DICKERSON
PETROLEUM, iNC.,
Petitioner,
V.
ILLiNOIS
ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
)
)
John
Theniault
Acting
Clerk
Illinois
Pollution
Control
Board
100
West
Randolph
Street,
Suite
11-500
Chicago,
illinois
60601-3218
Carol
Webb
Hearing
Officer
Illinois
Pollution
Control
Board
P.O.
Box
19274
Springfield,
Illinois
62794-9274
Edward
W.
Dwyer
Hodge
Dwyer
&
Driver
P.O.
Box
5776
Springfield,
Illinois
62705-5776
PLEASE
TAKE
NOTICE
that
I
have
today
caused
to
be filed
a
RESPONSE
TO
PETITIONER’S
POST-HEARING
BRIEF
with
the illinois
Pollution
Control
Board,
copies
of
which
are served
upon
you.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
Dated:
November
23, 2009
P.O.
Box 19276
Springfield,
Illinois
62794-9276
217/782-5544
THIS
FILING
SUBMITTED
ON
RECYCLED
PAPER
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
)
)
)
PCBO9-87
)
PCB
10-05
)
(UST
Appeal)
)
(Consolidated)
)
NOV
23
20%’
STATE
OF
ILLINOI
Folluj
Control
5
Board
NOTICE
James
G.
Richardson
Special
Assistant
Attorney
General
d
1OB1
Dia
:
600—Z—(iDN
BEFORE
THE
ILLINOIS
POLLUTION CONTROL
BOARD
DICKERSON
PETROLEUM,
INC.,
)
Petitioner,
)
)
PCB
09-87
v.
)
PCB
10-05
)
(UST
Appeal)
ILLINOIS
ENVIRONMENTAL
)
(Consolidated)
PROTECTION
AGENCY,
)
Respondent.
)
RESPONSE
TO
PETITIONER’S POST-HEARING
BRIEF
NOW
COMES
the
Respondent,
the
Illinois
Environmental
Protection
Agency
(“Illinois
EPA”),
by
one
of its
attorneys,
James
G.
Richardson,
Assistant
Counsel
and Special
Assistant
Attorney
General,
and
hereby
submits
to the
Illinois
Pollution
Control
Board (“Board”)
its Response
to Petitioner’s
Post-Hearing Brief.
I.
STANDARD
OF
REVIEW
Section
57.8(i)
of
the
Illinois
Environmental
Protection
Act
(“Act”),
415 ELCS
5/57.8(i),
grants
an
individual
the
right
to
appeal
a
determination
of
the Illinois
EPA
to
the Board
pursuant
to
Section
40
of
the Act,
415
ELCS 5/40.
Section
40
is
the
general
appeal
section
for
permits
and
has
been
used
by
the
legislature
as
the
basis
for
this
type
of appeal
to
the
Board.
Therefore
when
reviewing
an Illinois
EPA
determination
of
ineligibility
for
reimbursement
from
the Underground
Storage
Tank
Fund
(“UST
Fund”),
the
Board
must
decide
whether
or
not the
application,
as
submitted
to the
Illinois
EPA,
demonstrates
compliance
with
the
Act
and
Board
regulations.
Broderick
Teaming
Company
v. Illinois
EPA,
PCB
00-187
(December
7,
2000).
Pursuant
to
35 111.
Adm.
Code
105.112(a),
the
Petitioner,
Dickerson
Petroleum,
Inc.
1
£Ød
lHfl3l
Y1U
TT
6ØØ——(DN
(“Dickerson”),
has the
burden ofproof
in this
case. In reimbursement appeals, the burden is
on the
applicant for reimbursement to demonstrate that incurred
costs
are related to
corrective
action,
properly
accounted for, and reasonable. Rezmar Corporation v. Illinois EPA,
PCB 02-91 (April
17,
2003). New
information
that
was not before the Illinois EPA
prior to its final
determination
regarding
the issues on appeal
will
not
be
considered by
the Board. Kathe’s
Auto Service,
Inc.
v.
Illinois EPA,
PCB 95-43
(May
18, 1995). Thus
Dickerson must demonstrate to
the Board with
appropriate information
that
it has
satisfied its burden before the Board
can enter an
order reversing
or
modifying the
Illinois EPA’s decision under
review.
II. RELEVANT
FACTS
The
Illinois EPA
received a
20-Day
Certification
Report
concerning this site
on
February
11,
2008.
Administrative
Record (“AR”)
pp.
93,
222.
The
45-Day
Report was
received on April 28,
2008. AR
p.3.
Concerning a
January 18,
2008
preliminary site
investigation,
it presented the
information as
follows:
A single
hand-augered
soil boring
was installed into
the
backfill
material
between
the two
USTs
to
a
depth
of4 feet.
Evidence of a
petroleum release
was
apparent
through
visual
and
olfactory
observations, and
photoionization
detector (P11))
readings.
No
samples from
this
boring
were
retained
for
laboratory
analysis. AR
pp.
13-15.
No
specific PD
readings
were
presented The
report
concluded
saying
that a
45-Day
Report
Addendum
would be
submitted
upon
completion
of all
Early
Action
activities
and
would
include,
among
other
things,
analytical
results.
AR
p.16.
The
45-Day
Report
Addendum was
received
by the
Illinois
EPA
on
February
17,2009.
AR
p.37.
It
stated
that
the two
USTs
were
removed
on
May
14,2008 and
that
748 tons
ofcontaminated
backfill
were
excavated
and
disposed at the
Milam
Landfill.
AR
pp.48-49.
The
report
provided
2
DKI
T:13T
6ØØ——(DN
neither
specific
PID
readings taken
during excavation
activities
nor
analytical results
for
the
contaminated
backfill that
was removed.
Analytical
results of soil
samples taken from
the
walls
and
floor of
the excavation
area did not
exceed the applicable
TACO
Tier
1 Residential Soil
Cleanup
Objectives.
AR
pp.49-50. Based
upon
these results,
the
report
concluded
with a request
that the
site
be classified
as
requiring
no
further
remediation.
On
March 9, 2009,
the Illinois
EPA
issued
its decision letter stating
that this
incident
was
not
subject
to
35 Iii.
Adm. Code 734, 732
or 731.
AR
pp.110-ill.
III.
ARGUMENT
It must
first be
noted
that the Administrative
Record
filed in
this case
contains information
and
documents
that
were
not before the Illinois
EPA prior to its
March
9, 2009
decision. Inclusion
of these
materials
in the Administrative
Record simply acknowledges
the contacts
between
the
Illinois
EPA
and Dickerson
after
March
9, 2009.
But by
doing
this,
the Illinois
EPA
in
no way
waives its position
and
the long standing
principle
that only information
before
the
Illinois EPA
prior
to its final determination
can
be
considered by
the Board
in its review. Kathe’s
Auto
Service,
Inc. v.
Illinois
EPA,
PCB
95-43 (May
18,
1995).
And
when only
the appropriate matters
are
considered,
it is
difficult
to
imagine that
the
Illinois EPA
could have
reached
any
other
decision
concerning
this
site. The 45-Day
Report
based
evidence
of
a
petroleum
release on visual
observations,
olfactory
observations,
and
PD
measurements,
without
identifying
specific
readings,
originating from one
hand-augered
soil
boring.
The only
analytical
results contained
in
the
45-Day
Report
Addendum
were
for
soil samples
from the
floor
and
walls
of
the
excavation area
that
indicated
there were
no
concentrations
above
the
applicable
TACO
Tier 1
Residential
Soil
Cleanup
Objectives.
No
specific PD
readings
obtained
3
ød
1J31 Dia
T:OT
6ØØ—Z--(OH
during
excavation
activities or analytical
results
of
the
contaminated backfill
were
provided.
The
evidence
Dickerson
submitted
to
the
Illinois
EPA
prior
to
March
9,
2009
was
inadequate
for
a
determination
that
contamination
above
the
regulatory
requirements
requiring
corrective
action
had
been
present
at
the Dickerson site.
The
Illinois
EPA’s
decision
is
consistent
with
other
evidence
presented
to the
Board
in this
case.
First,
there
is
the
UST
Removal
Log
for the
May
14,
2008
tank pull
prepared
by
Office
of
the
State Fire
Marshal
Storage
Tank
Safety
Specialist
(“STSS”)
Kent
Gelarden.
AR
pp.91-92.
For
both
tanks,
Gelarden
placed
“No”
on
the
form
in response
to
“Appears
to
have leaked” and “NR”
for
no
apparent
release
in
response
to “Contamination
status.”
Dickerson
attempted to
attack
Gelarden’s
competence
with
Hearing
Exhibits
6
and 7,
but
the
Hearing
Officer
correctly
sustained
the
Illinois
EPA’s
objection
to
their
relevance.
Transcript
(“TR”)
pp.72-77.
The
Illinois
EPA
asks
that
the
Board
not
consider
these
exhibits
due
to
their
lack
of relevance.
But
if the
Board
does
accept
them,
they
should
be
given
little
weight.
Hearing
Exhibit
6
was
a
log
prepared
by
Gelarden
all the
way
back
in 2006
while
Hearing
Exhibit
7 was
not
even
prepared
by
Gelarden.
There
is
also
no
context
or
perspective
for consideration
of
these
exhibits
as
Dickerson
provided no
information
as
to
the
universe
of
logs
that
exist,
such
as
the number
of
logs
prepared
by
Gelarden
every
year.
In
its
brief,
Dickerson
wonders
why
the Illinois
EPA
did
not
call Gelarden
to
testify
concerning his
May
14,
2008
findings.
Petitioner’s
Post-Hearing
Brief
(“BR”)
pp.25-26.
But
what
impediment
prevented
Dickerson
from
calling
Gelarden
to
directly
challenge
his
May
14, 2008
findings?
Second,
there
was
no
specific
evidence that
the
tanks
at the
site
had
leaked,
such
as
failure
of
a tank
tightness
test, prior
to
January
18,
2008.
From
testimony,
basically
all that
is
known
about
the
tanks
before
January
18,
2008
was
that the
tanks
were
empty
and
ownership
of
the
site
itself
had
4
33d
1J1
Dia
I:CT
6ØO—Z—(’DN
changed but Dickerson was
still
responsible for the
tanks.
TR
pp.20,
80. Third,
testimony
indicated
that
the
tanks
were
intact
and not
leaking
when
they
were
pulled
on
May
14,
2008.
TR
p.113.
In reviewing
the
pre-March 9,2009
submittals
for this
site,
Illinois
EPA
Project
Manager
Jay
Gaydosh
was
looking
for
evidence
that
the
level
of
contamination
at
the site
required
corrective
action
to
be performed.
TR
pp.122-124.
As
a laboratory
analysis
of
a
soil sample
is
a
simple,
economical
and scientifically acceptable
fonn
of
such
evidence,
it is
not
surprising
that
laboratory
analysis
would
be
referenced
by
the
illinois
EPA
in
the
discussions
that
occurred
after
the
issuance
of
the March
9, 2009
decision
letter.
Dickerson
portrays
this activity
as
a
misuse
of the
TACO
Tier
I
cleanup
objectives.
Br. p.16.
But
35 111.
Adrn.
Code
734.210(h)
concerning
Early
Action
references
the
meeting
of
these
objectives.
Therefore
the
Illinois
EPA’s
approach
here
was
neither
illogical
nor
inappropriate.
Dickerson
also
seizes
on this
as
evidence
of
what
it
characterizes
as
an
“unpromulgated
secret
two-step
confirmation
policy”
while
simultaneously
attempting
to
assure
that
there
was
“clear
and
measured
evidence
of
a
release
at
the
Site.”
Br.pp.29, 33.
But
on this
topic,
Dickerson
is
apparently
referencing
visual
observations,
olfactory
observations,
photographs,
and
PIT) readings.
Certainly
the
first
three
items
cannot
provide
specific
levels
of
specific
contaminants.
As
for the
PD,
Thomas
Herlacher
testified
that
it
could
not
identify
specific
contaminants
or
their
levels,
and
James
Foley
acknowledged
that
PD
readings were
not
acceptable
to
the
department for
reaching
conclusions.
Tr.pp.82-83,
110.
In
reality,
there
remains
no
clear
and
measured
evidence
of
a
release
at this
site.
Now
to the
Illinois
EPA’s
March
9,
2009
decision
letter
and the
purported
“unpromulgated
secret
two-step
confirmation
policy.”(”Two-Step”).
The
decision
letter
stated
that the
incident
was
not subject
to
35
Iii.
Adm.
Code
734,
732
or
731.
If a
factual
situation
or
site
is
not covered
within
5
d
iji
zna
:LT
600——rDN
the
parameters
of a
statutory
scheme
such
as
the Illinois EPA
Leaking
Underground
Storage
Tank
Program,
it
is
difficult
to
cite
specific
provisions from
that
statutory
scheme
since
the
matter
in
question
is
an
anomaly.
Dickerson’s
argument
that
the
Illinois
EPA’s
decision
was
driven
by
a
secret
and
unpromulgated
rule
or
policy
is simply
not
supported
by
the
evidence.
Dickerson
references
the
Administrative
Procedure
Act’s
definition
of
rule
and
suggests
that
the
Two-Step
“impacts persons
outside
of
the
Illinois
EPA,
such
as
the
Petitioner
and
other
owners
and
operators
of
USTs.”
Br.pp3O-32.
Dickerson also
notes
that
Herlacher had
not heard
of the
Two-Step
until
after
the
issuance
of
the
March
9,
2009
decision
letter
and
states
that
“it
is reasonable to
assume
that
other
consultants,
as well
as
owners
and
operators ofUSTs,
are
also
not
aware
ofthe
Illinois
EPA’s
two-step
confirmation
policy.”
(Emphasis
added).
Br.p.30.
But
Dickerson’s
Elerlacher
has
nearly
20
years
of
experience
and
had
never
heard
of
the
Two-Step
before
the
instant
case?
Although
Dickerson
found
information from
two
other
liST
sites
for
its
attempt
to challenge
STSS
Gelarden’s
Removal
Log,
Dickerson
provided
no
evidence
of other
situations
where
the
Two-Step
has
been
applied. If
the
Two-Step
is
as
pervasive
and
pernicious as
Dickerson
suggests,
why
has
it
not
been
discovered
or
challenged
before
the
instant
case?
Assumptions
and
Dickerson’s
allegations
in
this
one
case
are
certainly
not
convincing
evidence
of
a secret
and
unpromulgated
rule
or
policy.
To sum
up,
the
illinois
EPA
deemed
the
instant
site
a
Non-LUST
incident
based
upon
the
information
submitted
to
it
prior
to
March
9,
2009.
Even
if
the
information
presented
at the
hearing
could
be
considered,
it is
inadequate
to
justify
changing
the
original
decision.
If
the
Illinois
EPA’s
March
9,
2009
decision
is reversed,
parties
with
pre-planned
tank
pulls
or
other
types
of sites
with
questionable
levels
of
contamination
could
submit
inadequate
information
to
the
Illinois
EPA
as
Dickerson
did
and
gain
entry
into
the
Illinois
EPA
Leaking
Underground
Storage
Tank
Program
and
6
80d
iIcJEI1
D11
E:i
6OO—2—(’iQN
access
the UST
Fund.
And
certainly
the existence
of an
alleged
“unpromulgated
secret
two-step
confinnation
policy”
has
not been proven.
Dickerson
has failed
to
meet
its
burden
ofproof
in this
matter.
IV.
CONCLUSION
For all
ofthe
reasons
and
arguments
presented
herein,
the Illinois
EPA
respectfully
requests
that the
Board
affirm
its
March
9, 2009
and
June
10,
2009
decisions.
Respectfully
submitted,
PROTECTION
AGENCY
James
G.
Richardson
Assistant
Attorney
General
Dated:
November
23, 2009
1021
North
Grand
Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
217/782-5544
7
60
d
ThE1
Dia
‘:0I
600——(QN
ØTd
1UIO!
CERTIFICATE
OF SERVICE
I,
the
undersigned
attorney
at
law,
hereby
certify
that
on
November23,
2009
1 served
true
and
correct
copies
of
a RESPONSE TO
PETITIONER’S
POST-HEARING
BRIEF
upon
the
persons
and
by
the
methods
as
follows:
[Facsimile
and
1’
Class
U.S.Maill
John
Therriault
Acting
Clerk
Illinois
Pollution
Control
Board
100
West
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601-3218
p
t
class
US.MailJ
Carol
Webb
Hearing
Officer
Illinois
Pollution
Control
Board
P.O.
Box
19274
Springfield,
Illinois
62794-92 74
Us
t
Class
U.S.
Maul
Edward
W.
Dwyer
Hodge
Dwyer
& Driver
P.O.
Box
5776
Springfield,
Illinois
62705-5776
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
ial
Assistant
Attorney
General
vision
of Legal
Counsel
1021
North
Grand
Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-92
76
217/782-5544
217/782-9143
(TDD)
8
G.
Ri
ØVd
1U31
cna
01
S00E—2—(ON
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
DIVISION
OF
LEGAL
COUNSEL
1021
NORTH
GRAND
AVENUE
EAST,
POST
OFFICE
BOX
19276
SPRINGFIELD,
ILLINOIS
62794-9276
TELEPHONE
(217)
782-5544
FACSIMILE
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CLERK’S
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DATh:/
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NOV
232009
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