2

amended Stage 2 Site Investigation plan and budget consistent with the terms of this opinion and

order.

This opinion first reviews the procedural history of this case before addressing a

preliminary matter and the factual background. It then summarizes Keller’s amended petition for

review, the issues on appeal, and the post-hearing briefs filed by Keller and the Agency. This

opinion then sets forth the relevant statutory and regulatory provisions and the burden of proof

and standard of review applicable to this case. The Board then discusses and rules upon the

issues before providing its conclusion and issuing its order.

PROCEDURAL HISTORY

On June 27, 2007, Keller filed a petition for review of a May 17, 2007 determination of

the Agency. On July 6, 2007, the Agency filed the administrative record (R.) of that

determination. In an order dated July 12, 2007, the Board accepted Keller’s petition for hearing.

On July 12, 2007, the Agency filed a motion to strike portions of Keller’s petition for

review. Keller did not file a response to this motion. On July 24, 2007, Keller filed a motion to

file an amended petition, accompanied by an amended petition for review (Am. Pet.). The

Agency did not file a response to Keller’s motion.

On July 18, 2007, the Agency filed a motion for summary judgment. On August 1, 2007,

Keller filed its response in opposition to the motion for summary judgment. On August 6, 2007,

the Agency filed a reply to petitioner’s response in opposition to motion for summary judgment.

In an order dated August 9, 2007, the Board granted Keller’s motion to file an amended

petition, accepted Keller’s amended petition for review, denied the Agency’s motion to strike

portions of Keller’s original petition as moot, and denied the Agency’s motion for summary

judgment.

The Board conducted a hearing (Tr.) on August 22, 2007. Ronald St. John, Carol Rowe,

Jeff Wienhoff, and Vince Smith testified at hearing on behalf of Keller. Ten exhibits were

admitted into the record at hearing:

Joint exhibit to supplement record (Exh. 1);

August 21, 2007 letter from Carolyn Hesse representing stipulation (Exh. 2);

Resume of Ronald St. John (Exh. 3);

Glossary of Hydrology (Exh. 4);

Two sheets of diagrams corresponding to testimony of Ronald St John. (Exh. 6);

Resume of Carol Rowe (Exh. 7);

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3

Resume of Jeff Weinhoff (Exh. 10);

Diagram of Site (Exh. 11);

Diagram corresponding to testimony of Jeff Weinhoff (Exh. 12);

Resume of Vince Smith (Exh. 13).

On September 18, 2007, Keller filed its post-hearing brief (Keller Brief). On October 9,

2007, the Agency filed its post-hearing brief (Agency Brief). On October 22, 2007, Keller filed

a motion for leave to file a reply brief (Mot. Leave), accompanied by its reply (Reply).

PRELIMINARY MATTER

On October 22, 2007, Keller filed a motion for leave to file a reply brief, accompanied by

its reply. In its motion, Keller argues that the Agency’s response brief raises issues that the

Agency had not raised in its denial letter or through any other medium. Mot. Leave at 1-2.

Keller also argues that the Agency’s brief raises arguments that Keller had not raised in its post-

hearing brief.

Id

. at-2. Keller states that it seeks the Board’s leave to file a reply in order to

address those arguments “and to prevent the material prejudice that will result from the Agency’s

misleading submissions.”

Id

.

Section 101.500(d) of the Board’s procedural rules provides that “[w]ithin 14 days after

service of a motion, a party may file a response to the motion. If no response is filed, the party

will be deemed to have waived objection to the granting of the motion, but the waiver of

objection does not bind the Board or the hearing officer in its disposition of the motion.” 35 Ill.

Adm. Code 101.500(d). The Agency has filed no response to Keller’s motion for leave to file a

reply brief. Although the Board is not bound by the Agency’s failure to respond, the Board

grants Keller’s motion for leave to file a reply brief and accepts its reply.

FACTUAL BACKGROUND

Keller was the owner of USTs at a gasoline service station located at 1003 West

Washington Avenue, Farina, Fayette County. R. at 2, 7. USTs at the Site stored gasoline, diesel,

or heating oil. R. at 8. The Site has been assigned LPC #0514144011 – Fayette County. R. at 2,

3. Keller reported a release at the Site to the Illinois Emergency Management Agency (IEMA)

on November 15, 2005 and received Incident #2005-1539. R. at 7. Keller removed the tanks

associated with this incident from the Site on February 7, 2006. R. at 8. Keller reported a

second release at the Site to IEMA on February 10, 2006 and received Incident #2006-0153. R.

at 7. Keller removed the tanks associated with this second incident from the Site on March 22,

2006. R. at 8.

On November 28, 2005, Keller submitted to the Agency a 20-Day Certification for

Incident #2005-1539. R. at 7, Exh. 1. Also on November 28, 2005, Keller requested an

extension of the time for completion of early action activities. Exh. 1. On December 5, 2005,

the Agency approved extension of the early action period through April 30, 2006. R. at 7, Exh.

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4

1. By letter dated December 20, 2005, Keller submitted to the Agency a 45-Day Report for

Incident #2005-1539. R. at 7, Exh. 1. By letter dated April 24, 2006, Keller submitted to the

Agency a 45-Day Report Addendum for Incident #2005-1539. R. at 7, Exh. 1. By letter dated

May 9, 2006, the Agency acknowledged receiving that report and approved the Stage 1 Site

Investigation Plan for Incident #2005-1539. Exh. 1.

On February 21, 2006, Keller submitted to the Agency a 20-Day Certification for

Incident #2006-0153. R. at 7; Exh. 1. In a letter dated March 2, 2005, Keller requested an

extension to September 15, 2006 of the time for completion of early action activities. Exh. 1.

On March 10, 2006, the Agency approved extension of the early action period to July 9, 2006.

R. at 7, Exh. 1. By letter dated March 23, 2006, Keller submitted to the Agency a 45-Day Report

for Incident #2006-0153. Exh. 1. By letter dated April 7, 2006, the Agency acknowledged

receiving that report and approved the Stage 1 Site Investigation Plan for Incident #2006-0153.

Exh. 1. By letter dated July 6, 2006, Keller submitted to the Agency a 45-Day Report

Addendum. R. at 7; Exh. 1. By letter dated March 8, 2007, the Agency approved the amended

45-Day Reports for Incident #2005-1539 and 2006-0153. Exh. 1.

On August 7, 2006, Keller submitted to the Agency a Stage 1 Report/Stage 2 Site

Investigation Plan and Budget addressing both Incident #2005-1539 and Incident #2006-0153.

R. at 144. On October 5, 2006, the Agency issued a letter rejecting the Stage 2 Site Investigation

Plan and Budget. R. at 157-64. On January 24, 2007, the Agency received from Keller a Stage 2

Site Investigation Plan and Budget, Additional Information and Reconsideration. R. at 167-245.

This document addressed the bases on which the Agency rejected the proposed plan and budget

in its October 5, 2006 denial letter. R. at 168-80.

On May 17, 2007, the Agency rejected Keller’s Stage 2 Site Investigation Plan and

Budget. R. at 256-63. As the bases for its denial, the Agency first stated that Keller had not

advanced soil borings SB-4 and SB-5 according to the Board’s regulation. R. at 256. As a

second basis for denial, the Agency determined that soil samples collected from monitoring wells

MW-1, MW-2, MW-4, and MW-5 exceeded the minimum requirements of the Board’s

regulations. R. at 257. As a third basis, the Agency concluded that Keller had not properly

installed monitoring wells. R. at 257-58. As a fourth basis, the Agency stated that Keller’s

Stage 2 Site Investigation Plan included specific soil borings that exceed the minimum

requirements of the Board’s regulations and that monitoring wells installed for Stage 1 did not

comply with applicable requirements. R. at 259-60. Fifth, the Agency also stated that the

Agency had not approved Keller’s Stage 2 Site Investigation budget because the Agency had not

approved the plan on which the budget is based. R. at 261-62.

KELLER’S AMENDED PETITION FOR REVIEW

In its amended petition, Keller states that it was the owner of USTs for the storage of

gasoline, diesel fuel, and heating oil at the site of a former gasoline service station at 1003 West

Washington Avenue, Farina, Fayette County. Am. Pet. at 1 (¶1). Keller further states that

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

that LPC #0514155011 has been assigned to the Site.

Id

. (¶2).

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5

Keller states that it sent a Stage 2 site investigation plan and budget to the Agency on

August 7, 2006. Am. Pet. at 2 (¶3), citing Am. Pet., Exh. 1. Keller further states that, in a letter

dated October 5, 2006, the Agency commented on the plan and budget and rejected them. Am.

Pet. at 2 (¶4), citing Am. Pet, Exh. 2.

Keller claims it prepared a document entitled “Stage 2 Site Investigation Plan and

Budget, Additional Information and Reconsideration” in order to respond to issues raised in the

Agency’s October 5, 2006 letter. Am. Pet. at 2 (¶5). Keller further claims that the Agency

received this document from Keller’s consultant on January 24, 2007.

Id

., citing Am. Pet., Exh.

3. Keller maintains that, in a letter dated May 17, 2007, the Agency rejected the Stage 2 plan

and budget. Am. Pet. at 2 (¶6), citing Am. Pet., Exh. 4. Keller states that the Agency’s May 17,

2007 letter “contains lengthy quotes of several regulations and states that the Stage 2 Plan was

rejected for a number of reasons.” Am. Pet. at 2 (¶7), citing Am. Pet., Exh. 4. Keller further

states that this May 17, 2007 letter forms the basis of its appeal. Am. Pet. at 2 (¶6).

Keller asserts that the Agency approved Keller’s Stage 1 site investigation plan and

budget in letters dated April 7, 2006 and May 9, 2006. Am. Pet. at 2 (¶), Am. Pet., Exh. 5.

Keller argues that comments in item 1 of the Agency’s May 17, 2007 letter refer to the Stage 1

investigation, do not relate to the proposed Stage 2 investigation, “and are irrelevant to approval

of the Proposed [Stage 2] Plan and Budget.” Am. Pet. at 2 (¶8),

see

Am. Pet., Exh. 5 at 1.

Keller argues that item 2 of the Agency’s May 17, 2007 letter refers to monitoring wells

installed during the Stage 1 investigation according to Board regulations. Am. Pet. at 3 (¶9),

citing 35 Ill. Adm. Code 734.315(a)(2)(B), (C). Keller claims that, while the Agency correctly

cites subsection 734.315(a)(2)(C) as the source of requirements for installing monitoring wells

when groundwater contamination is suspected, the Agency cites no regulatory authority for its

comments on whether piping run samples are adequate substitutes for determining whether

groundwater and soil are contaminated. Am. Pet. at 3 (¶9);

see

35 Ill. Adm. Code

734.315(a)(2)(C). Keller argues that, “[s]ince piping runs are typically located two to three feet

below grade, they are usually located well above the vadose zone and the groundwater table.”

Id

., citing Am. Pet., Exh. 3 at 4.

Keller next argues that, in item 3 of the Agency’s May 17, 2007 letter, the Agency cites

Section 734.430(a) as the regulatory source of requirements for the installation of monitoring

wells. Am. Pet. at 3 (¶10);

see

35 Ill. Adm. Code 734.430(a). Keller asserts that this regulation

does not include “the requirements that the Agency provides as the basis for disapproving the

Proposed Plan.” Am. Pet. at 3 (¶10). Keller also claims that “the Agency had already been

provided with information explaining the location of the monitoring well screens.”

Id

., citing

Am. Pet., Exh. 3 at 6.

Keller next argues that, in item 4 of the Agency’s May 17, 2007 letter, “the Agency

misinterprets the applicable regulations and the information Petitioner provided.” Am. Pet. at 4

(¶11).

Keller next argues that item 5 of the Agency’s May 17, 2007 letter cites a lack of required

certifications as a basis for rejecting the proposed plan. Am. Pet. at 4 (¶12). Keller claims that

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6

these certifications “are contained in page 21 of the Proposed Plan and Budget.”

Id

., citing

id

.,

Exh. 3 at 21.

Keller states that the Agency’s May 17, 2007 letter rejected the plan’s associated budget

“for a number of reasons.” Am. Pet. at 4 (¶13), citing Am. Pet., Exh. 4. Keller argues that the

Agency’s rejection of the proposed budget is directly related to rejection of the proposed plan

and states that it appeals both denials “as set forth in the May 17, 2007 letter.” Am. Pet. at 4

(¶14).

Keller argues that its proposed plan and budget contain detailed technical information

providing “the same level of detail that the Agency has approved historically.” Am. Pet. at 4

(¶15). Keller further argues that the Agency “violated its statutory authority by re-reviewing

information it had previously approved.”

Id

. at 4-5 (¶16), citing Reichold Chem. v. PCB, 561

N.E.2d 1333, 1345 (3rd Dist. 1990). Keller asserts that the Agency’s May 17, 2007 letter

“requires documentation that does not appear on any IEPA forms or in the applicable

regulations.” Am. Pet. at 5 (¶17). Keller maintains that the Agency “ignored and/or chose not to

consider information that was provided with the Stage 2 Site Investigation Plan and Budget.”

Id

.

(¶18). Keller also argues that the Agency requests installation of monitoring wells in a manner

that violates applicable regulatory requirements.

Id

., citing 35 Ill. Adm. Code

734.315(a)(2)(E)(ii).

Concluding, Keller requests a Board order requiring the Agency to approve the proposed

Stage 2 site investigation plan and budget. Am. Pet. at 6. Keller also requests its “attorneys’

fees and costs in bringing this appeal.”

Id

.

SUMMARY OF ISSUES

The issues on appeal are: whether Keller constructed monitoring wells in a manner that

will allow sampling only at the desired interval and that will enable collection of representative

groundwater samples; whether soil borings SB-4 and SB-5 exceed the minimum requirements of

the Act and the Board’s regulations; whether soil samples from monitoring wells MW-1 and

MW-2, and MW-4 exceed the minimum requirements of the Act and the Board’s regulations;

whether proposed additional soil borings and soil samples from monitoring wells exceed the

minimum requirements of the Act and the Board’s regulations; and whether the Agency properly

rejected Keller’s proposed Stage 2 Site Investigation Budget.

KELLER’S POST-HEARING BRIEF

Keller argues that the Agency’s decisions “regarding soils borings SB-4 and SB-5, the

installation of monitoring wells, and the analysis of soil samples from MW-1, MW-2, and MW-4

are wrong.” Keller Brief at 29. Keller further argues that the Agency incorrectly rejected its

Stage 2 site investigation proposal and budget. Keller argues that it has complied with applicable

requirements and “requests that the Board overturn the Agency’s decisions and approve the

completed Stage 1 investigation, the proposed Stage 2 investigation, and the budget.”

Id

. The

Board below separately summarizes Keller’s arguments on these issues.

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7

Monitoring Wells

Well Construction

Keller notes that, in a May 17, 2007 letter rejecting Keller’s Stage 2 plan and budget, the

Agency stated that “the monitoring well must be installed in a manner to allow sampling only at

the desired interval of the groundwater.” Keller Brief at 8, citing R. at 258;

see

35 Ill. Adm.

Code 734.340(a)(3) (Monitoring Well Construction and Sampling). Keller further notes that the

Agency’s letter states that

the screen must intersect the water level

in the well

for accurate determination of

contaminant levels in the groundwater because gasoline contaminants float on the

surface of the water. According to the monitoring well completion report, the

wells screen were set at a depth that allows total submersion of the screen and the

well. Keller Brief at 8 (emphasis in original), citing R. at 258.

Although Keller acknowledges that wells must be screened at the desired interval, Keller argues

that the Agency’s insistence that the well should be screened at the level of the water in the well

is “scientifically inaccurate and contrary to regulatory requirements.” Keller Brief at 9. Keller

claims that the monitoring wells at issue in this case were constructed according to Board

regulations and professional principles.

Id

., citing Tr. at 58-61 (St. John testimony), R. at 90-95

(borehole logs), R. at 102-07 (well completion reports).

Keller states that, in the course of drilling wells at the Site, “[s]oil moisture was

encountered at a depth of approximately 10 feet below ground surface.” Keller Brief at 9-10,

citing Tr. at 23 (St. John testimony), Tr. at 89-90 (Rowe testimony), Tr. at 121 (Rowe

testimony), R. at 90-95 (borehole logs). Keller characterized the moist area at this depth as the

capillary fringe, an area in which water is drawn above the zone of saturation or the water table.

Keller Brief at 10, citing Tr. at 23-25, 90. Keller further states that, at a depth of 12 to 13 ½ feet

below ground surface, the well encountered a saturated sand seam or unit. Keller Brief at 10,

citing Tr. at 21-23, 29, R. at 90-95.

Keller states that, in constructing its monitoring wells, it used screens that are ten feet in

length “because that is the length of well screen that the Agency generally requires.” Keller

Brief at 10, citing Tr. at 34, 97, R. at 253 (technical review notes). Keller argues that these

screens extended from a point approximately 14 ½ or 15 feet below ground surface to a point

approximately 4 ½ or five feet below ground surface. Keller Brief at 10, citing Tr. at 124, R. at

102-07 (well completion reports). Keller further argues that construction situated the center of

the screens “approximately 10 feet below ground surface, the depth where the first saturated

zone was encountered.” Keller Brief at 10, citing Tr. at 34, 48, R. at 102-07. Claiming that “the

screens intersected both the water bearing sand unit and the capillary fringe, Keller argues that

“the well screens were set to intersect the desired groundwater interval.” Keller Brief at 10,

citing Tr. at 34, 88-91, R. at 90-95, 102-07.

Keller states that sediment displaced in the course of drilling the well is “smeared down

into the aquifer from the soil closer to the surface.” Keller Brief at 11, citing Tr. at 35-36, 92.

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8

The process of developing the well is intended to loosen that sediment “so that groundwater can

come out of formation and flow from the aquifer into the well.” Keller Brief at 11, citing Tr. at

35-36, 92. Generally, developing a well involves generating a physical surging action to loosen

the sediment smeared by drilling. Keller Brief at 11, citing Tr. at 35. Keller claims that the

wells at the Site “were developed by putting a bailer into the well and purging the well.” Keller

Brief at 11, citing Tr. at 91-92. Keller states that the Board’s regulations require that “[w]ells

must be developed to allow free entry of groundwater, minimize turbidity of the sample, and

minimize clogging.” Keller Brief at 10, citing 35 Ill. Adm. Code 734.430(a)(7). Keller further

states that it developed wells at the site as soon as they were drilled. Keller Brief at 11, citing Tr.

at 91.

Keller states that, after developing the monitoring wells at the Site, its consultant

determined the static water levels in them. Keller Brief at 11, citing Tr. at 94. Keller argues that

“hydrostatic pressure on the aquifer pushed the groundwater from the saturated zone into the

wells to levels closer to the surface than where groundwater was observed during drilling.”

Keller Brief at 11, citing Tr. at 21, R. at 173. Specifically, Keller claims that “[t]he static water

levels in the wells were generally about 4 ½ feet below ground surface and were about 5 to 7 feet

above the levels where groundwater was actually encountered when drilling.” Keller Brief at 11,

citing R. at 102-07. Keller argues that, because the groundwater rose in this fashion, the aquifer

is confined groundwater, or “[g]round water under pressure significantly greater than that of the

atmosphere.” Keller Brief at 11, citing Tr. at 30, Exh. 4 at 40. Keller further argues that the

static water level in a well does not indicate the desired groundwater interval for sampling and

only determines “the potentiometric surface and the direction that groundwater flows.” Keller

Brief at 11, citing Tr. at 94-95. Consequently, Keller claims that the desired sampling interval is

not the static water level but is instead “where the groundwater was encountered in the course

grained confined aquifer at 12 to 13 ½ feet in depth.” Keller Brief at 9, citing Tr. at 21, 47, 90-

91, 96-97, R. at 90-94.

Determining Groundwater Depth and Static Water Level

Keller states that it is not possible in the course of drilling and constructing a well to

determine whether there is a confined aquifer or what will be the ultimate static water level.

Keller Brief at 16, citing Tr. at 32-33, 91. Keller further states that, “[t]ypically, the static water

level is determined at least a few days or weeks after the well is constructed.” Keller Brief at 16,

citing Tr. at 94. Keller also states that the static water level only determines which way

groundwater flows and “cannot be used to determine where to place well screens.” Keller Brief

at 16, siting 35 Ill. Adm. Code 734.340(c), Tr. at 31, 94-95.

Keller observes that, in its technical review notes, the Agency stated that “[d]rilling an

additional 5 ft below the groundwater tables exceeds the minimum requirements.” Keller Brief

at 16, citing R. at 250. Keller argues that this statement reveals “[t]he Agency’s

misunderstanding of hydrogeology.” Keller Brief at 16.

Keller claims that the term “water table” is defined as:

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9

The upper surface of the saturated zone. The surface in an unconfined aquifer or

confining bed at which the pore water pressure is atmospheric. Its position can be

identified by measuring the water level in a shallow well extending a few feet into

the saturated zone. Keller Brief at 16-17, citing Exh. 4 (Glossary of Hydrology).

Keller argues that the water-bearing unit at the Site “was not an unconfined aquifer where the

pore water pressure was atmospheric.” Keller Brief at 17. Keller claims that groundwater at the

Site “is considered to be confined because the water rose in the wells to levels five to seven feet

above the saturated zone.”

Id

., citing Tr. at 30, R. at 102-07, Exh. 4 (definition of “confined

groundwater”). Keller states that hydraulic pressure forced groundwater to rise in the wells “to

levels that were several feet above where the groundwater was found in the lithology during

drilling.” Keller Brief at 17, citing Tr. at 30, R. at 102-07. Because the Site involves a confined

aquifer, claims Keller, “the water level in the wells cannot be used to determine the location of

the saturated zone or the desired interval of groundwater for sampling.” Keller Brief at 17.

Desired Groundwater Interval

Keller notes that, in its technical review notes, the Agency stated that

[t]he sampling interval should be where the screen intersects the water in the well.

If the screen is submerged in the water, contaminants that are generally found

“floating” like benzene and naphthalene may not be accurately sampled. Keller

Brief at 12, citing R. at 253.

Keller strenuously disagrees with the Agency’s apparent “assumption that the indicator

contaminants are found only at the uppermost portion of the aquifer.” Keller Brief at 13, citing

Tr. at 50-51. Keller argues that indicator contaminants for gasoline are soluble in water and will

be detected in groundwater. Keller Brief at 12, citing Tr. at 50-52. Keller further argues that the

indicator contaminants are neutrally buoyant and “move with the advective flow of

groundwater.” Keller Brief at 13, citing Tr. at 50, 55. Keller also argues that clean water

entering the top of an aquifer through precipitation tends to cause contaminated groundwater to

migrate downward. Keller Brief at 13, citing Tr. at 50-51. Keller stresses that the well screens at

the Site were placed to include the capillary fringe so that indicator contaminants floating as free

product on the groundwater would enter the wells. Keller Brief at 12, citing Tr. at 56-57. Keller

further stresses that, even though a free product layer was not found at the Site, groundwater

there did contain indicator contaminants for gasoline. Keller Brief at 12, citing Tr. at 56, 59.

Keller suggests that this finding confirms the solubility of these contaminants and demonstrates

proper installation of its monitoring wells in the water-bearing sand unit found at the Site.

Keller also notes that the Agency’s technical review notes state that,

[i]f GW was encountered 10ft, it is unclear why an additional 5 ft was drilled.

Drilling an additional 5 ft beneath the groundwater table exceeds the minimum

requirements. None of the well screens intersect the static water levels in the

wells. If drilling stopped at the groundwater table, the screens would most likely

intersect the groundwater. Keller Brief at 13, citing R. at 250.

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10

Keller argues that this statement demonstrates that the Agency “does not understand basic

hydrogeology and is misinterpreting the applicable regulations.” Keller Brief at 13. Keller

claims that, if the wells had been screened according to this technical review, then “the bottoms

of the wells would not intersect the ‘desired interval’ because the bottoms of the well screens

would be set above the surface of the groundwater that was encountered when drilling.” Keller

Brief at 13, citing Tr. at 49-50. Keller further claims that the Agency’s recommendation would

result in dry wells, because there would not be good water entry in the absence of condensation

or seasonal fluctuation in the groundwater level. Keller Brief at 13, citing Tr. at 36-37, 49-50,

95-96.

Keller acknowledges that the Board’s regulations do not define the term “groundwater

interval of interest” or “desired groundwater interval.” Keller Brief at 14. Keller argues,

however, that this interval “is generally considered to be the aquifer that one is interested in

sampling to determine if it is contaminated.”

Id

., citing Tr. at 48. Keller states that the desired

interval at the Site is the sand seam at a depth of 12 to 13 ½ feet and the 12-18 inches above it

that appeared during drilling to be saturated. Keller Brief at 14, citing Tr. at 97. Keller claims

that, if the wells had been screened according to the Agency’s technical review, “the well screens

would be located in the tight clay lithology located above the water bearing sand unit and the

wells would be dry because groundwater could not flow into the wells.” Keller Brief at 14,

citing Tr. at 95-96. Keller also claims that it would be “very difficult” to determine in the field

how to screen a well at the level to which water rises in it. Keller Brief at 14, citing Tr. at 49.

Keller further claims that, because wells screened according to the Agency’s technical review

would not screen at the desired groundwater level and would not generate representative

samples, they would not satisfy the Board’s regulations. Keller Brief at 14, citing Tr. at 37, 49-

50, 95-96;

see

35 Ill. Adm. Code 734.430(a).

Keller also argues that the Agency apparently believes “that wells should be screened at

the static water level, no matter how close to the surface of the ground that may be.” Keller

Brief at 14, citing R. at 258. Keller claims that wells at the Site screened at the static water level

would have to be screened “within 2 ½ feet of the ground surface.” Keller Brief at 14, citing R.

at 90-94 (borehole logs). Keller states that construction at the Site must be at least 40 inches

below ground surface in order to be below the frost line. Keller Brief at 14, citing Tr. at 39.

Keller argues that, if constructed according to the Agency’s apparent recommendation, wells at

the Site would not be grouted below the frost line, resulting in heaving in the winter. Keller

Brief at 14-15, citing Tr. at 38-41. Keller further argues that such wells would violate the

Board’s regulation requiring wells to be grouted below the frost line. Keller Brief at 14, citing

35 Ill. Adm. Code 734.430(a)(5).

Keller also argues that screening the Site’s monitoring wells within two to three feet of

the ground surface would allow those wells to become easily contaminated with surface

contaminants. Keller Brief at 15, citing Tr. at 36, 41-43. Keller notes that “[t]here are at least

two feet of compacted gravel and subbase below the asphalt that could act as a pathway for

contamination to enter the well.” Keller Brief at 15, citing Tr. at 42-43, R. at 92. Keller also

argues that the Agency has at least twice approved monitoring wells “where the static water level

rose above the top of the well screen.” Keller Brief at 15, citing Tr. at 98-99, 113-14. Keller

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11

concludes by arguing that placing well screens close to the ground surface would not comply

with the Board’s regulations or be consistent with accepted engineering practices or principles of

geology. Keller Brief at 15, citing 35 Ill. Adm. Code 734.430(a)(4).

Sampling of Monitoring Wells

Keller states that, before obtaining a sample from a monitoring well, it is an accepted

practice to purge from the well stagnant water that “is not representative of the formational

groundwater.” Keller Brief at 15, citing Tr. at 44. Keller further states that it is accepted

practice then to draw fresh water “into the well from the water bearing unit.” Keller Brief at 15,

citing Tr. at 93-94. Keller also states that the monitoring wells at the Site were purged before

sampling, allowing fresh water into those wells. Keller Brief at 15-16, citing Tr. at 44, 58-59,

93-94. Keller argues that, “Even though the static water levels in the monitoring wells may be

above the upper extent of the screens in the monitoring wells (Keller Brief at 15), “the samples

from those wells provided acceptable data to determine the concentrations of the indicator

contaminants, benzene, ethylbenzene, toluene, and xylene” (Keller Brief at 16, citing Tr. at 58-

59, 93-94).

Soil Samples

Soil Boring Locations

Keller notes that, in a May 17, 2007 letter rejecting the Stage 2 Site Investigation Plan,

the Agency included as reasons for that rejection the locations of soil borings SB-4 and SB-5.

Keller Brief at 18, citing R. at 256. Keller claims that, although Board regulations allow as many

as four soil borings around a UST field, SB-3 and SB-4 are the two samples collected near the

gasoline tank excavation at the Site. Keller Brief at 18, citing 35 Ill. Adm. Code

734.315(a)(1)(A), Tr. at 131-32 (Weinhoff testimony). Keller states that SB-4 is approximately

20 feet directly north of the contaminated excavation sidewall sample E-1. Keller Brief at 18,

citing Tr. at 134, 154, Exh. 11 (diagram of site). Keller argues that “SB-4 is necessary because

no other samples are located directly north of E-1.” Keller Brief at 18, citing Tr. at 134-35, Exh.

11. Keller states that, although the Agency claims that samples N-1 and SB-3 define this area,

those samples are “located to the northwest and to the east, respectively, of E-1 and cannot be

used to define contamination to the north.” Keller Brief at 18, citing R. at 256;

see

Exh. 11.

Keller further states that SB-3 and SB-4 were collected on the same day, so Keller did not have

results from SB-3 when it collected a sample from SB-4. Keller Brief at 18, citing Tr. at 153, R.

at 125-26 (chain of custody record). Keller argues that “SB-4 was necessary to determine

whether contamination from E-1 extended to the north, and to define the extent of contamination

from E-1.” Keller Brief at 18, citing Tr. at 134-35.

Keller notes that, in a May 17, 2007 letter rejecting the Stage 2 Site Investigation Plan,

the Agency stated that “[t]he benzene contamination noted in SB5 appears to be an anomaly.”

Keller Brief at 19, citing R. at 256. Keller counters that SB-5 revealed benzene contamination in

a sample collected at a depth of 2 ½ feet. Keller Brief at 19, citing Tr. at 170, Exh. 11. Keller

claims that this contamination is likely to have resulted from overfill from the diesel UST at the

Site. Keller Brief at 19, citing Tr. at 135, 156. Keller further claims that “[t]he fire marshal

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12

onsite determined that piping releases and overfills at the diesel UST were the cause of the

release.” Keller Brief at 19, citing Tr. at 157, R. at 8. Keller stresses that the Board’s UST rules

address overfills and that costs of remediating overfills are eligible for reimbursement from the

Fund. Keller Brief at 19, citing Tr. at 136.

Keller claims that, although the Agency claims that excavation samples near SB-5 do not

show benzene exceedences, the Agency overlooked the greater depth from which those

excavation samples were collected. Because they were obtained at a depth of approximately

eight feet, Keller argues that they “would not necessarily detect the existence of a release caused

by an overfill.” Keller Brief at 19, citing Tr. at 157, 177. Keller also supports the location of

SB-5 by arguing that it is “located northwest of sample D-10, which detected contamination” and

because “there were no other samples in that area to determine whether contamination from D-10

had migrated to that area.” Keller Brief at 19, citing Tr. at 134, R. at 170 (Additional

Information and Reconsideration).

Monitoring Well Soil Samples

Keller notes that “[t]he Agency has not disputed the locations of the monitoring wells” at

the Site. Keller Brief at 20. Keller claims that, in a May 17, 2007 letter rejecting the Stage 2

Site Investigation Plan, the Agency stated without explanation that soil samples collected from

monitoring wells MW-1, MW-2, and MW-4 “exceed the minimum requirements to comply with

the applicable regulations.”

Id

., citing, R. at 257.

Keller states that the Board’s UST regulations require collection of soil samples from

monitoring well borings but prohibit analyzing those samples “if other soil sampling conducted

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

well installation boring . . . .” Keller Brief at 20, citing 35 Ill. Adm. Code 734.315(a)(2)(C).

Keller notes that its consultant collected samples from the monitoring well on the same day that

it collected soil boring samples. Keller Brief at 20, citing Tr. at 153, 155, 161, R. at 125-26

(Chain of Custody Record). Keller stresses that, when its consultant collected monitoring well

samples at the Site, “soil sampling to date had not indicated the absence of soil contamination in

these areas.” Keller Brief at 20;

see

35 Ill. Adm. Code 734.315(a)(2)(C).

Keller suggests that it would have been impractical to collect soil borings for analysis

without also collecting monitoring well borings at the same time.

See

Keller Brief at 20-21.

Keller claims that this may have required an additional trip to the Site for more samples if the

soil borings had revealed contamination.

See id

. at 21. Keller argues that “[i]t is more efficient

and cheaper to collect all of the samples during the same trip to perform field work.”

Id

at 21,

citing Tr. at 167, 170. Keller also argues that it could not simply hold monitoring well soil

samples until it obtained data from soil borings collected on the same day. Keller Brief at 21,

citing Tr. at 139. Keller claims that collected samples have a 14-day holding period, yet

laboratories generally require 14 days to produce results. Keller Brief at 21, citing Tr. at 139.

Finally, Keller argues that some indicator contaminants are volatile and can evaporate from

samples that are held. Keller Brief at 21, citing Tr. at 139. Keller further argues that, if it had

waited for results from some of its soil samples before having others analyzed, the lab results of

the later analysis would not have been reliable. Keller Brief at 21, citing Tr. at 139-40.

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13

Keller notes the testimony of Jeff Weinhoff that Keller situated monitoring wells MW-1,

MW-2, and MW-4 according to the Board’s regulations. Keller Brief at 21, citing 35 Ill. Adm.

Code 734.315(B). Keller argues that it obtained samples from MW-1 because it had found

contamination in sample D-10 near the diesel UST at the Site, “and there was no data between

D-10 and MW-1 to show that contamination had no extended to MW-1.” Keller Brief at 21,

citing Tr. at 138, Exh. 11. Keller also argues that there was no data between P-4 showing

contamination in the gasoline UST area and MW-1. Keller Brief at 21, citing Tr. at 138, Exh.

11. Keller claims that it analyzed soil samples from MW-2 because there was nothing to define

contamination between that monitoring well and D-10 and P-4. Keller Brief at 21, citing Tr. at

140, 142, 159, Exh. 11. In addition, Keller argues that it analyzed soil samples from MW-4

because there were no soil samples defining contamination between D-10 and MW-4. Keller

Brief at 21-22, citing Tr. at 141, 160, Exh. 11. Summarizing, Keller argues that its analysis of

soils samples collected in the course of drilling monitoring wells complied with the Board’s

regulations because “there was no other data to date showing that contamination had not

extended to those areas.” Keller Brief at 22, citing 35 Ill. Adm. Code 735.315 (a), (b), (c), Tr. at

171-72.

Piping Run Samples

Keller notes that the Agency’s May 17, 2007 letter rejecting the Stage 2 Site

Investigation Plan stated that, under the Board’s UST regulations, “piping run samples are

acceptable for determining contamination extent.” Keller Brief at 22, citing R. at 257. Keller

further notes the Agency’s claim that analysis of soil samples from MW-1, MW-2, and MW-4

exceeded the requirements of the regulations “because piping run samples had determined the

extent of contamination.” Keller Brief at 22;

see

R. at 253, 257. Keller argues that the Agency

cites no specific regulation in support of its position and characterizes that position as erroneous.

Keller Brief at 22.

Keller argues that the Agency has misread the Board’s UST regulations. Keller Brief at

22. Keller states that an “owner or operator must collect certain excavation and piping run

samples during early action and analyze the samples.”

Id

., citing 35 Ill. Adm. Code

723.210(h)(1). Keller further states that, if all of those samples meet TACO Tier I Remediation

Objectives, then no further investigation is required. Keller Brief at 22, citing 35 Ill. Adm. Code

734.210(h)(3). At the Site, however, Keller claims that “some of the early action samples did not

meet the most stringent Tier I remediation objectives.” Keller Brief at 22-23, citing Exh. 1

(addenda to 45-day reports).

Keller notes that a leak from a pipe occurred at the Site. Keller Brief at 23, citing Exh.

11. Keller argues that leaks from pipes “can migrate downward and then laterally so that

contamination could be below the location where nearby piping run samples were collected.”

Keller Brief at 23, citing Tr. at 143-45, Exh. 12 (diagram including “potential contaminant

plume”). Keller claims that soil borings during a Stage 1 investigation should extend to the level

at which groundwater is encountered in order “to intercept a plume that may have migrated from

a piping release.” Keller Brief at 23, citing 35 Ill. Adm. Code 734.315(a)(1), Tr. at 145, 179.

Keller claims that it typically drilled soil borings at the Site to a depth of ten feet, the

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14

approximate level at which it first encountered groundwater. Keller Brief at 23, citing R. at 96-

101 (drilling borehole logs).

Keller claims that piping run samples “are collected from the bottom of the excavation

from which piping was removed.” Keller Brief at 23. At the Site, Keller states that it collected

piping run samples at a depth of two and one-half to three feet below ground surface.

Id

., citing

Tr. at 176. Keller argues that these piping run samples could not detect contamination that had

migrated downward and spread laterally. Keller Brief at 23, citing Tr. at 143-45. Keller thus

claims that data from the monitoring well soil samples should be allowed because those data “are

necessary to determine if there is contamination throughout the entire vadose zone.” Keller Brief

at 24, citing Tr. at 143, R. at 171.

Proposed Stage 2 Site Investigation Sample Locations

Keller argues that a May 17, 2007 letter from the Agency incorrectly rejected Keller’s

Stage 2 Site Investigation. Keller Brief at 24. Keller first notes that the Agency rejected the

proposed locations of two monitoring wells and a soil boring situated between MW-2 and

contamination found at the gasoline pump island.

See id

;

see also

R. at 259, Exh. 11. Keller

defends these proposed locations by noting that a Stage 1 investigation compares sampling data

to Tier 1 remediation objectives. Keller Brief at 24, citing 35 Ill. Adm. Code 734.210(h)(3),

734.210(h)(4), 734.315(c). Keller argues that a subsequent Stage 2 investigation applying Tier 2

remediation objectives helps define the area of the plume and may reduce the size of the area

requiring remediation. Keller Brief at 24, citing Tr. at 149-50, R. at 175;

see

35 Ill. Adm. Code

734.320. At the Site, Keller claims that “[c]ontamination levels at MW-2 might meet Tier 2

remediation objectives, after Tier 2 remediation objectives are calculated using site specific

data.” Keller Brief at 24, citing Tr. at 148, R. at 175. Specifically, Keller claims that “[d]ata

from samples collected between the known leak at the pump island and MW-2 . . . could reduce

corrective action costs by reducing the size of the area that must be remediated.” Keller Brief at

24, citing Tr. at 148-49, R. at 175. Stating that the Act prohibits corrective action beyond that

required to meet its minimum requirements, Keller claims that these proposed monitoring wells

and soil boring should be approved. Keller Brief at 24, citing 415 ICLS 5/57.7(c)(3) (2006).

Second, Keller notes that the Agency rejected a proposed monitoring well situated south

of the gasoline pump island. Keller Brief at 25. Keller claims that the Agency bases this

rejection on the belief that piping run samples acceptably determine the extent of any

contamination to the south of the island.

Id

., citing R. at 259. Keller counter this apparent belief

by stating that “such piping run samples are too shallow to determine if contamination that was

found at E-1 could have sunk and then migrated beneath the piping run samples.” Keller Brief at

26, citing Tr. at 143, Exh. 12. Keller argues that, although piping run samples were taken at a

depth of two and one-half to three feet below ground surface, the sample at E-1 was taken at a

depth of approximately eight feet. Keller Brief at 25, citing Tr. at 176-77, R. at 171.

Consequently, Keller argues that “clean piping run samples cannot be used to define the extent of

contamination in the entire vadose zone [], and then proposed monitoring well south of the

gasoline pump island should be approved. Keller Brief at 25.

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15

Third, Keller notes that the Agency rejected proposed soil borings SB-5 and SB-6 located

west of the diesel tank excavation. Keller Brief at 25,

see

R. at 259-60. Keller counters that a

sample from two and one-half feet below ground surface at SB-5 revealed benzene

contamination attributed to an overfill. Keller Brief at 25, citing Tr. at 135, R. at 109. Keller

claims that the Board’s regulations require investigation to determine the extent of this

contamination found at D-10 and SB-5. Keller Brief at 25, citing 35 Ill. Adm. Code

734.210(h)(4). Keller further claims that the proposed soil borings SB-5 and SB-6 intend to

define contamination found to the west of the diesel tank excavation, “to the west to southwest of

D-10 and [to] the south of SB-5.” Keller Brief at 25, citing Tr. at 147.

In addition, Keller disputes the Agency’s statement that excavation sampling at the Site

“missed” benzene contamination in the area of the diesel UST. Keller Brief at 26;

see

R. at 260.

Keller states that a representative excavation sample “is a very small portion of the area it

represents.” Keller Brief at 26. Specifically, Keller states that the Board’s regulations require a

sample of a three-inch cube from an area 200 feet long and up to 12 feet deep.” Keller Brief at

26, citing 35 Ill. Adm. Code 734.210(h)(1)(A), T. at 176-78. Keller argues that, “while every

effort is made to collect samples from the most contaminated area, occasionally contamination

can be missed.” Keller Brief at 26, citing Tr. at 156, 171-77. Keller suggests that, even if

sampling at the Site missed contamination, the Agency’s comments on the issue are “irrelevant.”

Keller Brief at 26. Keller argues that it concluded that contamination at SB-5 likely resulted

from an overfill and further argues that the State Fire Marshal attributes releases from the diesel

UST to piping and overfills.

Id

., citing Tr. at 135. Keller claims that “[t]he data is consistent

with that determination.” Keller Brief at 26.

Engineering Practices and Principles of Geology

Keller states that the Board’s regulations provide the standard by which the Agency

reviews plans, budget, and reports submitted to it: [t]he overall goal of the technical review of

reports must be to determine if the plan has been fully implemented in accordance with

generally

accepted engineering practices or principles of professional geology.

” Keller Brief at 27

(emphasis in original), citing 35 Ill. Adm. Code 734.510. Keller claims that it provided

testimony showing that early action sampling, soil boring installation and sampling, monitoring

well installation and sampling, and the proposed Stage 2 Site Investigation Plan all comply with

Board regulations, engineering practices, and principles of geology. Keller Brief at 27, citing Tr.

at 58-61, 150, 180-82. Keller states that “[t]he Agency has presented no evidence and provided

no witnesses at the hearing to support a contrary position.” Keller Brief at 27.

Stage 2 Site Investigation Budget

Keller also disputes the Agency’s rejection of the Stage 2 Site Investigation Budget.

Keller Brief at 28, citing R. at 261-62. First, Keller notes that the Agency rejected the costs of

SB-4 and SB-5 and the costs to analyze soil samples collected from them. Keller Brief at 28.

Keller claims that “the Agency incorrectly rejected the location of SB-4 and SB-5 and incorrectly

determined that soil samples from the monitoring wells should not have been analyzed.”

Id

.

Although Keller acknowledges that it analyzed soil samples from MW-5 on the basis of a

---

16

clerical error, Keller claims that “the costs related to the other monitoring wells and SB-4 and

SB-5 are reimbursable.”

Id

., citing Tr. at 8.

Second, Keller notes that Agency rejected costs associated with installation of monitoring

wells. Keller Brief at 28. Keller states that “the Agency incorrectly decided that the wells were

not installed properly.

Id

., citing R. at 261. Keller argues that it has shown that it properly

installed the wells and that the costs to install them should be approved. Keller Brief at 28.

Third, Keller states that the Agency rejected costs of preparing a Stage 1 budget because

they are not required. Keller Brief at 28, citing R. at 261. Although Keller agrees that Stage 1

budgets are not required, Keller argues that the costs of Stage 1 investigations and or preparing a

reimbursement request are both reimbursable under the Board’s UST regulations. Keller Brief at

28-29, citing 35 Ill. Adm. Code 734.625(a), 734.625(a)(14). Keller notes that it presented

information on its Stage 1 costs to the Agency but did not request a reimbursement of those

costs. Keller Brief at 29, citing R. at 41-66. Consequently, on this matter Keller “consider the

Agency’s comment merely advisory.” Keller Brief at 29.

Fourth, Keller notes that the Agency rejected the budget for the Stage 2 investigation of

the Site because it had rejected the underlying plan. Keller Brief at 29, citing R. at 261. Keller

claims that the Agency erroneously rejected the proposed plan and that “the plan and associated

budget should be approved.” Keller Brief at 29.

AGENCY’S POST-HEARING BRIEF

The Agency argues that the information submitted by Keller “fully supports” the

Agency’s rejection of Keller’s Stage 2 Site Investigation Plan and Budget. Agency Brief at 3.

The Agency further argues that Keller “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.”

Id

. In addition, the Agency claims that Keller has presented evidence that is not contained with

the administrative record of the proceeding and that was not before the Agency when it decided

to reject Keller’s plan and budget.

Id

.;

see

R. at 256-63.

The Agency states that its “May 17, 2007 decision letter does not state that the work

performed by he Petitioner was not done in accordance with generally accepted engineering

practices or principles of professional geology.” Agency Brief at 7, citing R. at 256. The

Agency claims that the record shows that Keller’s plan did not fully comply with the Act and

applicable regulations or exceeded their minimum requirements, making the itemized activities

in the decision letter ineligible for reimbursement from the Fund. Agency Brief at 7, citing 35

Ill. Adm. Code 734.630(o). The Agency further states that “’[b]y approving the 45-Day Report

that icnludes the Stage 1 certification, the Illinois EPA is not approving the Stage 1 activities at

the site [and] foreclosing further review of said activities.” Agency Brief at 8. The Agency

argues that “[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.”

Id

. at 9, citing 35

---

17

Ill. Adm. Code 734.315. The Board below separately summarizes the Agency’s arguments on

the issues raised in this appeal.

Monitoring Wells

The Agency argues that the Board’s regulations require monitoring wells to be “screened

at an interval to allow sampling only at the desired interval.” Agency Brief at 15, citing 35 Ill.

Adm. Code 734.430(a). For gasoline indicator contaminants such as benzene that are lighter

than groundwater, the Agency claims that the well screens must be set to intersect the top layer

of groundwater in the well. Agency Brief at 15. The Agency further claims that, “[w]hen the

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

petroleum contaminants are likely to be observed.”

Id

. The Agency argues that the record

demonstrates that the wells screens at the Site are submerged.

Id

. at 15-16, citing R. at 89.

Addressing specific monitoring wells, the Agency notes that, at MW-1, depth to water is

97.75 feet static. Agency Brief at 16, citing R. at 102 (well completion report). The Agency

claims that the top of the ten-foot screen at MW-1 is situated at a depth of 95.50 feet, submerging

the screen 2.25 feet below the surface of the groundwater. Agency Brief at 16, citing R. at 102.

The Agency argues that “[i]f 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.” Agency Brief at 16-17, citing

35 Ill. Adm. Code 734.430. The Agency further argues that the tops of the well screens at MW-

2, MW-3, MW-4, and MW-5 are also submerged below the surface of the groundwater, making

them also unable to provide sampling at the desired interval or to allow the collection of

representative groundwater samples. Agency Brief at 17.

The Agency disagrees with Keller’s claim that the monitoring wells would be dry if

constructed according to the Agency’s specifications. Agency Brief at 16. Referring to

monitoring well construction diagrams, the Agency argues that even a significant drop in the

groundwater level would not have cause a dry well. Agency Brief at 16, citing R. at 89.

Although the Agency claims that Keller fails to support its own conclusion that water levels rose

in the monitoring wells as a result of hydro-static pressure, the Agency argues that even this

unsupported conclusion makes it “very unlikely” that raising the screens would result in dry

wells. Agency Brief at 16, citing R. at 173. Specifically, the Agency claims that, if Keller raised

the top of the well screens above the groundwater surface level, there would remain “adequate

screen interval below the surface to collect the necessary samples of the contaminants.” Agency

Brief at 17.

The Agency notes that Keller installed wells at the Site on July 12, 2006. Agency Brief

at 15, citing R. at 102-07. The Agency claims that it is common after installation to wait “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 at that location.” Agency Brief at 15. The

Agency suggests that it is common to record groundwater elevation and collect samples only

after this stabilization has occurred.

See id

.; citing R. at 93-94. At the Site, however, the Agency

notes that Keller allowed only two days for this stabilization to occur. Agency Brief at 15-16,

citing R. at 111. The Agency argues that, “by not allowing the water in the well to recharge after

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18

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.” Agency Brief at

18, citing 35 Ill. Adm. Code 734.430.

The Agency expresses surprise that the person who supervised field work at the Site

testified “that the wells were not screened as she intended” and that “she’s not sure what strata is

producing the groundwater.” Agency Brief at 18, citing Tr. at 122, 123. The Agency suggests

that this testimony conflicts with information submitted by Keller and locating groundwater in

the silty clay layer. Agency Brief at 18. The Agency argues that this testimony “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.” Agency Brief at 19.

The Agency dismisses Keller’s argument that constructing wells to allow for sampling

only at the desired interval would violate the requirement that the well screen be submerged to

analyze hydraulic conductivity. Agency Brief at 18, citing 35 Ill. Adm. Code

734.315(a)(2)(E)(ii), 734.430. The Agency claims that it did not reject Keller’s plan on the basis

of the hydraulic conductivity analysis. The Agency characterizes Keller’s argument as “a red

herring to distract the Board from the real issue” and argues that “the issues are defined by the

Illinois EPA decision letter.” Agency Brief at 18;

see

R. at 256-63.

The Agency discounts Keller’s statement that the Agency “has approved monitoring

wells where the water level rose above the top of the well screen at two other sites.” Agency

Brief at 33, citing Keller Brief at 15. The Agency argues that Ms. Rowe’s testimony at hearing

admits that the geologies at those two sites differ from the geology at the Keller site. Agency

Brief at 33-34, citing Tr. at 105-07, 109. The Agency further argues that Ms. Rowe also

admitted that Keller did not produce a complete record of the two sites and, at one site, provided

documentation for only two of an estimated 30 monitoring wells. Agency Brief at 34, citing Tr.

at 110. Claiming that Keller has selectively offered data from only two sites of the hundreds

handled by the Agency, the Agency argues that “the Board should find this argument

unpersuasive.” Agency Brief at 34.

The Agency argues that testimony on the issue of monitoring wells offered on behalf of

Keller by Ms. Carol Rowe failed to cast persuasive doubt on the Agency’s decision and even

confirmed elements of the record upon which the Agency had relied. Agency Brief at 30. First,

the Agency claims that Ms. Rowe admitted that Keller had not determined groundwater depth

after drilling and before installing monitoring wells. Agency Brief at 32, citing Tr. at 120. The

Agency argues that this made it more difficult to set well screens at the proper depth and violates

Board regulations. Agency Brief at 32, citing 35 Ill. Adm. Code 734.425(c)(6).

The Agency notes that Ms. Rowe’s testimony acknowledges the possibility that the silty

clay layer at the Site produced water. Agency Brief at 32, citing Tr. at 122. The Agency argues

that this acknowledgement “appears to contradict the testimony of the Petitioner’s own witness

Mr. St. John.” Agency Brief at 32. The Agency further argues that Ms. Rowe testified that

Keller submitted information to the Agency stating “that groundwater was located in the silty

clay layer because it was saturated during drilling.”

Id

. at 32-33, citing Tr. at 122. The Agency

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19

claims that Ms. Rowe agrees that Keller did not submit any information contradicting its original

statement that groundwater was located in the silty clay layer. Agency Brief at 32, citing Tr. at

122. The Agency argues that she has thus admitted that Keller never submitted anything to the

Agency stating that it found groundwater in the sand layer instead. Agency Brief at 32. The

Agency suggests that, in the absence of a submission of this kind, it had no sound basis on which

it could conclude that groundwater at the Site is present under confined conditions or that

hydrostatic pressure raised the level of the water column in the well.

Id

. at 33. The Agency

further suggests that, without this information from Keller, the Agency lacked data that play an

important role in determining whether field activities at the Site are consistent with generally

acceptable engineering practices.

Id

.

The Agency also notes Ms. Rowe’s testimony “that she did not intend for the well screen

to be submerged within the well.” Agency Brief at 33, citing Tr. at 123. The Agency

characterizes this testimony as being consistent with its own position on well construction.

Agency Brief at 33. The Agency argues that these submerged wells are not consistent with the

requirements of the Board’s regulations and do ensure the most representative sampling of

groundwater.

Id

., citing 35 Ill. Adm. Code 734.430(a)(1), 734.430(a)(3).

The Agency also dismisses the testimony on the issue of monitoring wells offered on

behalf of Keller by Mr. Ron St. John. First, the Agency disputes Mr. St. John’s “opinion that

indicator contaminants found in gasoline generally migrate downward when dissolved in

groundwater.” Agency Brief at 29. While the Agency acknowledges that contaminants may

migrate downward in a diving plume, the Agency argues that there was no testimony or other

evidence that they do so at the Site.

Id

. The Agency stresses that, in its experience, indicator

contaminant for gasoline and diesel weigh less than water and “the uppermost layer of the

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

Id

. at 30.

Second, the Agency argues that nothing in the record supports Mr. St. John’s claim that

saturated groundwater at the Site is located in a sand layer 12 to 13 ½ feet below ground.

Agency Brief at 28, citing Tr. at 21;

see

R. at 35 (groundwater elevation map), 37 (geologic cross

section), 90-101 (drilling borehole logs), 224-25 (drilling borehole logs). The Agency further

argues that Mr. St. John agreed that groundwater can infiltrate a silty clay layer, suggesting that

groundwater at the Site may enter the well above the sand layer. Agency Brief at 29, citing Tr. at

72. The Agency further suggests that Mr. St. John could not reconcile the hydraulic conductivity

he expected for the porous grain found at a depth of 12 to 13 ½ feet with the hydraulic

conductivity submitted by Keller with its plan. Agency Brief at 29, citing Tr. at 72;

see

R. at 13

(Site Specific Physical Parameters).

After claiming that Mr. St. John’s testimony has been found unreliable by a federal court,

the Agency argues that Mr. St. John did not visit the Site, and either failed to review the entire

record or used facts within it selectively in order to reach conclusions favoring Keller. Agency

Brief at 28, citing LeClerq v. Lockformer Co., 2005 WL 1162979 (N.D. Ill. 2005). The Agency

claims that “Mr. St. John’s testimony should be ignored by the Board for its unreliabilty.”

Agency Brief at 30. The Agency further claims that, because Mr. St. John offered testimony that

was not part of the record and not before the Agency when it reviewed Keller’s plan, his

testimony should be struck.

Id

.

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20

The Agency argues that “[t]he 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.” Agency Brief at 8, citing R. at 89. The Agency continues by arguing that,

“[d]ue to this fact, a Stage 2 plan for determining the full extent of groundwater contamination

resulting form the release can not be formulated based on the data provided from these

improperly screened wells.” Agency Brief at 8. The Agency claims that the record “clearly

supports” its decision that monitoring wells constructed by Keller did not allow samples to be

taken at the desired interval and thus did not comply with the Board’s regulations. Agency Brief

at 19, citing 35 Ill. Adm. Code 734.430.

Soil Borings

Generally, the Agency argues that Board regulations concerning early action require the

owner or operator removing a UST to collect excavation samples and piping run samples during

removal. These samples determine whether any contamination that is discovered meets Tier 1

remediation objectives. Agency Brief at 10, citing 35 Ill. Adm. Code 734.210(h). The Agency

further argues that, if excavation samples and piping run samples meet those objectives, then the

Agency issues a No Further Remediation letter to the owner or operator. Agency Brief at 10,

citing 35 Ill. Adm. Code 734.201(h)(3). The Agency claims that “[t]his 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 meet remediation objectives.” Agency

Brief at 10.

Soil Boring Locations

The Agency argues that the Board must determine whether soil borings drilled by Keller

during the Stage I investigation of the Site exceeded the minimum requirements of the Act and

the Board’s regulations. Agency Brief at 9-10, citing 35 Ill. Adm. Code 734.315. The Agency

argues that the Board’s regulations regarding a Stage 1 soil investigation require up to four

borings around each UST field. Agency Brief at 22, citing 35 Ill. Adm. Code 734.315(a). The

Agency further argues that a witness for Keller interpreted these regulations as requiring

placement of the borings “in the direction of the contamination emanating from tank

excavation.” Agency Brief at 22, citing Tr. at 163.

With regard to specific borings, the Agency first argues that SB-4 exceeded minimum

requirements of the Act and applicable regulations “because the wall of the excavation closest to

SB4 was clean during early action.” Agency Brief at 10, citing R. at 99. The Agency claims

that, because the nearest excavation wall was clean, “SB4 did not need to be drilled under the

regulations.” Agency Brief at 11. The Agency argues that contamination revealed by excavation

samples N-1 and N-2 as demonstrated by the Petitioner as

not

emanating from the tank

excavation in the northern direction.” Agency Brief at 22 (emphasis in original).

The Agency claims that Keller acknowledged placing SB4 in an incorrect position on a

map submitted to the Agency.

Id

., citing R. at 157;

see

R. at 170. The Agency further claims

that, even after Keller stated that it would correct that error, SB4 remained in the same location

---

21

in a map filed later with additional information. Agency Brief at 11, citing R. at 28, 214. The

Agency also argues that Keller has acknowledged submitting maps that contained errors and that

are not consistent with one another. Agency Brief at 11, citing Tr. at 152-53. The Agency

claims that, even after amending the location of SB-4, that boring “still attempts to further define

contamination emanating northward.” Agency Brief at 22. The Agency agues that, because only

the single tank basin excavation sample E-1 exceeded the most stringent remediation objectives,

the Board’s regulations require only the drilling of SB-3.

Id

., citing 35 Ill. Adm. Code

734.315(a)(1)(A). The Agency concludes that “[a]ny other soil boring such as SB-4 exceeds the

minimum requirements of the Act and regulations” and is therefore ineleiglbe for

reimbursement. Agency Brief at 22, citing 35 Ill. Adm. Code 734.630(o). With regard to SB-4,

the Agency suggests that it reached a correct decision on the basis of information supplied by

Keller and that the consequences of any inaccuracies or errors in that information should fall on

Keller as the source of that information.

See

Agency Brief at 11.

The Agency argues that SB-5 also “exceeded the minimum requirements of the Act and

regulations because no contamination was found during early action in the excavation wall in

that area.” Agency Brief at 11, citing Exh. 1. The Agency claims that Keller has acknowledged

that the SB-5 and SB-6 were placed to define contamination from sample D-7, which was

incorrectly identified as contaminated, and not from sample D-10, at which contamination

required definition. Agency Brief at 11, citing R. at 170. The Agency argues that a Keller

witness has acknowledged that SB-5 was drilled as a result of “clerical error.” Agency Brief at

22, citing Tr. at 154.

The Agency dismisses the claim “that contamination noted as the result of drilling SB-5

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

734.315(a)(1)(A).” Agency Brief at 23, citing 35 Ill. Adm. Code 734.315(a)(1)(A). The Agency

notes that samples from the diesel tank excavation in that vicinity did not exceed the most

stringent remediation objectives. Agency Brief at 23. Because the applicable regulation

prescribes borings where excavation samples exceed the most stringent objectives, the Agency

argues that SB-5 exceeded the minimum requirements of the Act and regulations and is not

reimbursable.

Id

., citing 35 Ill. Adm. Code 734.315(a)(1)(A), 734.630(o).

The Agency claims that borings including SB-5 “should have been drilled in the area of

the piping run and not near the excavation.” Agency Brief at 11. The Agency disputes Keller’s

claim that SB-5 is appropriate because it detected benzene and because it is located to the

northwest of D-10 and naphthalene contamination found there. Specifically, the Agency argues

that Keller failed to link the benzene detected by SB-5 to the nearby diesel tank when early

action excavation at that tank did not identify benzene as a contaminant of concern. Agency

Brief at 12. The Agency also disputes Keller’s claim by noting that “the only contaminant of

concern in the area was naphthalene.”

Id

.

The Agency states that the Board’s regulations governing Stage 1 site investigations

require that “borings must be advanced through the entire vertical extent, based on field

observations.” Agency Brief at 12, citing 35 Ill. Adm. Code 734.315(a)(1). The Agency further

states that Keller has claimed that it based the location and depth of its borings on samples

collected during early action and on field observation. Agency Brief at 12. The Agency argues

---

22

that Keller has acknowledged advancing SB-5 and SB-6 in an incorrect area in order to define

soil contamination from excavation sample D-7, which was incorrectly logged as contaminated.

Id

.;

see

R. at 170. The Agency claims that “[i]t is unclear what field observation and data from

sampling was used, as borings were placed in areas previously defined by early action samples.”

Agency Brief at 12.

The Agency states that Keller submitted no data with regard to contamination ten feet

below the surface. Agency Brief at 12. The Agency notes that Keller’s 45-Day Report indicated

that it could not collect samples required by the Board’s regulations because there was

groundwater at the bottom of the excavation.

Id

, citing 35 Ill. Adm. Code 734.210(h), Exh. 1.

The Agency suggests that, in the absence of these samples from the floor of the excavation, there

is no way to determine conclusively whether there had been a release there.

See

Agency Brief at

12. The Agency stresses that “the excavation sidewalls did not show contamination in the diesel

excavation and the piping runs samples did not demonstrate contamination from the piping

runs.”

Id

. at 13. The Agency argues that this data provide an adequate basis to define

contamination in the unsaturated soils “without further sampling.”

Id

.

Monitoring Well Soil Samples

The Agency first notes Keller’s stipulation that analysis of soil samples from MW-5 was

not necessary. Agency Brief at 13, citing Tr. at 8. The Agency then argues that soil samples

from MW-1, MW-2, MW-3, and MW-4 exceed the applicable minimum requirements. Agency

Brief at 13. The Agency claims that Board regulations require examination of soil samples from

monitoring wells, “provided that the samples must not be analyzed if other soil samples

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

monitoring well installation boring.”

Id

., citing 35 Ill. Adm. Code 734.315(a)(2)(C). In this

case, the Agency argues that “soil samples taken from the soil borings defined the area of

contamination.” Agency Brief at 13. The Agency claims that “[s]oil 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.”

Id

. The Agency argues that Keller sought to

justify these monitoring well samples by explaining 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.” Agency

Brief at 13, citing Tr. at 167. The Agency claims that Keller’s witness admitted knowing that

this practice was contrary to the Board’s regulations. Agency Brief at 13.

The Agency disputes Keller’s statement that it sampled MW-2, MW-4, and MW-5 “to

further define the contamination from sample D-10 (the diesel piping excavation).” Agency

Brief at 24, citing R. at 171. The Agency argues that, when Keller sampled those three wells for

soil contamination, Keller believed that it was determining contamination from sample D-7 and

not from D-10. Agency Brief at 24. The Agency states that, in response to its October 15, 2006

denial letter (R. at 157-64), Keller advanced SB-7 and SB-8 “[i]n order to further define the

piping run sample D-10.”

Id

., citing 35 Ill. Adm. Code 734.315(a)(1)(B). The Agency argues

that these additional borings were necessary to meet soil boring requirements but had been

omitted from Keller’s original activities. Agency Brief at 24. The Agency further argues that

“[c]onducting additional sampling because the first set of sample locations were not placed in

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23

accordance with the regulations does not make the additional activities eligible for

reimbursement.”

Id

. at 24-25.

The Agency states that Stage 2 site investigations complete identification of the extent to

which soil and groundwater contamination at the Site exceed the most stringent Tier I

remediation objectives for applicable indicator contaminants. Agency Brief at 25, citing 35 Ill.

Adm. Code 734.320. In this instance, the Agency argues that Stage 1 investigation has sahown

contamination to extend to MW-2. Agency Brief at 25. The Agency further argues that Keller

should not collect samples where it has already found contamination to have occurred and should

collect samples during Stage 2 only in order “to identify the further extent of the soil and

groundwater plume.”

Id

. The Agency claims that any additional sampling that does not identify

this further extent exceeds the minimum requirements of the Act and regulations.

Id

., citing 35

Ill. Adm. Code 734.630(o).

Proposed Additional Soil Borings

Although the Agency notes that Keller proposed additional soil borings, the Agency

argues that “[t]hese proposed borings are not reimbursable under the Act and regulations.”

Agency Brief at 14, citing R. at 29 (proposed soil boring location map). The Agency claims that

a proposed soil boring south of the pump island exceeds applicable minimum requirements

“because the wall of the early action excavation was clean, as was MW-1.” Agency Brief at 14,

citing Exh. 1. The Agency further claims that soil borings between the tank field and MW-2 also

exceed those regulations because MW-2 exceeds clean-up objectives, demonstrating that

contamination extends beyond the proposed borings. Agency Brief at 14. The Agency also

notes that Keller proposes additional borings in the vicinity of SB-5 on the basis of benzene

detected there.

Id

. The Agency claims that Keller failed to link the benzene detected by SB-5 to

the nearby diesel tank, noting that early action excavation at that tank did not identify benzene as

a contaminant of concern. Agency Brief at 12, 14. The Agency also disputes Keller’s claim by

noting that “the only contaminant of concern in the area was naphthalene.”

Id

., citing Exh. 1.

With regard to these additional soil borings, the Agency notes Keller’s argument that

piping run samples “are not deep enough to sample the entire vadose zone.” Agency Brief at 14,

citing R. at 171. The Agency responds that piping run samples determine whether the piping run

has leaked. Agency Brief at 14. The Agency further claims that, because the walls of the

excavation facing the piping run and the piping run samples themselves were both clean, no

further sampling is required.

Id

., citing 35 Ill. Adm. Code 734.210(h)(1)(C). The Agency states

that Keller appears to argue that, if piping run samples determine the extent of contamination,

then “the Board’s regulations are not expansive enough to cover contamination throughout the

vadose zone.” Agency Brief at 14. The Agency claims that this argument would be more

appropriately addressed in a rulemaking procedure as a proposal to amend the Board’s UST

regulations.

Id

.

The Agency states that, despite certifying that it would conduct Stage 1 activities

according to the Board’s regulations, Keller “failed to do so.” Agency Brief at 9, citing 35 Ill.

Adm. Code 734.315. The Agency argues that the record “clearly supports” its decision that soil

---

24

boring at the Site exceeded the minimum requirements of the Act and cannot be reimbursed from

the Fund. Agency Brief at 15.

Stage 2 Site Investigation Budget

Noting that it has not approved a Stage 2 Site Investigation plan, the Agency argues that

“a proposed budget may not be approved unless the corresponding plan is approved.” Agency

Brief at 19. The Agency further argues that the applicable statutory and regulatory authorities

and the administrative record support its decision to reject Keller’s proposed budget.

Id

. at 21.

The Agency states that the Board’s regulations specify in detail those items that are both

eligible and ineligible for reimbursement from the Fund. Agency Brief at 19, citing 35 Ill. Adm.

Code 734.625, 734.630. The Agency further states that those regulations provide specific

requirements for the performance of Stage 1 and Stage 2 site investigations. Agency Brief at 20,

citing 35 Ill. Adm. Code 734.315, 734.320. The Agency claims that any activities not

specifically required by those authorities exceed the minimum requirements necessary to comply

with the Act and the Board’s regulations. Agency Brief at 20. The Agency further claims that,

“[p]ursuant to [Section] 734.630(o), costs for 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.”

Id

. at 19-20, citing 35 Ill. Adm. Code 734.630(o).

The Agency also states that the Stage 1 site investigation must be conducted on the basis

of data obtained during early action. Agency Brief at 20, citing 35 Ill. Adm. Code 734.210. The

Agency states, although requirements for site investigations are based specifically on excavation

samples, Keller “claimed at hearing that they missed the contamination.” Agency Brief at 20,

citing Tr. at 131-34, 137. The Agency argues that “missing contamination” violates the Board’s

regulations and provides no basis to approve costs related to this non-compliance. Agency Brief

at 20, citing 35 Ill. Adm. Code 734.210(h), Tr. at 125

et seq

. (Weinhoff testimony).

The Agency further states that the Board’s regulations prescribe monitoring well

construction requirements. Agency Brief at 20-21, citing 35 Ill. Adm. Code 734.430. The

Agency argues that, in this case, “[t]he monitoring wells were not constructed in a manner that

allows for the screen to be placed at the desired interval.” Agency Brief at 21. Having concluded

that Keller’s wells do not comply with the Board’s regulations, the Agency states that it cannot

determine the validity of the samples drawn from them.

Id

. Accordingly, since Keller did not

satisfy the Board’s Stage 1 regulations, the Agency states that “[a]ctivities for Stage 2 may not

proceed until all the requirements of Stage 1 have been satisfied.” Agency Brief at 19. The

Agency further states that “costs associated with improperly installed sampling or monitoring

wells are not eligible for payment from the Fund.”

Id

. at 20, citing 35 Ill. Adm. Code

734.630(p).

KELLER’S REPLY BRIEF

Keller emphasizes that, after acknowledging and correcting a limited number of its own

errors, it continues to contest the Agency’s decisions on the issues of monitoring well

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25

construction, analysis of samples from four monitoring wells, two soil borings, and the Stage 2

site investigation and budget. Reply at 2. Specifically, Keller claims that its

monitoring wells were installed in accordance with all applicable regulatory

requirements, the soil boring samples were drilled in compliance with Part 734,

soil samples that were collected while the monitoring wells were being installed

were correctly submitted for analysis, and the proposed additional Stage 2 site

investigation plan and budget comply with applicable regulations.

Id

.

The Board below separately summarizes Keller’s arguments on these issues.

Monitoring Wells

Well Construction

Keller argues that the record demonstrates that the monitoring wells at the Site were

screened to intersect the desired groundwater level. Reply at 4. Keller states that borings first

encountered moisture approximately 10 feet below ground surface and found a lithology of wet

sand between approximately 12 and 13 ½ feet below ground surface. Specifically, Keller argues

that borehole logs generally showed clayey silt beginning two to three feet below ground surface

and extending to 11 ½ feet below ground surface. Reply at 4-5, citing R. at 90-94. Keller further

argues that this clayey silt became moist at a depth of nine and one-half to 10 ½ feet below

ground surface. Reply at 4-5, citing R. at 90-94. Keller further argues that the logs show a

saturated zone of very fine sand from a depth of 12 to 13 ½ feet below ground surface. Reply at

4-5, citing R. at 90-94, Tr. at 30, 90. Keller accounts for the moist layer above that zone as being

“likely the capillary fringe, which is an area above an aquifer that becomes moist due to capillary

action of water rising into the soil layer.” Reply at 5, citing Exh. 4 (glossary of hydrology).

Keller claims that the record demonstrates that its well screens intersect both the saturated sandy

zone and the moist clayey silt above it. Reply at 5, citing R at 90-94, 102-06; Tr. at 34, 48, 88-

91, 123-24. Keller argues that “because the wells were screened where the wet sand was located,

they were screened in accordance with IEPA regulations and samples from the desired

groundwater interval could be and, in fact, were collected.” Reply at 5-6, citing Tr. at 34, 47-48,

94, 96-97.

Keller disputes the Agency’s position “that the wells should have been screened at the

water level in the wells, which is the static water level.” Reply at 6. For the five monitoring

wells at the Site, Keller argues that the depth to groundwater ranges from 2.25 to 4.36 feet below

ground surface.

Id

., citing R. at 102-06. Keller claims that bore hole logs show “that the clayey

silt located at the same elevation as the static water level is not wet and is not even moist. Thus,

there is no water in the lithology at the same level as the static water level.”

Id

.

Keller responds by arguing that the record clearly demonstrates that the groundwater

producing layer at the Site begins at a depth of approximately ten feet below ground surface and

becomes saturated in a sand seam at 12 to 13 ½ feet below ground surface. Reply at 10, citing R.

at 90-94, Tr. at 81, 97. Because this wet sand seam is the water-bearing unit closest to the

ground surface and most likely to become contaminated by releases from USTs, Keller claims

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26

that it is the water-bearing unit of interest. Reply at 10-11, citing R. at 90-94. After stating that

it screened the wet sand seam and the moist zone above it for sampling, Keller argues that “[t]he

Agency never presented any evidence that the desired groundwater level is located anywhere

else.” Reply at 11, citing R. at 102-06; Tr. at 81, 88-91, 121.

Keller disputes the Agency’s apparent view that, where there exists a confined aquifer,

“water can enter through a well screen located at the same elevation as the static water level in

the well.” Reply at 11, citing R. at 258; Tr. at 29-30. After noting that borehole logs do not

show wetness or moisture at the static water level, Keller argues that water cannot enter the well

at that level if it is not present in the lithology at that level. Reply at 11, citing R. at 90-94, 102-

06. Although acknowledging that static water level can be used to determine the hydraulic

gradient and groundwater flow, Keller argues that

the static water level for a confined aquifer, such as the one at this site, is no more

representative of the location of the groundwater interval in the lithology for

sampling purposes, than is groundwater that is pumped from the well, contained

in a sample jar, and place on a table. In both cases the position of the water is

different than where it was originally located in the lithology. Reply at 11-12.

Keller further argues that its witnesses testified that the well screens had been properly placed

(Reply at 12 n.6, citing Tr. at 47-48, 94, 96-97) and that the Board’s regulations “do not prohibit

submerging the well screens” (Reply at 12 n.6, citing Agency Brief at 33. Keller concludes by

claiming that “[t]he Agency’s arguments that the monitoring wells should have been screened at

the level of the water in the wells are erroneous and contrary to generally accepted professional

engineering practices and principles of professional geology.”

Keller disputes the Agency’s emphasis on the issue of the hydraulic conductivity test at

the Site. Specifically, Keller argues that the Agency was misguided in attempting to discredit

Mr. St. John’s testimony because he did not review in detail information about that test. Keller

claims that he did not perform that review because the Agency had accepted the results of that

test, because the Agency’s denial letter did not address that test, and because the test is not an

issue in this appeal. Reply at 13. Keller also argues that the Agency has inappropriately sought

to discredit Mr. St. John on the basis of a case in which he was found not to be an expert in

wastewater treatment. Reply at 14, citing Agency Brief at 27-28. Keller argues that the court

found Mr. St. John qualified to offer expert testimony of hydrogeology, the field in which he was

presented as an expert in this case. Reply at 14, citing LeClerq v. Lockformer Co.

, 2005 WL

1162979 at * 3 (N.D. Ill. 2005). More generally, Keller argues that it offered his testimony to

explain generally accepted principles of hydrogeology that “[t]he Agency does not understand.”

Reply at 21. Because the Agency did not contradict Mr. St. John’s testimony, because the

hearing officer admitted it, and because of his expertise in hydrogeology, Keller argues that his

testimony should not be struck.

Id

.

Determining Groundwater Depth and Static Water Level

Keller casts doubt on the Agency’s emphasis on obtaining the groundwater depth after

drilling. Reply at 14-15. Keller argues that this request “demonstrates the Agency’s lack of

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27

experience and understanding of hydrogeology.”

Id

. at 14. Keller argues that, “[g]enerally,

static groundwater elevations do not stabilize on the date of well installation and well

development procedures interfere with determination of static elevation.”

Id

. at 14-15, citing R.

at 11, Tr. at 32-33. Keller claims that the issue of groundwater depth after drilling, particularly

in the case of a confined aquifer, “is not relevant.” Reply at 14. In addition, Keller argues that

did not raise this issue in it’s denial letter, did not rely on it as a basis for rejecting the plan, and

“should be precluded from raising it now.” Reply at 15;

see

R. at 256-63.

Soil Samples

Soil Boring Locations

Keller claims that the Agency has attempted to apply a definition of “tank field” from

Part 732 of the Board’s UST regulations. Reply at 8;

see

Agency Brief at 21-22. Keller notes

that Part 732 defines “tank field” as “all underground storage tanks at a site that reside within a

circle with a 100 foot radius.” Reply at 8, citing 35 Ill. Adm. Code 732.103 (definitions applying

to releases reported between September 23, 1994 and June 23, 2002). Keller further notes that

Part 734 does not define this term. Reply at 8;

see

35 Ill. Adm. Code 734.115 (definitions

applying to releases reported on and after June 24, 2002). Keller argues that, “[b]ecause the term

‘tank field’ does not appear in the Part 734 rules, and this site is not subject to Part 732, IEPA

should not be allowed to use the definition.”

Keller argues that, instead of the term “tank field,” Part 734 uses the term “each

independent UST field” in describing Stage 1 site investigations. Reply at 8. Specifically,

Keller argues that the applicable Board regulations require “that up to four borings be ‘drilled

around each independent UST field where one or more UST excavation samples,’ excluding

backfill samples, exceed the most stringent TACO Tier 1 Remediation Objectives.”

Id

., citing

35 Ill. Adm. Code 734.315(a)(1)(A). Noting that Part 734 does not define the term “each

independent UST field,” Keller argues that “the term should be given its plain, ordinary

meaning.” Reply at 8-9 (citations omitted);

see

35 Ill. Adm. Code 734.115.

Keller claims that this plain, ordinary meaning “is that each separate tank basin that

contains one or more USTs and associated piping is considered an independent UST field.”

Reply at 9. Keller further claims that, because excavation samples from two of the three

independent UST fields at the Site showed indicator contaminants at concentrations greater than

applicable objectives, the Board’s regulations allow Keller to drill up to four borings around the

gasoline UST excavation and up to four borings around the diesel UST excavation.

Id

., citing 35

Ill. Adm. Code 734.315(a)(1)(A). Also, because two piping runs also exceeded applicable

remediation objectives, Keller claims that the Board’s regulations allow Keller to drill up to two

borings around the gasoline piping run and up to two borings around the diesel piping run.

Reply at 9, citing 35 Ill. Adm. Code 734.315(a)(1)(B). Keller argues that these regulations allow

it to drill as many as 12 soil borings during the Stage 1 site investigation. Reply at 9, citing 35

Ill. Adm. Code 734.315(A)(1(A), 734.315(a)(1)(B). Noting that it drilled a total of eight soil

borings at the Site, Keller argues that the Agency’s application of the term “tank field” should be

struck because it does not apply to this release, because it was not cited in the denial letter as a

basis for rejecting Keller’s work, and because Keller drilled fewer than the number of samples

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28

allowed by the Board’s regulations. Reply at 9-10, citing 35 Ill. Adm. Code 734.315(a)(1);

see

also

Reply at 15-16.

Keller disputes the Agency’s argument that, “[s]ince only one tank basin excavation

sample exceeded the most stringent remediation objectives, soil sample E-1, only one soil boring

(SB-3) is needed per the minimum requirements of Section 734.315(a)(1)(A). Any other soil

borings such as SB-4 exceeds the minimum requirements of the Act and its regulations.” Reply

at 16, citing Agency Brief at 22. Keller suggests that the Agency has misinterpreted the

applicable regulations, arguing that the regulations provide for up to four borings around each

independent UST field where one or more excavation samples exceeds them most stringent

remediation objectives. Reply at 16, citing 35 Ill. Adm. Code 734.315(a)(1)(A).

Keller notes that it could not collect samples from the bottom of tank excavations at the

Site because groundwater had infiltrated there. Reply at 16. Keller also notes a Board regulation

providing that “[t]he Agency must allow an alternate location for , or excuse the collection of,

one or more samples if sample collection in the following location is made impracticable by site-

specific circumstances.”

Id

., citing 35 Ill. Adm. Code 734.210(h)(1). Keller stresses that the

named locations include the excavation floor. Reply at 17, citing 35 Ill. Adm. Code

734.210(h)(1)(B). Keller argues that “additional samples were needed near the excavations to

document whether a release occurred or not.” Reply at 17. Keller further argues that “[t]he lack

of samples collected from the bottom of the excavation cannot be used to demonstrate that there

were no leaks from the diesel tanks nor can the lack of samples be used to determine that

unsaturated soil had been adequately defined in that area.”

Id

.

Specifically, Keller claims that, because it could not collect samples from the bottom of

the diesel tank excavation to show that it was clean, it became necessary to drill SB-5 near that

excavation because of a release associated with the diesel UST piping. Reply at 17, citing R. at

9; Tr. at 134, 176; Exh. 11. Keller also claims that, because it could not collect samples from the

bottom of the gasoline tank excavation to show that it was clean, it became necessary to drill SB-

4 “because no other data was available to document whether contamination migrated north from

the sidewall sample E-1 in the gasoline tank excavation.” Reply at 17. Keller concludes that it

correctly drilled soil boring SB-4 and SB-5 and analyzed samples from them for contamination.

Id

.

Monitoring Well Soil Samples

Keller argues that, although the Agency claims that monitoring well soil samples did not

need to be analyzed, the record does not support the Agency’s “position that there was data

available on the date the samples were collected to document that contamination did not extend

to the locations of the monitoring wells.” Reply at 17, citing Agency Brief at 23. Keller notes

that it drilled soil borings and monitoring wells on the same day. Reply at 17, citing R. at 125-

26. Keller argues that “it did not have available the results of the soil boring analyses before it

was necessary to submit the soil samples from the monitoring wells to the lab for analysis.”

Reply at 17, citing Tr. at 136-42 (Wienhoff testimony). Keller further argues that, when it

submitted soil samples from the monitoring wells for analysis, “there were no sample data

available on the date the samples were collected that indicated that soil contamination did not

---

29

extend to the location where the monitoring wells were installed.” Reply at 18, citing 35 Ill.

Adm. Code 734.315(a)(2)(C).

Proposed Stage 2 Site Investigation Plan

Keller notes its testimony that a release form a piping run could sink deeper into the

ground and that a piping run sample to a depth of only two to three feet below ground surface

would not detect such a diving plume. Reply at 18, citing Tr. at 142-45; Exh. 12. Although the

Agency claims “that clean piping run samples can be used to obtain an NFR letter,” Keller

suggests that the Agency misinterprets the applicable regulation. Reply at 19. Specifically,

Keller claims that piping run samples can be the basis for an NFR letter only “when all of the

Early Action samples meet the most stringent TACO Tier 1 cleanup objectives.”

Id

., citing 35

Ill. Adm. Code 734.210(h)(3). Keller claims that, if any of those piping run samples exceed

those objectives, the Board’s regulations require steps including a Stage 1 site investigation and

the collection of additional samples. Reply at 19, citing 35 Ill. Adm. Code 734.210(h)(4). Keller

also argues that the Agency has ignored the requirement that soil borings must “be drilled

through the entire vertical extent of contamination, based on filed observations, if a sample from

the piping excavation is contaminated.” Reply at 19, citing 35 Ill. Adm. Code 734.315(a)(1)(B).

Although Keller accepts the Agency’s claim that evidence does not now show that there

is a diving plume at the Site, Keller counters by arguing that it is the site investigation’s purpose

to determine whether one exists. Reply at 19, citing Agency Brief at 29. Keller argues that it

must drill soil borings at the Site because Early Action activities found contamination from

piping runs there. Reply at 19, citing 35 Ill. Adm. Code 734.315(a)(1)(B). Keller further argues

that “shallow piping run samples cannot be used to determine if contamination exists throughout

the entire vadose zone.” Reply at 19-20. Keller concludes by arguing that,

[w]ithout installing soils borings at greater depths than piping run samples, a site

owner/operator will have no way of knowing whether a diving plume exists or

not. The only way to know if one exists is to conduct the Stage 1 and Stage 2

investigations and to sample in areas where a diving plume would most likely be

located.

Id

. at 20.

Keller also disputes the Agency’s position regarding soil samples proposed to be taken

between MW-2 and the gasoline pump island. Keller restates its testimony that contamination at

MW-2 might meet Tier 2 Remediation Objectives after collection of additional data calculation

of those objectives. Reply at 20, citing Tr. at 147-50. Keller argues that collection of the

proposed samples will begin to delineate the area that exceeds remediation objectives and may

reduce the size of the area that must be remediated. Reply at 20. Keller further argues that,

“[s]ince in all likelihood the samples will need to be collected at some point n the future, it

makes more sense and is more cost effective to collect the samples as part of the Stage 2 Site

Investigation.”

Id

., citing Tr. 147-50.

Stage 2 Site Investigation Budget

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30

Keller again argues that, “[b]ecause the Agency’s denial of the proposed budget is based

on the Agency’s erroneous denial of the proposed Stage 2 site investigation, the Board should

approve the proposed budget.” Reply at 21.

STATUTORY AND REGULATORY PROVISIONS

Section 734.210(h) of the Board’s UST regulations, addressing early action activities

with regard to releases reported on or after June 24, 2004, provides in pertinent part that:

h)

The owner or operator must determine whether the areas or locations of soil

contamination exposed as a result of early action excavation (e.g., excavation

boundaries, piping runs) or surrounding USTs that remain in place meet the most

stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants.

1)

At a minimum, for each UST that is removed, the owner or operator must

collect and analyze soil samples as indicated in subsections (h)(1)(A)

through (E). The Agency must allow an alternate location for, or excuse

the collection of, one or more samples if sample collection in the

following locations is made impracticable by site-specific circumstances.

A)

One sample must be collected from each UST excavation wall.

The samples must be collected from locations representative of soil

that is the most contaminated as a result of the release. If an area

of contamination cannot be identified on a wall, the sample must

be collected from the center of the wall length at a point located

one-third of the distance from the excavation floor to the ground

surface. For walls that exceed 20 feet in length, one sample must

be collected for each 20 feet of wall length, or fraction thereof, and

the samples must be evenly spaced along the length of the wall.

B)

Two samples must be collected from the excavation floor below

each UST with a volume of 1,000 gallons or more. One sample

must be collected from the excavation floor below each UST with

a volume of less than 1,000 gallons. The samples must be

collected from locations representative of soil that is the most

contaminated as a result of the release. If areas of contamination

cannot be identified, the samples must be collected from below

each end of the UST if its volume is 1,000 gallons or more, and

from below the center of the UST if its volume is less than 1,000

gallons.

C)

One sample must be collected from the floor of each 20 feet of

UST piping run excavation, or fraction thereof. The samples must

be collected from a location representative of soil that is the most

contaminated as a result of the release. If an area of contamination

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31

cannot be identified within a length of piping run excavation being

sampled, the sample must be collected from the center of the

length being sampled. For UST piping abandoned in place, the

samples must be collected in accordance with subsection (h)(2)(B)

of this Section.

D)

If backfill is returned to the excavation, one representative sample

of the backfill must be collected for each 100 cubic yards of

backfill returned to the excavation.

E)

The samples must be analyzed for the applicable indicator

contaminants. In the case of a used oil UST, the sample that

appears to be the most contaminated as a result of a release from

the used oil UST must be analyzed in accordance with Section

734.405(g) of this Part to determine the indicator contaminants for

used oil. The remaining samples collected pursuant to subsections

(h)(1)(A) and (B) of this Section must then be analyzed for the

applicable used oil indicator contaminants.

* * *

4)

If the most stringent Tier 1 remediation objectives of 35 Ill. Adm. Code

742 for the applicable indicator contaminants have not been met, or if one

or more of the following criteria are met, the owner or operator must

continue in accordance with Subpart C of this Part:

A)

There is evidence that groundwater wells have been impacted by

the release above the most stringent Tier 1 remediation objectives

of 35 Ill. Adm. Code 742 for the applicable indicator contaminants

(e.g., as found during release confirmation or previous corrective

action measures);

B)

Free product that may impact groundwater is found to need

recovery in compliance with Section 734.215 of this Part; or

C)

There is evidence that contaminated soils may be or may have

been in contact with groundwater, unless:

i)

The owner or operator pumps the excavation or tank cavity

dry, properly disposes of all contaminated water, and

demonstrates to the Agency that no recharge is evident

during the 24 hours following pumping; and

ii)

The Agency determines that further groundwater

investigation is not necessary. 35 Ill. Adm. Code

734.210(h).

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32

Section 734.315 of the Board’s UST regulations, addressing Stage 1 Site Investigations

for releases reported on or after June 24, 2004, provides that:

The Stage 1 site 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 of 35 Ill. Adm. Code 742 for the

applicable indicator contaminants.

a)

The Stage 1 site investigation must consist of the following:

1)

Soil investigation.

A)

Up 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. One additional boring must be

drilled as close as practicable to each UST field if a

groundwater investigation is not required under subsection

(a)(2) of this Section. The borings must be advanced

through the entire vertical extent of contamination, based

upon field observations and field screening for organic

vapors, provided that borings must be drilled below the

groundwater table only if site-specific conditions warrant.

B)

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. One additional

boring must be drilled as close as practicable to each UST

piping run if a groundwater investigation is not required

under subsection (a)(2) of this Section. The borings must

be advanced through the entire vertical extent of

contamination, based upon field observations and field

screening for organic vapors, provided that borings must be

drilled below the groundwater table only if site-specific

conditions warrant.

C)

One soil sample must be collected from each five-foot

interval of each boring drilled pursuant to subsections

(a)(1)(A) and (B) of this Section. 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-

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33

foot interval, the sample must be collected from the center

of the five-foot interval. All samples must be analyzed for

the applicable indicator contaminants.

2)

Groundwater investigation.

A)

A groundwater investigation is required under the

following circumstances:

i)

There is evidence that groundwater wells have been

impacted by the release above the most stringent

Tier 1 remediation objectives of 35 Ill. Adm. Code

742 for the applicable indicator contaminants;

ii)

Free product that may impact groundwater is found

to need recovery in compliance with Section

734.215 of this Part; or

iii)

There is evidence that contaminated soils may be or

may have been in contact with groundwater, except

that, if the owner or operator pumps the excavation

or tank cavity dry, properly disposes of all

contaminated water, and demonstrates to the

Agency that no recharge is evident during the 24

hours following pumping, the owner or operator

does not have to complete a groundwater

investigation, unless the Agency's review reveals

that further groundwater investigation is necessary.

B)

If a groundwater investigation is required, the owner or

operator must install five groundwater monitoring wells.

One monitoring well must be installed in the location

where groundwater contamination is most likely to be

present. The four remaining wells must be installed at the

property boundary line or 200 feet from the UST system,

whichever is less, in opposite directions from each other.

The wells must be installed in locations where they are

most likely to detect groundwater contamination resulting

from the release and provide information regarding the

groundwater gradient and direction of flow.

C)

One soil sample must be collected from each five-foot

interval of each monitoring well installation boring drilled

pursuant to subsection (a)(2)(B) of this Section. Each

sample must be collected from the location within the five-

foot interval that is the most contaminated as a result of the

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34

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 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.

D)

Following the installation of the groundwater monitoring

wells, groundwater samples must be collected from each

well and analyzed for the applicable indicator

contaminants.

E)

As a part of the groundwater investigation an in-situ

hydraulic conductivity test must be performed in the first

fully saturated layer below the water table. If multiple

water bearing units are encountered, an in-situ hydraulic

conductivity test must be performed on each such unit.

i)

Wells used for hydraulic conductivity testing must

be constructed in a manner that ensures the most

accurate results.

ii)

The screen must be contained within the saturated

zone.

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35

3)

An initial water supply well survey in accordance with Section

734.445(a) of this Part.

b)

The Stage 1 site investigation plan must consist of a certification signed by

the owner or operator, and by a Licensed Professional Engineer or

Licensed Professional Geologist, that the Stage 1 site investigation will be

conducted in accordance with this Section.

c)

If none of the samples collected as part of the Stage 1 site investigation

exceed the most stringent Tier 1 remediation objectives of 35 Ill. Adm.

Code 742 for the applicable indicator contaminants, the owner or operator

must cease site investigation and proceed with the submission of a site

investigation completion report in accordance with Section 734.330 of this

Part. If one or more of the samples collected as part of the Stage 1 site

investigation exceed the most stringent Tier 1 remediation objectives of 35

Ill. Adm. Code 742 for the applicable indicator contaminants, within 30

days after completing the Stage 1 site investigation the owner or operator

must submit to the Agency for review a Stage 2 site investigation plan in

accordance with Section 734.320 of this Part. 35 Ill. Adm. Code 734.315.

Section 734.320 of the Board’s UST regulations, addressing Stage 2 Site Investigations

for releases reported on or after June 24, 2004, provides that:

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.

a)

The Stage 2 site investigation must consist of the following:

1)

The additional drilling of soil borings and collection of soil

samples necessary to identify the extent of soil contamination at

the site that exceeds the most stringent Tier 1 remediation

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

contaminants. Soil samples must be collected in appropriate

locations and at appropriate depths, based upon the results of the

soil sampling and other investigation activities conducted to date,

provided, however, that soil samples must not be collected below

the groundwater table. All samples must be analyzed for the

applicable indicator contaminants; and

2)

The additional installation of groundwater monitoring wells and

collection of groundwater samples necessary to identify the extent

of groundwater contamination at the site that exceeds the most

stringent Tier 1 remediation objectives of 35 Ill. Adm. Code 742

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36

for the applicable indicator contaminants. If soil samples are

collected from a monitoring well boring, the samples must be

collected in appropriate locations and at appropriate depths, based

upon the results of the soil sampling and other investigation

activities conducted to date, provided, however, that soil samples

must not be collected below the groundwater table. All samples

must be analyzed for the applicable indicator contaminants.

b)

The Stage 2 site investigation plan must include, but not be limited to, 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 site that exceeds the most stringent Tier 1

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

indicator contaminants;

2)

A characterization of the site and surrounding area, including, but

not limited to, the following:

A)

The current and projected post-remediation uses of the site

and surrounding properties; and

B)

The physical setting of the site and surrounding area

including, but not limited to, features relevant to

environmental, geographic, geologic, hydrologic,

hydrogeologic, and topographic conditions;

3)

The results of the Stage 1 site investigation, including but not

limited to the following:

A)

One or more site maps meeting the requirements of Section

734.440 that show the locations of all borings and

groundwater monitoring wells completed to date, and the

groundwater flow direction;

B)

One or more site maps meeting the requirements of Section

734.440 that show the locations of all samples collected to

date and analyzed for the applicable indicator

contaminants;

C)

One or more site maps meeting the requirements of Section

734.440 that show the extent of soil and groundwater

contamination at the site that exceeds the most stringent

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37

Tier 1 remediation objectives of 35 Ill. Adm. Code 742 for

the applicable indicator contaminants;

D)

One or more cross-sections of the site that show the

geology of the site and the horizontal and vertical 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 contaminants;

E)

Analytical results, chain of custody forms, and laboratory

certifications for all samples analyzed for the applicable

indicator contaminants as part of the Stage 1 site

investigation;

F)

One or more tables comparing the analytical results of the

samples collected to date to the most stringent Tier 1

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

applicable indicator contaminants;

G)

Water supply well survey documentation required pursuant

to Section 734.445(d) of this Part for water supply well

survey activities conducted as part of the Stage 1 site

investigation; and

H)

For soil borings and groundwater monitoring wells

installed as part of the Stage 1 site investigation, soil boring

logs and monitoring well construction diagrams meeting

the requirements of Sections 734.425 and 734.430 of this

Part; and

4)

A Stage 2 sampling plan that includes, but is not limited to, the

following:

A)

A narrative justifying the activities proposed as part of the

Stage 2 site investigation;

B)

A map depicting the location of additional soil borings and

groundwater monitoring wells proposed to complete the

identification of 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 contaminants; and

C)

The depth and construction details of the proposed soil

borings and groundwater monitoring wells.

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38

c)

If the owner or operator proposes no site investigation activities in the

Stage 2 site investigation plan and none of the applicable indicator

contaminants that exceed the most stringent Tier 1 remediation objectives

of 35 Ill. Adm. Code 742 as a result of the release extend beyond the site's

property boundaries, upon submission of the Stage 2 site investigation

plan the owner or operator must cease site investigation and proceed with

the submission of a site investigation completion report in accordance with

Section 734.330 of this Part. If the owner or operator proposes no site

investigation activities in the Stage 2 site investigation plan and applicable

indicator contaminants that exceed the most stringent Tier 1 remediation

objectives of 35 Ill. Adm. Code 742 as a result of the release extend

beyond the site's property boundaries, within 30 days after the submission

of the Stage 2 site investigation plan the owner or operator must submit to

the Agency for review a Stage 3 site investigation plan in accordance with

Section 734.325 of this Part.

d)

If the results of a Stage 2 site investigation indicate that none of the

applicable indicator contaminants that exceed the most stringent Tier 1

remediation objectives of 35 Ill. Adm. Code 742 as a result of the release

extend beyond the site's property boundaries, upon completion of the

Stage 2 site investigation the owner or operator must cease site

investigation and proceed with the submission of a site investigation

completion report in accordance with Section 734.330 of this Part. If the

results of the Stage 2 site investigation indicate that applicable indicator

contaminants that exceed the most stringent Tier 1 remediation objectives

of 35 Ill. Adm. Code 742 as a result of the release extend beyond the site's

property boundaries, within 30 days after the completion of the Stage 2

site investigation the owner or operator must submit to the Agency for

review a Stage 3 site investigation plan in accordance with Section

734.325 of this Part. 35 Ill. Adm. Code 734.320.

Section 734.430 of the Board’s UST regulations, addressing monitoring well construction

and sampling for releases reported on or after June 24, 2004, provides that:

a)

At a minimum, all monitoring well construction must satisfy the following

requirements:

1)

Wells must be constructed in a manner that will enable the collection of

representative groundwater samples;

2)

Wells must be cased in a manner that maintains the integrity of the

borehole. Casing material must be inert so as not to affect the water

sample. Casing requiring solvent-cement type couplings must not be

used;

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39

3)

Wells must be screened to allow sampling only at the desired interval.

Annular space between the borehole wall and well screen section must be

packed with clean, well-rounded and uniform material sized to avoid

clogging by the material in the zone being monitored. The slot size of the

screen must be designed to minimize clogging. Screens must be

fabricated from material that is inert with respect to the constituents of the

groundwater to be sampled;

4)

Annular space above the well screen section must be sealed with a

relatively impermeable, expandable material such as cement/bentonite

grout that does not react with or in any way affect the sample, in order to

prevent contamination of groundwater samples and groundwater and avoid

interconnections. The seal must extend to the highest known seasonal

groundwater level;

5)

The annular space must be backfilled with expanding cement grout from

an elevation below the frost line and mounded above the surface and

sloped away from the casing so as to divert surface water away;

6)

Wells must be covered with vented caps and equipped with devices to

protect against tampering and damage. Locations of wells must be clearly

marked and protected against damage from vehicular traffic or other

activities associated with expected site use; and

7)

Wells must be developed to allow free entry of groundwater, minimize

turbidity of the sample, and minimize clogging.

b)

Monitoring well construction diagrams must be completed for each monitoring

well. The well construction diagrams must be submitted in the corresponding site

investigation plan, site investigation completion report, or corrective action

completion report on forms prescribed and provided by the Agency and, if

specified by the Agency in writing, in an electronic format.

c)

Static groundwater elevations in each well must be determined and recorded

following well construction and prior to each sample collection to determine the

gradient of the groundwater table, and must be reported in the corresponding site

investigation plan, site investigation completion report or corrective action

completion report. 35 Ill. Adm. Code 734.430.

Section 734.510(a) of the Board’s UST regulations, addressing standards for review of

plan, budget, or reports regarding releases reported on or after June 24, 2004, provides that:

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. Items to be reviewed, if applicable, must include, but not be

limited to, number and placement of wells and borings, number and types of

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40

samples and analysis, results of sample analysis, and protocols to be followed in

making determinations. 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. The overall goal of

the technical review for reports must be 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 requirements of the

Act and regulations have been satisfied. 35 Ill. Adm. Code 734.510(a).

STANDARD OF REVIEW AND BURDEN OF PROOF

The standard of review under Section 40 of the Act (415 ILCS 5/40 (2006)) is whether

the application, as submitted to the Agency, would not violate the Act and Board regulations.

Ted Harrison Oil Co. v. IEPA, PCB 99-127, slip op. at 5 (July 24, 2003); citing Browning Ferris

Industries of Illinois v. PCB, 534 N.E.2d 616 (2nd Dist. 1989). The Board will not consider new

information that was not before the Agency prior to its final determination regarding the issues

on appeal. Kathe’s Auto Service Center v. IEPA, PCB 95-43, slip op. at 14 (May 18, 1995).

The Agency’s denial letter frames the issues on appeal. Pulitzer Community Newspapers, Inc. v.

IEPA, PCB 90-142 (Dec. 20, 1990). Finally, the Board’s procedural rules provide that, in

appeals of final Agency determinations, “[t]he burden of proof shall be on the petitioner.” 35 Ill.

Adm. Code 105.112(a) (quoting Section 40(a)(1) of Act).

DISCUSSION

Below, the Board separately addresses each of the issues on appeal: whether Keller

constructed monitoring wells in a manner that will allow sampling only at the desired interval

and that will enable collection of representative groundwater samples; whether soil borings SB-4

and SB-5 exceed the minimum requirements of the Act and the Board’s regulations; whether soil

samples from monitoring wells MW-1 and MW-2, and MW-4 exceed the minimum requirements

of the Act and the Board’s regulations; whether proposed additional soil borings and soil samples

from monitoring wells exceed the minimum requirements of the Act and the Board’s regulations;

and whether the Agency properly rejected Keller’s proposed Stage 2 Site Investigation Budget.

Monitoring Well Construction

The Agency argues that Keller did not construct monitoring wells in a manner that allows

for samples to be taken at the desired interval in accordance with 35 Ill. Adm. Code 734.430.

Agency Brief at 19. According to the Agency, a monitoring well screen must intersect the water

level in the well for accurate determination of contaminant levels in groundwater because

gasoline contaminants float on the surface of the water. R. at 258. The Agency claims that, by

placing the top of the monitoring well screens below the static water levels in the monitoring

wells, Keller submerged the well screens in the five monitoring wells MW-1 through MW-5 at

depths ranging from 0.14 feet to 2.25 feet below the static water level in the wells. Agency Brief

16-18. The Agency therefore asserts that Keller did not construct the wells in a manner that will

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41

allow sampling only at the desired interval or that will enable the collection of representative

groundwater samples.

Keller claims that the desired interval is the saturated zone located approximately 12 to

13.5 feet below ground surface and not the static water level in the monitoring well. Keller

asserts that the static water level in the monitoring wells was several feet above the level where

groundwater was actually encountered in the lithology because the aquifer is confined. Keller

Brief at 9. The Agency responds by stating that it can only review the information submitted by

the petitioner prior to its final determination. Agency Brief at 18. The Agency further states

that, in reviewing site investigation plans, it relies on the Professional Engineer or Geologist

hired by the owner or operator to make appropriate determinations based on field conditions at

the site.

Id

. at 33. The Agency maintains that Keller never submitted information demonstrating

that groundwater encountered at the site, as depicted in soil boring logs, monitoring well

construction diagrams, and geologic cross-sections, is present under confined conditions, causing

hydrostatic pressure to raise the water column in the monitoring wells.

Id.

at 33.

The Board agrees that the Agency’s review is generally limited to the information

submitted by the petitioner. Further, the Board’s review of the Agency’s determination is also

limited to the information in the Agency’s administrative record. In light of this, the Board will

examine the Agency’s administrative record to determine if the information in the record

supports the Agency’s determination that Keller’s monitoring wells were not constructed in a

manner that will allow sampling only at the desired interval. The Board notes that the

requirements of Section 734.430 at issue in this case are based on similar requirements adopted

by the Board at 35 Ill. Adm. Code 732.307.

See

Regulation of Petroleum Underground Storage

Tanks, R94-2(A) (Sept. 15, 1994). The Agency’s testimony in support of monitoring well

construction and sampling requirements at Section 732.307(j) states that “[w]ells must be

installed in a manner that provides the greatest likelihood of detecting migration of groundwater

contamination.”

Id.

(April 19, 1994)

(

prefiled Testimony of Mr. Harry Chappel). The provision

at issue in this case requiring the placement of well screen at only the desired interval is intended

to provide the greatest likelihood of detecting migration of groundwater contaminants.

See

35

Ill. Adm. Code 734.430(a)(3).

The Board finds that the Agency’s policy of requiring the well screen to intersect the

water level in the well in order to meet the performance standard specified at Section

734.430(a)(3) is reasonable for detecting petroleum indicator contaminants, as those

contaminants are lighter than the groundwater. In this regard, the Board notes that the

administrative record does not include any detailed discussion or determination to indicate that

site-specific conditions warrant the location of the well screen below the static water level in the

monitoring wells. The information submitted by the petitioner to the Agency, including geologic

cross-sections, soil boring logs, monitoring well construction diagrams, groundwater elevation

map, and in-situ hydraulic conductivity, supports the Agency’s determination that the monitoring

wells were not constructed in a manner that allows for sampling at only the desired interval.

The Board notes that monitoring well boring logs show that groundwater was

encountered in the silty clay unit at 10.5 feet below ground surface. R at 90-94. Furthermore,

the static water level in the groundwater elevation map and the depth to groundwater shown in

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42

the well construction diagram clearly show that well screens were placed below the static water

levels. R at 35, 102-107. In addition, as noted by the Agency, the results of the hydraulic

conductivity tests are consistent with the silty clay unit being the groundwater-producing layer.

R at 13; Agency Brief 29.

The Board notes that Keller’s response to the Agency’s October 5, 2006 determination

regarding the well screen placement does not address the Agency’s concerns. R at 159, 173.

Keller claims that well screens were placed at desired interval to intersect the saturated zone

located approximately 12 to 13.5 feet below ground surface. Keller Brief at 9; R at 173.

However, neither Keller’s plan nor its response to Agency’s initial rejection letter mentions that

the geologic unit of interest is a confined aquifer located 12 to 13.5 feet below the surface. The

information submitted to the Agency indicates the silty clay layer as the uppermost water-

bearing unit. Regarding the static water level in the wells, Keller states that the levels in the

wells rose due to hydrostatic pressure or the hydraulic head of the formation and that the levels

represent the potentiometric surface. R at 173. Keller did not substantiate its claims with a

detailed analysis of the site’s hydrogeology to show that groundwater encountered at the site is

present under confined conditions.

Keller claims that setting well screens at shallower depths would have resulted in no

production. However, the Board notes that, even if the well screens were raised above the static

water levels, the well screen interval of 10 feet would have provided adequate screen interval

below the surface for collection of groundwater samples. Further, the Board agrees with the

Agency that assertions made by Mr. St. John regarding the confined layer as being the water-

bearing unit and regarding advective flow of dissolved indicator contaminants are not reflected

in the administrative record.

The Board agrees with the Agency that, when reviewing plans under the Act and Board

regulations, the Agency must rely on the determinations made by the Professional Engineer or

Geologist hired by the owner or operator. In this case, the plan submitted to Agency by the

petitioner’s consultant did not include sufficient information for the Agency to determine that

Keller constructed the monitoring wells in accordance with the requirements of Section

734.430(a).

Soil Borings

The Agency maintains that soil samples from several Stage 1 soil borings and monitoring

wells and a number of proposed Stage 2 soil borings and monitoring wells exceed the minimum

requirements of the Act and Board regulations. The Stage 1 borings at issue are soil borings SB-

4 and SB-5 and soil samples collected from monitoring well borings MW-1, MW-2 and MW-4.

Agency Brief at 11-13. The proposed Stage 2 soil borings rejected by the Agency include: two

monitoring wells and one soil boring located between the gasoline pump and monitoring well

MW-2; a proposed monitoring well located south of the gasoline pump island; and two proposed

soil borings located west of the diesel tank excavation. Agency Brief at 14 and Keller Brief at

24-25. The location of the Stage 1 and Stage 2 soil borings and monitoring wells are shown on

the soil boring location map.

See

R at 29. The Board will discuss the parties’ arguments and

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43

determine whether Keller’s actions regarding the soil sampling exceeded the minimum

requirements of the Act and regulations.

Soil Boring SB-4

The Agency states that soil boring SB-4 exceeds the minimum requirements of the Act

and regulations because the wall of the excavation closest to SB-4 was clean during early action.

Agency Brief at 11. The location of SB-4 is approximately at the midpoint of the excavation

wall from which Keller took clean samples N-1 and N-2. R at 28. Keller argues that the

Agency’s decision was based on the incorrect placement of SB-4 on the map contained in its

plan. Keller states that SB-4 was placed directly north of E-1 at the site and submitted revised

maps showing correct location of SB-4. R at 170. Keller submitted four revised location maps.

R at 213-216. However, the Agency notes that the revised map submitted by Keller prior to

Agency’s final decision still showed SB-4 in the same location as the original map. Agency

Brief at 11.

The Board notes that, while in three of the four revised maps Keller moved the location

of SB-4 east of the original location and north of sample E-1, Keller did not change the location

of SB-4 in one of the revised maps entitled “Proposed Soil Boring Location Map.”

See

R at 214.

This map has the most recent revision date of January 22, 2007. At hearing, Keller’s consultant,

Mr. Jeff Wienhoff, admitted that as a result of a clerical error only some of the maps were

revised to reflect the proper location of SB-4. Tr. at 152-153. While the Board recognizes that

clerical errors do happen in preparing site remediation plans, the Board notes that Keller had an

opportunity to rectify the error in revised maps but did not do so until the hearing. The Board

agrees with the Agency that the Agency must rely on the information in the administrative record

to make its decisions. The location of soil boring SB-4 was clearly shown to be close to the

clean excavation wall samples N-1 and N-2 both in the original map and in map last revised on

January 22, 2007, and submitted by the petitioner prior to the Agency’s final decision. AR. at

28, 214. In light of this, the Board agrees with the Agency that soil boring SB-4 exceeded the

minimum requirements of the Act and Board regulations.

Soil Boring SB5

The Agency also rejected Keller’s plan because SB-5 exceeded the minimum

requirements of the Act and the Board regulations. Specifically, the Agency concluded that no

contamination was found in the excavation wall samples D-8 taken during the early action in the

area near of SB-5. Agency Brief at 11. The Board notes that Keller drilled SB-5 west of the

diesel tank excavation sample D-8.

See

Exh. 11. The Agency maintains that SB-5 should have

been drilled near the piping run and not near the excavation.

Id

.

While Keller agrees that SB-5 was drilled in the wrong location as a result of clerical

error, Keller asserts that the location is appropriate because of the benzene contamination

detected in SB-5. Keller contends that the benzene contamination resulted from overfill at the

diesel UST. Keller Brief at 19. In this regard, the Agency argues that Keller did not show that

the hit for benzene in SB-5 was associated with the diesel UST, particularly since the excavation

wall sample closest to SB-5 was clean. Keller maintains that excavation samples were clean

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because those samples were taken approximately 8 feet below the ground while the soil boring

sample was taken approximately 2.5 feet below the ground surface.

Id

. At hearing, Keller also

argued that SB-5 is appropriately located because there are no other samples to determine

whether contaminants from piping run sample D-10 migrated towards SB-5. Tr. at 134.

The Board notes that the location of SB-5 as shown in the soil boring map is clearly in

the vicinity of excavation sample D-8, which indicated no contamination. R at 28; Exh. 11.

Further, contamination was not found in the excavation sample D-9, which was taken between

D-10 and SB-5.

See

Exh. 11. While the Board agrees that it would have been appropriate to

take additional soil boring samples in the area of the piping run to determine whether

contamination from early action sample D-10 has migrated, SB-5 was drilled in the wrong

location approximately 40 feet away from D-10. Although Keller attempts to justify the location

of SB-5 after admittedly locating the boring in the wrong location, the Board is not persuaded by

Keller’s arguments. The Board finds that detection of benzene by itself does not justify SB-5.

As noted by the Agency, the information in the record is not adequate to link the benzene hit in

SB-5 to the diesel UST. Additionally, as noted by the Agency, the Board finds that SB-5 is not

appropriately located to detect migration of contaminants from piping run sample D-10.

Therefore, the Board finds that the Agency correctly determined that SB-5 exceeds the minimum

requirements of the Act and the Board regulations.

Soil Samples from Monitoring Wells MW-1, MW-2, and MW-4

The Agency claims that the soil samples collected from MW-1, MW-2, and MW-4

exceed the minimum requirements of the Act and regulations. Agency Brief at 13. The Agency

argues that, under Section 734.315(a)(2)(C), monitoring well soil samples must not be analyzed

if other sampling conducted to date indicates that soil contamination does not extend to the

monitoring well boring. The Agency maintains that soil samples from monitoring wells were

unnecessary, since the samples taken from soil borings indicated that soil contamination did not

extend to that area.

Keller responds that it did not have the analytical results of the soil boring samples at the

time it took the monitoring well samples, because the samples from the borings and the wells

were collected on the same day. As such, Keller argues that soil samples for MW-1, MW-2, and

MW-4 are consistent with the requirements of Section 734.315(a)(2)(C). Keller further argues

that the approach taken by its consultant to collect samples from soil borings and monitoring

wells on the same day makes practical sense. Keller maintains that it is more efficient and less

expensive to collect all of the samples during the same trip rather than making several trips to

collect samples and determine where contamination actually ends. Keller Brief at 20-21.

Further, Keller asserts that monitoring well samples could not be held until the analytical

results of soil boring samples were obtained because of the relatively short holding time for UST

soil samples. Keller Brief at 21. Additionally, Keller argues that it sampled the monitoring

wells at issue because there were no soil samples between contaminated early action samples D-

10 and MW-1, P-4 and MW-1, P-4 and MW-2, and D-10 and MW-4, respectively.

Id.

at 21-22.

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45

The Board notes that Section 734.315 sets forth the requirement that the Stage 1

investigation “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 of 35 Ill. Adm. Code 742 for the applicable indicator contaminants.” 35 Ill. Adm.

Code 734.315. Further, regarding soil sampling from monitoring well borings, Section

734.315(a)(2)(C) provides that “the [soil] 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.” 35 Ill. Adm. Code 734.315.

Regarding the collection of soil samples from monitoring well borings, the Agency’s

testimony in Docket R04-23 states that “Subsection 734.315(a)(2)(B) further requires the

collection of soil samples from groundwater monitoring well installation borings that are located

beyond early action soil samples that exceed the Tier 1 remediation objectives. This is necessary

to help determine the horizontal and vertical extent of soil contamination that exceeds the Tier 1

remediation objectives.

See

Regulation of Petroleum Underground Storage Tanks (Proposed

New 35 Ill. Adm. Code 734), R04-22, 23 (Mar. 8, 2004) (prefiled testimony of Mr. Hernanado

Albarracin).

While Section 734.315 sets forth specific requirements for performing soil and

groundwater investigation, this section does not specify the chronological order in which the

various data collection steps must be performed,

i.e

. whether soil investigation must be

completed prior to initiating groundwater investigation. As specified in Section 734.315(b), the

rules delegate the responsibility of implementing the site investigation provisions in accordance

the requirements of Section 734.315 to the Licensed Professional Engineer or Geologist. In this

case, it appears that Keller’s consultant believed that the most efficient and practical manner to

perform soil sampling would be to sample the soil borings and the monitoring wells on the same

day, rather than make multiple trips to the site. Further, since there were no soil sampling results

available to define the extent of soil contamination prior to the sampling date, the sampling of

monitoring well borings is not inconsistent with Section 734.315(a)(2(C). Therefore, the Board

finds that soil sampling of monitoring well borings did not exceed the minimum requirements of

the Act and Board regulations.

Proposed Soil Borings/Monitoring Wells

In addition to determining that a number of Stage 1 soil samples exceeded the minimum

requirements of the Act and regulations, the Agency determined that several proposed soil

borings under Stage 2 are unnecessary. Specifically, the Agency rejected two monitoring well

soil borings and one soil boring east of the tank field and west of monitoring well MW-2; one

monitoring well soil boring south of gasoline pump island; and two soil borings west of the

diesel tank excavation, near soil boring SB-5 and excavation sample D-10. Agency Brief at 14.

The Agency asserts that the proposed borings between the gasoline tank field and MW-2

are not needed since MW-2 exceeds the remediation objectives indicating that contamination

goes beyond the proposed borings. Keller disagrees, stating that the site-specific data obtained

after the completion of the investigation will be used to calculate Tier 2 remediation objectives.

Keller asserts that MW-2 contamination may meet the Tier 2 samples. Keller argues that the

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data from the proposed samples would be useful in terms of reducing the area of the plume that

needs remediation and reducing corrective action costs. Keller Brief at 24. The Board notes that

the Stage 2 site investigation requirements at Section 734.320(a) provides that additional soil

samples must be taken to identify the extent of soil contamination exceeding the most stringent

Tier 1 remediation objectives. As noted by the Agency, Keller has already established that soils

contamination extends beyond the proposed soil borings. In light of this, the Board agrees with

the Agency that additional soil sampling between the gasoline tank field and MW-2 exceeds the

minimum requirement of the Act.

Next, the Agency states that the proposed boring south of the gasoline tank field is not

needed since the wall of the excavation near the proposed boring was clean. Keller argues that

the piping run samples relied upon by the Agency are too shallow to determine if contamination

found at E-1 could have sunk and then migrated beneath the piping run samples. Keller Brief at

25. Keller notes that piping run samples were taken at a depth of 2-3 feet, while E-1 was

sampled at approximately 8 feet. Id. Again, the Board finds that the Agency correctly rejected

the proposed boring south of the gasoline tank field. The Board notes that, in addition to the

clean piping run samples relied upon by the Agency, the Board notes that soil sample S-1

directly south of soil sample E-1 was also clean. Additionally, Stage 1 soil boring SB-1 was also

clean.

Finally, regarding the proposed boring near Stage 1 boring SB-5, the Board agrees with

the petitioner that additional investigation is necessary to delineate the contamination identified

by piping run sample D-10 and soil boring SB-5. While the Board previously found that SB-5

exceeded the minimum requirements of the Act and regulations, the Board noted that it would

have been appropriate to take additional soil boring samples in the area of the piping run to

determine the extent of contamination from early action sample D-10.

See supra

at 43. The

Agency also states that borings should have been drilled in the area of the piping run. Agency

Brief at 11. Further, the Board notes that the additional investigation is consistent with the

requirements of Section 734.320(a), as the extent of contamination has not been delineated west

of D-10. Additionally, the proposed borings are necessary to delineate the extent of benzene

contamination detected at SB-5. As such, the proposed borings in the vicinity of SB-5 do not

exceed the minimum requirements of the Act and the Board regulations.

Stage 2 Site Investigation Budget

The Agency rejected Keller’s budget for Stage 2 investigation of the Site because the

Agency had rejected the underlying plan.

See

R. at 261. Above, the Board found that the record

supports the Agency’s determinations that Keller did not construct monitoring wells in a manner

that allows for sampling at only the desired interval; that soil borings SB-4 and SB-5 exceed the

minimum requirements of the Act and the Board’s regulations; and that proposed additional soil

sampling between the gasoline tank field and MW-2 and south of the gasoline tank field also

exceed those minimum requirements. Above, the Board also found that sampling of borings

from monitoring wells MW-1, MW-2, and MW-4 does not exceed the minimum requirements of

the Act and the Board’s regulations and that proposed additional soil sampling in the vicinity of

SB-5 also does not exceed those minimum requirements. Accordingly, the Board below directs

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47

Keller to submit to the Agency an amended Stage 2 Site Investigation plan and budget consistent

with the terms of his order.

ATTORNEY FEES

Keller has requested that the Board enter an order awarding it attorney fees and costs in

bringing this appeal. Am. Pet. at 6, Keller Brief at 30, Reply at 22. The Board notes that the

Agency’s denial letter states that the Agency rejected Keller’s proposed plan and budget and

could not make a determination regarding a budget until it approves an associated plan. R. at

256-62.

In a recent decision, Webb & Sons, Inc. v. IEPA,

PCB 07-24 (Feb. 15, 2007), the Board

partially affirmed and partially reversed the Agency’s modification of a budget associated with a

high priority corrective action plan. Webb & Sons

, PCB 07-24, slip op. at 14. Specifically, the

Board affirmed the Agency’s rejection of the proposed personnel budget for four positions and

reversed the Agency’s rejection of the 16 remaining job titles in that proposed budget.

Id

. In

considering the petitioner’s request for reimbursement of attorney fees, the Board noted that it

had in effect reinstated proposed personnel costs for those 16 job titles, which comprised 45% of

the originally proposed personnel budget. Webb & Sons

, PCB 07-24, slip op. at 5 (May 3,

2007). Responding to the petitioner’s brief in support of its request for fees, the Agency stated

that it was not difficult to measure the petitioner’s degree of success on appeal and agreed that

awarding no more than 45% of claimed legal fees would be appropriate and consistent with

precedent.

Id.

at 3-4. Noting the facts of the case and the Agency’s position, the Board in Webb

& Sons directed that the petitioner be reimbursed an amount equal to 45% of its claimed legal

fees.

Id

. at 5.

Particularly where the Agency has rejected the plan and associated budget, the Board

lacks such a clear basis on which to consider Keller’s request for fees. The Board therefore

declines to exercise its discretion to order reimbursement of Keller’s attorney fees.

See

415

ILCS 5/57.8(l) (2006).

CONCLUSION

The Board today partially affirms and partially reverses the Agency’s determinations in

rejecting Keller’s proposed plan and budget. Specifically, the Board for the reasons stated above

affirms the Agency by finding that the record supports the Agency’s determination that Keller

did not construct monitoring wells in a manner that allows for sampling at only the desired

interval. The Board also finds that soil borings SB-4 and SB-5 exceed the minimum

requirements of the Act and the Board’s regulations. The Board also finds that proposed

additional soil sampling between the gasoline tank field and monitoring well MW-2 and that

proposed additional soil sampling south of the gasoline tank field exceed the minimum

requirements of the Act and the Board’s regulations.

Also for the reasons stated above, the Board reverses the Agency by finding that

sampling of soil borings from monitoring wells MW-1, MW-2, and MW-4 does not exceed the

minimum requirements of the Act and the Board’s regulations. The Board also finds that

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proposed additional soil sampling in the vicinity of soil boring SB-5 also does not exceed those

minimum requirements. Accordingly, the Board directs Keller to submit to the Agency,

consistent with the terms of this opinion, an amended Stage 2 Site Investigation plan and, if

Keller continues to pursue reimbursement, an associated budget. The Board also declines to

award Keller any legal fees for the reasons discussed above.

ORDER

1.

The Board affirms the Agency’s determinations that Keller did not construct

monitoring wells in a manner that allows for sampling at only the desired interval;

that soil borings SB-4 and SB-5 exceed the minimum requirements of the Act and

the Board’s regulations; and that proposed additional soil sampling between the

gasoline tank field and monitoring well MW-2 and that proposed additional soil

sampling south of the gasoline tank field exceed the minimum requirements of the

Act and the Board’s regulations.

2.

The Board reverses the Agency’s determinations that sampling of soil borings

from monitoring wells MW-1, MW-2, and MW-4 exceeds the minimum

requirements of the Act and the Board’s regulations and that proposed additional

soil sampling in the vicinity of soil boring SB-5 exceeds those minimum

requirements.

3.

The Board directs Keller to submit to the Agency an amended Stage 2 Site

Investigation plan consistent with the terms of this opinion and, if Keller

continues to pursue reimbursement, an associated budget.

4.

The Board declines to award Keller any legal fees.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006); see also 35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520; see also 35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on December 6, 2007, by a vote of 4-0.

___________________________________

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John T. Therriault, Assistant Clerk

Illinois Pollution Control Board