with and therefore the

monitoring wells were not constructed in a manner to ensure the most representative sampling of the

groundwater unit.

On page 15 of its Brief, Petitioner states that the Illinois EPA has approved monitoring wells

where the water level rose above the top of the well screen at two other sites. As the Board is well

aware, each site that the Illinois EPA handles is different than the next due to site specific conditions

and contaminants of concern. It is important to note that the Petitioner fails to tell the Board that it

once again cherry-picked what it included in the exhibit on the two cases mentioned. (T. p.105) Upon

Electronic Filing, Received, Clerk's Office, October 9, 2007

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cross examination, Ms. Rowe admitted that the geologies at the two other sites were different than the

Farina site. (T. p.105-107. 109) She also admitted that they had not produced a complete record of the

sites in that all monitoring wells and boring logs were not included in the exhibit. (T. p.110) In fact at

one site, they presented documentation for only two out of an estimated 30 monitoring wells. (T. p.

110) The Petitioner picked out information from two cases out of the hundreds that the Illinois EPA

handles and then did not even present the full report on each site. In fact the hearing officer

specifically did not admit the exhibits and took them only as an offer of proof. Due to the testimony at

hearing, the fact that a complete exhibit was not proffered, and the hearing officer’s findings, the Board

should find this argument unpersuasive.

The Administrative Record, along with the Act and the Board’s regulations, clearly supports

the Illinois EPA decision that the Petitioner’s wells were not constructed in a manner that allows for

samples to be taken at the desired interval pursuant to 35 Ill. Adm. Code 734.430.

VIII. THE FINAL DECISION WAS CORRECT

The Petitioner has sought to twist or somehow obfuscate the plain wording of the May 17, 2007

final decision. A simple reading of that decision shows it to be an accurate and sufficient explanation

of the Illinois EPA’s conclusion. There is nothing in the final decision that is incorrect, inaccurate or

unsupported by the documents in the Record.

IX. CONCLUSION

For all the reasons and arguments included herein, the Illinois EPA respectfully requests that

the Board affirm the Illinois EPA’s May 17, 2007 final decision. The Petitioner has not met even its

prima facie

burden of proof, and certainly has not met its ultimate burden of proof. For these reasons,

the Illinois EPA respectfully requests that the Board affirm the Illinois EPA’s final decision.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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Respectfully submitted,

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)

Dated: October 9, 2007

This filing submitted on recycled paper.

Electronic Filing, Received, Clerk's Office, October 9, 2007

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