ILLINOIS POLLUTION CONTROL BOARD

AGENCY’S RESPONSE
KELLER’S REPLY
BOARD DISCUSSION AND CONCLUSION

March 20, 2008

L. KELLER OIL PROPERTIES,

INC./FARINA,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 07-147

(UST Appeal)

ORDER OF THE BOARD (by A.S. Moore):

On June 27, 2007, L. Keller Oil Properties, Inc./Farina (Keller) filed a petition seeking

the Board’s review of a May 17, 2007 determination of the Illinois Environmental Protection

Agency (Agency).

See

415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 105.404. The Agency

rejected Keller’s Stage II Site Investigation Plan and Budget regarding an underground storage

tank (UST) site at 1003 West Washington Avenue, Farina, Fayette County (Site).

In an order dated December 6, 2007, the Board partially affirmed and partially reversed

the Agency’s determinations in rejecting Keller’s proposed plan and budget. In resolving one of

the contested issues, the Board affirmed the Agency by finding that the record supported the

Agency’s determination that Keller did not construct monitoring wells in a manner that allows

for sampling at only the desired interval. Accordingly, the Board directed Keller to submit to the

Agency an amended Stage II Site Investigation plan and budget consistent with the terms of its

opinion and order.

On January 11, 2008, Keller filed a motion to reconsider and request for oral argument

(Mot.), accompanied by a brief in support of its motion (Brief). On January 18, 2008, the

Agency filed its response to petitioner’s motion for reconsideration and request for oral argument

(Resp.). On January 29, 2008, Keller filed a motion for leave to file a reply (Mot. Leave) in

support of its motion for reconsideration, accompanied by its reply (Reply).

For the reasons stated below, the Board denies Keller’s motion for reconsideration and

affirms its December 6, 2007 opinion and order in its entirety. In addition, the Board denies

Keller’s request for oral argument.

PRELIMINARY MATTER

In its motion for leave to file a reply in support of its motion for reconsideration, Keller

argues that, if it is not granted leave to reply to claims and arguments made in the Agency’s

response to the motion, it will suffer material prejudice. Mot. Leave at 2. The Board’s

procedural rules provide 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 . . .

in its disposition of the motion.” 35 Ill. Adm. Code 101.500(d). The Board has received no

response to Keller’s motion for leave to file a reply. The Board grant’s Keller’s motion for

leave, accepts the reply filed with its motion, and below summarizes the arguments made in the

reply.

KELLER’S MOTION TO RECONSIDER

Keller’s motion seeks the Board’s reconsideration of the portion of its December 6, 2007

opinion and order affirming the Agency’s determination that monitoring wells at the Site were

not constructed in a manner that allows for sampling at only the desired interval and that Keller

therefore did not comply with Stage 1 groundwater monitoring requirements. Mot. Leave at 2;

see

Brief at 2. As the basis for its motion, Keller cites “newly discovered evidence, errors in the

Board’s previous application of existing law, and facts in the Record that the Board appears to

have overlooked.”

. Keller also seeks reconsideration of the Board’s denial of attorney fees

and requests oral argument before the Board.

. at 3

In support of its argument that the Board should reconsider its decision that the

monitoring wells at the Site were not constructed in a manner that allows for sampling at only

the desired interval, Keller lodges seven distinct arguments. First, Keller claims that the Board

applied the term “desired interval” in a manner inconsistent with the rules of regulatory

interpretation and with the Board’s regulations when read as a whole. Brief at 25-33. Second,

Keller argues that the Board’s application of the term “desired interval” is not consistent with 35

Ill. Adm. Code 734.430(a) or with the evidence in the record.

. at 34-36. Third, Keller argues

that the record does not support the conclusion that screening monitoring wells at the static

groundwater level is reasonable for detecting the presence of petroleum indicator contaminants

because those contaminants are lighter than groundwater.

. at 36-40. Fourth, Keller argues

that the Board’s opinion and order is not consistent with accepted principles of professional

geology and therefore is not consistent with 35 Ill. Adm. Code 734.510(a).

. at 40-42. Fifth,

Keller claims that the record demonstrates that groundwater at the Site exists under confined

conditions.

. at 43-46. Sixth, Keller claims that the Board erroneously accepted the Agency’s

conclusion that results of hydraulic conductivity testing are consistent with the silty clay unit at

the Site being a groundwater-producing layer.

. at 46-48. Finally, Keller disputes the Agency’

and Board’s conclusion that, even after setting the well screen above the static water level, the

well screen interval would have provided adequate collection of groundwater samples.

. at 48-

51. In support of this argument, Keller refers to installation of a new monitoring well on

December 6, 2007.

. at 49-50;

see

Brief at Appendix A (showing December 11, 2007 drilling

date)

In addition, Keller argues that the Board should reconsider its rejection of Keller’s

request for attorney fees and costs. Brief at 51. Keller further argues that it should be permitted

to file a brief addressing the fees and costs related to issues on which it has prevailed before the

Board and which it may be entitled to recover.

. at 52.

AGENCY’S RESPONSE

The Agency argues that Keller has failed to establish any criterion that might justify

reconsideration of the Board’s December 6, 2007 opinion and order. Resp. at 2. First, the

Agency claims that Keller has not presented newly-discovered facts or evidence and “is merely

attempting to re-argue issues that were already raised and briefed” before the Board issued its

opinion and order.

. The Agency argues that, although Keller attempts to introduce as new

evidence the drilling of a new well, reference to the new drilling should be struck because the

drilling was not before the Agency when it made its determination and is not relevant.

. at 4.

Second, the Agency argues that there is “no justification” for granting Keller’s motion to

reconsider on the basis that the Board misapplied the law. Resp. at 2. Although noting Keller’s

seven arguments on this point, the Agency claims that the Board faced these arguments in

Keller’s pleadings and at hearing and addressed them in its opinion and order.

. at 3. Third,

the Agency argues that Keller’s motion “is not premised on any changes in the applicable law

since the date of the Board’s decision.”

. at 2. Finally, the Agency argues that oral argument

is not appropriate to address a claim that there is newly-discovered evidence and where Keller

has had a full hearing of its issues and arguments before the Board.

. at 4-5.

KELLER’S REPLY

Keller states in its Reply that it bases its motion to reconsider on four chief arguments.

First, Keller argues that the Agency misrepresented to the Board that the silty clay layer at the

Site is a water-bearing unit and that Keller failed to explain that groundwater at the Site was

under hydrostatic pressure. Reply at 2. Second, Keller argues that the Board should consider the

new monitoring well drilled in December 2007, which it claims to have installed and screened

according to the terms of the Board’s opinion and order.

. at 3-5;

see

Brief at Appendix A.

Keller further argues that the Board should consider this new monitoring well as newly-

discovered evidence. Reply at 6-7. Third, Keller claims that, if the “desired interval” is to be

interpreted as that static water level in the monitoring well, “it would be impossible as a matter

of law and fact to apply the Agency’s interpretation of ‘desired interval’ universally . . . .”

. at

9. Fourth, Keller argues that installation of monitoring wells at the Site according to the

Agency’s position would result in violation of Board regulations.

. at 10, citing 35 Ill. Adm.

Code 734.430.

In addition, Keller renews its request for reconsideration with regard to attorney fees and

also renews its request for oral argument before the Board. Reply at 13.

BOARD DISCUSSION AND CONCLUSION

A motion to reconsider may be brought “to bring to the [Board’s] attention newly

discovered evidence which was not available at the time of the hearing, changes in the law or

errors in the [Board’s] previous application of existing law.” Citizens Against Regional Landfill

v. County Board of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), citing

Korogluyan v. Chicago Title & Trust Co.

, 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st

Dist. 1991);

see also

35 Ill. Adm. Code 101.902.

In its motion, Keller emphasizes data submitted as Appendix A, a “Report on

Construction of MW-2A,” which is dated January 10, 2008, and which refers to borehole drilling

begun and completed on December 11, 2007.

See

Mot. at 5, Mot. at Appendix A;

will be based exclusively on the record before the Agency at the time the Agency issued its

determination.” Keller Oil Properties, Inc./Farina v. IEPA, PCB 07-147, slip op. at 1 (July 12,

2007), citing 35 Ill. Adm. Code 105.412. In its opinion and order dated December 6, 2007, the

Board addressed its standard of review by stating that it “will not consider new information that

was not before the Agency prior to its final determination regarding the issues on appeal.”

Keller, PCB 07-147, slip op at 40, citing Kathe’s Auto Service Center v. IEPA, PCB 95-43, slip

op. at 14 (May 18, 1995).

In considering Keller’s motion for reconsideration, the Board need not determine whether

the material submitted by Keller as Appendix A to its motion for reconsideration constitutes

newly-discovered evidence. If it is new, it could not have been before the Agency at the time of

its final determination and lies beyond the Board’s review on appeal. If it does not constitute

new evidence, it cannot serve as the basis for reconsideration of the Board’s December 6, 2007

opinion and order.

In this regard, the Board notes that its December 6, 2007 opinion and order directed

Keller to submit an amended Stage 2 Site Investigation plan to the Agency. The Board declines

to review the material submitted by Keller as Appendix A to its motion for reconsideration,

which appears to be information that the Agency would first consider as an element of an

amended plan.

See

415 ILCS 5/57.7(a) (2006).

In addressing the issue of monitoring wells in its December 6, 2007, opinion, the Board

indicated that “the Agency’s review is generally limited to the information submitted by the

petitioner” and that “the Board’s review of the Agency’s determination is also limited to the

information in the Agency’s administrative record.” Keller, PCB 07-147, slip op at 41. After the

opinion noted that Keller’s response to the Agency’s October 5, 2006 determination had not

addressed the Agency’s concerns regarding well screen placement, the Board concluded that “the

plan submitted to [the] 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).”

. at 42.

While it has reviewed the parties’ arguments on the motion for reconsideration, the Board

is not persuaded that the conclusion above regarding the plan submitted to the Agency by Keller

constitutes an erroneous application of the existing law or that it overlooked facts in the record.

As stated above, the Board need not determine whether the material submitted by Keller as

Appendix A to its motion for reconsideration constitutes newly-discovered evidence.

Furthermore, Keller has not based its motion for reconsideration on a change in the law.

See

Mot. at 2, 6.

For the reasons stated above, the Board denies Keller’s motion for reconsideration and

affirms its December 6, 2007 opinion and order in its entirety. In addition, the Board denies

Keller’s request for oral argument.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on March 20, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board