BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DICKERSON PETROLEUM,
INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 09-87
PCB 10-05
(UST
Appeal)
(Consolidated)
NOTICE OF FILING
TO:
Mr. John T. Therriault
Assistant Clerk
Illinois
Pollution Control Board
James
R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
Carol Webb, Esq.
Hearing
Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, lIlinois 62794-9274
(VIA U.S. MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board a
POST -HEARING BRIEF
directed to the Illinois
Pollution Control Board, copies of which is herewith served upon you.
Dated:
October 26, 2009
Edward W. Dwyer
Monica T. Rios
HODGE DWYER
&
DRIVER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217)
523-4900
Respectfully submitted,
DICKERSON PETROLEUM, INC.,
Petitioner,
One
of Its Attomeys
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, October 26, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DICKERSON PETROLEUM, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 09-87
PCB 10-5
(UST
Appeal)
(Consolidated)
POST-HEARING BRIEF
NOW COMES Petitioner, DICKERSON PETROLEUM, INC. ("Petitioner") by
and through its attorneys, HODGE DWYER
&
DRIVER, and pursuant to the Hearing
Report, dated September
16, 2009, submits its Post-Hearing Brief, and hereby states as
follows:
I.
INTRODUCTION
Petitioner
was the owner of underground storage tanks ("USTs") formerly located
at
Upper Cahokia Road, Cahokia, Illinois ("Site"), prior to their removal on May 14,
2008. Hearing Transcript,
Dickerson Petroleum, Inc. v. Illinois
, PCB Nos. 09-87,
10-05 (consolidatcd) at 19 (Ill.PoI.Control.Bd. Sept. 25, 2009) (hereafter cited as "Tr.").
On
January 18, 2008, during a preliminary investigation of the Site, which included
visual and olfactory observations and photo ionization detector
("PID") measurements of
a release, Petitioner's consultant, in accordance with applicable Illinois Pollution Control
Board ("Board") and Office of the State Fire Marshal ("OSFM") requirements, notified
the Illinois Emergency Management Agency
("lEMA") of a release from the USTs.
Record at 1-2 ("hereafter cited as "R."). IEMA assigned the release Incident No.
Electronic Filing - Received, Clerk's Office, October 26, 2009
20080084. !d.
Petitioner received an Eligibility and Deductibility determination from
OSFM on April 4, 2008. R. at 89-90.
Herlacher Angleton and Associates ("HAA"), the consultant retained by
Petitioner to perfOlm the preliminary investigation at the Site, submitted a 20-Day
Certification, 45-Day Report ("Rep011"), and 45-Day Report Addendum ("Addendum")
to the Illinois Environmental Protection Agency ("Illinois EPA") for the above-
referenced leaking
UST ("LUST") incident. Tr. at 18-20; R. at
37, and 222. Based
upon analytical results
of the confirmation samples taken after removal of the USTs and
contaminated soils during early action, the Addendum requested that the Illinois
EPA
issue Petitioner a No Further Remediation Letter. R. at 49-50. By letter dated March 9,
2009, the Illinois EPA determined that based on the Report, "the incident is not subject to
Ill. Adm.
Code 734, 732, or 731." R. at
110-111;
Exhibit
A,
Amended Petition for
Review,
Dicken.,'on Petroleum, Inc. v. Illinois EPA,
PCB No. 09-87 (Ill.Pol.Control.Bd.
May 26,2009) ("Amended Petition"). In addition, the Illinois EPA stated in
to
the Addendum,
"[b]ased on the above findings regarding the April 25th 45-Day RepOli,
the Illinois
EPA finds that the September
2008 45-Day Report Addendum falls outside
the jurisdiction and scope
of the Leaking Underground Storage Tank Program."
ld.
On January 15,2009, Petitioner submitted an application for payment from the
UST Fund to the Illinois EPA for costs incurred during the early action period from
January 18,
2008 to September 5, 2008. R. at 122. The application requested
reimbursement
of costs totaling $84,090.69. R. at 122, 125. By letter dated June 10,
2009,
the Illinois EPA detennined that "[b ]ased on the information currently in the
Illinois
EPA's possession, this incident is not subject to Title XVI: Petroleum
2
Underground Storage Tanks of the Act and 35 Ill. Adm. Code 734, 732, or 731." R. at
112-114; Exhibit A, Petition for Review,
Dickerson Petroleum, Inc. v. Illinois EPA,
PCB
No. 10-05 (IlI.PoI.ControI.Bd. July 7,2009). The Illinois EPA concluded, "[t]herefore,
the Illinois EPA's [sic] has determined that this claim cannot be reviewed and a voucher
cannot be prepared for submission
to the Comptroller's Office for payment."
!d.
The issues on appeal concern the Illinois EPA's erroneous determination that the
above-referenced release
is a Non-LUST incident that is not subject to the applicable
Illinois statutes and regulations governing USTs. Both the March 9, 2009 and June 10,
2009 decision Letters (hereafter "Letter" or "Letters") from the Illinois EPA are deficient
because each fails to provide the statutory
or regulatory basis for the determination that
the release was a
Non-LUST incident. In addition, as discussed in more detail below, the
Illinois
EPA has stated that the release was excluded from LUST regulation because there
were no laboratory analytical results
of soil samples showing contamination exceedances
above Tier
I
remediation objectives ("ROs") to confinn the release. The Illinois EPA's
explanation for excluding the release from LUST regulation is erroneous as there are no
statutory or regulatory requirements that mandate laboratory analysis of soil or
groundwater samples to confinn a release
fi'om a regulated UST. The Petitioner
con finned the release in accordance with OSFM regulations, incorporated by reference in
the Board's regulations at 35 III Admin. Code Part 734, and thus, the release discussed
above
is subject to LUST Program requirements.
II.
BACKGROUND FACTS
As noted above, HAA was retained by the Petitioner to conduct a preliminary site
investigation at the
Site. Tr. at 20. On January 18,2008, during the preliminary
3
Electronic Filing - Received, Clerk's Office, October 26, 2009
investigation, Mr. Tom Herlacher of HAA used a hand auger to collect a soil sample
from the backfill around the two
10,000 gallon USTs at the Site. R. at 14; Tr. at 20. The
soil sample had a petroleum odor, and vapors from the sample triggered the
PID alarm,
which was set to trigger at 1,000 ppm, indicating soil contamination.
R.
at 14-15; Tr. at
25-27. Based on his visual and olfactory observations of the soil sample, as well as the
PID measurement, Mr. Herlacher, at the request of the Petitioner, notified IEMA of a
release at the
Site. Tr. at 28.
In accordance with the Board's UST regulations, HAA submitted a 20-Day
Certification and the Rep0l1 to the Illinois EPA on January 25, 2008 and April 25,2008,
respectively.
R.
at 3, 222. The Report, which was accepted by the Illinois EPA, stated
that the release at the
Site appeared to be the result of spills and overfills and that the
USTs at the Site were scheduled to be removed. R. at 11, 13-14. The Illinois EPA
granted BAA's request to extend the early action period until June 15,2008.
R.
at 226-
BAA requested a second extension, which was also granted by the Illinois
EPA,
extending the early action period until September 1 2008.
R.
at 231-233.
On May 14, 2008, two USTs were removed from the Site. R. at 44. Mr. Kent
Gelarden, the
OSFM storage tank safety specialist ("STSS"), was on site during the
removal.
R. at 44; Tr. at 105. During excavation activities, HAA used a PID to measure
for the presence of volatile organic chemicals ("VOCs").
I
Tr. at 102. As contaminated
soils were removed from the
UST cavity, HAA used the PID to measure the contaminant
levels in order to detemline when applicable ROs were met. Tr. at 103, 108-109.
I
VOCs include Benzene, Toluene, Ethylbenzene and Xylene ("BTEX"). The indicator contaminants for a
petroleum release from a UST include BTEX.
See
35 Ill. Admin. Code § 734.405(b).
4
Electronic Filing - Received, Clerk's Office, October 26, 2009
Multiple
PID
measurements in the range of 100 to 1,000 ppm indicated that the soil was
contaminated. Tr. at
100, 102-104, and 108-110. Eventually, over 748 tons of
contaminated material was removed and transported to a landfill for disposal. R. at 49.
After the contaminated soil was removed,
HAA collected post-excavation confirmation
samples which were submitted to an accredited laboratory for analysis in accordance with
35
III. Admin. Code § 734.210(h)(1). R. at 49.
Once UST removal activities were completed at the Site, HAA submitted the
Addendum to the Illinois
EPA on September 5, 2008. R. at 37.
In
the Addendum, HAA
requested that the Site be classified as requiring no further remediation because the
results from the laboratory analysis
of confirmation soil samples indicated that there were
no exceedances above the applicable Tiered Approach to Corrective Action Objectives
("TACO") Tier 1 residential ROs for soil. R. at 49-50. The laboratory analytical results
were included in a table in the Addendum.
R. at 51.
As stated above, on March 9, 2009, the Illinois EPA issued Petitioner a Letter
stating that
"[b ]ased on the above findings regarding the April 25th 45-Day Report, the
Illinois
EPA finds that the September 5,2008 45-Day Report Addendum falls outside the
jurisdiction and scope
of the ... [LUST] Program." R. at
110-111.
The Illinois EPA's
Letter did not identify any specific statutory or regulatory section supporting this
determination. After the receipt
of the March 9, 2009 Letter, HAA personnel had several
conversations with Illinois
EPA personnel, who indicated that the Illinois EPA was
excluding the release from LUST regulation because there was no laboratory analysis of
soil samples confirming the release. Tr. at 51-52. Subsequently, on June 10,2009, the
5
Illinois EPA issued a Letter, similar to the March 9, 2009 Letter, stating that the
reimbursement application for the early action activities at the Site was rejected because
the release was a Non-LUST incident.
R.
at 112-114.
Petitioner filed timely appeals
of the March 9, 2009 and June 10, 2009 final
decisions Letters with the Board. On August 6,2009, the Board consolidated the appeals,
and on September 16,2009, the Board held a hearing in this matter.
At hearing, Mr. Tom
Herlacher and Mr. James Foley
of HAA testified on behalf of the Petitioner. Mr. Jay
Gaydosh, the project manager for the Site, testified on
behalf of the Illinois EPA.
III.
STANDARD OF REVIEW
The Illinois Environmental Protection Act ("Act"), 415 ILCS
5/1, et seq.,
provides that
an owner or operator may appeal an Illinois EPA disapproval or
modification
of a plan or report to the Board pursuant to Section 40 of the Act. 415 ILCS
5/57.7(c)
and 57.8(i). "Under Section 40 of the Act, the Board's standard of review is
whether the application as submitted to the
would not violate the Act and Board
regulations.
Illinois Ayers Oil Company, v. Illinois EPA,
PCB No. 03-214
(Ill.PoLControLBd. Apr.
1,2004)
("Ayers Oil
")(citing
Browning Ferris Industries of
Illinois v. PCB,
179 Ill. App. 3d 598, 534 N.E.2d 616 (2nd Dist. 1989». The Illinois
EPA's denial Letter "frames the issue on appeal."
Ayers Oil
(citing
Kathe 's Auto Service
Center
v. Illinois EPA,
PCB No. 96-102 (Ill.PoI.Control.Bd. Aug. 1,1996». The"Board
does not review the Agency's decision using a deferential manifest-weight of the
evidence
standard."
Id.
6
IV.
ILLINOIS EPA'S FINAL DECISION LETTERS FAIL TO COMPLY
WITH ACT AND BOARD REQUIREMENTS
Section 734.505(b) provides,
in
part:
If the Agency rejects a plan, budget, or report or requires modifications,
the written notification must contain the following infollnation,
as
applicable:
1)
An explanation of the specific type of information, if any,
that the Agency needs to complete its review;
2)
An explanation of the Sections of the Act or regulations
that may be violated
if the plan, budget, or report is
approved; and
3)
A statement of specific reasons why the cited Sections of
the Act or regulations may be violated if the plan, budget,
or report is approved.
35 Ill. Admin. Code
§
734.505(b)(1) - (3);
see also
Hearing Exhibit 2. The Illinois EPA
failed to include the required explanations, as enumerated in Section 734.505(b)(1) -- (3),
in the March
9,2009 and June 10,2009 final decision Letters. The Letters merely stated
that the incident was not subject
to Title XVI of the Act or Parts
1,
or 734 of the
Board's regulations.
R. at 110-114. As discussed below, the absence of any citation to
specific re,brulations and specific reasons for the denial is because there was and is no
such basis for the denials. Rather, as admitted by Mr. Jay Gaydosh at hearing and his
supervisor Mr. Harry Chappel during a telephone conference with Mr. Tom Herlacher
after the March 9,
2009 Letter issued, the basis for the denials is an unpromulgated policy
that laboratory analytical results showing the presence of indicator contaminants, i.e.
BTEX at greater than Tier 1 ROs, is required to confirm a release from a UST. Further,
and for the first time
at hearing, Mr. Gaydosh identified an initial step involving whether
7
Electronic Filing - Received, Clerk's Office, October 26, 2009
a release is indicated on the OSFM STSS UST Removal Log as having a role in
confirming a release.
At hearing, Mr. Herlacher testified, on behalf
of the Petitioner, that upon review
of the March 9, 2009 Letter, he understood that the Illinois EPA was rejecting the Report,
but he could not determine a specific reason why it was rejected. Tr. at 35. He further
testified that there was
no indication in the March 9, 2009 Letter of the specific type of
information the Illinois EPA might need to complete its review and no explanation of the
provisions
of the Act or Board regulations that might be violated if the Report was
approved. Tr. at 37-38. This testimony is uncontroverted and corroborated by Mr.
Gaydosh at the hearing in this matter.
Indeed, Mr. Jay Gaydosh, who testified on behalf
of the Illinois EPA, confirmed
that the March
9,2009 Letter did not contain references to Section 734.210
2
or Sections
170.560 and 170.580
3
of the OSFM's regulations. Tr. at 142-143. Further, he could not
provide a particular reason why the March 9,
2009 decision Letter did not provide any
explanation about why the Report was being rejected and why the
Site was being deemed
a
Non-LUST incident. Tr. at 143.
It is clear from the testimony provided by the Illinois EPA's witness, as well as
the Letters, that the Illinois EPA failed to comply with the requirements of Section
734.505(b) (1) - (3) when it issued the March 9,2009 and June 10,2009 Letters that
deemed the release a
Non-LUST incident without providing a detailed explanation for
2 As discussed below, at hearing, Mr. Herlacher testified that Mr. Gaydosh informed him that compliance
with Section 734.210(h)(2)
was required. Tr. at 39-40.
The Board requires confirmation of a release in accordance with Part 170 of OSFM's regulations. 35 Ill.
Admin. Code
734.115 and 734.210(g).
8
Electronic Filing - Received, Clerk's Office, October 26, 2009
such decisions. Because the Illinois EPA did not comply with the Board's regulations,
the Illinois
EPA's Letters are deficient. The deficient Letters are evidence, as discussed
in detail below, that the Illinois
EPA did not have a legitimate reason on which to base its
detennination that the release was a
Non-LUST incident. Accordingly, the Board must
find that both final decision Letters are arbitrary, capricious, and without statutory or
regulatory authority.
V.
THE ACT AND REGULATIONS DO NOT REQUIRE LABORATORY
ANAL YSIS TO CONFIRM A RELEASE FROM A REGULATED UST.
The Illinois EPA detem1ined that the release at the Site was a Non-LUST incident
because the
Petitioner did not (1) submit laboratory analysis showing (2) an exceedance
of indicator contaminants above Tier I ROS.
4
R. at 94; Tr. at 51
129-130. Curiously,
Mr. Gaydosh could provide no explanation why this basis for denial was not in the
Letters.
The simple answer for the absence from the Letters is that there is no regulatory
basis for this
"requirement" for confirmation of a release. At hearing, Mr. Gaydosh was
unable
to provide a statutory or regulatory citation that requires that owners or operators
of USTs submit laboratory analysis to confirm a release. In fact, he agreed that Sections
170.560
and 170.580 of OSFM's regulations do not require that soil or other media be
sent for laboratory analysis to
confil111 a release. Tr. at 142. Similarly, he offered 110
statutory or regulatory authority mandating that a confinned release exceed Tier I ROs.
This becomes even clearer from the review of applicable regulations.
4 At hearing, for the first time, Petitioner learned that there is another step to confirming a release involving
the
UST Removal Log completed the OSFM STSS. The Illinois EPA's two-step policy is discussed in
detail in subsequent sections ofthi5 Brief.
9
Section 734.210 governs early action activities. 35 Ill. Admin. Code § 734.210.
The Board regulations state in pertinent part in regards to early action activities and the
confirmation
of a release as follows:
a)
Upon confirmation of a release of petroleum from an UST system
in accordance with regulations promulgated
by the OSFM, the
owner or operator, or both, must perfonn the following initial
response actions within 24 hours after the release:
1)
Report the release to IEMA (e.g., by telephone or
electronic mail);
* * *
d)
Within 45 days after initial notification to IEMA of a release plus
14 days, the owner or operator must assemble infonnation about
the site and the nature
of the release, including information gained
while confinning the release or completing the initial abatement
measures in subsections (a) and (b) of this Section. This
information must include, but
is not limited to, the following:
1)
Data on the nature and estimated quantity of
release;
2)
Data from available sources or site investigations
concerning the following factors: surrounding
populations, water quality, use and approximate
locations
of wells potentially affected by the
release, subsurface
soil conditions, locations of
subsurface sewers, climatological conditions and
land use;
3)
Results
of the site check required at subsection
(b)(
5) of this Section; and
4)
Results
of the free product investigations required at
subsection (b)(
6) of this Section, to be used by
owners or operators to determine whether free
product must
be recovered under Section 734.215 of
this Patio
e)
Within 45 days after initial notification to IEMA of a release plus
14 days, the owner or operator must submit to the Agency the
10
Electronic Filing - Received, Clerk's Office, October 26, 2009
infOlwation collected in compliance with subsection (d) of this
Section in a manner that demonstrates its applicability and
technical adequacy.
* * *
g)
For purposes of payment from the Fund, the activities set forth in
subsection
(f)
of this Section must be performed within 45 days
after initial notification to IEMA
of a release plus 14 days, unless
special circumstances, approved by the Agency in writing, warrant
continuing such activities beyond 45 days plus 14 days. The
owner or operator must notify the Agency in writing
of such
circumstances within 45 days after initial notification to IEMA
of a
release plus
14 days. Costs incurred beyond 45 days plus 14 days
must be eligible
if the Agency determines that they are consistent
with early action.
BOARD NOTE: Owners or operators seeking payment from the
Fund are to first notify
IEMA of a suspected release and then
confinn the release within
14 days to IEMA pursuant to
regulations promulgated
by the OSFM. See 41 Ill. Adm. Code
170.560 and 170.580. The Board is setting the beginning of the
payment period at subsection (g) to correspond to the notification
and confirmation to IEMA.
35
m.
Admin. Code § 734.210(a), (d) -(e), (g). (Emphasis added.) Petitioner timely
submitted its Report and Addendum to the Illinois
EPA in accordance with the
requirements
of Section 734.21O(d) and (e). R. at 4,37. The Report and Addendum
address the requirements
of Section 734.21 OC d) and ( e), and the Letters issued by the
Illinois
EPA determining that the release was a Non-LUST incident, do not provide
otherwise.
As referenced in
Section 734.21O(g), Section 170.560 ofOSFM's regulations
states, in part:
Owners or operators of UST systems shall report to Illinois Emergency
Management Agency within 24 hours and follow the procedures in
Section 170.580 for any of the following conditions:
11
Electronic Filing - Received, Clerk's Office, October 26, 2009
a)
The discovery by owners, operators or others of released
regulated substances at the
UST site or in the surrounding
area (such
as the presence of free product or vapors in soils,
basements, sewer
or utility lines or nearby surface water);
41 Ill. Admin. Code § 170.560(a). (Emphasis added.) In addition, Section 170.580
provides requirements for release investigation reporting,
site assessment, and initial
response.
41 IlL Admin. Code § 170.580;
see
Hearing Exhibit 5. The above-referenced
regulations
do not include any requirements that an owner or operator of a UST submit
laboratory analyticals showing exceedance
of indicator contaminants above Tier 1 ROs to
confirm a release. Hearing Exhibits
3,4, and 5.
A.
Illinois
EPA's Secret Two-Step
Policy on Confirmation of
a Release
from
a UST
Part
734 of the Board's regulations defines "confirmation ofa release" and
"confinned release" as follows:
"Confirmation of a release" means the confirmation of a release of
petroleum in accordance with regulations promulgated by the Office of the
State Fire Marshal at 41 IlL Adm. Code 170.
"Confirmed Release" means a release of petroleum that has been
confirmed in accordance with regulations promulgated
by the Office of the
State Fire Marshal at 41 Ill. Adm. Code 170.
35
IlL Admin. Code § 734.115. As referenced above, Section 734.21O(g) requires
owners or operators to confirm a release in accordance with Sections 170.560
and
170.580 ofOSFM's regulations. Hearing Exhibits 3, 4 and 5. As set forth above, neither
the Act nor Board
or OSFM regulations require the owner or operator to submit
laboratory analysis showing contaminant exceedances above Tier I
ROs in order to
confinn a release from a petroleum UST.
Id.
12
At hearing, Mr. Herlacher testified that Mr. Gaydosh informed him, during a
telephone conversation
on March 10,2009, that the Report was rejected because HAA
did not "confirm the release in accordance with [A]gency regulations." Tr. at 39.
Specifically, Mr. Gaydosh directed Mr. Herlacher to Section 734.210(h)(2), which
requires confirmation sampling for USTs abandoned in place. Tr. at 39-40, 144. During
his testimony, Mr. Gaydosh did not deny this statement. However, the
USTs at the Site
were removed, and thus, Section 734.21 0(h)(2) did not apply to the USTs at the Site. Mr.
Herlacher discussed the inapplicability of734.210(h)(2) further with Mr. Gaydosh but
ultimately ended up speaking with Mr. Gaydosh's supervisor. Mr. Herlacher testified
that he had a telephone conversation with Mr. Harry Chappel, a regional subunit manager
in the LUST Program, after his discussions with Mr. Gaydosh. Tr. at 51. Mr. Chappel
informed Mr. Herlacher that the Illinois EPA's "policy" requires laboratory analysis of a
sample indicating contamination above Tier I cleanup objectives to confirm a release. Tr.
at 51
Further, Mr. Herlacher testified that Mr. Chappel stated that such a requirement
is not in Part 734. Tr. at 51. Mr. Gaydosh did not controvert any of this testimony and in
fact acknowledged that this "requirement" for laboratory analysis to confirm a release
from a
US T was part of the Illinois EPA's two-step process for release confirmation. Tr.
at 129-130.
Mr. Herlacher
is a licensed professional engineer, who is licensed in Illinois,
Arkansas, Kentucky, Missouri, Iowa, Oklahoma, and Wisconsin, and has worked on
numerous LUST sites as an environmental consultant in Illinois, Missouri, Indiana, and
Wisconsin. Tr. at 15-17; Hearing Exhibit
1. Mr. Herlacher has extensive experience
with the Illinois
LUST Program and has successfully closed LUST sites in accordance
13
with the Act and Board regulations. In his almost 20 years of experience as an
environmental consultant in Illinois, Mr. Herlacher had never been informed that, in
order to confirm a release from a
UST, laboratory analyticals showing exceedances of
Tier I objectives was "required." Tr. at 40, 79.
It
was not until Mr. Herlacher's
conversations with Mr. Gaydosh and Mr. Chappel that he first learned
of the Illinois
EPA's "policy" requiring laboratory analysis to confirm a release from a UST. Tr. at 40,
79. As discussed above, neither Mr. Gaydosh nor Mr. Chappel could identify a section
of
the Act or Part 734 that requires laboratory analysis to confirm a release. Tr. at 51, 133,
and 151. Mr. Herlacher's testimony regarding his conversations with Mr. Gaydosh and
Mr. Chappel remains uncontroverted.
It is clear from Mr. Herlacher's testimony that the Illinois
EPA had a basis or
"policy" upon which it relied in issuing the Letters rejecting the Petitioner's Report and
Addendum. Equally clear is that it intentionally chose not to provide that
"policy" as the
specific reasons for its rejection
of Petitioner's Report and Addendum in the denial
Letters. More disturbing is its admission at hearing that this policy is not found
in any of
the relevant regulations for confirmation of a release from a UST. Indeed, at hearing, Mr.
Gaydosh identified a new step in the confirmation
of a release involving review of and
reliance on the
OSFM's STSS UST Removal Log.
At hearing, Mr. Gaydosh explained the Illinois
EPA's unpublished and
unpromulgated
"policy" on confirming a release. He testified that a release can be
confirmed in two ways. Tr. at 129-130. Either the
OSFM STSS on site reports a release,
or if the STSS determines that there is no release, the Illinois EPA "normally looks for
14
Electronic Filing - Received, Clerk's Office, October 26, 2009
laboratory analysis to confirm the presence of contaminants above tier 1 objectives." Tr.
at 130. Mr. Gaydosh agreed that in order to confirm a release, an owner or operator has
to comply with
OSFM regulations (Tr. at 131), and admitted that Section 170.560
(I-fearing
Exhibit 4) does not state that laboratory analysis is required to confirm a
suspected release. Tr. at 133. Thus, the Illinois
EPA's secret two-step confirmation
"policy" that Mr. Chappel spoke of with Mr. Herlacher and Me Gaydosh testified to is in
direct contradiction
of the regulatory requirements for confim1ation of a release, which
mandate confirmation
in accordance with OSFM's Part 170 regulations. Moreover, as
noted later, the OSFM STSS determination is neither supported by any regulation nor
reliable
as a release confimlation method.
As noted above, Mr. Gaydosh testified that if the STSS determines that there is no
release, the Illinois
EPA normally looks for laboratory analysis above Tier I ROs. Tr. at
130. However, Board regulations define
"confirmed release" and "confirmation of
in terms of confirmation in accordance with Part 170 of OSFM's regulations,
which make no reference to requiring laboratory analysis above Tier I
ROs to confinn a
release,
as the Illinois EPA claims is required. Tr. at 150-151; Hearing Exhibits 3 and 4.
Thus,
as there are no statutory or regulatory requirements mandating laboratory analysis
showing indicator contaminants above Tier 1
ROs, the Illinois EPA's "policy" requiring
such
is contrary to and indeed
ultra vires
the Act and Board regUlations.
Id.
Accordingly, the Illinois EPA's decision to deem the release in this matter a Non-LUST
incident because Petitioner did not provide laboratory analysis above Tier I ROs to
confirm the release is arbitrary, capricious, not supported by and arguably beyond the
lllinois
EPA's authority set forth in the Act and Board regulations.
15
B.
Tier I ROs Are Not Intended to Be Used to Confirm a Release
Mr. Gaydosh testified that the Illinois EPA's policy requires laboratory analysis
showing exceedances
of Tier I ROs to confirm a release in cases where the STSS has
detennined that there is no release at a site. Tr. at
130. The Illinois EPA, however, as
discussed above, cites no statutory or regulatory basis for such a policy. In any event,
Tier I
ROs are not intended to be used to confirm a release; rather, TACO ROs are used
to detennine when a contaminated site has been remediated to the proper closure level.
The
TACO regulations at 35 Ill. Admin. Code Part 742, were adopted to establish
procedures for developing
ROs that achieve acceptable risk levels to provide adequate
protection
of human health from environmental conditions .. 35 IlL Admin. Code §
742.100. The LUST Program requires owners or operators to develop ROs in accordance
with
Part 742 in order to detenninc the contaminant levels that must be reached in order
to properly close a site. In a Tier I evaluation of a site, the owner or operator compares
the level
of contamination at the site to the Tier I ROs in Part 742 in order to determine
whether the site levels are below the
ROs or whether corrective action is needed to
achieve the Tier I
ROs.
Ill. Admin. Code § 742.11O(b). The Tier I ROs do not
establish levels
of contamination that are required to be present in order to confirm a
release at a site. Tier I
ROs are the levels of contaminant concentrations that must be met
in order to close a site. Thus, the Illinois EPA's policy requiring analytical results
showing exceedances
of Tier I ROs is not only unfounded, but it also applies the Tier 1
ROs to a situation for which they were never intended to be used.
16
Electronic Filing - Received, Clerk's Office, October 26, 2009
Also, the Act and OSFM regulations make no mention of Tier I ROs in their
definitions
of release. The Act broadly defines release as "any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping,
or disposing into the environment ... " 415 ILCS 5/3.395. However, the
Illinois
EPA's unpromulgated two-step confirmation "policy" effectively redefines
"release" in terms of whether the release contaminated the site above Tier I RO levels.
"Release" is clearly not defined as any "spilling, leaking ... or disposing into the
environment above Tier
I
ROs." If a release was required to be above Tier I ROs, the
General Assembly would have provided so in its definition. Also, as discussed above,
"confirmation of release" is defined as confirmation in accordance with Part 170 of
OSFM's regulations. Again, the definition does not include a requirement or
qualification that a release be measured in terms
of the TACO Tier
I
closure levels.
While
in no way acknowledging that the Illinois EPA's "policy" has the force of a
rule, there were laboratory analytical results submitted in the
Petitioner's Addendum
showing that BTEX indicator contaminants were present in soils at the
R. at 51.
HAA remediated the Site to a level at which contaminants satisfied the TACO Tier I RO
requirements and requested a no further action detennination. The table in the
Addendum (R. at 51.), which was before the Illinois
EPA when it issued its Letters,
clearly shows that there was contamination at the Site, and thus, even
ifthe Illinois
EPA's policy requiring laboratory analytical results in cases where the STSS determined
no release was valid, there was evidence
ofBTEX at the Site, which indicates a release
from a
UST did occur.
17
C.
Illinois EPA Failed to Provide Any Support For Its Decision that tbe
Release
at the Site Is a Non-LUST Incident
The Illinois EPA did not provide any supp0l1 for its decision that the release at the
Site
is a Non-LUST incident. In fact, as discussed above and further below, there was
evidence
of a release at the Site, and Mr. Herlacher's and Mr. Foley's testimony
regarding their visual and olfactory observations,
as well as the PID measurements from
the Site, remain uncontested. Both Mr. Herlacher and Mr. Foley clearly stated that based
on their experience and observations
of the Site, there was a release of a petroleum
substance. Tr. at 28, 98-100, and
103. Mr. Herlacher and Mr. Foley testified that there
were no other likely sources
of the VOCs near or at the Site except the UST systems. Tr.
at 66, 94. The Illinois
EPA did not provide any documentary support or testimonial
evidence to contradict the RepOlt, Addendum, or Mssrs. Herlacher's or Foley's testimony
on this issue.
In regards to the final decision Letters, Mr. Gaydosh, on
behalf of the Illinois
EPA, admitted that he did not know why the Letters did not comply with the regulatory
requirements and did not know why the Letters did not include any explanation for the
determination that the release was a
Non-LUST incident. Tr. at 142-143. He failed to
provide any explanation
or justification for why the Letters do not inform Petitioner that
the reason for the
Non-LUST incident determination was due to Petitioner's failure to
submit laboratory analysis showing exceedances above Tier I
ROs.
It
would have been
difficult for Mr. Gaydosh to include the basis for the
Non-LUST incident decision in the
Letters since the Illinois
EPA's basis-that there was no laboratory analysis confinning
the
release-is not required by the Act or LUST regulations. Further, Mr. Gaydosh does
18
not deny that the explanation for the Non-LUST incident determination was only offered
to the Petitioner's consultants after the issuance
of the deficient March 9, 2009 Letter.
Tr. at 143-144.
Although Mr. Gaydosh
is a project manager with the LUST Program and it is his
responsibility to review submittals from UST owners or operators, he is not a
professional engineer, and even though
Mr. Gaydosh may be familiar with LUST
Program
requirements and the Illinois EPA's unpromulgated two-step confirmation
"policy," he was not able to provide a regulatory basis for the Illinois EPA's "policy" or
provide an answer as to what
is required to confirm a release. When repeatedly
questioned on the issue,
Mr. Gaydosh could not identify any statutory provision or
regulatory section
of Part 734 that provides that the detennination of whether a
from an
UST occurred is based on the STSS finding that there was a release or the
submission of analytical results showing an exceedance of Tier I ROs in cases where the
STSS detennines that there was no release.
During his testimony, all that
Mr. Gaydosh could articulate was that a
"measurement of something is required" to confinn a release (Tr. at 141), but when
pressed, Mr. Gaydosh agreed that Sections 170.560 and 170.580
of OSFM regulations do
not state that laboratory analysis is needed to confirm a release. Tr. at 142. Mr. Gaydosh
was repeatedly asked but was unable to provide an answer as to what precisely is needed
under the Board regulations to confirm a release. At this time during the hearing, his
counsel objected that the question had been asked and answered. Tr. at 140. However,
the Hearing Officer, in response to the objection
by the Illinois EPA counsel, noted that
though the question had been asked multiple times, Mr. Gaydosh had not answered. Tr.
19
at 139-140. Mr. Gaydosh, on behalf of the Illinois EPA, never provided a definitive
answer as to what is needed under the regulations to confirm a release. The Illinois
EPA's testimony on its two-step confirmation policy in conjunction with its failure to
provide an answer on what is necessary to confirm a release,
as well as the failure to
provide an explanation in the final Letters, is evidence that the Illinois EPA has created a
two-step policy that is not present in the Board's regulations and is not required
to
confinn a release in accordance with OSFM's Part 170 regulations.
D.
Reliance on OSFM
STSS
UST Release Determinations
On May 14, 2008, Mr. Kent Gelarden, an OSFM STSS, was on Site in order to
observe the removal
of the USTs. Mr. James Foley, the HAA project manager for the
Site, was also at the Site during the UST removal and observed Mr. Gelarden walk out
onto the
USTs in order to check the tanks for explosive vapors. Tr. at 105-106. Mr.
Foley testified that while Mr. Gelarden was testing the USTs for explosive vapors that
Mr. Gelarden was standing
"[a]lmost right on top of' the contamination. Tr. at 107. In
addition, Mr. Foley testified that Mr. Gelarden did not take a soil sample and did not
provide a copy
of the UST Removal Log ("Log") to HAA during his visit to the Site. Tr.
at 107-108. Although Mr. Gelarden was standing nearly
on top of the contamination at
the
Site and did not take a soil sample to confim1 or disprove that a release had occurred,
the Log he completed indicated
"no release" as the "contamination status" of the Site. R.
at 91-92.
Mr. Gaydosh, on
behalf of the Illinois EPA, stated that he did not rely on the Log
in issuing the March
9, 2009 final decision. Tr. at 130. However, he did state that if the
Log contradicted his findings that he would reverse his decision. Tr. at 140-141.
20
Electronic Filing - Received, Clerk's Office, October 26, 2009
Further, Mr. Gaydosh stated several times during his testimony that the first method used
to confirm a release is for the
STSS to determine that a release occurred. Tr. at 130-131,
137-138.
It
is only if the STSS detemlines that there is no release that laboratory analysis
is needed to confirm a release per Illinois EPA's "policy." Tr. at 137-138. However, as
detailed above, Mr. Gaydosh agreed that neither the Act nor Board regulations discuss
the role
of the STSS in release confirmation nor do they require laboratory analysis to
confinn a release. Tr. at 142.
1.
Hearing Exhibits 6 and
7
Since Mr. Gaydosh testified that the Illinois EPA "policy" relies on the STSS
UST
Removal Log to detennine whether a release has occurred and thus, whether
laboratory analysis is required to confinn the release (in the absence
of a UST Removal
Log indicating that a release occurred),
Petitioner sought to introduce certain evidence
bearing on the reliability
of the UST Removal Log as a release confirmation
methodology. Counsel for the Illinois
EPA objected and the Hearing Officer sustained
the objection but allowed
Petitioner to make an offer of proof. Tr. at 74-77. Petitioner
made an offer of proof on the relevance and admissibility of tendered Hearing Exhibits 6
and
7.
The offer of proof provided at hearing for Hearing Exhibits 6 and 7 is sufficient.
The purpose
of an offer of proof is to disclose the nature of the offered evidence to the
trial
judge and opposing counsel, and to give the reviewing court information to
determine whether exclusion of the evidence was erroneous or harmfuL
In re
Romanowski,
329
Ill. App. 3d 769, 773, 771 N.E.2d 966, 970, 265 Ill. Dec. 7 (1st Dist.
2002). An offer of proof must explain "what the offered evidence is or what the expected
21
Electronic Filing - Received, Clerk's Office, October 26, 2009
testimony will be, by whom it will be presented and its purpose."
Id.
at 773;
see also
Lagestee
v. Days Inn Management Co.,
303 Ill. App. 3d 935, 709 N.E.2d 270,237 Ill.
Dec. 284
(lst Dist. 1999) (the purpose of the offered testimony was obvious from
plaintiffs' counsel's statement, so the plaintiffs made a sufficient offer of proof).
Hearing Exhibit
6
consists of a UST Removal Log for the County Line Quick
Shop ("County Line Site") at 2913 Camp Jackson Road, Cahokia, Illinois and a Site
Assessment Report submitted by HAA for the County Line Site as required by a
condition of the OSFM pennit for the removal of piping from the site. Petitioner's
counsel stated that Hearing Exhibit
6
was relevant because the UST Removal Log for the
County Line
Site was prepared by the same OSFM STSS that prepared the Log for the
Site involved in this matter. Tr. at 74. Like the Petitioner's Site, the UST Removal Log
for the County Line
Site indicated that
~-"-===
occurred. However, the Site
Assessment Report submitted to the OSFM for the County Line Site included a table that
showed that there indeed was contamination at the site despite the fact that the
UST
Removal Log indicated no apparent release. Tr. at 74. In addition, Petitioner's counsel
infonned the hearing officer that,
if Mr. Herlacher were allowed to testify regarding
Hearing Exhibit 6, he would state that during the work at the County Line
Site, he spoke
with Mr. Gelarden regarding whether to call in a release showing him contaminated soil
that had been measured with a
PID exhibiting high ppm readings, and Mr. Gelarden
stated that he had already prepared the
UST Removal Log and would not change it
despite seeing a sample demonstrating that there had been a release. Tr. at 74-75.
I-Iearing Exhibit 6 should be admitted as relevant for the above-stated reasons and
because
of the Illinois EPA's testimony on the two methods to confirm a release. Both
22
methods in its two-step "policy" appear to hinge on whether the OSFM STSS determines
whether there was a release and indicated so on the
UST Removal Log. In fact, Mr.
Gaydosh stated at hearing that should the STSS indicate a release occurred, the inquiry
into whether laboratory analysis
is needed ends. Tr. at 137-138. Thus, the Illinois EPA
does rely on OSFM's UST Removal Logs, and Hearing Exhibit 6 demonstrates that UST
Removal Logs indicating no release can be incorrect, as is the case in this matter. Most
importantly, reliance upon
UST Removal Logs prepared by STSS Gelarden, is suspect at
best.
At hearing, the Illinois
EPA also objected to Petitioner's Hearing Exhibit 7, which
consists
of an OSFM UST Removal Log for the Red Bud Oil Company site ("Red Bud
Site") located at 503 North Main, Red Bud, Illinois and the Illinois EPA LUST Incident
Tracking database information pages for the Red Bud
Site. The Hearing Officer
sustained the objection and allowed Petitioner's counsel to make an offer of proof. Tr. at
76. Petitioner's counsel argued that Hearing Exhibit 7 was probative and relevant "with
to whether or not the [F]ire [M]arshaI's log can be relied upon to conclusively
determine whether or not there's been a release at the
site." Tr. at 77. Petitioner's
counsel explained that the UST Removal Log for the Red Bud Site indicates no release;
however, the Illinois
EPA database information shows that early action has been
performed at the Red Bud Site, a site investigation plan has been submitted and approved,
and reimbursement for corrective action costs has been issued to the owner, despite the
fact that the
STSS UST Removal Log states that there was no apparent release. Ir. at 77.
Like Hearing Exhibit 6, Hearing Exhibit 7
is relevant because it demonstrates that
the Illinois EPA has approved corrective action-related plans and reimbursement for
23
corrective action costs at a site where the OSFM STSS determined no release occurred.
Since Mr. Gaydosh's testimony on the two methods to confirm a release is evidence that
the Illinois EPA does rely on the OSFM STSS detennination, Hearing Exhibits 6 and 7
are relevant and should be admitted because they show that
OSFM has been incorrect in
its release determinations.
2.
Use
of the
STSS UST Removal Log
The reliability of the STSS determination is questionable at best given the
examples provided in Hearing Exhibits 6 and 7, as well as the fact that there was
evidence of a release at the Site, and Mr. Gelarden still detennined that no release
occurred. As discussed above, Hearing Exhibits 6 and 7 clearly show that the
STSS has
been wrong in determining whether there was a release at a site. In both examples, the
STSS declared that there was no release, but sampling results showed in the case of
Exhibit 6 that there was a release, and in the case of Hearing Exhibit 7, there is ongoing
remediation at the
and the owner
or operator has been reimbursed from the UST
Fund. Further, Mr. Herlacher testified that the STSS is primarily on site for safety
reasons and not to determine whether there was a release at the site. Tr. at 45. (We note
that this makes sense given the title
"Storage Tank Safety Specialist.") Thus, reliance on
a
STSS detennination of whether a release occurred is misplaced and not authorized or
required by statute
or regulation. From the testimony provided at hearing, it is clear that
the STSS determination is the basis of the Illinois EPA's two-step confirmation policy,
and not only
is such a basis not founded in law, but it is also fundamentally unreliable, as
evidenced by the wrong determinations made by the STSS in this matter, as well as at the
sites in Hearing Exhibits 6 and
7.
24
Electronic Filing - Received, Clerk's Office, October 26, 2009
Equally disturbing is Mr. Herlacher's uncontroverted testimony that, until his
discussion with Mssrs. Gaydosh and Chappel, he was unaware
of the Illinois EPA's two-
step policy
of relying upon the STSS decision and requiring submission of analytical
results for determining whether a release from a
UST occurred. Tr. at 40, 79. As
demonstrated in detail above, there is no support at all in either OFSM or Board
regulations for the Illinois
EPA's upromulgated two-step "policy" of confirming a release
with the use
of the STSS report and/or laboratory analysis showing exceedances above
Tier I
ROs. In this case, in particular, it is unreasonable to rely on the STSS decision
because it appears that Mr. Gel arden could not credibly determine whether a release
occurred, and even when provided evidence
of a release, he was apparently unwilling to
revise and file an accurate UST Removal
at one site. Mr. Foley testified
that Mr.
Gelarden was almost on top
of the soil contamination at the Site. Tr. at 107. Mr. Foley
also testified that petroleum odor was present at the Site on May 14,2009, which was the
same day that the STSS was at the Site. Tr. at 102. Despite indications
of a release at the
Mr. Gelarden reported that there was no apparent release.
R.
at 91.
Although the Illinois
EPA stated that its two-step confirmation policy involves the
STSS release determination, the Illinois
EPA did not present any witnesses from OSFM
to testify regarding STSS duties and the process used in determining whether a release
occurred. There was no testimony on how an STSS
is trained and whether an STSS has
the knowledge and skills
or any equipment to accurately determine whether a release
occurred. In particular, the Illinois
EPA did not present Mr. Gelarden, the STSS in this
case, to substantiate the validity
of his detennination and explain why despite evidence of
a release at the Site, he still reported that there was no apparent release. Accordingly,
25
reliance in any way on the STSS UST Removal Log in this case, or in any matter, as a
basis for confirming a release
is unreliable and should not be deemed reasonable since
there has been no testimony presented by the Illinois
EPA on the qualifications of an
STSS to make a release detemlination, and, as discussed in more detail below, there has
been
no rulemaking process adopting such a policy.
Finally, the Illinois
EPA policy is contradictory in ten11S of its requirement for
laboratory analysis and its reliance on the STSS to detemline a release. The STSS is on
site primarily for safety reasons. Tf. at 45. As Mr. Foley testified, Mr. Gelarden tested
the
USTs for explosivity and was on site during the UST removal. Tf. at 105-107. He
did not take any samples or use any measurement device to deten11ine whether there had
been a release
at the Site.
In
fact, he reported no apparent release, although there were
visual and olfactory indications
of a release at the Site. The Illinois EPA, however, relies
on the
STSS determination of a release, even though the STSS does not provide any data
or measurement to substantiate the claim that a release occurred. This
is in direct
contradiction to the second method
of the Illinois EPA's confin11ation policy requiring
laboratory analysis to confiml that a release occurred. The Illinois
EPA requires no
"measurement" of a release from the STSS, but requires owners and operators to submit
laboratory analysis to confin11 a release. Such a position is suspect at best, especially
considering that Hearing Exhibits 6 and 7,
as well as the STSS decision in this case,
clearly demonstrate that the STSS determination is unreliable.
VI.
EVIDENCE OF A RELEASE AT THE SITE
There is no statutory or regulatory provision requiring that owners or operators of
USTs submit analytical results showing contaminant exceedances above Tier I ROs in
26
Electronic Filing - Received, Clerk's Office, October 26, 2009
order to confiml a release. In this case, Petitioner confirmed the release in accordance
with
OSFM regulations that require notification to IEMA of a suspected release when
there is
"discovery by owners, operators or others of released regulated substances at a
UST site or in the surrounding area (such as the presence of free product, vapors in soils,
basements, sewer or utility lines or nearby surface
water)."
41
Ill. Admin. Code
§
170.560(a). (Emphasis added.) During the preliminary investigation, Mr. Herlacher
collected a soil sample from the
Site that had a petroleum odor and triggered the PID
alarm, which was set to trigger at measurement levels
of 1,000 ppm or greater.
5
Tr. at
18-20,24-27. Thus, based on Mr. Herlacher's experience
as an environmental consultant
and the presence
of vapors in the soil indicating a release of petroleum substances, Mr.
Herlacher, in accordance with OSFM regulations, notified IEMA of a release.
Mr.
Herlacher documented his activities in the Report submitted to the Illinois EPA. R. at
1
] 5.
HAA, on behalf of the Petitioner, also submitted the Addendum to the Illinois
EPA documenting the
UST removal activities.
R.
at 37. The Addendum includes
photographs depicting petroleum stained soil near and around the
USTs. R. at 205 - 213.
Mr. Foley, during his testimony at hearing, specifically discussed the soil staining in
photographs P4, P5, and P9.
6
Tr. at 97-102. Mr. Foley, as noted above, is an employee
The Report and Addendum both state that "[e]vidence of a petroleum release was apparcnt through visual
and olfactory observations, and photoionization detector
(PID) readings." R. at 14-15,47-48. However,
as Mr. Foley testified, the PID measurements were not included in the Report or Addendum because there
is no requirement to include PID measurements in submittals to the Illinois EPA. Tr. at 110.
6 The Illinois EPA failed to include color photographs in the Record it filed with the Board. At hearing,
Petitioner provided color copies of the photographs in the Addendum to the hearing officer for the Board
and
to the Illinois EPA. The colored photographs, along with several other documents, were accepted as a
supplement to the Record and were numbered pages
191 - 233. The colored photographs are located on
pages 204 -- 213 of the Record.
27
of HAA and has worked in the environmental consulting business for nearly 20 years.
Tr. at 91-92;
see
Hearing Exhibit 8. During his career, he has worked on between fifty
and one hundred
LUST sites. Tr. at 92-93. Mr. Foley was at the Site during the UST
removals and observed evidence of a petroleum release. Tr. at 98-103. As part of his
duties
as the project manager of the Site, Mr. Foley took photographs of the excavation
activities at the Site. The photographs, as Mr. Foley testified, clearly show petroleum
stained soil. Tr. at 98-102. For example, in photograph
P4 (R. at 205), Mr. Foley stated
that there is
"staining on the surface of the tank and in the backfill material immediately
adjacent to the tank near
... about a third of the way down the tank near where the
laborer
is standing." Tr. at 98. In addition, in regards to photograph P5
(R.
at 206), Mr.
Foley stated that
"you can see staining on both tanks in the vicinity of the manway.
There's a manway about a third to halfway down the tank where there's staining on both
- emanating from the man way going down both
of the tank into the backfill." Tr. at
99. Mr. Foley also discussed photograph
P9 (R. at 208), which shows the sand beneath
where the
USTs were located. Tr. at 101. Mr. Foley testified that in the center of
photograph P9, "you can see dark staining" that "extends from the ... right center of the
photo toward the center
of the photo and also from the upper left center of the photo
downward
toward the center of the photo." Tr. at 101. Mr. Foley during his testimony
on each
of the above-referenced photographs, stated that the soil staining indicated that
there had
been a release into the soil. Tr. at 98-99, 102. In order for the Board to have
access
to a complete record, Petitioner provided color photographs to the Board for its
review, and as the Board will see during its review
of the color photographs, the
photographs clearly show evidence
of a release at the Site.
28
Electronic Filing - Received, Clerk's Office, October 26, 2009
In addition to the photographs showing petroleum stained soil near and around the
USTs, Mr. Foley also testified that he smelled a petroleum odor at the Site during
excavation activities. Tr. at 98-100, 102, and 105. Based on his experience, the presence
of a petroleum odor indicated that there had been a release of petroleum substances at the
Site.
[d.
Further, during the excavation activities, Mr. Foley routinely used a PID meter
to measure the vapor content of the soil and determine the point at which excavation of
the contaminated soil was nearly complete. Tr. at 100, 102-104, and 108-110. The PID
measurements ranged from the 100s ppm to greater than 1,000 ppm, which as Mr. Foley
testified, can be relied upon
as an indication of contamination. Tr. at 95-96, 100, 102-
104,
and 108-110. After the excavation was complete, Mr. Foley collected confirmation
samples, which as provided in the Addendum, showed that any remaining contamination
at the Site was below the applicable Tier
I
ROs. R. at 49-51. Accordingly, Petitioner
requested that the Site be deemed as requiring no further action. R. at 50.
There is clear and measured evidence of a release at the Site, and the release was
confirmed in accordance with OSFM regulations. The Illinois EPA's claim that
laboratory analysis
is needed to confirm a release is unsubstantiated and has no basis in
the Act or Board regulations. Accordingly, the Board must deem the release a LUST
incident subject to the state LUST Program requirements.
VII.
ILLINOIS
EPA'S
POLICY IS A VIOLATION OF THE APA
Mr. Gaydosh testified that there is a two-step procedure for confirming a release
at a Site. Tr. at 130. Either the OSFM STSS determines that there is a release and
reports as such on the UST Removal Log, ending the inquiry into whether a release
occlmed; or the OSFM STSS determines that there was no apparent release at the site,
29
Electronic Filing - Received, Clerk's Office, October 26, 2009
and the owner or operator submits laboratory analysis showing exceedances above Tier I
ROs to confirm the release. Tr. at 130. Mr. Gaydosh further testified that the two-step
confirmation policy is a decision left to "IEPA management." Tr. at 138.
As noted above, Mr. Herlacher first learned
of the Illinois EPA's two-step
confirmation policy only after the March 9,
2009 decision Letter was issued. Since Mr.
Herlacher has worked
in the environmental consulting business for nearly 20 years and
did not know
of the Illinois EPA's policy, it is reasonable to assume that other
consultants, as well as owners and operators of USTs, are also not aware of the Illinois
EPA's two-step confirmation policy. The Illinois EPA's reliance on a policy or
procedure that has not been made known to the public
or adopted through the rulemaking
process is a violation
of the Administrative Procedure Act's (HAP A") rulemaking
requirements. 5 ILCS
100/5-5
et seq.
The APA provides that "[a]lI rules of ...
""w"",.,."
shall be adopted in accordance
with" Article 5 of the APA. 5 ILCS 100/5-5. It further states that "[n]o agency rule is
valid or effective against any person
or party, nor may it be invoked by the agency for
any purpose, until it has been made available for public inspection and filed with the
Secretary
of State as required by this Act." 5 ILCS 100/5-1 O( c). A "rule" is defined as:
each agency statement of general applicability that implements, applies,
interprets, or prescribes law or policy, but does not include (i) statements
concerning only the internal management
of an agency and not affecting
private rights
or procedures available to persons or entities outside the
agency
.. "
5 ILCS 100/1-70.
In this case, the Illinois EPA, in the absence of any authority to do so, is applying
its two-step confirmation "policy" to the release at Petitioner's Site as if it is required by
30
Electronic Filing - Received, Clerk's Office, October 26, 2009
statute or regulation. The Illinois EPA's policy has not been proposed to the public as
part of a rulemaking proposal, and consequently, the public has not had an opportunity to
provide comment on a policy that impacts whether sites are subject to the LUST
Program.
Applying the two-step confinnation policy without having fOlmaIly adopted
the policy as a rule in accordance with
AP A rulemaking requirements is a violation of the
AP A and denies owners and operators of their right to provide comments on proposed
regulatory requirements.
In
Ayers Oil,
the Board considered whether the Illinois EPA's use of a rate sheet
to establish reasonable costs was a violation of the APA.
Ayers Oil
at *20-21. In that
case, the
Petitioner argued that the Illinois EPA's use of a rate sheet was a violation of
APA rulemaking requirements because it was an "improperly promulgated rule."
Id.
at
*24. According to the
Petitioner, the Illinois EPA reviewers were required to use the rate
sheets to detennine whether corrective action costs were reasonable. The Illinois
EPA,
however, argued that the rate sheets were internal guidance documents and
means of
implementing a requirement in the Board's regulations."
Id.
at *26. The Board
detennined that the rate sheet was "a statement of Agency policy," and that "although the
rate sheet is kept 'secret' from the public, the rate sheet
is a statement of general
applicability."
Id.
Thus, the Board concluded that the rate sheet was a rule that should
have been promulgated pursuant to the
AP A.
In this case, the Illinois EPA testified that its two-step policy to confirn1 a release
requires laboratory analysis showing contamination above Tier I ROs absent an STSS
detennination that there has been a release. This two-step confinnation policy effectively
precludes certain incidents from the LUST Program because of the lack of a release
31
Electronic Filing - Received, Clerk's Office, October 26, 2009
determination by the STSS or lack of laboratory analysis-neither of which are required
by law. Although the Illinois
EPA has not made its policy known to the general public, it
presumably applies the policy to all incidents, as indicated by Mr. Gaydosh's testimony.
Further, the policy impacts persons outside
of the Illinois EPA, such as the Petitioner and
other owners and operators ofUSTs. Thus, the Illinois EPA's policy is a rule by
definition and should have been properly promulgated pursuant to the AP A.
The de facto explanation provided by the Illinois EPA for the detennination that
the release was a Non-LUST incident was not based on any regulation, and such
explanation was not provided in the final decision Letters because no basis exists for
concluding that the release was
Non-LUST incident. To the extent that the Illinois EPA
has offered the two-step policy as an explanation after the issuance of the March 9, 2009
final decision Letter, such explanation is an admission that the Illinois EPA is applying
the policy as a rule that has not been made widely known
to the regulated community and
not been through the public notice and comment period in accordance with the APA's
rulemaking procedures. The Illinois EPA recently had the opportunity in a rulemaking to
amend Part 734 to notify the regulated community of its two-step confim1ation policy by
proposing revisions to codify the reliance on the STSS
UST Removal Log and/or
laboratory analysis showing contamination above Tier
I
ROs to confirm a release or to
amend the definitions
of "release," "release confirmation," and "confirmed release" at
Section 734.115; however, the Illinois
EPA did not propose such revisions, and thus, did
not provide the public notice of its two-step confirmation policy.
In the Matter oI
Proposed Amendments to Regulation o.lPetroleum Leaking Underground Storage Tanks
(35
Ill. Adm. Code
732)
and
(35
Ill. Adm. Code
734), R4-22(A), R4-23(A) (Consolidated)
32
Electronic Filing - Received, Clerk's Office, October 26, 2009
(Ill.Pol.Control.Bd. Feb. 16,2005);
see also In the Matter of Proposed Amendments to
the Board's Procedural Rules and Underground Storage Tank Regulations to Reflect
P.A. 94-0274, FA. 94-0276, FA. 94-0B24, FA. 95-0131, FA. 95-0177, and FA. 95-
040B
(35
ILL. ADM CODE 101.202,732.103,732.702,734.115,734.710),
R07-17
(Ill.PoLControl.Bd. Nov. 15, 2007). Accordingly, the Illinois EPA is improperly
imposing on the
Petitioner an Illinois EPA policy as a rule in violation of the APA.
VIII. CONCLUSION
The Petitioner con finned the release in accordance with OSFM's Pali 170
regulations, and timely submitted a Report and Addendum to the Illinois EPA that
satisfied Section 734.21O(d) and (e) requirements. However, the Illinois EPA deemed the
release a Non-LUST incident. The Illinois EPA's final decision Letters were deficient
and
in violation of the Board's requirements. Further, the Illinois EPA testified that the
was a
Non-LUST incident because Petitioner failed to provide laboratory analysis
showing an exceedance
of Tier 1 ROs to confinn thc release. The Illinois EPA also
admitted at hearing that such requirement
is not found in applicable regulations. The
Illinois
EPA has arbitrarily and capriciously deemed this release a Non-LUST incident
and such decision
is in no way supported by the Act or Board regulations. Furthennore,
the Illinois
EPA has applied its unpromulgated secret two-step confirmation policy as a
rule
of general applicability in violation of the AP A's rulemaking requirements.
Accordingly, the Board must reverse the Illinois EPA's decision and conclude that
laboratory analysis showing contamination exceedances above Tier 1 ROs is not required
to confirm a release.
33
WHEREFORE, for the above and foregoing reasons, Petitioner, DICKERSON
PETROLEUM, INC.,
respectfully requests that the Illinois Pollution Control Board grant
the following relief:
a.
Find that the Illinois EPA's March 9,2009 and June 10,2009 final
decision Letters are arbitrary, capricious, and without statutory
or regulatory authority;
b.
Reverse the Illinois EPA's detennination that the above-referenced
incident
is a non-LUST incident and find that the incident must be regulated in
accordance with 35 Ill. Admin. Code
Part 734;
c.
Find that the above-referenced incident is eligible to access the UST Fund
and that costs incurred during the early action period for this release are eligible for
reimbursement from the
UST Fund in accordance with applicable regulations;
d.
Find that the Illinois EPA's unpromulgated two-step release confirmation
policy
is application of a rule in violation of the AP A's rulemaking requirements;
e.
Award Petitioner reasonable attorney's fees and expenses incurred in
bringing this action; and
f.
A ward sueh further relief as the Board deems just and equitable.
Dated:
October 26, 2009
Edward W. Dwyer
Monica T. Rios
HODGE DWYER
&
DRIVER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Respectfully submitted,
DICKERSON PETROLEUM, INC.,
Petitioner,
By:
IslEdward W. Dwyer
One of Its Attorneys
34
Electronic Filing - Received, Clerk's Office, October 26, 2009
CERTIFICATE OF SERVICE
I, Edward W. Dwyer, the undersigned, hereby certify that I have served the
attached POST-HEARING BRIEF upon:
John T. Therriault
Assistant Clerk
of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
via electronic mail on October 26,2009; and upon:
James
G. Richardson
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand A venue East
Post Office Box 19276
Springfield, Illinois 62794-9276
Carol Webb, Esq.
Hearing Officer
Illinois
Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
by depositing said documents
in the United States Mail, postage prepaid, in Springfield,
Illinois on October
26,2009.
Edward W. Dwyer
CAHO-OO I \Filings\NOF & COS Post-Hearing Brief.
Electronic Filing - Received, Clerk's Office, October 26, 2009
