BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
PROPOSED
AMENDMENTS TO TIERED )
APPROACH
TO CORRECTIVE ACTION )
OBJECTIVES (35 ILL. ADM.
CODE 742) )
R09-9
(Rulemaking -
Land)
N OTICE OF FILING
TO: Mr. John T. Therriault
Assistant Clerk of the Board
Illinois Pollution Control Board
100 W. Randolph Street
Suite 11-500
C hicago, Illinois
60601
(VIA ELECTRONIC
MAIL)
M r. Richard McGill
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph
Street
Suite 11-500
Chicago, Illinois 60601
(VIA U.S. MAIL)
(SEE PERSONS ON ATTACHED SERVICE
LIST)
PLEASE TAKE NOTICE that I
have today filed with the Office of the Clerk of
the Illinois Pollution Control Board PRE-FILED QUESTIONS
FOR THE ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY SUBMITTED BY THE ILLINOIS
ENVIRONMENTAL
REGULATORY GROUP, a copy of which is herewith
served
upon you.
Respectfully submitted,
By: /s/ Katherine D. Hodge
Katherine D. Hodge
Dated: December 17, 2008
Katherine D.
Hodge
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box
5776
Springfield, Illinois 62705-5776
(217) 523-4900
Alec M. Davis
General Counsel
Illinois
Environmental Regulatory Group
215 East Adams
Street
Springfield, Illinois 62701
(217) 522-5512
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, December 17, 2008
CERTIFICATE OF SERVICE
I, Katherine D. Hodge, the undersigned, hereby certify that I have served the
attached PRE-FILED QUESTIONS
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY SUBMITTED BY THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP upon:
Mr. 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 December 17, 2008; and upon:
Mr. Richard McGill
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Kimberly A. Geving, Esq.
Assistant Counsel
Annet Godiksen, Esq.
Legal Counsel
Illinois
Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
Mr. Bob Mankowski
EPI
16650 South Canal
South Holland, Illinois 60473
Ms. Lisa Frede
Chemical Industry Council of Illinois
1400 East Touhy Avenue
Suite 100
Des Plaines, Illinois 60019-3338
Tracy Lundein
Hanson Engineers,
Inc.
1525 South Sixth Street
Springfield, Illinois 62703-2886
Mr. Douglas
G. Soutter
Conestoga-Rovers & Associates
8615 West Bryn Mawr Avenue
Chicago, Illinois 60631
Matthew J. Dunn, Esq.
Division Chief
Office of the Atttorney General
Environmental Bureau
69 W. Washington, 18th Floor
Chicago, Illinois 60602
Mr. Mark Schultz
Regional Environmental Coordinator
Navy Facilities and Engineering Commany
201 Decatur Avenue
Building 1 A
Great Lakes, Illinois 60088-2801
Electronic Filing - Received, Clerk's Office, December 17, 2008
Mr. Monte Nienkerk
Clayton Group Services
3140 Finley Road
Downers Grove, Illinois 60515
Mark Robert Sargis, Esq.
B ellande & Sargis Law Group, LLP
19 South LaSalle Street
S uite 1203
Chicago, Illinois 60603
Ms. Elizabeth Steinhour
Weaver Boos & Gordon
2021 Timberbrook Lane
Springfield, Illinois 62702
Mr. Kenneth W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, Illinois 62711
Dr. Douglas C. Hambley, P.E., P.G.
Graef Anhalt Schloemer & Associates, Inc.
8501 West Higgins Road
Suite 280
Chicago, Illinois
60631-2801
Mr. John W. Hochwarter
Mr. Jeffrey Larson
M issman Stanley & Associates
333 East State Street
Rockford, Illinois 61110-0827
Mr. Chetan Trivedi
Trivedi Associates, Inc.
2055
Steeplebrook Court
Naperville, Illinois 60565
Mr. Stan Yonkauski
William Richardson, Esq.
Chief Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Mr. Steven Gobelman
Illinois Department of Transportation
2300
South Dirksen Parkway
Room 302
S pringfield, Illinois 62764
David Rieser, Esq.
McGuire
Woods LLP
77 W. Wacker
Suite 4100
Chicago, Illinois 60601
Raymond
T. Reott, Esq.
Jorge T. Mihalopoulos, Esq.
Reott Law Offices, LLC
35 East Wacker Drive
Suite 650
Chicago, Illinois 60601
Mr. Craig Gocker
President
Environmental Management &
Technologies, Inc.
2012 W. College Avenue
Suite 208
Normal, Illinois 61761
Charles A. King, Esq.
Assistant Corporation Counsel
Chicago Department of Law
30 N.
LaSalle
Street
Suite 900
Chicago, Illinois 60602
Mr. Harry Walton
SRAC
2510 Brooks Drive
Decatur, Illinois 62521
Ms. Diane H. Richardson
Commonwealth Edison
10 South Dearborn Street
35FNW
Chicago, Illinois 60603
Electronic Filing - Received, Clerk's Office, December 17, 2008
Mr. Jarrett Thomas
Vice President
S uburban Laboratories, Inc.
4140 Litt Drive
Hillside, Illinois 60162
Mr. Lawrence L. Fieber
Principal
Burns & McDonnell Engineering
Company, Inc.
2 10 South Clark Street, Suite 2235
The Clark Adams Building
Chicago, Illinois 60603
b y depositing said documents in the United States Mail, postage prepaid, in Springfield,
Illinois on December 17, 2008.
/s/ Katherine D. Hodge
Katherine D. Hodge
IERG:001/R Dockets/Fil/R-09-9/NOF-COS -Pre-Filed Questions
Electronic Filing - Received, Clerk's Office, December 17, 2008
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
PROPOSED AMENDMENTS
TO TIERED ) R09-9
APPROACH TO
CORRECTIVE ACTION ) (Rulemaking - Land)
OBJECTIVES (35 ILL. ADM. CODE
742)
)
PRE-FILED QUESTIONS FOR
THE ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY SUBMITTED
BY THE ILLINOIS
ENVIRONMENTAL REGULATORY GROUP
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY
GROUP
("IERG"), by and through
its attorneys, Alec M. Davis and HODGE DWYER ZEMAN,
and submits the following Pre-Filed Questions for
the Illinois Environmental Protection
Agency
("Agency") for presentation at the hearing scheduled
in the above-referenced
matter:
1.
The outdoor inhalation pathway can be excluded in
several ways. Can the
vapor intrusion pathway
be excluded in the same manners? Is it correct that the primary
difference impacting the manner in which the pathways can
be excluded is that the vapor
intrusion pathway
must consider the impact a building (i.e., chimney effect) has
on the
migration route?
2.
Can the Agency provide draft language that will be included in No
Further
Remediation ("NFR") Letters
for the following circumstances:
a.
Where a site with a building location achieves
the remediation
objectives for all pathways, including vapor intrusion;
b.
Where there is no building on the site; and
Electronic Filing - Received, Clerk's Office, December 17, 2008
c.
Where there is no
building on the site when the NFR
Letter is
issued, but there is
a
likelihood
of construction
of a building with a known
location
in the future? An unknown
location?
3.
Is it the
Agency's intention to require
in an NFR Letter issued for
scenario
2(c) above:
(i) the use of a Building
Control Technology for future
construction, or (ii)
that the site
be re-enrolled and re-evaluated
pursuant to the applicable program
requirements?
4.
In terms of the vapor intrusion
pathway, will there
be a difference between
the requirements in an
NFR Letter and those stated
in an ELUC? Can the Agency
provide
an explanation of the impact
the proposed vapor intrusion
pathway will have on
the effectiveness
of ELUCs?
5.
If a responsible party
is required to evaluate
off-site impacts and identifies
some impact,
is an ELUC necessary? How
will off-site vapor intrusion from
groundwater pathway
be institutionally excluded on
adjacent properties? Are ELUCs
an
institutional
control option?
6.
Does
the Agency intend to amend
the model ELUC language to address
the
impacts of the vapor intrusion
pathway?
7.
Will the Agency require actual data
or allow modeling of groundwater
to
evaluate the vapor intrusion pathway
to an off-site building?
8.
If there is a well at the property
boundary and it exceeds the remediation
objectives ("ROs")
for the vapor intrusion groundwater
pathway, will the site still qualify
for an NFR letter? For example,
the remediation site might not have
any buildings and
Electronic Filing - Received, Clerk's Office, December 17, 2008
the indoor inhalation ROs might not apply, but presumably the groundwater (and
exceedance) might go off-site.
9.
What, if any, obligations under the Illinois Environmental Protection Act
does a responsible party have in terms of the vapor intrusion groundwater pathway for
off-site properties?
10. The default foc used for calculating Csat for the outdoor inhalation
pathway (0.6%) is the default foc for soils in the 0-3 foot depth interval. Is that correct?
a.
Hypothetically
speaking,
when
calculating
a
site-specific Csat for
this pathway, could a remedial applicant use a site-specific foc for this same depth
interval?
b.
Would the answer to 10(a) change, if the sample being screened
came from, for example, the 8-10 foot depth interval?
11. The Agency's website (http://www.epa.state.il.us/land/taco/vVor-
intrusion-rulemaking html, visited December 11, 2008) contains some "answers to
common questions about the proposed rule":
Q.
Will Illinois EPA re-open sites that have already earned a
No Further Remediation letter and require them to evaluate the
indoor inhalation pathway?
A.
No. Illinois EPA would take action only if new site-
specific information indicates a vapor intrusion problem. In
such an event, the action would begin with voidance of the NFR
letter.
Q.
I have an approved remedial action plan under the existing
TACO regulations. What happens if the rule takes effect before I
receive the NFR letter?
A.
You will be required to evaluate the indoor inhalation
exposure route. Also, the remedial action plan would need to
Electronic Filing - Received, Clerk's Office, December 17, 2008
be revisited to ensure
the site meets the updated remediation
objectives for the other pathways.
It would seem,
by these above-quoted questions and
answers, that if a responsible
party is operating in accordance with
an approved remedial action plan, upon
the
adoption
of these proposed amendments that approved
plan will no longer be valid. Is
this correct?
a.
Are the answers to the
above-quoted questions somehow
derived
from a portion
of the proposed amendments?
i.
If so, where?
ii.
If not, what is the basis upon
which the above quoted
answers are derived?
b.
How many active projects
does the Agency believe will be
impacted by
this policy? What does the Agency
expect the additional costs to be
for such active projects?
c.
Is the Agency prepared to expeditiously
review and approve
changes to remedial action plans?
If so, what actions are being taken
in
preparation?
d.
Does
the Agency expect responsible parties to
be performing the
evaluations required by these proposed
amendments prior to the evaluations being
adopted
as a final rule?
e.
How does the
Agency intend to handle the situation of a party
who
has submitted
a Remedial or Corrective Action
Completion Report prior to the
adoption of the amendments,
but has not yet received an NFR Letter?
Electronic Filing - Received, Clerk's Office, December 17, 2008
f.
Does the policy
reflected on the Agency's website apply only to
modifications to plans necessitated by the new vapor intrusion
pathway, or does it
also apply to the other changes introduced
by this proposal? If the policy does
apply to other changes, can you please explain why
the Agency has chosen to
deviate from past practice,
where an approved plan would not have been required
to be re-drafted? In addition, when
will the updates to the Part 742 tables become
effective?
g.
Does the owner
of a former remediation site with a "pre-indoor
inhalation" NFR Letter have the option to
use the standard "building control
technology" requirement
for the construction of a new building without
re-
enrolling the site?
12.
Can a responsible party use past soil gas data for compliance with
the
vapor intrusion ROs that were obtained using different
sampling methods than described
in
the proposed amendments? If no, is there an opportunity on a case-by-case
basis to
use the past sampling data?
13. The proposed Section 742.227, Demonstration
of Compliance with Soil
Gas Remediation
Objectives for the Indoor Inhalation Exposure Route, sets forth
the
requirements for collection of soil gas data. It is unclear
how these requirements apply to
exclusion of the indoor inhalation exposure route under Tier 3. Section 742.935(a)(3)(B)
seems to require that samples conform with the
above described requirements of Section
742.227, yet subsection (b) seems to envision sampling procedures other than those
described in Section 742.227.
Which interpretation is intended?
Electronic Filing - Received, Clerk's Office, December 17, 2008
a.
Subsection
(d) of Section 742.227 specifies
that soil gas samples
be collected
at a depth of at least 3 feet.
Is it the Agency's intent to
require, in all
circumstances,
that subslab samples of soil gas
be collected at a depth of 3 feet
or
greater under Tier 3?
IERG reserves the right
to supplement these questions.
Respectfully
submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
By: /s/
Katherine D. Hodge
Katherine
D. Hodge
Dated: December
17, 2008
Katherine D. Hodge
Monica T. Rios
HODGE
DWYER ZEMAN
3150 Roland
Avenue
P ost Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
A lec M. Davis
General Counsel
Illinois Environmental Regulatory
Group
215 East Adams Street
S pringfield, Illinois
62701
(217) 522-5512
IERG:001/R Dockets/Fil/R09-9/Prefiled
Questions
Electronic Filing - Received, Clerk's Office, December 17, 2008
