1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2 VOLUME II
IN THE MATTER OF: )
)
TIERED APPROACH TO CORRECTIVE ) R97-012
ACTION OBJECTIVES, ) (
Rulemaking)
35 ILL. ADM. CODE 742 )
(Pursuant to P.A. 89-431) )
6
The following is a transcript of a
7 rulemaking hearing held in the above-entitled
matter, taken
stenographically by LISA H. BREITER,
8 CSR, RPR, CRR, a notary public within and for the
County of
DuPage and State of Illinois, before
9 CHUCK FEINEN, Hearing Officer, at the
Thompson
Center, 100 West Randolph Street, Room 9-040,
10 Chicago, Cook County, Illinois, on the 3rd day of
December 1996 commencing at 9:00 o'clock a.m.
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1 A P
P E A R A N C E S:
2 HEARING TAKEN BEFORE:
3 ILLINOIS POLLUTION CONTROL BOARD
100 West Randolph Street
4 Suite 11-500
Chicago, Illinois 60601
5 (312) 814-4925
BY: MR. CHUCK FEININ,
6 HEARING OFFICER.
7 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
8 Mr. Chuck
Feinen
Ms.
Marili McFawn
9 Mr. Joseph
Yi
Mr.
Hiten Soni
10
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
11 PRESENT:
12 Mr. Gary P. King
Ms. Kimberly A.
Robinson
13 Mr. John
Sherril
Dr. Thomas
Hornshaw
14 Ms.
Tracey E. Virgin
Mr. James Patrick
O'Brien
15 Mr. H. Mark
Wight
Mr. Douglas Clay
16 Mr. Ken
Liss
Mr. Larry
Eastep
17 Ms. Vicky L.
VonLanken
18 OTHER AUDIENCE MEMBERS WERE PRESENT AT THE HEARING
BUT NOT LISTED ON THIS APPEARANCE PAGE.
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1 I N D E X
2 PAGE
3 GREETING BY HEARING OFFICER 245-247
4 FOLLOW-UP ANSWERS BY MR. KING 247-276
5 PRE-FILED QUESTIONS 276-460
6 CLOSING COMMENTS BY HEARING OFFICER 460
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15 E X H I B I T S:
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17 (None marked by reporter.)
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1 HEARING OFFICER FEINEN: Let's go back
2 on the record. Good morning. My name is Chuck
3 Feinen. I'll be filling in for Kevin
Desharnais
4 today. This is R97-12, the Tiered Approach to
5 Collective Action Objectives, 35 Ill. App. Code
6 742. This is the second day of hearings. We're
7 in the middle of questioning the agency as a panel
8 group.
9 A few things I want to point out is
10 that the last exhibit entered in was Exhibit 8 so
11 if there's any more exhibits entered by the
12 agency, you can start off with Exhibit No. 9.
13 With the multitude of questions and timing, we're
14 going to be trying to move a little bit quicker
15 today. I'll not be giving 10-minute breaks.
16 We'll cut the breaks down. We'll also try to cut
17 down the
lunchtime so we can get through as much
18 as possible.
19 Even with those constraints today,
20 I think the agency wanted to go back to the
21 questions from, I don't know if it was
22 Mr.
Watson's questions, but it was the
remediation
23 advisor's questions concerning 742.305, if the
24 agency is prepared to start out with their
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1 responses, and we'll skip over to I believe
2 section 742.400 is where we left off.
3 Also, remember that we're going to
4 be doing the
prefiled questions first, and then if
5 there's follow-up, please state your name and the
6 follow-up question, and at the end of the day, if
7 time permitting, we'll allow questions from people
8 who didn't
prefile. With that, I'll turn it over
9 to Kim
Robinson.
10 MS. MC FAWN: Before you turn it over,
11 let me just mention so that the audience knows
12 that the two attending board members, that is,
13 Dr.
Flemal and Kathleen
Hennessey are down in
14 Springfield today for their confirmation
15 hearings. That's why they're not with us today.
16 And
Anand Rao is ill so Mr.
Soni has joined us
17 here. He has been here throughout. He will serve
18 as our technical advisor during this hearing.
19 Thank you.
20 I apologize. Mr.
Feinen just told
21 me that Kathleen
Hennessey is not an assigned
22 board member. I know she's been tracking it very
23 closely so I had coupled her with Ron
Flemal and
24 Joe
Yi and myself. So I'm sure she won't mind
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1 that we've given her added responsibilities in her
2 first two months here at the board.
3 MS. ROBINSON: Good morning. This is
4 Kimberly
Robinson, and we would like to go through
5 some follow-up this morning based on carry-over
6 issues yesterday, and I think Mr. King is going to
7 go ahead and proceed with those.
8 MR. KING: Okay, we had -- as I counted
9 matters at the end of yesterday, we really had
10 four issues left over to really talk about at the
11 start of today. The first issue was an item
12 raised by Pat
Sharkey as part of follow-up
13 questions. A couple of times we deferred those.
14 I'd like to respond to that. Then the other three
15 issues came up right at the end of the day so I'd
16 kind of like to go back to those.
17 The first issue -- and I kind of
18 would like make sure we have direct questions as
19 far as
prefiled questions -- was a follow-up
20 issue, but I think this is probably good
21 paraphrase, Pat -- you can correct me, if you
22 think I'm wrong -- but I think the issue you were
23 driving at was whether you can have an NFR letter
24 that encompasses groundwater for a contaminant of
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1 concern without sampling the groundwater.
2 MS. SHARKEY: Right.
3 MR. KING: And the answer to that
4 question is yes, that is possible, and it's
5 possible if you've addressed the groundwater with
6 the methodology that did not require groundwater
7 sampling.
8 For example, you could under Tier 3
9 there would be a potential way of doing that there
10 depending on the methodology it shows. The second
11 issue that came up was --
12 MS. SHARKEY: Excuse me, should we wait
13 to ask any further questions on that then?
14 HEARING OFFICER FEINEN: If it's
15 particular to that response, why don't you ask him
16 now so we know?
17 MS. SHARKEY: Gary, are you saying that
18 one would need to go to a Tier 3 level of
19 evaluation in order to be able to avoid
20 groundwater sampling, that the only way you can
21 avoid groundwater sampling is by going through a
22 Tier 3 evaluation?
23 MR. KING: I'm not sure that's
24 necessarily true. That to me was the clearest
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1 example of the situation.
2 MS. SHARKEY: Could you elaborate a
3 little bit on what one would be looking at under
4 Tier 3, how that evaluation would go forward?
5 MR. KING: It really is an issue of
6 excluding that groundwater pathway using, for
7 instance, in subpart C, there's a very specific
8 way of excluding groundwater pathway, but that,
9 however, is not the only methodology used to
10 exclude the pathway, and we have seen that done in
11 other ways and have approved that in other ways.
12 MS. SHARKEY: If a Tier 3 evaluation
13 were otherwise not involved, in other words, if
14 somebody were able to demonstrate their soil
15 values were Tier 1, fell under the Tier 1 tables,
16 could they look to the Tier 3 factors that are
17 considered under Tier 3 that might pertain to
18 eliminating -- or excuse me -- excluding the
19 groundwater routes and provide an analysis without
20 going through a full Tier 3 analysis or
21 evaluation?
22 MR. KING: That's a way to do it, that's
23 correct.
24 MS. SHARKEY: Thank you.
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1 MR. KING: The second issue --
2 MR. RIESER: Let me just follow up, if I
3 may.
4 Isn't it true that based on the
5 scope of the investigation to document through the
6 investigation that you had no impact of
7 groundwater based on site features, for example,
8 surface spill that you can document that you have
9 reached the bottom of groundwater is not impacted
10 or other site
investigatory means of documenting
11 the groundwater has not been impacted.
12 In that situation, you would not be
13 -- you would still get an NFR letter that would
14 have the same -- it would be the same statutory
15 NFR letter, and it would have the same impact
16 according to 742.105(a), but you would not have
17 specifically excluded a groundwater pathway
18 through the use of either the pathway exclusion or
19 the tiered process. You would have documented
20 that that was not of concern by virtue of your
21 investigation, isn't that also possible?
22 MR. KING: I guess I was using the
23 reference to Tier 3. I think that's true, what
24 you're saying. However, I think we would probably
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1 kind of -- if we were going to pigeonhole it into
2 something, we would call that a Tier 3 type of
3 situation.
4 MR. RIESER: Tier 3 in the sense that
5 it's a decision not to be made by the project
6 manager which involves other features, but not
7 necessarily in the sense of a full-blown risk
8 assessment or specific pathway exclusions, those
9 things are provided for in subpart I?
10 MR. KING: I think that's correct, yes.
11 MS. SHARKEY: Maybe it would be helpful
12 if you would point us to the provisions under the
13 Tier 3 evaluation that might be relevant for doing
14 an equivalent type of demonstration without doing
15 a full Tier 3.
16 HEARING OFFICER FEINEN: Well, Gary,
17 please remember that you have to speak up for the
18 court reporter to hear. Again if you're asking
19 follow-up questions, please state your name
20 beforehand so the court reporter can make sure she
21 gets the name.
22 MR. KING: There's a section, section
23 742.925, which discusses exposure routes.
24 MS. SHARKEY: So what one would do is
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1 look at under 925, exposure routes, and the
2 factors that one would need to address then to
3 make this demonstration would be those in (a)
4 through (f)?
5 MR. KING: That's correct.
6 MS. SHARKEY: Thank you. I have no more
7 questions.
8 MR. RIESER: I'm sorry to get back to
9 this, but isn't it true that if your investigation
10 documented by virtue of site conditions that you
11 had no groundwater impact, you would not be
12 looking at your three factors, you would just be
13 documenting that through your investigation, and
14 then it's the same NFR letter -- it's the same NFR
15 letter no matter what the site is?
16 MR. KING: I think that's true. What we
17 try to provide in (a) through (f) is really a
18 description of a set of factors which I think
19 would be the kind of things you would be looking
20 at as part of the site investigation.
21 MS. SHARKEY: If I could -- this is Pat
22 Sharkey . If I could make one more clarifying
23 point, my question I think in part went to the
24 question of whether one could basically get a
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1 clean bill of health for a piece of property where
2 there had been some sport of spill and the spill
3 was
remediated, and in terms of soil, soil
4 removal, soil documentation of the soil meeting
5 Tier 1, for example, and not be required to go to
6 a groundwater monitoring in order to also get an
7 NFR that said, and furthermore, you've achieved
8 Tier 1 standards for groundwater.
9 MR. HORNSHAW: I guess I'm a little
10 confused because in the scenario you two are
11 painting, you would never even be issued
12 groundwater cleanup objectives if you documented
13 that it never got there. The project manager
14 wouldn't even be giving groundwater objectives.
15 MS. SHARKEY: Yeah, I understand that an
16 objective is designed to say, you've got a problem
17 here and you need to
remediate to this objective.
18 As I understand it, with Tier 1, we also have
19 established a table of groundwater objectives, do
20 we not?
21 MR. HORNSHAW: Correct, but they're not
22 always given in every project either.
23 MS. SHARKEY: I guess I'm wondering if
24 one could elect to request that you could actually
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1 get a full NFR letter that covered both soil and
2 groundwater in that sort of scenario so that any
3 cloud that might exist over the property or any
4 questions about whether or not there had been
5 groundwater impact would be resolved with that
6 letter.
7 MR. KING: I thought that I answered
8 that first. That was the first question that was
9 asked, and I answered that.
10 MS. SHARKEY: So the impact, that is the
11 impact. Thank you.
12 MR. KING: Okay, the second issue. The
13 second issue related to a discussion with regards
14 to Section 305, subsection (c) through (e) and how
15 that fit into the context of the board's RCRA
16 regulations as they appear in part 721.
17 It's pretty clear that we used part
18 721 as source material to develop (c) through (e),
19 but we're not trying to say in any way that just
20 because you are beyond the limits of (c) through
21 (e) that that makes those materials a RCRA
22 hazardous waste as it's defined in part 721.
23 Whether materials are a hazardous waste will be
24 determined in accordance with the definitions in
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1 part 721.
2 The third issue again was
3 discussing section 305, subsection (c) through
4 (e), and the issue there was how do you determine
5 if 305(c) through (3) have been met. Clearly if
6 there's sampling done that shows that sampling is
7 done in an acceptable way, that's going to resolve
8 the matter, but whether you have to sample is
9 going to depend on the specifics of what's being
10 addressed relative to the site and the
11 contamination at hand.
12 I'll give you just a couple of
13 examples. For instance, if you were addressing a
14 recent release of a No. 6 fuel oil and you didn't
15 have any other information with regards to the
16 site relative to any of these other factors, then
17 there would be really no reason to sample for (c)
18 through (e) because those just wouldn't be factors
19 and simply be enough to indicate what was being
20 addressed.
21 On the other hand, if you were
22 looking at an acid spill and addressing that as
23 the contaminants of concern, then you would have
24 to look at, for instance, pH, and you may have to
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1 look at some of the other items there because that
2 could be affecting mobility of other
3 contaminants. The fourth issue --
4 MR. WATSON: I've got a follow-up on
5 that. For the record, my name is John
Watson from
6 Gardner, Carton & Douglas.
7 Does that mean with respect to
8 doing the sampling in sub (e) that only unless you
9 have identified the applicable metals that are
10 subject to that standard in your site
11 characterization that you would have to go through
12 and do that analysis?
13 MR. KING: I wasn't really speaking to
14 that as an example. What I was trying to say is
15 that you really have to look at the specific site
16 conditions and contaminants you would be looking
17 at and then make a decision based on that. I was
18 just giving out a couple of examples without
19 speaking to other types of examples.
20 MR. WATSON: Would that be a fair
21 conclusion based on what you said as it relates to
22 sub (e)?
23 MR. KING: I guess we would have to sit
24 down and go through and look at it. I can't
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1 answer that right as I sit here.
2 MR. WATSON: I guess it seems to be a
3 fundamental question as it relates to your
4 response and specifically this provision in that
5 if we're testing samples for contaminants of
6 concern and determining risks based on the
7 identification of contaminants of concern, the
8 question is must there be a connection between
9 those in order to impose an obligation to do the
10 RCRA sampling that is being proposed here?
11 And I guess it seemed that your
12 first answer was, yeah, you had to have that
13 connection, and then as it relates to (e), though,
14 I'm not so sure that that's the requirement.
15 MR. KING: Well, you have to, as I said
16 initially, if you sample, that certainly should
17 resolve things, but whether you have to sample is
18 going to depend on the specifics of what's being
19 addressed. We gave some examples yesterday about
20 in certain situations, you could address those in
21 a narrative fashion depending on the context that
22 you're dealing with.
23 MS. SHARKEY: I guess I'm still -- I
24 understand what Mr. King is saying, I believe,
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1 with regard to (c) through (e), and I appreciate
2 the clarification, but I continue to think the
3 language is not clear on this, and so someone's
4 going to have to go back and read this transcript
5 in order to, you know, understand this, and I
6 think particularly there's a problem with (c) and
7 (d) which may not exist in (e).
8 (E) reads, "Any soil which contains
9 contaminants concerning the following list." So
10 one is at least directed to specific contaminants
11 of concern, and you know, if you have those
12 contaminants of concern, this is telling you
you
13 need to test for toxicity. With regard to (c) and
14 (d), however, it appears that any time you have
15 soil which contains any contaminant of concern,
16 you have a duty to determine whether or not it
17 exhibits a characteristic of reactivity under (c)
18 and a duty to determine the pH under (d), and it
19 seems to me the language there simply is not clear
20 and does not state what the agency has told us
21 they believe it means, and we would be happy to
22 propose some language in our testimony and bring
23 it to the agency's attention to discuss at the
24 next hearing on this.
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1 MR. KING: I guess that's a comment for
2 us to consider.
3 HEARING OFFICER FEINEN: That really
4 wasn't a question. Is there any more follow-up
5 from the previous day? Does that conclude the
6 questions then on 305? Can we move to 400?
7 MR. KING: The fourth issue that carried
8 over from yesterday was really discussing whether
9 there was a conflict between section -- I believe
10 the reference was to section 310, and 225(d) would
11 also apply to whether there was a conflict between
12 315 and 225(d), in particular (d)(1).
13 Our statement yesterday was that
14 there was not a conflict, and that continues to be
15 what we believe the case to be. We had intended
16 the sampling alternative in 225(d)(1) as a method
17 to provide some useful guidance as to -- an
18 alternate approach to achieving compliance where
19 you were averaging concentrations as opposed to
20 requiring every single discrete sample to meet the
21 compliance number.
22 What I want to try to do is
23 articulate the difference or why there's this
24 three foot and this one foot and, you know,
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1 hopefully, if we can make some sense out of that
2 and make it understandable, then I think we should
3 continue with having (d)(1) in there. If we can't
4 do it to have it make sense, then our inclination
5 would be just to delete all of (d)(1) and then
6 move the numbers up in the section.
7 What we're talking about -- I tried
8 to just illustrate on the easel at the other side
9 of the room what we're talking about. If you look
10 at section 315 -- I have to jump back and forth
11 here a little bit -- but 315(c)(1) is saying that
12 in essence you can have contaminants of concern at
13 levels in excess of the Tier 1 numbers below that
14 three-foot level, and that would be acceptable as
15 long as the Tier 1 objectives for that route are
16 met above that number, okay.
17 Now, what we're saying in (d)(1),
18 225 (d)(1) is that -- in contrast is that within
19 that top foot, there's an additional element of
20 flexibility. Between one foot and three foot,
21 each discrete sample would have to meet those Tier
22 1 numbers for that pathway. In that top one foot,
23 you could average the discrete samples in a way
24 that the average met the Tier 1 number for that
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1 pathway.
2 So that the combination of the two
3 would assure that within that top three feet, you
4 were meeting the Tier 1 numbers within the first
5 foot based on an averaging concept, within the
6 next two feet, based on the discrete samples. So
7 that's the way that was intended to work, and we
8 may suggest a little bit of clarifying language to
9 make that a little more clear, but we continue to
10 think there's not a conflict between the two.
11 HEARING OFFICER FEINEN: Just so the
12 record is a little clearer, when Mr. King was
13 referring to top foot, he is referring between the
14 land surface and a foot down and the same way when
15 he's referring to three feet down, land surface,
16 three feet down.
17 MR. KING: That's correct.
18 MR. WATSON: I've got a couple of
19 questions. What's the justification for not
20 allowing
compositing or averaging below the first
21 foot of soil?
22 MR. KING: We came up with that one-foot
23 number or this alternative using a USEPA study
24 which used averaging within that one foot. They
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1 did not extend the averaging below one foot
2 because there was a concern relative to you could
3 have a diluting impact lower than one foot which
4 would tend to dilute the impact in that upper one
5 foot, and that would be the most critical exposure
6 area. If anybody wants to say any additional
7 items.
8 MR. WATSON: What was the specific study
9 that you relied on? Is that incorporated in any
10 of your testimony?
11 MR. HORNSHAW: I believe it's in the
12 USEPA's soil screening guidance, either the user
13 guide or the technical background document, both
14 of which are incorporated by reference.
15 MR. WATSON: The second question that I
16 would have relating to this in Section 225, there
17 is no limitation in (d) in terms of how deep that
18 sampling has to go in the soil to determine
19 compliance with
remediation objectives for
20 inhalation, ingestion and exposure routes, and my
21 question is shouldn't there be a limitation in
22 terms of the sampling depth?
23 MR. KING: Well, (d)(1) was intended to
24 be an example methodology. Otherwise, we would be
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1 in a situation where there wouldn't be anything
2 really very specific within (d) to indicate what
3 would be an acceptable methodology.
4 We could eliminate (d)(1), and
5 somebody could come back and propose that as an
6 alternative, and we would probably accept it, but
7 we wanted to have something, a fairly explicit
8 example in the regulations to give guidance as to
9 what would be at least one acceptable approach.
10 MR. WATSON: I guess my concern is that
11 I think the testimony perhaps from Mr.
Sherril
12 yesterday was that you would have to meet the
13 remediation objective at any location in the soil,
14 whether it was down one foot, three feet or
15 fifteen feet, and certainly at some point as you
16 get to depth, issues of inhalation and ingestion
17 are eliminated in terms of exposure pathways, and
18 I guess I'm looking for some guidance as to what
19 would be the depth at which you would be required
20 to sample to determine compliance with your
21 remediation objective for these exposure
22 pathways?
23 MR. SHERRIL: One thing, we've added a
24 little clarification. Everyone should have a copy
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1 of the errata sheet. Under 742.225(d)(4), and
2 it's on page 2 of the errata, we do have, which
3 kind of further clarifies (d).
4 MR. WATSON: What does that tell me,
5 that my limit is one foot?
6 MR. SHERRIL: Yes, you're still within
7 that contamination within the top foot.
8 MR. WATSON: So whether I'm -- does
9 (d)(4) say that so whether I'm averaging or
10 compositing or just comparing discrete samples for
11 inhalation and soil ingestion, all I need to do is
12 sample to a depth of one foot?
13 MR. SHERRIL: It's not saying that.
14 It's saying we're only looking at that
15 contamination within the top foot. There again
16 it's a separate issue for contaminants located
17 below one foot.
18 MR. KING: It seems to me that you're
19 really trying to inject another pathway exclusion
20 option. I mean, if the contaminants are at 10
21 feet, you know, they would have to meet the
22 numbers relative to ingestion, inhalation,
23 migration of groundwater.
24 They have to be concerned with all
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1 those numbers under Tier 1, but that was why the
2 pathway exclusion number of three foot was put
3 into subpart C as a way so that you could get away
4 from that where the case was appropriate.
5 MR. WATSON: I'm just saying in terms of
6 a situation where you could exclude your
7 groundwater and then all you'd have to worry about
8 was soil ingestion, inhalation, and I'm going
9 ahead and doing my sampling, what you're saying is
10 that if I have contamination at 20 feet that
11 exceeds the soil and inhalation number whether or
12 not -- I mean, obviously there's no chance that
13 that's going to be a legitimate exposure pathway,
14 but under Tier 1, what you're saying is I could
15 not get out of the requirement to move beyond the
16 Tier 1 numbers and do a Tier 2 or a Tier 3
17 analysis, is that right?
18 MR. KING: No, I don't think that's what
19 we were saying. You still could go into a
20 different analysis. It's just you would not have
21 complied with the Tier 1 numbers. So you'd have
22 to use a different methodology. Again, for
23 example, that's why subpart C is there and has
24 that number in there to provide a real expressway
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1 out of that kind of situation.
2 MS. SHARKEY: Could I ask some
3 clarifying questions?
4 MR. WATSON: Sure.
5 MS. SHARKEY: The three feet that we're
6 talking about comes out of subpart C and the
7 exclusion of an exposure route?
8 MR. KING: That's correct.
9 MS. SHARKEY: If one is not interested
10 in excluding an exposure route but is simply
11 attempting to determine whether or not you meet
12 the Tier 1 values for inhalation and soil
13 ingestion, does one need to go beyond the one
14 foot?
15 MR. SHERRIL: Yes.
16 MR. KING: Yes.
17 MS. SHARKEY: And what in here tells me
18 I need to go beyond the one foot?
19 MR. KING: Well, I guess we're really
20 jumping ahead to the discussion of Tier 1, and I
21 think we'll get to that later on when we talk
22 about how Tier 1 functions.
23 MS. SHARKEY: We're kind of in --
24 MR. KING: The notion of Tier 1 is
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1 you've got a set of criteria, you've got a set of
2 contaminants of concern, and that if you meet the
3 most conservative number out of those three
4 pathways, then you've met the Tier 1 objectives.
5 If you don't meet it for one of those pathways,
6 then you go on to use a different methodology.
7 MS. SHARKEY: So you're telling me later
8 when we get to Tier 1, there's language in there
9 that tells you how far you need to go for the soil
10 inhalation and ingestion pathway, or do you look
11 to the individual program requirement for the
12 depth of sampling which is what we talked about
13 yesterday in response to some of my questions?
14 MR. KING: There's no discussion of
15 depth. You have to meet it across the site.
16 MS. SHARKEY: Right. So what Mr.
Watson
17 said then, in other words, if soil ingestion --
18 what's odd to me, is that frankly, it's
19 counter-intuitive, it seems to me, to say that one
20 can composite for inhalation and ingestion in the
21 first foot where one expects the greatest
22 exposure, in fact, but you can't composite for
23 these apparently at a greater depth.
24 MR. SHERRIL: Let me interject there.
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1 If you would look at (f), 742.225(f), a person may
2 propose an alternative method for determining
3 compliance with the mediation objectives. So it
4 is not accurate to say that you cannot composite
5 and average below one foot.
6 MS. SHARKEY: You could propose that?
7 MR. SHERRIL: You could propose it.
8 Under (d)(1), we have put in a methodology for
9 doing that for just within the top one foot.
10 MS. SHARKEY: Again what was the
11 justification for only allowing
compositing within
12 the top foot?
13 MR. SHERRIL: I just said you did not.
14 MS. SHARKEY: The rule specifically says
15 that. I know you can propose an alternative, but
16 the rule is saying within one foot.
17 MR. SHERRIL: As Tom
Hornshaw mentioned,
18 incorporation by reference the SSL document.
19 MS. MC FAWN: Why don't you explain that
20 theory to her. One of you said it fairly
21 succinctly a few minutes ago.
22 MR. HORNSHAW: The reason USEPA
23 considers averaging and
compositing appropriate
24 because the soil screening guidance is designed to
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1 protect somebody living on a site for 30 years,
2 and you don't expect a person to be in the same
3 position over that whole 30 years. They're going
4 to be more or less around the whole site. So they
5 consider averaging to be an appropriate way of
6 predicting the risk to that person over the 30
7 years that they're assumed to be there, and so in
8 that case, they want to look at what's the average
9 amount of contamination a person's going to be
10 exposed to, and they say that averaging and
11 compositing is appropriate for that upper surface
12 layer, and they specify depth of no more than one
13 foot so that you don't get a dilution effect at
14 some sites where all the contamination is at the
15 surface.
16 If you sample at one, two and three
17 feet, you would be diluting out the true risk by
18 averaging in basically non-detects at two and
19 three feet. It's kind of a compromise that USEPA
20 came to in order to make sure that a person is
21 protected adequately over that 30-year period.
22 The reason that we think that the cleanup
23 objectives should be met at all points below that
24 is because there's no guarantee that contamination
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1 at depth is going to remain at depth over those 30
2 years. It could be brought up to the surface, and
3 with subsequent earth moving activities,
4 construction, whatever, and present risks that
5 weren't really accommodated by having the
6 averaging done in the original setting of the
7 cleanup numbers.
8 MS. SHARKEY: It's not clear to me why
9 if the rationale for
compositing at the surface
10 exists why it doesn't exist for
compositing at
11 lower levels, albeit at the same depth of your
12 composites possibly. The risk, it seems to me, to
13 somebody is if you hit a hot spot in a grab
14 sample, a composite in fact dilutes your sample,
15 no?
16 MR. O'BRIEN: You could propose an
17 alternative sampling for sub-sampling. It becomes
18 very difficult to subscribe to a particular
19 sampling strategy in
rulemaking that would fit
20 every site.
21 So we have provided as an example a
22 prescriptive methodology for
compositing at the
23 surface, and it would be more appropriate for
24 people to propose a specific
compositing strategy
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1 to the agency for sampling at greater depth.
2 MS. SHARKEY: Going back to the
3 exclusion pathway then, the exclusion of three
4 feet -- and I think Mr. King or somebody yesterday
5 said there was an assumption of gardening and
6 other type of work, one could be digging down to a
7 depth of approximately three feet. If you can
8 exclude it three feet on that basis, why would you
9 need to go deeper than three feet in any instance
10 for demonstrating your compliance with these
11 exposure pathways?
12 MR. SHERRIL: The exclusions under
13 subpart C required institutional control and
14 possibly an engineered barrier. What we're
15 looking under 742.225 does not address at that
16 point institutional controls.
17 We run into many instances, as Tom
18 said, where subsurface soils 10, 15 feet below the
19 surface end up being on the surface of the site,
20 and unless we have an institutional control to
21 control that, that would pose an unacceptable
22 risk.
23 MS. SHARKEY: What kind of institutional
24 control would that be or engineered barrier? Are
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1 we talking, for example, paving, asphalt?
2 MR. SHERRIL: It depends on the site.
3 I've seen some that says that the soil are to
4 remain in place as approved under the NFR
5 determination. Sometimes it is paving. It
6 depends on what's being proposed.
7 MS. SHARKEY: We talked about, for
8 example, that there may be geology and reasons
9 that one can say we're comfortable that this
10 contamination is not going to reach groundwater
11 when we've got a spill situation, surface spill.
12 We're comfortable it's not going to reach
13 groundwater.
14 Now we're saying that you can't use
15 that same sort of information -- maybe I should
16 ask this question. Could you use that same sort
17 of information to demonstrate that this pathway is
18 never going to be -- this risk exposure pathway is
19 never going to be realistic and avoid this notion
20 of having to put in a -- either test very down to
21 an extraordinary depth or put in an engineered
22 barrier? Do you understand?
23 MR. SHERRIL: You sounded like you made
24 a statement.
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1 MS. SHARKEY: No, it was a question.
2 MR. SHERRIL: What's the question? You
3 had about -- I didn't understand it.
4 MS. SHARKEY: I was trying to make an
5 analogy to our discussion earlier about the
6 groundwater, and I'm asking why doesn't that
7 reasoning apply here as well, that one may be able
8 to in fact make a demonstration that these
9 exposure pathways are just not realistic at a
10 depth of 10 feet or 20 feet?
11 MR. KING: I guess I keep coming back to
12 I thought we did -- that's what subpart C is.
13 It's laying out a set of procedures for how you're
14 making that demonstration. I don't know what else
15 we can say on the point, to tell you the truth.
16 MR. WATSON: Are you saying that under
17 Tier 3 then, you could also make that -- if you
18 don't satisfy subpart C, that you could also make
19 that showing under a Tier 3 analysis at 740.925?
20 MR. KING: Right.
21 MS. SHARKEY: Thank you. That's what I
22 was asking.
23 MR. WATSON: I've got one more follow-up
24 question, and that is, why is not
compositing and
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1 averaging appropriate for subpart C?
2 MR. KING: Well, I think we just said
3 you could. In the top foot you could use that.
4 MR. WATSON: So in looking at excluding
5 pathways --
6 MS. MC FAWN: You're talking about
7 subpart C of 325, right?
8 MR. WATSON: I'm talking about subpart
9 C, exposure route evaluations in general. This
10 does not have a provision in here that talks about
11 whether or not you can average and composite your
12 samples, and in fact, the language, especially
13 when you get into the RCRA test, is any soil which
14 contains contaminants of concern shall not exhibit
15 the specific characteristics.
16 The question is can you use
17 compositing and averaging to do the testing that
18 is required to exclude a pathway under subpart C?
19 MR. KING: You're kind of going across
20 the board here, and you're not focusing this on a
21 specific section so I don't know if you're talking
22 about 305 or 310 or 315 or 320 or what.
23 MR. WATSON: With respect to section
24 305.
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1 MR. KING: Cannot average or composite
2 relative to those.
3 MR. WATSON: Why not?
4 MR. KING: Because, I mean, the rules
5 don't provide for it. Are you asking
6 theoretically what's our philosophy behind that?
7 MR. WATSON: Right, right.
8 MR. KING: Why don't you answer that,
9 John.
10 MR. O'BRIEN: The reason why is that
11 this is -- the contaminant source of free product
12 determination in 305 is intended to screen out
13 conditions which would violate the models upon
14 which the Tier 1 and Tier 2 objectives are based,
15 and those need to apply everywhere in order for
16 the models to work everywhere.
17 So it wouldn't be appropriate to
18 average or composite. In addition pH is a
19 logarithmic function, and it's not -- it would be
20 inappropriate to average, to do an
arithmatic
21 average on pH.
22 MR. WATSON: What about (c) and (e)?
23 MR. SHERRIL: Also, this gets back to
24 why -- this was asked a couple of times yesterday
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1 -- why we have this contaminant source and free
2 product determination, and there again it's to
3 ensure there's no migration of mobile free
4 product, ensure there's no potential unacceptable
5 health risks remain when there is a violation to
6 either an engineered barrier, institutional
7 control by unintentional or accidental exposure to
8 the contamination left in place.
9 In my testimony, I go on to say
10 that T.A.C.O. does not address acute hazards and
11 you could have potential acute hazards by
12 violating some of these assumptions here, and we
13 also want to provide sealing controls to limit the
14 level of exposure from high contaminant
15 concentrations from multiple
organics. Those
16 provide some of the reasoning for that.
17 HEARING OFFICER FEINEN: More
18 follow-up? Are we done with 305? Move to 400. I
19 think the first question under 742.400, go to the
20 Site
Remediation Advisory Committee, Mr.
Rieser.
21 MR. RIESER: Thank you. This is
22 question 1, what are the bases for appendix A,
23 table F? I think it's still table F even after
24 the new, revised table. Yes, continues to be
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1 appendix A, table F. Are these derived from
2 Exhibit B of Dr.
Hornshaw's testimony?
3 MR. HORNSHAW: Yes.
4 MR. RIESER: Are there other bases
5 besides what you've attached as Exhibit B to your
6 testimony, Dr.
Hornshaw?
7 MR. HORNSHAW: No.
8 MR. RIESER: Are there other agency
9 compilations of background levels for
organics or
10 PNAs in soil or for any substances in
11 groundwater?
12 MR. HORNSHAW: No, there are not.
13 MR. RIESER: Is there any compilation
14 that the agency is aware of or is willing to
15 accept, say, regarding
PNAs in the soil in the
16 Chicago area representing disposal areas from the
17 Chicago Fire?
18 MR. HORNSHAW: There is a report. We
19 have it back in my office, and I can't remember
20 the name of it. We could look at that, I guess.
21 MR. RIESER: You haven't ruled that out
22 as a possible additional source for --
23 MR. HORNSHAW: That's something we would
24 have to talk about. It hasn't been part of our
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1 discussions up to this point.
2 MR. RIESER: Thank you.
3 HEARING OFFICER FEINEN: Any follow-up
4 questions? Moving on to section 742.405,
Mayer,
5 Brown, Ms.
Sharkey.
6 MS. SHARKEY: My first question was how
7 many samples are required for volatile
organics?
8 I think we've answered this in another context.
9 Is the answer the same, that you looked to the
10 program?
11 MR. HORNSHAW: Basically you look to the
12 distribution of the data set, and then you choose
13 a statistically valid method which is most
14 appropriate for that data set, propose it to the
15 agency for review, and then we will accept or
16 deny.
17 MS. SHARKEY: Is that stated in here
18 somewhere?
19 MR. HORNSHAW: Yes, 405(b)(2),
20 statistically valid approach for determining area
21 background concentrations appropriate for the
22 characteristics of the data set and approved by
23 the agency. The same language applies for
24 groundwater as well.
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1 MS. SHARKEY: Is that provision (b)(2)
2 applicable only to volatile
organics or is that
3 applicable to volatile
organics, other organics?
4 MR. HORNSHAW: It's for all chemicals
5 other than pH.
6 MS. SHARKEY: In that provision, is
7 there a standard? The term "appropriate" for the
8 characteristics of the data set, how would one
9 determine that?
10 MR. HORNSHAW: A good statistics
11 textbook.
12 MS. SHARKEY: Are any such methods
13 included in the documents that are incorporated by
14 reference?
15 MR. HORNSHAW: I've cited two in my
16 testimony.
17 MS. SHARKEY: But they're not included
18 in the incorporation by reference?
19 MR. HORNSHAW: No.
20 MS. SHARKEY: Could you just tell us for
21 the record which those two were from your previous
22 testimony or your pre-submitted testimony.
23 MR. HORNSHAW: The first one is
24 Statistical Analysis of Groundwater Monitoring
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1 Data at RCRA Facilities, Interim Final Guidance,
2 USEPA Office of Solid Waste, and the publication
3 number is EPA/530-SW-89-026, April 1989. That's
4 on page 5 of my testimony.
5 And the second one is Statistical
6 Training Course for Groundwater Monitoring Data
7 Analysis, USEPA Office of Solid Waste and
8 Emergency Response, publication
9 No. EPA/530-R-93-003, 1992. I might add for the
10 record that a book that we rely on fairly
11 routinely in our office which is pretty much a
12 standard statistical textbook is called
13 Statistical Methods for Environmental Pollution
14 Monitoring. The principal author is Richard O. --
15 O as in middle name, not O as in Irish name -- O.
16 Gilbert, G-I-L-B-E-R-T, published by
VanNostrand
17 Reinhold Company of New York published in 1987.
18 MS. SHARKEY: Thank you. My second
19 question is does historical contamination that is
20 ubiquitous on a particular site qualify as area
21 background? I think we talked about this the
22 other day, and I don't know that we need to go
23 over it again at this point unless you have
24 anything to add in response to that.
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1 MR. HORNSHAW: No.
2 MR. WATSON: Would you consider lead
3 contamination found adjacent to highways to be
4 area background?
5 MR. HORNSHAW: For the most part, yes.
6 It has to be considered in the context of the
7 whole site that needs
remediation. If the site
8 that needs
remediation is mainly in a residential
9 neighborhood, that probably would not be the best
10 background sample to take. Site specific, but
11 generally, yes.
12 MS. SHARKEY: The third one is maybe
13 something of a nit, but does the agency object to
14 modifying the term "releases" in subsection (a)(4)
15 with the words "known or suspected" as in the
16 subsection above?
17 MR. KING: We had not put that --
18 actually it's just a glitch here. The definition
19 of area background doesn't use the term known or
20 suspected in there so we really should have not
21 had known or suspected in (a)(3).
22 HEARING OFFICER FEINEN: Is that
23 something maybe in the errata sheet, too, that
24 should be taken care of or changes?
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1 MR. KING: Right.
2 MS. SHARKEY: What would the meaning be
3 then in areas of releases if we're not dealing
4 with known or suspected releases?
5 MR. KING: Well, I guess I'm not totally
6 sure on that. As I was pointing out before, I
7 think we just -- (4) was intended to be consistent
8 with the language that was taken from the statute.
9 MS. SHARKEY: I'm sorry, and where was
10 that taken from the statute?
11 MR. KING: Definition of area
12 background, just used -- in that definition just
13 uses the term releases and doesn't say known or
14 suspected.
15 MS. SHARKEY: And are you of the view
16 that that language is required, that you parallel
17 that language here?
18 MR. KING: I don't know that it's
19 mandated in this context, but we try to parallel
20 the language whenever we can, and so that's what
21 we did here.
22 MS. SHARKEY: I guess what I'm wondering
23 is if this isn't an instance where some
24 amplification of the language wouldn't help
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1 everybody understand what it means, and I guess
2 I'd like to ask my question again.
3 If you take out known or suspected,
4 if we don't mean known or suspected releases, what
5 do we mean? How is one to know what areas one is
6 to be sampling? Are you saying is that implied
7 anyway, or is something else meant?
8 MR. KING: It certainly would include
9 known or suspected. Whether it includes other
10 things, I guess that's kind of a statutory term.
11 We're going to keep coming back to that.
12 MS. SHARKEY: You're saying you can't
13 tell me what else it means other than known or
14 suspected, though?
15 HEARING OFFICER FEINEN: Mr.
Rieser, you
16 have a follow-up?
17 MR. RIESER: Yeah, if I can. The
18 statute, when it talks about releases with respect
19 to area background, it talks about it has to be
20 something not primarily, not solely the release --
21 not solely from releases at the site, but these
22 sections 3 and 4, don't they refer to samples that
23 you have to take in areas around the site to
24 document what's background and what is and what is
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1 not, isn't that correct?
2 MR. HORNSHAW: That is correct.
3 MR. RIESER: Wouldn't you have to start
4 out from an idea of what was known or suspected
5 release in order to identify a background to show
6 that it was not part of the known or suspected
7 release?
8 MR. HORNSHAW: Yes.
9 MR. RIESER: So you really do need to
10 talk about known or suspected releases in the
11 context of the sampling because that's what you're
12 looking for, that's what you're looking to
13 distinguish, isn't that correct?
14 MR. HORNSHAW: That's correct.
15 MS. SHARKEY: Thank you. I think my
16 question No. 4, there's a typo in it, but I also
17 think we've already answered it. It was, are area
18 background objectives only available for
19 inorganics, or may such objectives also be
20 established for
organics. And I think what I
21 meant there volatile
inorganics, particularly
22 using a statistically valid approach?
23 MR. HORNSHAW: Volatile
inorganics?
24 MS. SHARKEY: Volatile
organics. I
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1 think we've already answered that, haven't we?
2 MR. HORNSHAW: Correct, we have.
3 MS. SHARKEY: Thank you very much.
4 MS. MC FAWN: I have a follow-up
5 question. Based on Mr.
Rieser's question to you,
6 does that mean that the agency will or will not be
7 changing the use of known or suspected releases in
8 its 742.405?
9 MR. KING: We committed to deal with
10 this in the errata sheet. We have to go back and
11 look at this a little further and address it at
12 that point.
13 MS. MC FAWN: Basically you're going to
14 consider his question and comment, but you're not
15 necessarily going to add this to an errata sheet?
16 MR. KING: Right. We haven't made a
17 decision on that at this point.
18 HEARING OFFICER FEINEN: Any other
19 follow-up questions on 405? Moving on to section
20 742.410, Site
Remediation Advisory Committee,
21 Mr.
Rieser.
22 MR. RIESER: What will be the basis for
23 approving alternate approaches for determining
24 area background concentrations as allowed under
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1 subsection (b)(2)?
2 MR. HORNSHAW: As I answered
3 Ms.
Sharkey's question, that's specific to the
4 distribution and specific to the site.
5 MR. RIESER: To do that, one would use
6 the standard statistical text, some of which you
7 referenced in your testimony?
8 MR. HORNSHAW: Correct.
9 MR. RIESER: And the presentation based
10 on the site information and the standard
11 statistical methodology?
12 MR. HORNSHAW: That's correct.
13 HEARING OFFICER FEINEN: It appears we
14 might have to speak up a little louder now.
15 There's applauding, it's hard to hear up here
16 even. Yeah, I heard it.
17 MR. RIESER: Thank you.
18 HEARING OFFICER FEINEN: Any follow-up,
19 Mr.
Watson?
20 MR. WATSON: I believe my question 5 has
21 been addressed in an errata sheet already.
22 HEARING OFFICER FEINEN: Does that also
23 mean that the question 6 and 7 following aren't
24 directed towards section 410?
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1 MR. WATSON: I'm sorry?
2 MR. HORNSHAW: Don't the questions
3 pertain to --
4 MR. WATSON: Question 7 relates to the
5 Tier 1 section.
6 HEARING OFFICER FEINEN: I guess we're
7 moving on to 415. Section 415, Site
Remediation
8 Advisory Committee, Mr.
Rieser.
9 MR. RIESER: What information is the
10 agency requesting under subsections (a)(1) and (2)
11 of 415?
12 MR. HORNSHAW: In subsection (a)(1) what
13 we're interested in is if a party alleges
14 contamination from off site, the party should
15 indicate where the contamination comes from, and
16 in (2) again if there's an allegation that
17 contamination is coming from off site, that should
18 be substantiated by the physical chemical
19 properties which would give an indication of why
20 the chemicals migrated from the off-site source.
21 MR. RIESER: So the answer to the first
22 part of my question 2, which is, does the request
23 for information under subsections (a)(1) and (2)
24 assume that the substance proposed for evaluation
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1 occurs on site as a result of off-site
2 contamination is yes?
3 MR. HORNSHAW: Yes.
4 MR. RIESER: Which makes the second part
5 of my question, which is what if the material is
6 naturally occurring?
7 MR. HORNSHAW: That can be demonstrated
8 with a proper sampling or the use of the agency
9 background document for
inorganics.
10 MR. RIESER: Would the agency consider
11 some language changes to (a) to add in some
12 consideration for naturally occurring so that it
13 allows for that -- these references for those
14 circumstances when it is suspected that the
15 material is from an off-site contamination source
16 that you address 1 and 2, and if it's suspected
17 that the site is -- that the material evaluating
18 is a natural background, that you do what you've
19 just suggested?
20 MR. KING: Were you going to propose
21 some language?
22 MR. RIESER: I can. I can.
23 MR. KING: That would be helpful for us.
24 MR. RIESER: Okay, thank you. With
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1 respect to my question 3, it says, with respect to
2 the reference on page 8 of Dr.
Hornshaw's
3 testimony to section 58.5(b)(2) of the act, would
4 the establishment of remedial objectives based on
5 area background require an institutional control
6 if the value exceeds the Tier 1 residential
7 value?
8 MR. HORNSHAW: Yes.
9 MR. RIESER: Would that still be true if
10 it was demonstrated that the substance is
11 naturally occurring?
12 MR. HORNSHAW: Yes.
13 MR. RIESER: Would that still be true if
14 the property already has residential uses?
15 MR. HORNSHAW: I think we're not clear
16 on how that works. I think the language in the
17 act itself is a little ambiguous. I'm not sure.
18 MR. RIESER: And you have taken the
19 language from that act and proposed to add it as
20 part of your errata at 742.415(d)?
21 MR. HORNSHAW: Yes.
22 MR. RIESER: Doesn't the language of the
23 act, which says that there has to be -- which
24 prohibits the property may not be converted to
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1 residential use unless such
remediation objective
2 -- unless essentially a residential
remediation
3 objective is achieved, doesn't that imply that no
4 such restriction would be necessary if it's
5 already residential use property?
6 MR. HORNSHAW: I think it could be read
7 that way.
8 MR. RIESER: Is that the agency's
9 position?
10 MR. KING: It is our position it could
11 be read that way.
12 (Laughter.)
13 MR. RIESER: Is it the agency's position
14 that that's how the board should interpret it if a
15 case should come before it concerning this issue?
16 MR. KING: It's just not real clear. I
17 mean, that's why we've really struggled with it.
18 It clearly says what's supposed to happen when
19 there is a conversion. One can draw implications
20 as to what happens if there's not a conversion,
21 but it doesn't really say anything, and I guess
22 we'd kind of like to reserve the opportunity to
23 judge that on a case-by-case basis, you know,
24 depending on what the context of the situation
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1 is. You may very well be right, but there may be
2 other extenuating site circumstances that could
3 compel a different result.
4 MR. RIESER: So even if it was naturally
5 occurring background levels above the Tier 1
6 values, the property is already being used as
7 residential property, there are circumstances in
8 which the agency would say that there have to be
9 restrictions on the use -- further restrictions on
10 the use of that property?
11 MR. KING: Again you have to really
12 consider what the factual context might be
13 relative to what's physically happening at the
14 property. You might have a continuing residential
15 use, but for instance, you might be going from an
16 apartment type use to single family homes.
17 The construction activities might
18 end up bringing a lot of that naturally occurring
19 contamination to the surface now in a way that
20 there's more direct exposure and end up having a
21 problem relative to that.
22 MR. RIESER: Of course, in that instance
23 it wouldn't be naturally occurring contamination,
24 it would just be naturally occurring soil,
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1 correct?
2 MR. HORNSHAW: Correct.
3 MR. RIESER: Thank you.
4 HEARING OFFICER FEINEN: Was that a
5 "correct" answer to that, Mr.
Rieser's last
6 question?
7 MR. HORNSHAW: Correct.
8 MR. RIESER: Thank you. Follow-up?
9 MS. SHARKEY: Yeah, I guess I'd like to
10 follow up on Mr.
Rieser's second question. I
11 believe he was asking whether or not the section
12 appears to assume that the background is a result
13 of off-site contamination reaching the property
14 and what if it was naturally occurring, and I
15 think the answer was it may seem to assume that,
16 and maybe some language will be put together to
17 make it clear, that it's intended to be broader
18 than that.
19 I'd like to ask a slightly
20 different question. What about contamination that
21 has not reached the property from off site and is
22 not naturally occurring but is of a nature that is
23 widespread in an area and may be the result of
24 very long ago operations on a broader area? This
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1 is similar to the situation I was describing
2 yesterday with the old coal
gasification sites,
3 and I guess I'm trying to determine, you know, how
4 that scenario would or would not fit in here on
5 the same rationale that we're using.
6 MS. ROBINSON: I think we discussed this
7 at length yesterday, and I feel that it's been
8 asked and answered. If the board would like us to
9 continue on this line again, we can.
10 MS. SHARKEY: We've talked about a
11 rationale. I guess what we're getting at here is
12 the rationale for area background being used is
13 that it may have been generated on a neighboring
14 site and let's say blown over or somehow been
15 placed on this property. In that instance you
16 could apparently identify it as background and not
17 have to
remediate it on the site. So that risk
18 level would remain on that site.
19 However, if you had a broader area
20 that is now subdivided into a number of parcels
21 and that contamination exists throughout that
22 area, was not caused by the
remediation applicant,
23 the material could not be left on site. What is
24 the difference in the risk that's remaining on
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1 site? I think that's how the agency addressed it
2 yesterday, and I'm trying to figure out in this
3 context what is the difference in the risk that
4 remains on site?
5 MS. MC FAWN: If I can just interject
6 here. We did discuss this at length yesterday.
7 I'm not sure that we ever --
8 MS. SHARKEY: We didn't resolve it.
9 MS. MC FAWN: I was going to say I don't
10 know that we resolved it. It seems to me you are
11 talking about liability and risk and questions of
12 if you're not liable, should you really have to
13 address the risk and possibly clean it up if there
14 is a risk and that kind of thing, and I don't
15 know. Unless the agency is prepared since
16 yesterday to maybe give us a resolution on this
17 issue, I think we should defer it until the
18 January hearings.
19 MR. KING: I don't believe we have
20 anything additional to add on this issue from what
21 we said yesterday.
22 MS. MC FAWN: Your question is on the
23 record. I think the agency has an understanding
24 of where you're going with this, as do maybe the
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1 other participants on the board, and it probably
2 needs some more thought, and certainly we would
3 welcome your comments on it as well as your
4 questions, on resolution of this quandary.
5 MS. SHARKEY: I just wanted to be
6 clear. I really have a question. I'm not just
7 trying to make this point again, but I'm trying to
8 see if there is some real thinking behind the
9 difference in the risk because I think that's what
10 Mr. King said yesterday is, you know, there's a
11 residual risk, there's a remaining risk, and I
12 thought that was the answer that we got, and I'm
13 asking what is the difference in the risk in the
14 scenarios that seem to be acceptable as area
15 background from the one I'm describing?
16 And maybe we can get some further
17 comment on that from the agency at some point, but
18 that's what I don't understand, and I'd like to be
19 able to make that distinction.
20 MR. KING: I don't think we have
21 anything to add based on what we said yesterday.
22 It's the same comments as yesterday.
23 HEARING OFFICER FEINEN: Is there any
24 other follow-up on 415? Let's start up with
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1 subpart E, Tier 1 evaluation, 742.500. I guess we
2 want to take a break for five minutes. Be back
3 here at 10:30.
4 (Recess taken.)
5 HEARING OFFICER FEINEN: I think we will
6 get back on the record. I think we left off on
7 the subpart E, Tier 1 evaluation, 742.500. Start
8 out with the Site
Remediation Advisory Committee,
9 Mr.
Rieser.
10 MR. RIESER: On page 11 of Mr.
Sherril's
11 testimony, he states that, for those sites where
12 the contaminants exceed Tier 1 values, one can
13 either establish institutional controls or land
14 use restrictions.
15 Is it not more accurate to say that
16 Tier 1 values can be used as screening conditions
17 or tools and that if contaminants at a site exceed
18 Tier 1, then one can either perform further
19 evaluation regarding site conditions through Tier
20 2 or Tier 3, achieve remedial objectives by the
21 use of institutional controls and/or engineered
22 barriers or
remediate the contaminants?
23 MR. SHERRIL: Generally, yes,
24 residential Tier 1.
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1 MR. RIESER: Excuse me?
2 MR. SHERRIL: Residential Tier 1 are
3 remediation objectives, but Tier 1 can also be
4 used as a screening value. Generally when
5 contaminants are left behind that exceed the
6 Tier 1 values, some type of institutional control
7 or land use restriction or engineered barrier may
8 be warranted, but generally yes to your question.
9 MR. RIESER: Thank you. On page 11,
10 Mr.
Sherril discussed a determination as to
11 whether there are sensitive ecological receptors
12 at the site. How is this determination made?
13 When will the agency require review of ecological
14 risk factors?
15 MR. HORNSHAW: We can think of four
16 situations when ecological concerns might need to
17 be addressed first or threatened or endangered
18 species are known to be at a site. Second, if
19 it's designated as conservation property by the
20 state or local government or federal government.
21 Third, if it's wetlands, that probably would have
22 to be concerned about surface water impacts as
23 well as groundwater and soil, and fourth is when
24 the site owner operator actually designates the
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1 post remedial use to be conservation property.
2 MR. RIESER: Okay. How would these
3 issues become known to the agency? Would this be
4 part of the investigation under the specific
5 program?
6 MR. HORNSHAW: I guess the best way I
7 can answer that is when these are issues, they're
8 readily apparent to everybody. There aren't very
9 many sites where we would go in and say, well, is
10 this really a concern here or not? They're
11 usually obvious at the site.
12 MR. RIESER: Would it be the agency's
13 intent that if the ecological risk is not
14 specifically addressed to always require it for
15 every site?
16 MR. HORNSHAW: That is not the intent.
17 MR. RIESER: We can bring this up later
18 under Tier 3. I'll reserve my question till
19 then. Thank you.
20 And my next question is on page 12,
21 Mr.
Sherril states that, Tier 1 residential values
22 are based on a one-time 10 to the minus 6th target
23 risk for carcinogens. Is this always true? Are
24 not many of the
MCL's based on a lesser -- my
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1 question says greater, but it should be lesser --
2 target risk?
3 MR. HORNSHAW: To answer the first
4 question, no, this is not always true, and as you
5 say, many -- or a few of the maximum contaminant
6 levels are based on a different target risk
7 usually based on detection limits for the chemical
8 or on a risk benefit analysis done by USEPA.
9 MR. RIESER: Thank you.
10 HEARING OFFICER FEINEN: Any follow-up?
11 Moving on to section 742.505, Site
Remediation
12 Advisory Committee, Mr.
Rieser.
13 MR. RIESER: 505, question No. 1, with
14 respect to subsection (a)(3)(c), which has to do
15 with migration of groundwater -- portion of
16 groundwater ingestion route, what happens if the
17 soil pH is greater than 8.0?
18 MR. SHERRIL: For Tier 1, a soil pH
19 range of 4.5 to 8 is provided, I believe, for 23
20 chemicals as a method to determine the migration
21 to groundwater soil
remediation objectives. If
22 the soil pH exceeds 8, you may propose a Tier 3
23 evaluation.
24 MR. RIESER: But that would only apply
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1 to certain types of contaminants, i.e. the
2 ionizable organics or inorganics?
3 MR. SHERRIL: That's true.
4 MR. RIESER: Thank you. On page --
5 isn't there a footnote in the table that
6 references only -- with respect to the range that
7 you provided, the 4.6 to 8.0, is there a footnote
8 that limits that only to
ionizable organics?
9 MR. HORNSHAW: Yes. That's
10 appropriately footnote (
i).
11 MR. SHERRIL: But it's only for
12 ionizable organics.
13 MR. RIESER: So that for
organics, to
14 take one, is this an issue at all if the soil pH
15 varies from 8.0.
16 MR. HORNSHAW: Could you repeat that?
17 MR. RIESER: For an organic if the --
18 MR. HORNSHAW:
Nonionizable organic?
19 MR. RIESER:
Nonionizable organic, the
20 soil pH varies from 8.0, can you still use the
21 Tier 1 table?
22 MR. HORNSHAW: Yes.
23 MR. RIESER:
Ionizable organic, if the
24 soil varies from 8.0, you can use the additional
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1 table you've provided, is that correct?
2 MR. HORNSHAW: Up to pH 8.0.
3 MR. RIESER: And at that point you would
4 have to go to Tier 3 to establish a, quote, "Tier
5 1 remediation objective"?
6 MR. HORNSHAW: Correct.
7 MR. RIESER: And then for metals, how
8 would that work?
9 MR. HORNSHAW: Again if it's above pH
10 8.0, you would have to probably search the
11 literature and find out how the chemical behaves
12 at the much higher or much lower pH than what
13 we've got in the table.
14 MS. ROBINSON: Can we clarify for the
15 record which table we're referring to.
16 MR. SHERRIL: The footnote (
i) is in
17 appendix B, table A and table B.
18 MR. RIESER: If the material that you
19 were dealing with was not soil but some other
20 substrate, would the same issues regarding pH
21 apply?
22 MR. HORNSHAW: Do you want to clarify?
23 Are you talking about fill?
24 MR. RIESER: For example, if the
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1 substrate was fill, slag, something like that.
2 MR. HORNSHAW: I think the tables are
3 for native soils. They were constructed from
4 experiments done in native soils.
5 MR. RIESER: So if you had a non-native
6 soil, how would you deal with this issue?
7 MR. HORNSHAW: My guess is it would
8 probably have to be resolved as a Tier 3 issue.
9 MR. RIESER: Going to my question 2, on
10 page 18 of Mr.
Sherril's testimony, where are the
11 test methodologies for
inorganics described?
12 MR. HORNSHAW: Incorporated by reference
13 SW-846, the
USEPA's documents.
14 MR. RIESER: Is this how tables A and B
15 of appendix B are derived?
16 MR. HORNSHAW: I'm not sure what you
17 mean by derived. Are you talking about detection
18 limits?
19 MR. RIESER: Well, I think if you go to
20 my next question, it's a little clearer, which is
21 No. 3, are the inorganic values in appendix B,
22 tables A and B, for migration to groundwater
23 portion of the groundwater ingestion pathway for
24 Tier 1 derived from the Toxicity Characteristic
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1 Leaching Procedure (TCLP) test or the pH test?
2 MR. HORNSHAW: TCLP.
3 MR. SHERRIL: I'd like to add to that.
4 The actual numeric values in those two tables we
5 referenced before are TCLP. However, when you get
6 into the Tier 1, under the rule itself, that it
7 does provide a different method which is the pH
8 totals method.
9 MR. HORNSHAW: And the numbers
10 themselves are derived from the state's
11 groundwater standards for the
inorganics?
12 MR. RIESER: The numbers themselves for
13 each pathway?
14 MR. HORNSHAW: For the migration to
15 groundwater pathway for
inorganics.
16 MR. RIESER: They are derived from
17 the --
18 MR. HORNSHAW: The numbers that need to
19 be achieved in the TCLP test are the state's
20 groundwater standards for those
inorganics.
21 MR. RIESER: You've provided -- and I'm
22 not sure if this is the point to get into it --
23 but you've provided an additional appendix that
24 you discussed in the errata that talked about how
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1 certain of the migration to groundwater pathway
2 values for soils were derived using other values
3 other than the state 620, part 620 standards.
4 MR. HORNSHAW: That's correct. For
5 organics some of the values that were used to
6 create the Tier 1 values for the migration to
7 groundwater pathway used
USEPA's what they called
8 a health-based level which is either the one in a
9 million cancer risk for carcinogens or a hazard
10 quotient equal to one for
noncarcinogens which may
11 or may not be -- probably are not -- the same as
12 the state's values for some of those chemicals,
13 the state's groundwater standards which I
14 discussed in my testimony.
15 And we added that appendix table
16 because those values are not readily apparent in
17 the rule at this point, and if somebody were to
18 try and recreate the Tier 1 tables, they wouldn't
19 have all the information they would need in the
20 rules. So we added that table listing the values
21 that were actually used as the groundwater term to
22 calculate the Tier 1 numbers.
23 MR. RIESER: I think I've got some other
24 questions on those under some of the later
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1 sections so we'll get to those.
2 Looking at subsection (b), my first
3 question, how would a person classify groundwater
4 if no groundwater is found at the site?
5 MR. SHERRIL: You may need to -- I'm
6 going to have a little statement here and then ask
7 you to clarify it, also, because it's the agency
8 experience that groundwater is at every site in
9 Illinois. Whether it's contaminated or not is a
10 different issue, and whether you need to classify
11 groundwater, T.A.C.O. is a rule to develop
12 remediation objectives for soil and groundwater,
13 and we've kind of had this previous discussion on
14 whether it needs to be sampled and so forth.
15 MR. RIESER: Well, under a for example,
16 under focus site investigation when you have
17 situations as we've discussed where the scope of
18 your investigation allowed you to conclude that
19 you did not have impacted groundwater, wouldn't
20 that occur?
21 MR. SHERRIL: Correct.
22 MR. RIESER: So in those instances --
23 I'm sorry, looking at B, in order to meet -- to do
24 your Tier 1 documentation, even though you had
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1 documented that you didn't have to -- that you had
2 not impacted groundwater, would you still have to
3 find the nearest -- the aquifer that was closer to
4 the surface and do the work that would be
5 necessary to classify it according to the agency's
6 -- well, the appendix that they proposed for
7 classifying groundwater under part 620 in every
8 instance?
9 MR. SHERRIL: Are you asking then in
10 lieu of appendix D, how would you classify
11 groundwater as Class 1 or Class 2?
12 MR. RIESER: No. I'm asking in lieu of
13 actually sampling the groundwater when those sites
14 did not have to be sampled, how would you meet
15 this requirement under appendix B?
16 MR. SHERRIL: The agency assumes Class 1
17 groundwater unless other information is provided
18 demonstrating otherwise.
19 MR. RIESER: Is that assumption included
20 in any regulation including the appendix that's
21 been proposed here or part 620?
22 MR. KING: We did have that. As you
23 recall, we had that in a prior draft, and you guys
24 asked that it be taken out so we took it out.
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1 MR. RIESER: That's correct. So what's
2 the answer to my question?
3 MR. KING: It's not here.
4 MR. RIESER: And it's not in 620
5 either. So by saying that, that you assume, does
6 that mean for a person using (d)(1) would have to
7 say -- under the agency's formulation, they would
8 have to say, well, it's a Class 1. We're going to
9 use these Class 1 values, what has been assigned
10 in Class 1 values tables unless we can document
11 it's a Class 2 groundwater even though there's no
12 groundwater present in the site in the context of
13 the site investigation?
14 MR. KING: If you're going to use Tier
15 1, what we've laid out, are you talking about (b)
16 or (a) here?
17 MR. RIESER: (B)?
18 MR. KING: 500(b).
19 MS. ROBINSON: 505(b).
20 MR. SHERRIL: 505(b).
21 MR. KING: You have to look at that
22 provision in the context -- I think in the context
23 of the other sections and the way the appendices
24 are set up. If you don't know what class of
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1 groundwater you have, then it's meaningless to
2 look in Tier 1 for a groundwater
remediation
3 objective because you have to know that. You have
4 to make that distinction.
5 If you're in a situation where
6 you're positing that groundwater is not an issue
7 because it's not -- there's really no mechanism
8 for a migration of contaminants to groundwater,
9 then I guess I would see that as not being a Tier
10 1 issue. If you're going to use the Tier 1
11 tables, you've got to know what the groundwater
12 classification is. If you are excluding the
13 groundwater pathway for some reason under subpart
14 C or under Tier 3, then this wouldn't be an issue.
15 MS. ROBINSON: May I ask a follow-up
16 here? What would be the significance of the
17 agency assuming Class 1 rather than something
18 else?
19 Why would the agency assume a
20 Class 1 rather than a Class 2 groundwater if it's
21 unknown what the groundwater class type is at that
22 site?
23 MR. KING: We want to make sure that
24 we're taking an approach that's protective of
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1 human health, and with no other information
2 relative to a site, we want to take an approach
3 that was most environmentally protective.
4 MS. ROBINSON: Thank you.
5 MS. MC FAWN: All right, I have to ask
6 the follow-up question now. How come you were
7 requested to take it out?
8 MR. KING: Why were we requested to take
9 it out?
10 MS. MC FAWN: What was the rationale
11 given to the agency that motivated it to take it
12 out of the rule?
13 MR. KING: Well, I think their
14 motivation -- and I guess I'm speaking for them,
15 which may be not the best thing to do, but I will
16 anyways.
17 MS. MC FAWN: Mr.
Rieser is here. He
18 can tell me.
19 MR. KING: They were concerned about
20 that presumption being written into the rules at
21 this point when it hasn't appeared in the rules
22 anyplace else. I mean, that's the presumption
23 we've always operated under from an administrative
24 standpoint and will continue to be the procedure
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1 we follow unless, for instance, there was
2 directive that said you presume it's Class 2.
3 MS. MC FAWN: Do you think that this
4 type of presumption should be written into the
5 rules maybe perhaps not in T.A.C.O. but
6 elsewhere?
7 MR. KING: I don't know that it's
8 something that has to be anyplace. I mean, we've
9 been functioning with it, and it's been pretty
10 well accepted with the people we've been dealing
11 with.
12 I think if you were going to put
13 that kind of presumption, I think you would put it
14 here as opposed to I don't think you'd want to go
15 back into 620 and put that kind of presumption in,
16 and I think this would be the place to do it if
17 you were going to do it.
18 HEARING OFFICER FEINEN: I guess you
19 have one more question, Mr.
Rieser, under 505.
20 MR. RIESER: No, that question I asked,
21 I think.
22 HEARING OFFICER FEINEN: I believe
23 Mayer, Brown & Platt, Ms.
Sharkey.
24 MR. RIESER: I'm sorry?
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1 HEARING OFFICER FEINEN:
Mayer, Brown &
2 Platt, I think.
3 MR. RIESER: Do they have --
4 MS. MC FAWN: Did you conclude your
5 questions concerning subsection (b)?
6 MR. RIESER: No I have not.
7 On page 17 of Mr.
Sherril's
8 testimony, he seems to indicate that the Tier 2
9 model assumptions are threatened based on the
10 presence of what he calls more permeable units.
11 Is this accurate? Does this mean
12 that a person will not be allowed to use Tier 2 if
13 there are permeable units on the site?
14 MR. SHERRIL: What I was trying to get
15 at in my testimony there is the values derived
16 from the Tier 2 models can be inaccurate if the
17 assumptions by which the models are based are
18 violated, and I gave an example of a -- let's say
19 if groundwater was contaminated within a narrow
20 sand seam, one of our groundwater model equations
21 assumes that the contamination is pluming out from
22 a source area, and groundwater in a narrow sand
23 seam, let's say, for example, it had a confining
24 unit above and below it, would not be dispersing
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1 out, diluting out as the model would be
2 predicting.
3 MR. RIESER: I would like to get back to
4 this, but we should probably do it in the context
5 of Tier 2. This question was probably misplaced
6 so I defer at this point.
7 HEARING OFFICER FEINEN: I think there's
8 some questions from
Mayer, Brown & Platt from
9 Ms.
Sharkey from Mayer, Brown & Platt.
10 MS. SHARKEY: Thank you. I think I
11 understand this better now than when I wrote my
12 initial question. I'm going to ask it anyway just
13 to make sure I understand it.
14 Please explain in laymen's terms
15 the two components of the groundwater ingestion
16 route, i.e. migration to groundwater and direct
17 ingestion, what each is designed to protect and
18 how each is to be used.
19 MR. KING: The challenge here, I think,
20 is to try to put it in laymen's terms because it
21 is, as with all of these things, fairly complex.
22 There really is a need to look at -- first of all,
23 to recognize that it is -- that groundwater
24 ingestion route, that's what we're concerned
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1 about. Is there actual or potential human health
2 impact through consumption of contaminated
3 groundwater?
4 Then the question is, well, how is
5 that pathway effectuated, and we really saw that
6 as having two elements to how a pathway would be
7 completed. The first element is the movement of
8 contamination from soil basically downward into
9 groundwater through various mechanisms that impact
10 how contamination moves in soil, and then once it
11 reached the groundwater, the second component
12 would be relative to how does contamination move
13 once it is in groundwater, and that would be the
14 second component.
15 The combination of the two is
16 really designed to protect that potential or
17 actual end user of groundwater that is being
18 consumed for drinking water purposes.
19 MS. SHARKEY: Is the migration to
20 groundwater is actually a soil standard? Am I
21 correct on that? The way it's laid out here, it's
22 under (a)(3), 505(a)(3), and then it appears in
23 the table, appendix B, table B as a soil
24 remediation objective.
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1 MR. SHERRIL: That's correct.
2 MS. SHARKEY: Is the idea that what
3 we're attempting to do is ensure -- is protect the
4 groundwater from becoming contaminated with this
5 breaking down this into two parts, both ingestion
6 of the groundwater and then migration to
7 groundwater, the latter being protecting the
8 groundwater so that it does not become
9 contaminated. Have I got that right?
10 MR. KING: I think that's basically
11 accurate. We're not trying to protect the
12 ground. We're focused on whether the
13 contamination is going to move from the ground to
14 the groundwater.
15 MS. SHARKEY: So it's really one
16 exposure route, and that's consumption of the
17 groundwater?
18 MR. KING: That's correct.
19 MS. SHARKEY: And the soil component is
20 designed to ensure protection of that exposure
21 route?
22 MR. KING: You have to remember it's
23 important to focus on both aspects because you
24 could have a situation where the groundwater is
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1 already contaminated, and now there's a risk of
2 additional contamination moving from the soil to
3 the groundwater, or you could be in a situation
4 where there is no contamination of the
5 groundwater, and yet, there's a potential for
6 contamination to move from soil to the
7 groundwater. So you really have to think about
8 both aspects of that pathway.
9 MR. HORNSHAW: I guess the easiest way
10 to put it in laymen's terms is that one portion of
11 this pathway is to protect current users and the
12 other portion is to protect future users of the
13 groundwater.
14 MS. SHARKEY: Just to make sure I've got
15 it clear, it's possible to have the ingestion --
16 direct ingestion pathway exceeding, for example, a
17 Tier 1 standard and the migration to groundwater
18 not exceeding that standard? Am I --
19 MR. SHERRIL: That scenario could
20 happen. That's possible.
21 MR. HORNSHAW: That could happen, yeah.
22 MS. SHARKEY: In other words, if, for
23 example, there was a plume from off site moving in
24 the groundwater, not moving down through the soil
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1 but moving laterally into another site.
2 MR. SHERRIL: It's common for less sites
3 to have their release in the groundwater.
4 MS. SHARKEY: In that instance you would
5 still look to your Tier 1 table and the migration
6 to groundwater pathway? You would still, in doing
7 your evaluation, look to that table, look to that
8 column on migration to groundwater. You would
9 need to do the evaluation, but you're not going to
10 -- in that instance, you probably wouldn't
11 exceed, in other words, because while you might
12 exceed on the direct ingestion on the groundwater
13 objective itself. The direct ingestion, then you
14 look in the groundwater objective?
15 MR. HORNSHAW: That's correct.
16 MS. SHARKEY: I think I understand it
17 better unless you want to clarify it some more.
18 I think my second question has
19 already been answered. Maybe I'll ask it. Maybe
20 it's slightly different. If no one is ingesting
21 groundwater in the area of the site, is
22 groundwater sampling necessary for a Tier 1
23 analysis?
24 MR. KING: I don't know if this is
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1 really a direct answer to the question, but it's
2 important to recognize that you cannot just ignore
3 groundwater because there is no actual consumption
4 because there may be a potential for future
5 consumption.
6 MR. SHERRIL: We also have program
7 specific -- getting back again to LUST, where they
8 have program specific guidelines or requirements.
9 MS. SHARKEY: Is an institutional
10 control, that is, a local ordinance necessary to
11 ensure no one is drinking the groundwater in
12 localities where a public water supply is
13 universally available?
14 And the second level question is,
15 has the agency considered whether there are other
16 satisfactory methods of demonstrating groundwater
17 is not and will not be used for drinking water in
18 the vicinity of a Tier 1 site?
19 MR. KING: We have specified that, you
20 know, unless you clean it up to the Tier 1
21 objectives, that you would need to have some kind
22 of institutional control in place. That
23 institutional control could be a local ordinance
24 that meets the criteria under subpart J, or it
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1 could be one of the other institutional controls
2 that are listed in subpart J.
3 MS. SHARKEY: So a local ordinance is
4 not the only way to be able to demonstrate that no
5 one is drinking the groundwater?
6 MR. KING: Just be careful there because
7 the purpose of the local ordinance is to restrict
8 future use of the groundwater, and so with an
9 institutional control, you're looking at -- you're
10 really looking at focusing on that future use, and
11 it may encompass a present use as well.
12 MS. SHARKEY: Maybe we can talk about
13 this under subpart J. What you're saying is that
14 it is one avenue. There are other avenues the
15 agency might consider?
16 MR. KING: Right, I think that's
17 correct, and I think it would be better to discuss
18 that under subpart J.
19 MS. SHARKEY: Okay.
20 MR. FEINEN: Any follow-up questions?
21 Moving on to section 742.510, Tier 1 tables, Site
22 Remediation Advisory Committee.
23 MR. RIESER: Actually looking at
24 Mr.
Watson's questions, they are kind of more
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1 generic, and it might be a good place to start.
2 MR. WATSON: Question 6?
3 MR. RIESER: Yeah, 6 and 7.
4 MR. WATSON: Question 6 is why did the
5 agency choose the USEPA soil screening guidance as
6 a basis for its Tier 1 objectives?
7 MR. HORNSHAW: USEPA soil screening
8 levels are a procedure which can be used to
9 develop site specific cleanup objectives. The
10 SSL's were developed from a nationwide database,
11 nationwide scientific personnel input and
12 nationwide peer review. Literature was provided
13 that discusses the key elements required to
14 development risk-based cleanup objectives.
15 It describes how background values
16 may be used and directs the reader step-by-step
17 through the risk-based approach. In the interest
18 of public safety and well-being, the economy of
19 public and private resources and this risk-based
20 approach allows
remediation efforts to be focused
21 on those situations which pose a threat to human
22 health and the environment. Please keep in mind
23 in T.A.C.O., both the American Society for Testing
24 and Materials, ASTM, standard ES38-94, emergency
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1 standard guide for risk-based corrective action
2 applied at petroleum release sites, and
USEPA's
3 guidance for soil screening levels were used as
4 models. Structure part 742 is similar to that of
5 both ASTM and USEPA. The specific processes
6 presented here are unique to Illinois.
7 MR. WATSON: With respect to Tier 1, are
8 you saying that the Tier 1 objectives also
9 incorporate some level of the ASTM standard as
10 well?
11 MR. HORNSHAW: We selected
USEPA's soil
12 screening guidance as the primary model for the
13 Tier 1 tables.
14 MR. WATSON: Was there an evaluation
15 done of which model would be more appropriate for
16 the Tier 1?
17 MR. HORNSHAW: Yes.
18 MR. WATSON: Was there ever any thought
19 about developing Tier 1 tables using both models?
20 MR. HORNSHAW: No.
21 MR. WATSON: Why not, given that you
22 allowed that flexibility in Tier 2?
23 MR. HORNSHAW: It's available in Tier
24 2. Dueling Tier 1 tables probably would have been
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1 more confusing than helpful, and also,
ASTM's
2 procedure is designed to -- is designed for
3 petroleum products primarily, whereas
USEPA's soil
4 screening guidance covers a much wider range of
5 contaminant types.
6 MR. WATSON: So the concept of broader
7 applicability is the primary basis for choosing
8 the soil screening guidance over ASTM?
9 MR. HORNSHAW: Primarily.
10 MR. WATSON: I'll proceed with my
11 question 7, if that's okay. The Tier 1 objectives
12 under subpart E of proposed part 742 and
13 associated appendices and tables specify Tier 1
14 objectives for chloride and lead. Question (a),
15 what is the agency's basis for the Tier 1 level
16 for chloride set forth in appendix B, Table A?
17 MR. HORNSHAW: That's the state
18 groundwater standard for chloride. It was
19 developed from the 95th percentile occurrence in
20 all public water supply monitoring data reported
21 to the agency, and I guess that answers your
22 question B.
23 MR. WATSON: Question B, is the agency's
24 Tier 1 level for chloride based on a toxicity
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1 analysis?
2 MR. HORNSHAW: No. It's a percent
3 occurrence.
4 MR. WATSON: Are there other parameters
5 in the Tier 1 tables that are also not based on a
6 toxicity analysis?
7 MR. SHERRIL: You mean other chemicals,
8 not contaminants?
9 MR. WATSON: Right.
10 MR. HORNSHAW: Sulfate would be the
11 other one.
12 MR. WATSON: Those two are the only ones
13 that are not based on the toxicity analysis?
14 MR. HORNSHAW: Yes, that's correct.
15 MR. WATSON: Question C, does the Tier 1
16 lead level set forth in appendix B, table A, apply
17 to sites where the naturally occurring background
18 concentrations of lead in soils are greater than
19 the Tier 1 lead limit?
20 MR. O'BRIEN: Well, the agency isn't
21 aware of any naturally occurring background
22 concentrations greater than the Tier 1 lead
23 limit. Our soil background study of 267 lead
24 samples from background areas around the state
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1 showed only one result greater than the 400
2 milligram per kilogram level which is the Tier 1
3 lead level, and that sample was taken between an
4 expressway and a landfill during an investigation
5 of a lead-based paint removal complaint, and we
6 don't believe it represents natural background.
7 Samples from areas in the state
8 which we would expect to exhibit high natural
9 backgrounds such as
JoDaviess County showed levels
10 only as high as 211 milligrams per kilograms. In
11 the mean of all samples for lead statewide was
12 49.2 milligrams per kilogram.
13 MR. WATSON: Is it the agency's
14 experience that sites next to highways would not
15 have area background concentrations routinely
16 above the 400 part per million limit?
17 MR. O'BRIEN: Within a few feet of
18 highways, up to 10 feet, you may find some. I
19 don't know that we've done an exhaustive study of
20 that, and of course, that would not be naturally
21 occurring, as your pre-submitted questions state.
22 MR. WATSON: But it would be considered
23 area background nonetheless?
24 MR. O'BRIEN: Right.
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1 MS. MC FAWN: Is your question maybe
2 what would happen if you asked your question and
3 it said would the level apply to sites where the
4 natural -- where the area background concentration
5 of lead was greater? Is that really your question
6 as opposed to naturally occurring?
7 MR. WATSON: Yes. I mean, yeah, that
8 would be a follow-up question, sure.
9 MR. SHERRIL: Greater than what, greater
10 than the 400 milligrams per kilogram?
11 MR. WATSON: Correct.
12 MS. MC FAWN: Yes.
13 MR. SHERRIL: I think what Jim
O'Brien
14 said is we haven't seen any sites where the
15 naturally occurring background is above 400.
16 MR. HORNSHAW: But in cases where
17 somebody has done the correct statistical approach
18 to determine what area background is, that could
19 be used as the Tier 1 -- or substituted for the
20 Tier 1 value, if that's what your question is.
21 MS. MC FAWN: Thank you.
22 MR. WATSON: That would be subject to
23 institutional controls at that point?
24 MR. HORNSHAW: Yes.
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1 MR. WATSON: Question (d), does the
2 agency believe that the Tier 1 lead levels were
3 reliable or appropriate given the fact that in
4 many sites in Illinois, naturally occurring or
5 area background levels of lead in the soil may be
6 greater than the Tier 1 TCLP lead level?
7 MR. O'BRIEN: Well, we're not of the
8 opinion that the naturally occurring sites are
9 above the 400 milligrams per kilogram of lead.
10 MR. SHERRIL: On that question (d) it
11 says, the fact that at many sites in Illinois
12 naturally occurring levels of lead in the soil may
13 be greater than the Tier 1 TCLP lead levels.
14 We have not provided a TCLP
15 background level, and so it would be possible
16 through the background determination to determine
17 what a background TCLP is, but we have not done
18 that.
19 MR. WATSON: I guess the question is --
20 the concern is that you've got lead levels in the
21 state that are within the background range set
22 forth in the tables that would fail the .0075 Tier
23 1 limit for lead.
24 MR. SHERRIL: Is that a statement?
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1 MR. WATSON: Yes, that is a statement.
2 MR. KING: All three of these questions,
3 (c), (d) and (e) as part of section 7 of the
4 questions, really presuppose a factual situation
5 that we don't believe the record demonstrates is
6 true. So really from our standpoint, it's kind of
7 fruitless to proceed along answering -- trying to
8 answer a question when kind of the whole basis of
9 the question is just not correct.
10 I mean, if these questions need to
11 be reformulated, then I think they should be
12 reformulated and resubmitted rather than us kind
13 of proceeding along with a faulty basis in mind
14 here.
15 MR. WATSON: I think the record is clear
16 with respect to your position or your view on the
17 presence of background lead contamination at sites
18 in Illinois. So that's all I have with respect to
19 question 7.
20 HEARING OFFICER FEINEN: Mr.
Rieser, do
21 you have some questions you want to ask starting
22 with 742.510? I do notice a question 13 from
23 Mr.
Watson seems to be also on 5. I don't know if
24 you want to split it up that way or however you
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1 want to do it, it doesn't matter to me.
2 MR. RIESER: Actually I had some of the
3 same questions he's got in 13, either way.
4 MR. WATSON: I'll let you go ahead.
5 MR. RIESER: This is under 742.510,
6 subsection (a)(3), is it accurate that the values
7 for
inorganics in appendix B, tables A and B, are
8 the TCLP test and that the values in tables C and
9 C are from the pH test?
10 MR. SHERRIL: Yes.
11 MR. O'BRIEN: I'd like to clarify that a
12 little bit. By the pH test, what we mean is the
13 test for total metals for the total, and then the
14 objective would depend, also, on a test of pH of
15 the soil to determine what the correct objective
16 is. The pH test itself does not test for the
17 chemicals in the table.
18 MR. RIESER: Are these alternate
19 options?
20 MR. SHERRIL: Yes, these are alternate
21 options and either may be used.
22 MR. RIESER: And then the footnote (
i)
23 in appendix B, Table A -- which we talked about --
24 says that for
ionizable organics, one must use
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1 table C and D if the soil pH does not equal 6.8?
2 MR. SHERRIL: Yes.
3 MR. RIESER: So for
ionizable organics,
4 these are options, but it's mandatory that under
5 those circumstances, you must use tables C and D?
6 MR. SHERRIL: Or Tier 3.
7 MR. RIESER: Were there metals that did
8 not have -- back it up again.
9 Were there metals that did not have
10 MCL values that were used in formulating the -- I
11 should say
inorganics. Were there
inorganics that
12 didn't have MCL values used in formulating these
13 tables?
14 MR. HORNSHAW: That's correct. Chloride
15 and sulfate are two examples already noted, and I
16 believe vanadium is a third.
17 MR. RIESER: In arriving at the values,
18 did you use 620, subpart F standards?
19 MR. HORNSHAW: The groundwater values?
20 MR. RIESER: Yes, the procedure -- I
21 should say the procedures under subpart F for
22 arriving at
remediation for groundwater values and
23 then translate those into
remediation objectives.
24 MR. HORNSHAW: Yes, with the exception
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1 of vanadium. We used
USEPA's health-based level
2 for vanadium.
3 MR. RIESER: What was the basis for
4 using 620, subpart F for those metals instead of
5 the SSL values?
6 MR. HORNSHAW: Subpart F, we used 410
7 and 420 from part 620, not subpart F.
8 MR. RIESER: I thought earlier you said
9 that subpart F was used for deriving some values,
10 groundwater objectives for some of the
inorganics.
11 MR. HORNSHAW: If I said that, I was
12 mistaken. All those values with the exception of
13 vanadium came from 410 and 420 --
14 MR. RIESER: Thank you.
15 MR. HORNSHAW: -- of part 620.
16 MR. RIESER: We've answered one. With
17 respect to (a)(6), are there any values in
18 appendix B, tables A and B, expressed which are
19 lower than the acceptable detection limit or ADL?
20 MR. HORNSHAW: Yes, and these have the
21 ADL listed in that table or those tables.
22 MR. RIESER: Those tables. Will the
23 agency confirm that the ADL for those substances
24 is always as listed in the appendices and cannot
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1 be changed without board action?
2 MR. HORNSHAW: Yes.
3 MR. RIESER: On page 19 of Mr.
Sherril's
4 testimony, he indicates that the value for
5 pentachlorophenol was adjusted by a factor of .5
6 for dermal exposure. Was this multiplied by .5 as
7 an adjustment?
8 MR. HORNSHAW: Yes.
9 MR. RIESER: What was the basis for this
10 adjustment?
11 MR. HORNSHAW: This was to account for
12 the fact that
pentachlorophenol has been shown to
13 be significantly absorbed across the skin so that
14 the value was adjusted downward to account for the
15 additional dose from soil through the skin as well
16 as for ingestion.
17 MR. RIESER: I noticed in some of the
18 tables -- unfortunately, I don't have them at
19 hand -- that were modified by the errata, some of
20 the appendices there were changes for
21 pentachlorophenol or there was an addition of a
22 column for
pentachlorophenol.
23 MR. HORNSHAW: Do you know which table?
24 MR. RIESER: I'll find it, and maybe we
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1 can come back to this later.
2 With respect to subsection (c), why
3 is 35 Ill. Admin. Code 620 referenced in
4 describing the development of a remedial objective
5 for a substance not listed in the current appendix
6 B?
7 MR. HORNSHAW: 35 IAC 620 is referenced
8 as one method of developing the groundwater value
9 for chemicals that aren't already in the T.A.C.O.
10 tiered tables.
11 MR. RIESER: So it's correct that this
12 rule allows a person opposing such an objective to
13 use either the 35 Ill. Admin. Code 620, subpart F
14 factors or factors under subpart I?
15 MR. HORNSHAW: That's correct.
16 MR. RIESER: If this determination is
17 made under subpart I of the part 742 proposal,
18 which factors will be considered instead of those
19 in 35 Ill. Admin. Code 620, subpart F?
20 MR. HORNSHAW: That would be all the
21 factors that are discussed in Ms. Virgin's
22 testimony about subpart I.
23 MR. RIESER: And those are?
24 MS. MC FAWN: Can this question be
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1 deferred until we get it?
2 MR. RIESER: We can do that.
3 MS. MC FAWN: Why don't we do that.
4 MR. HORNSHAW: Okay.
5 MR. RIESER: Just one more question, I'm
6 sorry.
7 It's true that for compounds
8 without MCL migration to groundwater portion of
9 the groundwater ingestion exposure route for Class
10 1 was based on the USEPA health-based limits from
11 the SSL, correct?
12 MR. HORNSHAW: Correct.
13 MR. RIESER: And those compounds were
14 identified in your additional table F that was
15 added to the appendices?
16 MR. HORNSHAW: Correct.
17 MR. RIESER: And the Class 2 values for
18 those substances were five times that value?
19 MR. HORNSHAW: Not necessarily. It
20 depended on their physical chemical constants. We
21 compared the chemical's ability to be removed by
22 activated carbon, and we used
ethylbenzene as the
23 cutoff chemical and also their ability to be
24 removed by air stripping, and we used
methylene
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1 chloride as the chemical for the cutoff point, and
2 if the chemical was not able to be removed by
3 either type of treatment technique, then it did
4 not get five times increase over the Class 1
5 value.
6 MR. RIESER: In those instances would
7 they always be the same as the Class 1 value?
8 MR. HORNSHAW: That's correct.
9 MR. RIESER: Are there instances of
10 which you're aware where there were chemicals that
11 were on this additional appendix B, table F, where
12 the ratio between the Class 1 and Class 2 values
13 is neither 5 nor 1 but some other value?
14 MR. HORNSHAW: That's correct, and most
15 chemicals, the treatment efficiency was determined
16 by USEPA when they promulgated the final MCL for
17 that chemical.
18 MR. RIESER: Do you discuss that method
19 -- did you discuss that methodology in your
20 testimony?
21 MR. HORNSHAW: I think in my testimony I
22 have a statement in parentheses, something to the
23 effect that
ethylbenzene is one example but
24 doesn't work or the treatment efficiency was only
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1 43 percent, but I don't go through all of them.
2 MR. RIESER: Thank you.
3 HEARING OFFICER FEINEN: Mr.
Watson, I
4 think you had some questions.
5 MR. WATSON: Right. We've got to jump
6 back to my question 13. Question (a), can the
7 agency discuss why it did not follow the USEPA SSL
8 procedures for determining metals concentrations
9 for Tier 1?
10 MR. SHERRIL: Could you clarify your
11 question.
12 MR. WATSON: Sure, yes, sorry. As I
13 understand it with respect to
inorganics, the Tier
14 1 tables for the migration to groundwater pathway
15 is based on TCLP values, correct?
16 MR. SHERRIL: We have TCLP values, and
17 then for many of the
inorganics, we have a pH.
18 MR. WATSON:
PH option?
19 MR. SHERRIL: Option.
20 MR. WATSON: Why did you choose to use
21 the TCLP values?
22 MR. HORNSHAW: Partly because the TCLP
23 values could be plugged in for each contaminant.
24 If we were going to list the pH dependent value,
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1 there would have been a lot of holes in the Tier 1
2 table. Where the data is available to predict
3 movement based on pH, that's what chemicals got
4 put into the tables C and D.
5 MR. WATSON: And the pH, that's the
6 USEPA SSL approach?
7 MR. HORNSHAW: Correct, for pH 6.8, and
8 I guess that would be another reason is because we
9 have a lot of different pH's around Illinois so it
10 would be more easily handled in a table where you
11 have specific value for each pH or each pH range
12 as we've done it.
13 MR. WATSON: Question B -- this really
14 gets to the heart of my concerns about the TCLP
15 test being used here.
16 Why did the agency not consider a
17 dilution attenuation factor for establishing the
18 TCLP concentrations in Tier 1?
19 MR. SHERRIL: Could you clarify that?
20 MR. WATSON: As I understand it, in
21 looking at the migration to groundwater pathway,
22 what you have done is identified TCLP levels but
23 not have allowed a dilution factor for attenuation
24 dilution as consistent with the USEPA model, is
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1 that true?
2 MR. O'BRIEN: Actually there is a
3 20-fold dilution attenuation factor. The way the
4 TCLP test is normally run is that a weighted
5 sample of the soil to be extracted is added to 20
6 times that weight of extracted solution, and the
7 TCLP test procedure normally requires that the
8 result be reported out as the concentration in the
9 extracted solution.
10 In other analytical tests that are
11 fairly done, the calculation is back calculated to
12 what was in the original sample irrespective of
13 how much
extractant they use, but because TCLP is
14 a widely used test, we didn't want to change the
15 test parameters. So we're just using that, and
16 therefore, we didn't need to add a 20-fold
17 dilution since it was already part and parcel of
18 the procedure, and the way the test is normally
19 reported out, it includes that 20-fold dilution.
20 MR. WATSON: I'm not going to promise to
21 understand all this stuff, but I just want to make
22 the point that it's your testimony that the
23 current TCLP numbers in the Tier 1 table for
24 inorganics include a factor of 20 dilution?
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1 MR. SHERRIL: That's correct.
2 MR. WATSON: With respect to the pH
3 tables -- and I don't know if we asked this
4 question or not -- why did the agency stop at pH
5 of 8?
6 MR. HORNSHAW: That data was -- that was
7 done because the tables that USEPA provides in the
8 technical background document for soil screening
9 guidance only go to pH 8. The graphs don't go
10 beyond there, and we didn't want to try and
11 extrapolate beyond them.
12 MR. WATSON: So if you have a pH of 8.5
13 in your soil, you have to do a Tier 3 analysis?
14 MR. HORNSHAW: For the most part, yes.
15 In a few cases those graphs are totally flat up at
16 the upper pH, and you can probably extrapolate
17 beyond that, and we would accept that readily, but
18 on other cases, the graphs are very different with
19 even a small change of pH, and extrapolating
20 beyond that would be risky.
21 MR. WATSON: Question C, does the agency
22 have data on the
correlations between TCLP
23 concentrations and background concentrations of
24 lead, silver, cobalt or vanadium?
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1 MR. SHERRIL: We have data, but we have
2 no what you would call compiled data as such that
3 it shows any correlation between -- any
4 correlation.
5 MR. O'BRIEN: When we have tried to look
6 at that, we have not found any correlation.
7 MR. WATSON: You have looked at it?
8 MR. O'BRIEN: When we have looked at it,
9 we have not found any correlation.
10 MR. WATSON: So it's your view that
11 background concentrations of these metals would
12 not exceed the TCLP standards?
13 MR. SHERRIL: Could you clarify that?
14 Well, I think from what he's just saying, we don't
15 have a correlation so we couldn't.
16 MR. HORNSHAW: We don't know.
17 MR. SHERRIL: We don't know.
18 MR. WATSON: My question 8 also relates
19 to 510, but that has been addressed in the errata
20 sheet.
21 HEARING OFFICER FEINEN: There's a
22 question from
Mayer, Brown & Platt for 742.510.
23 MS. SHARKEY: That question has been
24 answered.
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1 HEARING OFFICER FEINEN: Go off the
2 record for a second.
3 (Discussion off the record.)
4 (Lunch recess taken.)
5 (Discussion off the record.)
6 HEARING OFFICER FEINEN: Back on the
7 record in the afternoon after lunch. Mr.
Reott is
8 going to begin asking some questions, and we'll go
9 from there in the normal course. Then we can
10 proceed.
11 MR. REOTT: Let me start with the errata
12 sheet 742.415(d) which is the errata that comes
13 out of the statute. Let me just direct your
14 attention to that. In the Tier 1 tables, the
15 board would set objectives for risk to
16 groundwater, the same for residential and
17 commercial industrial properties, in other words,
18 risk to groundwater is the same numbers in the
19 tables.
20 Is the agency going to interpret
21 the risk to groundwater pathway number that the
22 board adopts in Tier 1 tables as a quote,
23 " remediation objective adopted by the board," end
24 quote, within the language of the statute in
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1 415(d)? And the reason I ask obviously is the
2 risk to groundwater pathway, it's not really tied
3 to residential or commercial, it's just the same
4 for everyone, and the statute talks about
5 residential objectives so I'm not sure how you
6 would interpret that value in Tier 1.
7 MR. KING: I don't understand what
8 difference it makes because of the way the
9 statutory language is set up.
10 MR. REOTT: Let me try to clarify,
11 Gary. The statutory language which you put in the
12 errata sheet 415(d) kicks in for
remediation
13 objectives adopted by the board for residential
14 land use, and obviously the ingestion and
15 inhalation numbers for residential are based upon
16 explicit residential scenarios where someone is
17 using the property as a residence.
18 I assume the agency would regard
19 those two numbers as being residential land use
20 remediation objectives adopted by the board. I
21 mean, is that part of it at least something we can
22 agree on?
23 MR. KING: That's true.
24 MR. REOTT: For the groundwater window,
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1 it's a little different because it's not clear
2 that it's merely based upon residential land use
3 because you have the same risk to groundwater
4 number for commercial and residential land use.
5 So my question is how are you going
6 to interpret that?
7 MR. KING: It doesn't make a difference
8 because if it's converted to residential use, it's
9 still the same objective so I don't know that it
10 really -- it doesn't make a difference.
11 MR. SHERRIL: The groundwater at a site,
12 whether it be residential or industrial
13 commercial, can be either dependent on the
14 groundwater classification.
15 MR. REOTT: So in other words, what
16 you're saying is that you will regard the Tier 1
17 residential risk to groundwater number as being a,
18 quote,
remediation objective adopted by the board
19 for residential land use within the meaning of the
20 statute?
21 MR. KING: Yeah, I would certainly.
22 MR. REOTT: I'm going to turn to the
23 prefiled written questions, and what I did over
24 lunch, Gary, and the rest of you, is I tried to
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1 pick out the ones we just covered. So I'm going
2 to not do these necessarily in exactly the order
3 they're there. I'm going to skip around so I
4 don't jump ahead to other topics.
5 Let me start with number one, which
6 I actually think relates to Tier 1, although I
7 phrased it in terms of Tiers 2 and 3. Does the
8 agency believe that the ASTM model which it
9 proposes to use for Tier 2 and 3 produces results
10 which are sufficiently protective of human health
11 and the environment?
12 MR. KING: Yes, that's correct, as long
13 as the model is used correctly in accordance with
14 the limits that the model describes.
15 MR. REOTT: Does it accurately predict
16 the amount of contamination that can remain in
17 place without undue risk from all of the exposure
18 pathways?
19 MR. KING: I think it can do that
20 accurately. Again it's going to be predicted
21 within the limits of its use and within the limits
22 of the data that have been put into the model.
23 MR. REOTT: In other words, if you run
24 the model correctly, you'll get a protective
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1 number, protective result?
2 MR. KING: If you have accurate data as
3 well.
4 MR. REOTT: Question No. 2, in its
5 September 1994 order in the R94-2(B)
6 proceedings -- actually I guess at that point I'm
7 not sure if it was labeled 2B, it may have been
8 just 94-2 -- the board ran tables of soil cleanup
9 objectives calibrated for different distances to
10 the point of compliance in the UST program (the
11 closer of 200 feet or the property line). The
12 distance to the point of compliance affects risk
13 to groundwater in Tier 1 tables. It doesn't
14 affect ingestion or inhalation.
15 Would the agency be willing to
16 modify it's proposed Tier 1 table to add a
17 point-of-compliance-based table for the risk of
18 migration to groundwater pathway so that you could
19 have a Tier 1 table that had different calibrated
20 distances?
21 MR. KING: No. The first point is you
22 make an assumption there that I don't think is
23 correct. When you said the distance to the point
24 of compliance is affecting the risk, it's not the
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1 point of compliance, it's the point of human
2 exposure that affects the risk.
3 MR. REOTT: But from a regulatory
4 standpoint, particularly in the UST program, it's
5 explicit that you have to meet the applicable
6 standards of the 200 foot or property line
7 boundary, you're not proposing to change that, are
8 you?
9 MR. KING: No, that's designated in the
10 statute and the regulations for the tank program.
11 MR. REOTT: But you're not willing to
12 try to construct a Tier 1 table that incorporates
13 different distances like the board did in its 1994
14 order?
15 MR. KING: No. That would just make
16 for -- this regulatory proposal is complex enough
17 as it is, and it's difficult enough to understand,
18 and to try to incorporate within part 742 all the
19 potential points of compliance that exist under
20 the various programs that would be using this
21 would make it too unwieldy.
22 In essence you would have to have a
23 set of Tier 1 tables for every separate compliance
24 point distance, and we've included the equation
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1 methodologies to deal with those gap situations.
2 MR. REOTT: In the subsequent tiers?
3 MR. KING: Right.
4 MR. REOTT: Which version of the SSL
5 model has the agency endorsed in this
rulemaking?
6 And I think I understand the answer to this
7 question to be the one that came out last year,
8 not the original version.
9 MR. KING: I quibble with the word
10 "endorse." I'm not sure that we really endorse
11 it. We've incorporated by reference the final
12 version.
13 MR. REOTT: Dr.
Hornshaw, you testified
14 yesterday about various changes to that model that
15 were made in developing the agency's proposal.
16 Were the list of changes that you
17 gave yesterday in your testimony the only changes
18 that the agency made to the SSL model or were
19 there others?
20 MR. HORNSHAW: They were the ones that
21 were important. The changes that we made we made
22 because of language in the original legislation,
23 for instance, TRC or group C carcinogens. We also
24 had to add chemicals that had existing state
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1 groundwater standards, and we deleted a couple of
2 chemicals due to lack of appropriate toxicity
3 criteria for the class C carcinogens. Everything
4 else that was incorporated by USEPA in their basic
5 model we included into the program, into the Tier
6 1 tables.
7 MR. REOTT: So if I looked at the
8 transcript of your testimony from yesterday and
9 also your written testimony, whatever changes you
10 made or laid out there?
11 MR. HORNSHAW: Correct.
12 MR. REOTT: In one of those two places?
13 MR. HORNSHAW: That's correct.
14 MR. REOTT: Earlier today you referenced
15 the 1994 version of the ASTM model, and there was
16 an updated standard issued in 1995, and I don't
17 know if its changes in any way affected the
18 agency's proposal here, but which version of the
19 ASTM model is the agency using for purposes of
20 this proposal?
21 MR. HORNSHAW: The final standard, not
22 the emergency standard.
23 MR. REOTT: The 1995 version?
24 MR. HORNSHAW: Correct. I believe we've
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1 incorporated that by reference, also.
2 MR. REOTT: What changes did you make to
3 the 1995 version of the ASTM model from the form
4 in which it was originally drafted by ASTM?
5 MR. HORNSHAW: We dropped out the
6 migration to indoor air pathway calculations from
7 that model.
8 MR. REOTT: Why was that?
9 MR. HORNSHAW: In
USEPA's view and in
10 our view, the science behind the calculations to
11 predict what could be in an indoor air situation
12 from subsurface contamination were not
13 scientifically correct enough or rigid enough --
14 not rigid.
15 MR. REOTT: Reliable?
16 MR. HORNSHAW: Rigorous enough. So in
17 the interest of basically allowing that science to
18 develop some more, we deleted that from the --
19 that pathway from the ASTM model that's used in
20 Tier 2.
21 MR. REOTT: Did you make any other
22 changes to the originally drafted ASTM model, the
23 1995 version?
24 MR. HORNSHAW: The final guidance?
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1 MR. REOTT: Did you do anything else?
2 In developing the rule proposal that's on the
3 table here for the board, did you make any other
4 changes to the 1995 version of the ASTM model?
5 MR. HORNSHAW: No.
6 MR. REOTT: What would you need to do to
7 calculate a Tier 1 risk of migration to
8 groundwater table using ASTM?
9 MR. HORNSHAW: Before you go on, there
10 is one minor thing I just recalled. I think the
11 ASTM model specifies some physical chemical
12 constants or recommends or suggests some physical
13 chemical constants.
14 I don't know for sure, but they may
15 be different than the ones that we have in our
16 table of physical chemical constants so that may
17 be another minor change from
ASTM's model.
18 MR. REOTT: When we reconvene in
19 January, do you think it would be possible for you
20 to identify any of those changes that were made?
21 MR. HORNSHAW: Physical constant
22 chemical changes?
23 MR. REOTT: Yeah.
24 MR. HORNSHAW: I could do that.
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1 MR. REOTT: No. 7, what would you need
2 to do to calculate a Tier 1 risk of migration to
3 groundwater table using the ASTM model? What
4 default values would need to be established in
5 order to prepare such a table?
6 MR. SHERRIL: We would need more work,
7 and what we mean by that, we would need, as Gary
8 explained earlier, a specific chemical by
9 compliance point distance kind of criteria set up,
10 and then it would be unwieldy because we would be
11 trying to fit it to all the different bureau of
12 land programs. We would have to pre -- we would
13 have to assume all these compliance points
14 distances which would become unwieldy, we believe.
15 MR. REOTT: Wouldn't the particular
16 program just look up in the table whatever the
17 compliance point was that was applicable to that
18 program?
19 MR. SHERRIL: Compliance points can
20 change. I think we have gone over this yesterday,
21 but compliance points can change the distance
22 depending on whether you're the end of your
23 institutional control is. You could have them in
24 increments really.
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1 MR. KING: Even under the tank program,
2 it's 200 feet of the property line, and the
3 property line varies all over the place as far as
4 the compliance point.
5 MR. REOTT: Let's assume for a minute no
6 one was going to go to the trouble of doing it in
7 one-inch increments. The board did it, I believe,
8 in either five or ten-foot increments in 1994.
9 Wouldn't that be generally sufficient for people
10 to figure out what number they really need to
11 meet?
12 MR. SHERRIL: In five-foot increments?
13 MR. REOTT: Yeah, if you gave them a
14 table.
15 MR. KING: It means you would have to
16 have an entire set of Tier 1 tables for every
17 five-foot increment.
18 MR. REOTT: If you were to choose
19 five-foot increments, that's right.
20 MR. KING: It just seems like that
21 really kind of defeats the whole purpose of having
22 a fairly unified set of tables.
23 MR. SHERRIL: It would probably need to
24 go out to 2500 feet, maybe even further. That
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1 would be an awful lot of tables.
2 MR. O'BRIEN: Since Tier 2 provides the
3 calculation, at some point it's going to be easier
4 just to do the calculation than to try to thumb
5 through hundreds of tables to figure out which one
6 to use.
7 MR. REOTT: There isn't anything
8 theoretically that would stop you from
9 constructing such a set of tables, though, to
10 different distances, is there?
11 MR. O'BRIEN: No, there wouldn't be.
12 MR. REOTT: It's just a question of how
13 much paper the board wants to make this
14 rulemaking. If they want it to be an extra 50
15 pages thick, they can have an extra 50 pages?
16 MR. O'BRIEN: That's true.
17 MR. KING: If you're willing to run all
18 the numbers, maybe you can present them to the
19 board.
20 MR. REOTT: That may be what's done,
21 Gary. I want to make sure there's nothing from
22 the agency's perspective that that would be a
23 futile effort. If it's run and the board is
24 interested in adopting it, it can.
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1 Let me go back to question No. 7,
2 what would you need to do to the ASTM model to be
3 able to run a Tier 1 table? In other words, were
4 all the values you need already there, or do you
5 need to make any assumptions?
6 MR. O'BRIEN: Distance is the only
7 variable that we wouldn't immediately have
8 available, and so we'd have to make a decision on
9 what distances to include in such a table.
10 MR. REOTT: I'm going to skip No. 8
11 because I think it really relates to a different
12 kind of problem.
13 No. 9, what was the risk level used
14 for the construction of the Tier 1 tables?
15 MR. HORNSHAW: We were still having a
16 sidebar conversation.
17 MR. REOTT: Sorry. What was the risk
18 level used for the construction of the Tier 1
19 tables?
20 MR. HORNSHAW: Generally, one in a
21 million. As I stated earlier, for some of the
22 chemicals whose
MCLs are either based on detection
23 limits for risk benefit analysis, that one in a
24 million risk level may be different or it may be
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1 different from the one in a million risk level. I
2 might add that for all the
noncarcinogens, they
3 aren't specified as a risk level at all.
4 MR. REOTT: It's target quotient of
5 one?
6 MR. HORNSHAW: That's correct.
7 MR. WATSON: I've got a follow-up on
8 that question, and that is what's the significance
9 in appendix B, table B of footnote (e) which
10 states that calculated values correspond to a
11 cancer risk level of one in one million. Site
12 specific conditions may warrant use of a greater
13 risk level but not to exceed 1 in 10,000.
14 MR. SHERRIL: Could you repeat again the
15 table and the --
16 MR. WATSON: Appendix B, table B, this
17 is Tier 1 numbers for soil for industrial
18 commercial property footnote (e).
19 MR. SHERRIL: E as in elephant?
20 MR. WATSON: Right.
21 MS. ROBINSON: That's page 106 of the
22 board's version, and the people have that.
23 MR. HORNSHAW: I think that may be left
24 over from an earlier draft and we didn't strike
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1 that.
2 MR. WATSON: So the site specific risks
3 evaluated at 10 to the minus 4 are not available
4 under Tier 1 analysis?
5 MR. HORNSHAW: That's correct.
6 MR. WATSON: Were they in prior drafts?
7 Was that possibility available in prior drafts?
8 MR. HORNSHAW: I don't think for
9 Tier 1.
10 MR. WATSON: With respect to Tier 1
11 numbers, has the agency ever considered a risk
12 level less than 10 to the minus 6?
13 MR. KING: You mean greater than 10 to
14 the minus 6?
15 MR. WATSON: I'm sorry, greater.
16 MR. KING: Generally, that's true. Of
17 course, you have to remember that some of the
18 drinking water standards are not necessarily based
19 on the 10 to the minus 6 risk.
20 MR. WATSON: But in evaluating and
21 developing these proposed regulations, did the
22 agency ever consider the appropriateness of 10 to
23 the minus 5 number, for instance, as part of the
24 Tier 1 default tables?
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1 MR. KING: We considered it and we
2 rejected it.
3 MR. WATSON: What was the basis for
4 rejecting it?
5 MR. KING: We really are looking at --
6 the focus of our analysis was where was the point
7 of human exposure, and if you have a point of
8 human exposure, whether that's a person who lives
9 at a site or as a child playing at a site or as a
10 worker working at a site, we felt that that person
11 should have the same -- the equivalent level of
12 protection and that it should be focused in that
13 way.
14 Obviously with different types of
15 persons who can be exposed and the conditions
16 under which they are exposed, you would adjust the
17 numbers based on that, but still, the goal is that
18 you protect any person who be might be potentially
19 exposed, that they are exposed only at a 10 to the
20 minus 6 level.
21 MR. WATSON: Are you familiar with other
22 states that have developed Tier 1 numbers at 10 to
23 the minus 5th risk level?
24 MR. KING: Yeah. I am familiar that
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1 there are other states that are doing that, yes.
2 MR. WATSON: Do you know what the
3 rationale is for the appropriateness of a 10 to
4 the minus 5th number?
5 MR. KING: I think they have confused
6 the concepts in doing that, and I think what we
7 try to do is be very careful in how we use numbers
8 like 10 to the minus 6th, 10 to the minus 5th, 10
9 to the minus 4th because if you just start
10 throwing those numbers out without being extremely
11 careful in the way you're using them, your logic
12 ends up being flawed as to who and why you are
13 providing the level of protection.
14 MR. WATSON: The states that have
15 developed these numbers, what's the problem?
16 Where is the flaw in their logic in terms of the
17 appropriateness of 10 to the minus 5th?
18 MR. KING: As we were saying before, if
19 you have a person that's working at a site as
20 opposed to another person residing at a site,
21 they're both deserving of that equivalent level of
22 protection.
23 Why should a person who is working
24 at a site be subjected to a greater risk of cancer
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1 than a person who is residing at a site?
2 HEARING OFFICER FEINEN: Mr.
Reott.
3 MR. REOTT: Let me follow up in response
4 to that question while we're on this topic. The
5 ASTM 1995 standard and the discussion about how do
6 you select particular risk levels, I think, is
7 that right, Dr.
Hornshaw?
8 MR. HORNSHAW: That's correct.
9 MR. REOTT: And I admit that I'm
10 somewhat summarizing this, but they go through a
11 list of states that have set risk levels that were
12 greater than one in a million, as my colleague had
13 said, and they characterize the use of the one and
14 a million as being done for when large, very, very
15 large populations are exposed to things such as
16 systemic, City of Chicago drinking water context,
17 but they seem to indicate that the greater risk
18 levels, 1 in a 100,000, are more typical when
19 you're looking at a small exposed populations. Is
20 that a fair characterization of where ASTM comes
21 out on this question?
22 MR. HORNSHAW: I think that's a fair
23 characterization. I'm not sure I want to delve
24 into why states chose a particular risk level.
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1 I'm not familiar enough with why each individual
2 state has done that to touch into that very much.
3 MR. REOTT: Let me go back to my
4 prefiled questions. No. 10, by volume, how much
5 contaminated soil is assumed to be ingested each
6 day in the residential Tier 1 scenario, the
7 industrial Tier 1 scenario and in the construction
8 worker scenario -- inhalation portion of the
9 construction worker scenario?
10 MR. SHERRIL: The inhalation?
11 MR. REOTT: I'm sorry, ingestion
12 portion.
13 MR. HORNSHAW: For the residential
14 scenario, 200 milligrams per day by a child. For
15 the industrial scenario, 50 milligrams per day by
16 an adult, and for the construction worker
17 scenario, 480 milligrams per day, also by an
18 adult.
19 MR. REOTT: Any idea what that would
20 translate in volume terms? It would probably
21 depend upon
compaction and so forth.
22 MR. HORNSHAW: I wouldn't even want to
23 try and guess at it.
24 MR. REOTT: We'll save that for another
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1 day. By volume how much contaminated water would
2 you assume an exposed individual would drink in
3 Tier 1? Is that two liters?
4 MR. HORNSHAW: Yes, it's not
5 specifically stated. It's one of the assumptions
6 that go into the drinking water
MCL's at the
7 federal level, or that was used by USEPA to
8 develop the health-based levels. It's not
9 specifically stated in there as a rule.
10 MR. REOTT: Skipping ahead to No. 16,
11 which is the next one that relates to Tier 1, for
12 metals the agency's Tier 1 numbers are based upon
13 the amount of metals in -- it should be the
14 leachate test run on the soil at the site using
15 the Federal Hazardous Waste Leaching Procedure,
16 TCLP. The TCLP procedure is designed to mimic the
17 highly acidic conditions inside municipal waste
18 landfills.
19 Does the agency contend that the
20 physical conditions present at typical Illinois
21 contaminated sites are comparable to the physical
22 conditions within a municipal landfill?
23 MR. SHERRIL: Under Tier 1, we provide
24 the option of not only the TCLP method, but for
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1 many of the
inorganics we also provide the pH
2 method. So the way your question is phrased
3 there, it's not a complete question because we do
4 provide more than one method under Tier 1.
5 MR. REOTT: Do you contend that the
6 physical conditions present in typical Illinois
7 contaminated sites are comparable to the physical
8 conditions present in municipal landfill?
9 MR. O'BRIEN: They can be. We've had
10 locations where compost, mulching on the ground
11 ate into an underlying petroleum product pipeline
12 and caused it to rupture so that typical
13 conditions that can occur such as compost can
14 result in low pH conditions that would be similar
15 to what could be found in the TCLP test, and this
16 test is used in Tier 1, which is the screening
17 tool. So we think it's appropriate there as a
18 screen for conditions that can easily occur at
19 typical sites.
20 MR. REOTT: Do you think that conditions
21 like those in a municipal landfill easily occur at
22 Illinois contaminated sites?
23 MR. KING: I think at this point you're
24 really putting into the record some information
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1 which I don't think is there. I mean, you're
2 making an assumption about the physical conditions
3 at a typical Illinois landfill, and I don't know
4 that there's anything here that talks about what
5 that is.
6 MR. REOTT: I think, Gary, that's really
7 already been established by the TCLP test itself.
8 That's what that's designed to mimic, and I think
9 even Dr.
Hornshaw testified to that in his
10 testimony, that that's what that test is designed
11 to mimic.
12 MR. KING: I don't think that's the
13 question you were asking.
14 MR. REOTT: If you do not have the very
15 acidic pH conditions that are typical of a
16 municipal landfill that TCLP is designed to
17 mimic --
18 MR. KING: It's going to be impossible
19 for us to answer a question when you keep assuming
20 that that's the condition of Illinois landfills,
21 that they're highly acidic conditions. You're
22 assuming that.
23 MS. MC FAWN: How about if we go on to
24 question 17? Is this where you might be leading
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1 with your question?
2 MR. REOTT: That's fine. I think 17 is
3 more of a Tier 2 question. I was going to hold
4 that one. I was going to skip to 20. For lead,
5 the agency has set the risk of ingestion values
6 using USEPA criteria that were developed in one
7 particular federal program , you know, where you
8 get the 400 parts per million number. There are
9 other federal criteria that are approximately 10
10 times as high as the one endorsed by this proposal
11 for the board.
12 In addition other federal programs
13 have substantially different values for
14 residential and industrial settings while the IEPA
15 proposal used the same lead ingestion value for
16 both residential and industrial settings.
17 Would the agency be willing to look
18 at adjustments to the lead ingestion criteria in
19 Tier 1 for industrial facilities based upon
20 information from other federal programs?
21 MR. KING: I think that would only be
22 true if those federal programs were identified and
23 it was demonstrated that the procedures they used
24 have been equivalent to what's gone on as far as
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1 the SSL process.
2 Mr.
Hornshaw described the
3 extensive peer review that was done in developing
4 those. Those were clearly designed to deal with
5 remediation objectives at sites that were being
6 evaluated for cleanup. We really have no idea
7 what you're talking about when you say other
8 federal programs in this context.
9 MR. REOTT: But if they were well
10 supported, you would be willing to at least
11 consider them?
12 MR. KING: I mean, when you say well
13 supported, you really have to bring forward the
14 specifics of what you're talking about before we
15 really could even say we would address them.
16 MR. REOTT: As the agency has mentioned
17 before for certain metals -- not all of them --
18 you have an option to use a total metals content
19 in the soil as adjusted by the pH in the soil
20 within the range of up to 8 and down into 4. The
21 typical pH test measures the pH of a liquid. How
22 does the agency propose to set soil for pH using
23 the SW-846 methods, for example?
24 MR. O'BRIEN: The answer to that is the
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1 SW-846 methods.
2 MR. REOTT: For testing soils?
3 MR. O'BRIEN: Yes, they have methods for
4 taking the pH of soil.
5 MS. MC FAWN: I would note for the
6 record that you have posed question 21, and this
7 is what was answered.
8 MR. REOTT: Jim, help me here because
9 I'm not sure I completely understand how SW-846
10 does this, and I want to try to get it on the
11 record.
12 Would they be tested by mixing them
13 with neutral pH water and then testing the pH of
14 the resulting solution? Is that what happens in
15 laymen's terms?
16 MR. O'BRIEN: I haven't looked at the
17 test methodology lately so I don't remember
18 precisely, but that's my general recollection is
19 that you're correct.
20 MR. REOTT: And then the next question,
21 if you feel like you have to postpone this one, go
22 ahead. Should the soils be left in their natural
23 state during testing, i.e. not ground mixed or
24 significantly disturbed, to replicate actual site
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1 conditions?
2 MR. O'BRIEN: I'm not sure about that.
3 A lot of SW-846 test methods do prescribe that the
4 soils have to be sieved through a 200 sieve. I
5 don't remember whether that's specified for this
6 test method or not.
7 MR. REOTT: Would this be something that
8 maybe we could resolve again in January when we
9 reconvene?
10 MR. O'BRIEN: Right.
11 MR. REOTT: If you could look at that
12 before then.
13 The next two questions or the next
14 two questions you're going to be more familiar, I
15 think, because they've come up before back in
16 1994. No. 22, during development of the part 620
17 groundwater standards, the agency testified that
18 groundwater should be tested for metals
19 contamination using filtered samples that measure
20 the dissolved metals in the groundwater rather
21 than the total metals in the groundwater and
22 particulates that are captured by the sampling
23 technique.
24 During the hearings in the R-94, 2B
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1 rulemaking, agency personnel also endorsed
2 filtering groundwater used for metal sampling.
3 For compliance with the groundwater cleanup
4 criteria in this
rulemaking, how does the agency
5 propose that samples be taken for determining
6 compliance with the metals criteria, filtered or
7 unfiltered?
8 MR. KING: Were you going to answer
9 that? Before you answer that, can you give us a
10 citation there because we've been hunting through
11 the hearing record, and we have not located that
12 statement. You made an assumption about what was
13 said by agency personnel in the context of 94-2,
14 and there's no citation in the record.
15 MR. REOTT: I would be happy to supply
16 that. I have a vague recollection it was not one
17 of the principal agency witnesses. It may have
18 been Todd Gross. He was in Springfield. Now I
19 have to look up the transcript Doug Clay.
20 MR. CLAY: Todd Gross works in
21 the program.
22 MR. REOTT: I may have the person
23 wrong. There's someone in the back who wasn't in
24 the front row with all of the agency people, and
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1 we got to the issue, and it was someone who joined
2 in.
3 MS. MC FAWN: Which program did you say
4 he's with?
5 MR. CLAY: He's with the regal project
6 section and would not have even attended the LUST
7 hearings.
8 MR. O'BRIEN: The agency's feeling at
9 this point is that because very few residential
10 wells are routinely filtered, it's not a criteria
11 of the well installation, licensing that the
12 Department of Public Health has is that the sample
13 should be unfiltered. However, under Tier 3, we
14 would consider proposals for filtered depending
15 upon sufficient justification.
16 MR. REOTT: Gary, did you guys look for
17 -- I had previously cited in the '94 hearings the
18 testimony from several years earlier in the part
19 620
rulemaking when the agency did endorse
20 filtered. Were you also having trouble finding
21 that?
22 MS. ROBINSON: Yes.
23 MR. KING: We were just focusing on what
24 your statement was.
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1 MR. REOTT: I just want to clarify what
2 I need to supply for you, that's all.
3 MR. KING: Any citations you have
4 relative to this issue, I think, would be helpful
5 as far as discussing the matter further.
6 MR. REOTT: Because I think even if you
7 now believe that filtering is inappropriate, when
8 the 620 rules were written to develop those
9 standards which in turn formed the basis for much
10 of this, the agency said filtering was
11 appropriate.
12 MR. O'BRIEN: That's why we'd like to
13 see what was said because we would like to see the
14 context
15 MR. REOTT: In the 620 rules what was
16 said is quoted in my testimony from R-94. So if
17 you look at my testimony, either of the two rounds
18 of testimony, I think it's in both of them.
19 MS. MC FAWN: Why don't you provide him
20 those cites, if you can, even before the January
21 hearings.
22 MR. REOTT: I will. The next one --
23 MR. RIESER: Is there anything in this
24 rule that specifies filtering or non-filtered
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1 methodology?
2 MR. SHERRIL: No.
3 MR. RIESER: Is there anything in any
4 other rule that specifies with respect to
5 groundwater sampling using filtered or
6 non-filtered?
7 MR. LISS: My name is Kenneth
Liss. In
8 the municipal solid waste landfill rules, they are
9 federal rules, subtitle D, it's required for
10 totals analysis.
11 MS. ROBINSON: What's required?
12 MR. LISS: The groundwater sampling is
13 based on unfiltered.
14 MR. RIESER: For total metals, is that
15 correct?
16 MR. LISS: Totals, that's correct
17 MR. RIESER: Assuming -- and I think
18 this is a big assumption -- the question of
19 filtered or unfiltered samples would be a subject
20 of a Tier 3 evaluation under sufficient
21 justification, what would that justification
22 include?
23 MR. O'BRIEN: The bottom line is we're
24 looking at the risk to potentially exposed
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1 individuals. So I think for the most part, we
2 would prefer the unfiltered samples. If it was
3 clear the sample would be undrinkable by a person
4 unless it were filtered, that might be an issue
5 where that would be a sufficient justification.
6 MR. SHERRIL: I would include the
7 geology itself that is a factor.
8 MR. RIESER: Excuse me just a second.
9 What would the differences in the samples be
10 between filtered and unfiltered sample?
11 MR. O'BRIEN: Sometimes
particulates
12 that would be filtered out in the filtering
13 process, sometimes they can capture certain
14 contaminants on their surfaces, and so therefore,
15 filtered samples may show less contamination than
16 unfiltered.
17 MR. RIESER: What they would show is
18 they would show the particles of contamination
19 adhered to the -- I'm sorry, molecules of the
20 substance that you're evaluating is contamination
21 adhered to the particles but not the materials
22 that are actually dissolved in the groundwater?
23 MR. O'BRIEN: That's right, but it would
24 be pulling out small particles that would probably
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1 normally be ingested by someone, and therefore,
2 contribute to risk unless that sample had so much
3 sediments or
particulates in it that it would be
4 unpalatable.
5 MR. LISS: Yeah, I'll add that there's
6 just the methodology that you sample, the device
7 that you're using for sampling is going to put
8 some bias, if it's not done properly, in your
9 sample results. Another way to preserve your
10 sample --
11 MR. RIESER: Thank you.
12 MR. REOTT: Can I follow up two of those
13 things. When you mentioned geology as a reason
14 you might want to prefer filtered versus
15 unfiltered, I'm going to take a crack at this, are
16 you referring to like a
Karst geology where an
17 unfiltered sample might be more appropriate?
18 MR. LISS: No, more so what we have here
19 in our glacial sediments in the state here. Some
20 of the
particulates are more mobile due to their
21 size and the effective porosity, the size of the
22 pores of the
hydro-geologic unit that you're
23 measuring these samples in. Some units have the
24 capability of filtering these out or not allowing
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1 those
particulates to move while others would.
2 MR. REOTT: To follow up on another
3 point -- I think this was Jim's point back
4 there . You had indicated, Jim, that one of the
5 reasons the agency might allow you to use a
6 filtered sample would be without filtering the
7 water was unpalatable. There is a standard for
8 drinking water that measures
turbidity and
9 essentially captures how much
turbidity -- how
10 much
particulates is in the water, and I can't
11 remember what the abbreviation stands for, but
12 it's five
NTU's. I never quite had the unit
13 spelled out to me.
14 Would water that exceeded five
15 NTU's, which is the drinking water
turbidity
16 standard, be, quote, "unpalatable" so that you
17 could start to use a filtered number as opposed to
18 an unfiltered number?
19 MR. O'BRIEN: I don't know if I can
20 answer that right now. I mean, that would be the
21 type of thing that we would consider. It's not
22 very practical, though, to run the
turbidity
23 sample in the field to decide whether you are
24 going to filter the samples or not because the
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1 filtering is done as you obtain the sample at the
2 wellhead.
3 MR. REOTT: The same topic, next
4 question No. 23, in Dr.
Hornshaw's testimony, page
5 22, he indicated that the Tier 1 table for Class 2
6 groundwater relies on, quote, "the removal of the
7 chemical from groundwater by routine drinking
8 water treatment techniques for organic chemicals."
9 And my question was should the
10 agency rely upon the same potential for removal of
11 metals in their particulate form from groundwater
12 by routine drinking water treatment techniques
13 which are designed to achieve low
turbidity, i.e.
14 less than five
NTU's, quality groundwater with
15 virtually no
particulates?
16 MR. HORNSHAW: No. Actually in the 620
17 rulemaking, the basis for developing the Class 2
18 standards for the
inorganics for the most part was
19 based on protection of crops or livestock rather
20 than any kind of a treatment technique. That's
21 already locked into the standards already decided
22 in 620 so that wouldn't be appropriate for this
23 rulemaking.
24 MR. REOTT: And I have one last Tier 1
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1 question which is No. 43, which was for
2 noncarcinogens, how does Tier 1 consider
3 cumulative effects?
4 MR. HORNSHAW: Cumulative effects of
5 noncarcinogens aren't considered in Tier 1.
6 That's only considered in Tier 2 or 3.
7 MR. REOTT: I think that catches us up,
8 and then they can resume with Tier 2.
9 HEARING OFFICER FEINEN: We'll start out
10 with subpart F, Tier 2, general evaluation from
11 the Site
Remediation Advisory Committee, 742.600,
12 Mr.
Rieser.
13 MR. RIESER: Yes, thank you,
14 Mr.
Feinen.
15 Will the agency confirm per
16 Dr.
Hornshaw's testimony that the USEPA prefers
17 users of its SSL guidance to calculate risk-based
18 results using site specific physical and chemical
19 values and that the EPA will also prefer users to
20 calculate site specific values through Tier 2
21 formulas?
22 MR. HORNSHAW: We're allowing people to
23 use the Tier 2 methodology. We aren't actually
24 showing any preference for any of the three
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1 tiers.
2 My testimony specifically talked
3 about USEPA wanting their personnel to use it. It
4 should be implied that the IEPA has taken that
5 same position.
6 MR. RIESER: Would it be useful to have
7 people develop the objectives based on the actual
8 site conditions?
9 MR. HORNSHAW: Yes.
10 MR. RIESER: On page 33, when discussing
11 the Tier 2 soil screening level, SSL soil
12 equations, Mr.
Sherril states that the, quote,
13 "Tier 2 equations to model leaching into
14 groundwater have been developed to give the agency
15 assurance that the part 620, Class 1 or 2
16 groundwater quality standards and health advisory
17 concentrations will not be exceeded," end quote.
18 Would the agency agree that it is
19 more accurate to say that the purpose of the Tier
20 2 model is to achieve Tier 1 groundwater values at
21 the point of human exposure?
22 MR. SHERRIL: The agency agrees that it
23 is accurate to say that the Tier 2 model to
24 achieve Tier 1 groundwater objectives at the point
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1 of human exposure.
2 MR. RIESER: And would it also be more
3 accurate to say that the
remediation objectives to
4 be achieved are based on the Tier 1 levels and not
5 part 620 groundwater quality standards?
6 MR. SHERRIL: It is accurate to say that
7 the
remediation objectives to be achieved are
8 based on Tier 1 levels and not part 620
9 groundwater quality standards even though several
10 of the Tier 1 objectives are equal to the
11 groundwater quality standards.
12 MR. RIESER: Dr.
Hornshaw's testimony
13 indicates that the industrial SSL scenario might
14 not be appropriate for sites where contamination
15 is larger than one acre. Is this limitation in
16 the proposal?
17 MR. HORNSHAW: No.
18 MR. RIESER: Will the agency limit the
19 use of Tier 2 for models when the contamination is
20 larger than one acre?
21 MR. SHERRIL: A distinction on this
22 question -- a distinction needs to be made between
23 -- we've kind of discussed this before -- the
24 site size versus the source size.
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1 For example, we may have a 10-acre
2 site that may only have a half acre of
3 contamination source, and that shouldn't provide
4 any limitation just because the site is 10 acres
5 and the source is a half acre.
6 MR. RIESER: If the source is larger
7 than one acre, would the agency include the use of
8 the Tier 2 model?
9 MR. HORNSHAW: Let me preface my answer
10 by saying in our experience, very few sites are
11 greater than one acre of contamination, but
12 usually these probably deserve a closer look in
13 Tier 2 or 3, and that would include having a
14 project manager make a determination whether a
15 different volatilization factor might be
16 appropriate or dilution factor for migration to
17 groundwater, for instance.
18 MR. SHERRIL: And again we're looking at
19 the source really being an acre, you know, fairly
20 large it would be.
21 MR. RIESER: Is this discussion equally
22 true of groundwater contamination and soil
23 contamination?
24 MR. HORNSHAW: Yes.
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1 MR. RIESER: So if you had a plume that
2 was larger than one acre, the Tier 2 models would
3 not be available?
4 MR. HORNSHAW: Not necessarily, but
5 again when you get a big plume like that, you've
6 lost some of your dilution factor that's inherent
7 in the half acre assumption that goes into Tier 1
8 and Tier 2.
9 MR. SHERRIL: The Tier 1 and Tier 2 soil
10 remediation -- most of the Tier 2 soil
remediation
11 objectives are based on an infinite source
12 assumption, and so these calculate -- like the
13 Tier 1 pre-calculated
remediation objectives are
14 protective of larger source areas as well so we do
15 have the safety factor built in.
16 MR. RIESER: And then I think you've
17 answered the final question, which was how will
18 such larger sites be handled?
19 MR. HORNSHAW: Usually as a Tier 3
20 issue.
21 MS. ROBINSON: But potentially, they
22 could be used in a Tier 2 scenario?
23 MR. SHERRIL: Yes.
24 MR. RIESER: That would be a call --
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1 MR. HORNSHAW: Well, that could be
2 done, for instance, by developing a site specific
3 dilution factor. We have an equation in Tier 2
4 that will do that. If you have a very large
5 source, you can develop the dilution factor
6 appropriately.
7 MS. SHARKEY: Could I follow up on that,
8 David?
9 MR. RIESER: Sure.
10 MS. SHARKEY: What are the factors that
11 you might look at in allowing someone to use a
12 Tier 2 for a larger site?
13 MR. HORNSHAW: How closely the site
14 still approximates the assumptions that go into
15 the calculation of the Tier 1 tables, the basic
16 underlying assumptions. If they're not violated
17 or violated that badly, you would probably still
18 be appropriate to use the Tier 2 equations.
19 MR. SHERRIL: Generally on these larger
20 sites as well, even if it's a 10-acre site, the
21 actual sources, you may have a quarter acre source
22 over here and a quarter acre source over here so
23 the models are still protective. It's rare that
24 you have a really huge source.
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1 MR. HORNSHAW: And in most of these
2 cases, they're already in the Super Fund program.
3 MS. SHARKEY: Does the shape of the, for
4 example, spill area make a difference apart from
5 its size? If you've got, for example, an L-shaped
6 spill area, does that affect some of the dilution
7 and other assumptions underlying the --
8 MR. HORNSHAW: It could.
9 MS. SHARKEY: Thank you.
10 MS. MC FAWN: Could I ask a
11 clarification. You had said to develop sites,
12 specific dilution factors is available under Tier
13 2. Whereabouts in the regulations?
14 MR. HORNSHAW: That's equation S-22. I
15 don't have the page numbers on my copies
16 MS. ROBINSON: What appendix and what
17 table?
18 MR. HORNSHAW: Appendix C, table A,
19 equation S-22.
20 MS. ROBINSON: That's on page 122 of the
21 board's copy.
22 MR. SHERRIL: We're still looking up our
23 answer.
24 MS. MC FAWN: If you find any others,
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1 you might want to just submit them to the board.
2 MR. HORNSHAW: Also, we have a table, an
3 appendix C, table H, which gives Q over C values
4 which are needed to calculate the volatilization
5 factor per different acreage sources, source area
6 by acre.
7 MS. ROBINSON: And that's page 161 of
8 the board's copy.
9 MS. MC FAWN: Thank you.
10 HEARING OFFICER FEINEN: Are we done
11 with follow-up?
12 MR. RIESER: No, I was going to go on --
13 actually, I'm sorry, earlier we had a discussion
14 about -- a statement in Mr.
Sherril's testimony
15 where it talked about models might not be
16 applicable to areas of higher permeability. Do
17 you recall that, Mr.
Sherril?
18 MR. SHERRIL: Yes.
19 MR. RIESER: Is this another factor
20 where -- another type of factor that would be
21 considered in evaluating whether the use of the
22 Tier 2 model would be appropriate?
23 MR. SHERRIL: Yes. For example, if you
24 had a
Karst geology, it would not be appropriate.
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1 MR. RIESER: Is there any language in
2 the regulation itself which references this
3 limitation on the use of the Tier 2 model?
4 MR. HORNSHAW: I don't think in the rule
5 itself. In the
incorporations by reference, we
6 have the original USEPA soil screening guidance,
7 and they talk about that in there, but it's not in
8 the rule itself.
9 MR. RIESER: If there are restrictions
10 placed on the use of the Tier 2 model based on
11 accuracy, which is what I'm hearing with respect
12 to these measures, how this model measures up with
13 this specific type of site condition and their
14 ability to predict actual physical behavior.
15 If it can be shown in a specific
16 case that these Tier 2 model equations are not
17 necessarily accurate in that sense but are
18 conservative, in other words, overprotective with
19 respect to actual exposure and risk, would the use
20 of these Tier 2 equations still be acceptable for
21 deriving
remediation objectives?
22 MR. SHERRIL: Most likely.
23 HEARING OFFICER FEINEN: Just to clarify
24 the record, the basis of the original questions
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1 was from the
prefiled questions of section
2 742.505, subsection (b), question 2, I think, is
3 where you wanted to get back to, just so the
4 record reflects that.
5 MR. RIESER: That's right. Thank you
6 very much, Mr.
Feinen.
7 I'm going to go on to question 4.
8 On page 20 of Mr.
Sherril's testimony, he states
9 that exposure is a function of concentration. Is
10 it not more accurate that there cannot be risk
11 without exposure and that concentration is one of
12 many factors in exposure along with transport and
13 the presence of barriers?
14 MR. SHERRIL: In regards to page 20 of
15 my testimony, the agency agrees that concentration
16 is just one of the factors along with exposure,
17 transport and the presence of barriers when
18 evaluating risk.
19 MR. RIESER: On page 21 of Mr.
Sherril's
20 testimony, he states that, quote, "Tier 2 are
21 designed to protect against chronic health
22 impacts. Tier 2 is not designed to protect
23 against acute hazards which are addressed by
24 OSHA," unquote.
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1 Is it correct that the derived Tier
2 2 remediation objectives would be as protective as
3 any other objective derived under any other tier?
4 MR. SHERRIL: The Tier 2 equations are
5 designed to protect against long term chronic
6 health impacts.
Remediation objectives developed
7 under Tier 1 and Tier 2 are also protective of
8 acute health hazards as well.
9 MR. RIESER: Let's get to the first
10 question which is that the Tier 2
remediation
11 objectives properly performed, et cetera, would be
12 as protective as any objective derived under the
13 other two tiers.
14 MR. SHERRIL: Yes.
15 MR. RIESER: And that it is more
16 accurate to say that if a site needs Tier 2
17 remedial objectives based on chronic risk, then
18 there are no acute threats?
19 MR. HORNSHAW: I would say yes with just
20 a few exceptions. There are a couple of chemicals
21 in the Tier 1 tables in which the inhalation value
22 for construction workers is actually more
23 restrictive than the inhalation value for
24 residential scenario, and in those few instances,
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1 it's a stretch, but the Tier 1 residential values
2 might not be protective of a worker -- of a
3 construction worker, sorry.
4 MR. RIESER: These are based on the
5 assumptions of the construction worker actually
6 being present in the soil and thereby inhaling
7 more of the contaminant concerned?
8 MR. HORNSHAW: That's correct.
9 MR. RIESER: And then are not the Tier 2
10 objectives more conservative, and therefore,
11 protective of acute threats? I think we've
12 answered that already.
13 MR. HORNSHAW: Yes.
14 MR. RIESER: On page 23, Mr.
Sherril
15 uses the term "intended future use." Would the
16 agency agree that this is the same as the term
17 post
remediation use as stated in the regulation
18 and that both refer to the use intended after the
19 remedial process is completed?
20 MR. SHERRIL: I had intended that future
21 use refers to post remedial use, yes.
22 MR. RIESER: May Tiers 2 or 3 be used to
23 determine a
remediation objective in situations
24 where the post
remediation use will be
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1 residential?
2 MR. SHERRIL: The Tier 2 and/or 3 may be
3 used to make determinations when post remedial
4 land use is residential.
5 MR. RIESER: If so, would the issued NFR
6 letter contain use restrictions with respect to
7 residential land use or nonresidential land use?
8 MR. SHERRIL: If Tier 2 or Tier 3 is
9 used, the NFR may have conditions upon which the
10 NFR determination was made, NFR referring to no
11 further
remediation.
12 For example, a residential -- and
13 this is an example, not across the board --
14 property use in Chicago may not exceed, let's say,
15 the
remediation objectives except for let's say
16 the migration to groundwater, but under a Tier 3
17 demonstration, for example, that that groundwater
18 route is excluded, there may be no use
19 restrictions on the property.
20 MR. RIESER: Thank you.
21 On page 23 of his testimony,
22 Mr.
Sherril describes the factors for residential
23 land use. Does this term always include
24 apartments?
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1 MR. SHERRIL: Yes.
2 MR. RIESER: Under Tier 3 and with
3 appropriate use restrictions, would the agency
4 allow nonresidential
remediation objectives for an
5 apartment building with no soil exposure?
6 MR. SHERRIL: Under Tier 3, apartments
7 may be considered as something different.
8 MR. RIESER: Something different than
9 residential?
10 MR. KING: They would still be a
11 residential use. What's confusing to us is when
12 you use the term, with appropriate use
13 restrictions. Are you meaning like a land use?
14 Are you talking about a use between residential
15 and industrial and commercial, or are you talking
16 about conditions relative to the property?
17 MR. RIESER: I had intended to use
18 something like barrier, the presence of barriers
19 or the prohibition against drinking water,
20 something of that nature.
21 MR. KING: Okay. Then that is something
22 that's feasible, to end up with a nonresidential
23 remediation objective for an apartment building if
24 the soil exposures have been -- there's been a
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1 barrier applied.
2 MR. RIESER: On page 25 of Mr.
Sherril's
3 testimony, he indicates there are chemicals to
4 which Tier 2 would not apply. Can these chemicals
5 be identified?
6 MR. SHERRIL: No. Let me give you an
7 example. There's tens of thousands of hazardous
8 substances, and if certain specific chemical
9 properties are not available -- say, Henry's Law
10 Constant is a parameter that's used in many of the
11 Tier 2 equations -- then you can't use those Tier
12 2 equations.
13 There's not a Henry's Law Constant
14 for nitrate so there's not an organic carbon
15 prohibition coefficient available for that either
16 so it becomes the equations don't accurately --
17 can't use the equations.
18 MR. RIESER: Are all of the -- can you
19 use the Tier 2 for all of the substances listed in
20 appendix B, tables A and B?
21 MR. HORNSHAW: I can think of two that
22 you wouldn't be able to do a Tier 2 evaluation on,
23 PCB's and lead. PCB's are regulated, or we've
24 intended them to be regulated by federal
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1 regulations pertaining to PCB spill cleanups. So
2 it's either Tier 1 or Tier 3 for PCB's, and for
3 lead, the physical -- I'm sorry, the transport
4 equations are not available.
5 USEPA hasn't developed a database
6 to -- or a graph of movement of lead with
7 different changes in pH so we weren't able to
8 include that in the table, for instance, so you
9 couldn't do that as a Tier 2 issue either.
10 MR. RIESER: Is there any language in
11 the regulation which identifies this limitation on
12 the use of the Tier 2 table -- Tier 2 models,
13 excuse me?
14 MR. HORNSHAW: No.
15 MR. SHERRIL: No, but I guess we
16 provided -- within the part 742 in appendix C --
17 excuse me, appendix C, table E is a table called
18 default physical and chemical parameters, and some
19 of the -- along some of the chemicals there like,
20 for example,
atrazin, you go there and look for
21 the first order degradation constant, and in the
22 column it says no data, which means there's no
23 data available for that.
24 MS. ROBINSON: Just for clarification,
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1 that starts on page 148 of the board's copy.
2 MR. RIESER: Didn't you add a footnote,
3 at least on the first order of degradation
4 constant, if it's not readily available, then you
5 use zero as a value?
6 MR. SHERRIL: That's correct.
7 MR. RIESER: And that footnote was added
8 to appendix C, table C. This business about the
9 inapplicability of models, is that true of both
10 the ASTM and the RBCA models?
11 MR. HORNSHAW: I believe for PCB's,
12 that's true because PCB's is a mixture of many
13 individual components so you wouldn't have a
14 single physical chemical constant to plug into
15 either model.
16 MR. WATSON: I've got a follow-up. I'm
17 confused. If there is a reference in the tables
18 to the absence of data, then we are to assume that
19 for that contaminant, you cannot use the Tier 2
20 equations, or was the answer that if there is no
21 data, you use zero, and you can still use the
22 Tier 2 equations?
23 MR. HORNSHAW: For first order of
24 degradation constant, that's true.
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1 MR. WATSON: I'm sorry, what? My
2 question was a bad one. Your answer relates to
3 what, that you can't use the data or you use
4 zero?
5 MR. HORNSHAW: You use zero for first
6 order degradation constant if the value isn't
7 provided in --
8 MR. WATSON: That's table C?
9 MR. HORNSHAW: Appendix C, table E.
10 MR. SHERRIL: Also like in that appendix
11 C, table E, like the chemical nitrate is a
12 nutrient, I guess. It's not even listed in there,
13 and we just know from experience that many of
14 those -- some of those values are not available.
15 MR. WATSON: So if your chemical doesn't
16 show up on the list, you can't use the Tier 2
17 analysis?
18 MR. SHERRIL: No, not necessarily. What
19 you would need to do is obtain the --
20 MR. HORNSHAW: Not immediately because
21 you would have to either develop or obtain from
22 the literature the appropriate physical chemical
23 constants and then submit them to the agency for
24 review which is by definition a Tier 3 issue.
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1 Once the agency accepts the values proposed, then
2 they could be used in Tier 2.
3 MR. WATSON: Okay.
4 MR. FEINEN: No more follow-up. I think
5 Mayer, Brown & Platt, Ms.
Sharkey, I think you had
6 some questions on 742.600, at least one.
7 MS. SHARKEY: My question as written
8 here is, please explain the applicability of
9 Tier 1 or Tier 2 objectives under subsections (f)
10 and (g). What I mean by that is in taking a look
11 at those two subsections, I really had trouble
12 making out where I could use a Tier 2 objective
13 and where I would be using a Tier 1 objective.
14 MR. SHERRIL: Are you specifically
15 742.600 (f) and (g)?
16 MS. SHARKEY: Yeah. I'll read it in the
17 record just so everybody is thinking about it.
18 "If the calculated Tier 2 soil
remediation
19 objective for an exposure route is more stringent
20 than the Tier 1 soil
remediation objectives for
21 the other exposure routes, then the Tier 2
22 calculated soil
remediation objective applies and
23 Tier 2 soil
remediation objectives for the other
24 exposure routes are not required."
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1 MR. SHERRIL: We wanted to clarify what
2 that is saying (f) there, is that if you calculate
3 a Tier 2 objective that is more stringent than a
4 Tier 1 pre-calculated objective, then the Tier 1
5 objective would still apply.
6 This is expected to occur very
7 infrequently, and we do not think it would be of
8 significance in regards to impacts to human health
9 and the environment and in fact would probably
10 only incur -- if one were to change, probably only
11 one variable in a Tier 2 equation, and you're not
12 really changing the other variables in the Tier 2
13 equations, and the model would probably be
14 incorrectly modeling what was actually occurring.
15 MS. SHARKEY: John, I'm looking at (e),
16 and I think (e) talks about if the Tier 2
17 objective is more stringent than the corresponding
18 Tier 1, then Tier 1 applies.
19 MR. SHERRIL: Correct, that's (e).
20 MS. SHARKEY: (F) is the one that I'm
21 finding confusing. (F) appears to say that if
22 Tier 2 is more stringent than Tier 1 for a
23 particular exposure route, then the Tier 2
24 remediation objective applies and the other -- for
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1 that route. I'm not sure. That's why I'm asking
2 the question.
3 MR. SHERRIL: When you go through the
4 different tiers -- and let's say for an example
5 for soil, you were looking at ingestion,
6 inhalation and migration of groundwater, and when
7 we use the term conservative, we intend that to
8 mean the most health protective, and you pick the
9 most -- unless a route is excluded, as we've
10 discussed earlier, you pick the most restrictive
11 remediation objective of those three.
12 Then what (f) is saying is if you
13 were to go on then and calculate a Tier 2 soil
14 objective for an exposure route that is more
15 stringent than the Tier 1 soil objectives for the
16 other exposure routes, then the Tier 2 objective
17 applies. What we're trying to -- what we're
18 trying to do is -- we're trying to make it clear
19 is when you drop out, in other words, if you
20 calculated the Tier 2 for a particular exposure
21 route, then that Tier 1 number would not apply
22 then.
23 So then you would go to the Tier 2
24 number, but you've got to keep in mind which
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1 exposure routes are we looking at and are all
2 three exposure routes still applicable. It's
3 almost like you had six different -- for soil, you
4 have the six -- you have inhalation, ingestion,
5 migration to groundwater. Let's say you had those
6 three under Tier 1, and then you had three for
7 Tier 2 so you're up to six
remediation
8 objectives. Well, the most restrictive value
9 would apply if all three routes are still in
10 consideration.
11 MS. SHARKEY: Under (e), the Tier 1, if
12 the Tier 2 is more restrictive than the Tier 1,
13 the Tier 1 is going to apply?
14 MR. SHERRIL: Correct.
15 MS. SHARKEY: Now, under (f), if the
16 Tier 2 is more restrictive than the Tier 1 for
17 other -- now, the other, are we talking about
18 those other than the one looked at under (e)?
19 What does "other" refer to, other exposure
20 routes?
21 MR. KING: Let me try. If you take a
22 chemical, you know, under Tier 1, you're going to
23 find three pathways so you're going to come up
24 with three different numbers, okay. If you go
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1 then into Tier 2 and you do your calculation under
2 Tier 2, and if you come up -- let's just say for
3 the inhalation route, you go through and you do
4 your Tier 2 number, if that Tier 2 number is more
5 conservative than the Tier 1 number for the other
6 two pathways for ingestion and migration of
7 groundwater, you don't have to do the Tier 2
8 calculations for those other two pathways, okay,
9 that Tier 2 number.
10 MS. SHARKEY: Because you're just going
11 with the most stringent?
12 MR. KING: The most stringent. So you
13 would only do one Tier 2 calculation in that
14 instance.
15 MS. SHARKEY: If my Tier 2 had been more
16 stringent than the Tier 1 for an exposure pathway,
17 and under (e) I'm using Tier 1, now I go to look
18 at my other two pathways, and now I compare those
19 to the Tier 1 or the Tier 2? I'm trying to put
20 (e) and (f) together.
21 MR. SHERRIL: (E) and (f) should be
22 looked at separate. We put (e) in there because
23 we had a few people giving us
remediation
24 objectives that were more restrictive than what
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1 we've given them as our Tier 1, and so we said,
2 oh, we better put something in here to let them
3 know that they don't have to use this more
4 restrictive number if they calculate it, and so
5 (e) kind of stands alone on -- stands on its own.
6 Don't try to combine (e) and (f).
7 MS. SHARKEY: So all (f) is saying is
8 the most restrictive of your three numbers is
9 going to be your restriction, is going to be the
10 one that applies?
11 MR. SHERRIL: Yes.
12 MS. SHARKEY: Could you help me on (g)
13 again as well?
14 MR. SHERRIL: On (g) there again we're
15 saying that the most stringent -- or I like to use
16 the word health protective -- Tier 2 objective
17 applies of the applicable exposure routes.
18 MS. SHARKEY: So if it's --
19 MR. SHERRIL: An example there, what we
20 see a lot of times is people, their most
21 restrictive route in a lot of instances is the
22 migration to groundwater route. So they go and
23 calculate a Tier 2 migration to groundwater route,
24 and they like that number because it's less
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1 restrictive, but then they think, well, heck, I'm
2 going to go ahead and then let's say you calculate
3 a Tier 2 on migration to groundwater, then you go
4 back and say, well, my most health protective
5 number now is inhalation for -- let's say,
6 inhalation.
7 Then they go, I'm going to
8 calculate a Tier 2 for that, also, and if that
9 number ends up being the most restrictive, then
10 you would use that number. So it's up to the
11 party on which one -- if they want to calculate
12 Tier 2 or not. I mean, it's to your favor to
13 calculate Tier 2 numbers and compare them with the
14 Tier 1s and see which one is the less restrictive.
15 MS. SHARKEY: With regard to any of
16 these options, if the Tier 1 is less restrictive,
17 you can use the Tier 1 for that exposure pathway?
18 MR. SHERRIL: If the Tier 1 is the --
19 correct. Then the next level from that would be
20 the Tier 2 number. Like I said, it's rare, but it
21 is possible that you can calculate a Tier 2. It
22 becomes more restrictive than the Tier 1. So that
23 (e) --
24 MS. ROBINSON: And in the instance where
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1 they calculate a Tier 2 number that ends up being
2 more restrictive, they still have the option to go
3 back to the Tier 1 number, is that correct?
4 MR. SHERRIL: Correct.
5 MR. KING: Let me just add something
6 because this (e) becomes an important point in the
7 context of the underground storage tank program.
8 We do not want people doing calculations coming up
9 with more restrictive numbers and then cleaning up
10 to those more restrictive numbers.
11 We want to stop any kind of
12 remediation in the tank program because it's going
13 to be paid for out of the tank fund. We want to
14 stop it at Tier 1. We don't want to go past that.
15 MS. SHARKEY: In (g) in the second line,
16 there's a term soil
remediation objectives, and it
17 reads, if the calculated Tier 2 soil
remediation
18 objective is less stringent than one or more of
19 the soil
remediation objectives for the remaining
20 exposure routes. Does that mean Tier 1 soil
21 remediation objectives, or that -- in that second
22 line, what --
23 MR. SHERRIL: Tier 2.
24 MS. SHARKEY: In order to figure out if
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1 it was less stringent, you would have had to have
2 calculated all three of them anyway, wouldn't
3 you?
4 MR. SHERRIL: Correct.
5 MS. SHARKEY: You just simply take the
6 most restrictive of those three once again?
7 MR. SHERRIL: Correct.
8 MS. SHARKEY: Thank you. I don't know
9 if I was the only person that was confused by
10 this, but it was difficult for me to unpack these.
11 MS. MC FAWN: On that line I think I
12 grasp it, but I wonder if the agency could outline
13 some examples, not at this time, but maybe showing
14 us how this works knowing that they're just
15 examples.
16 MR. SHERRIL: I provided two examples in
17 my testimony.
18 MS. MC FAWN: Okay, I guess I lost sight
19 of that. How these three work together.
20 MR. KING: We can do that. We'll come
21 up with some examples to show that.
22 MS. MC FAWN: Trying for the other board
23 to members follow that.
24 MR. KING: It points out the difficulty
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1 of trying to take what is in essence an equation
2 and table-based system and write narrative words
3 explaining that. It becomes something that is
4 easier to see visually in a table or equation
5 format, and that becomes more difficult to write
6 and have it understood in a narrative fashion.
7 HEARING OFFICER FEINEN: Is there any
8 more follow-up on that question? I think we'll
9 take another five-minute break here.
10 MS. ROBINSON: Is there any indication
11 of like if we're going to break today and resume
12 in January because I have a feeling we're not
13 going to get close enough to being finished to
14 quit at 6:00, and you know, we have several hours
15 of driving ahead, too.
16 HEARING OFFICER FEINEN: I think we can
17 go off the record.
18 (Discussion off the record.)
19 (Recess taken.)
20 HEARING OFFICER FEINEN: Go back on the
21 record. I got a couple of things to say. First
22 of all, I think it has been decided that we're
23 going to continue this matter on December 10th in
24 Springfield at 10:00 a.m. at the Stratton
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1 Building, Room A-1.
2 Hopefully, tomorrow we'll have an
3 Hearing Officer order addressed in this issue
4 going out, and that should be circulated and going
5 on the Web and so forth and so on. The other
6 issue was how far we're going to go today.
7 MS. MC FAWN: The reason we're going to
8 have this hearing is we believe that it's very
9 important that we get through the
prefiled
10 questions now so that when we find any glitches,
11 they can be corrected in January, and we're really
12 bumping up against our second notice in January,
13 preparing for the second notice.
14 So we anticipate that the hearing
15 on Tuesday, that we're continuing until next
16 Tuesday is for the purpose of getting through the
17 prefiled questions. Today I think that it's
18 advisable that we get at least to the questions up
19 to subpart I, that is, Tier 3, leaving Tier 3 for
20 next Tuesday.
21 I don't want to end up in such a
22 time crunch next Tuesday that the board doesn't
23 have before it and the participants don't have
24 before them the information they need for the
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1 January hearings. So today I want to go as long
2 as necessary to get to Tier 3, okay.
3 HEARING OFFICER FEINEN: So with that, I
4 think we'll start out with the Site
Remediation
5 Advisory Committee.
6 MS. MC FAWN: Before we go on to the
7 questions again, is there any other comments that
8 you want to make on the record about the
9 continuation of the hearing? I know for the most
10 part, you have during the break committed to
11 coming. I know that Ms.
Sharkey has informed us
12 that's not a good day for her but maybe someone
13 else from her firm could come.
14 MR. RIESER: Did you say a time?
15 MS. MC FAWN: 10:00 a.m. I would also
16 note on the record that there is a hearing
17 scheduled in that very room. The board has
18 scheduled an underground storage tank hearing. We
19 have checked with the hearing officer in that
20 matter, and she, along with some of the critical
21 participants in the agency in that hearing,
22 believe that they will only need the Monday before
23 to wrap up the public testimony on the underground
24 storage tank rule before the board.
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1 So if any of you have that day
2 reserved on your calendar for underground storage
3 tanks, you can come and hear more about T.A.C.O.,
4 at least that's how we anticipate it going. Any
5 comments from anyone? Any questions?
6 HEARING OFFICER FEINEN: Mr.
Reott.
7 MR. REOTT: No, it got answered.
8 HEARING OFFICER FEINEN: Can we start
9 out then with Site
Remediation Advisory Committee,
10 742.610.
11 MR. RIESER: Yes. Will the agency --
12 and I think this has been asked and answered --
13 will the agency confirm that this section applies
14 only to Tier 2 and Tier 3 remedial objectives and
15 not to Tier 1 objectives?
16 MR. HORNSHAW: Yes.
17 HEARING OFFICER FEINEN: Any follow-up
18 questions? 742.615, Site
Remediation.
19 MR. RIESER: Must an applicant use
20 appendix C, table E, for these parameters?
21 MR. HORNSHAW: Yes.
22 MR. RIESER: Can other values be
23 substituted under Tier 3?
24 MR. HORNSHAW: Yes.
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1 MR. RIESER: With respect to subsection
2 (b)(2), will the agency clarify that a person does
3 not need an evaluation for each
stratigraphic
4 unit?
5 MR. SHERRIL: I want to make a
6 distinction on under Tier 2 here, we're using this
7 to determine site specific soil parameters for
8 input into the Tier 2 equations. These site
9 specific parameters can accurately or more
10 accurately reflect a site's conditions, and while
11 we're not requiring sampling from each
12 stratigraphic unit, the agency would tend to look
13 on the more conservative unit.
14 If you had a sand unit and a clay
15 unit, we wouldn't just say, well, the sand unit's
16 indicative of the whole site, and I also wanted to
17 refer part of this question to Doug Clay.
18 MR. CLAY: I think the term
19 stratographic unit is at issue in the 732 LUST
20 hearings, and that's still being worked out and
21 defined, and the use of
stratigraphic unit in this
22 context and in LUST is a little bit different
23 where in the LUST hearings, you're looking at
24 stratigraphic unit to compare it to the Berg
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1 Circular.
2 MS. MC FAWN: B-E-R-G.
3 MR. CLAY: And in this context, you're
4 looking at doing physical soil sampling on the
5 soil of the unit below the contamination, between
6 the contamination and groundwater.
7 MR. RIESER: Thank you, Mr. Clay,
8 because what you're doing is confirming that these
9 are really separate issues and under this program,
10 the focus on evaluating each
stratigraphic unit is
11 not as driven by the statutory framework but is
12 instead a function of trying to provide a total
13 site evaluation.
14 MR. CLAY: That's correct.
15 MR. RIESER: Are all of the Tier 1
16 residential values in appendix B, table A
17 calculated from Tier 2 SSL equations using default
18 values identified in the appendices? And if not,
19 how are they different?
20 MR. HORNSHAW: In three cases the Tier 1
21 value could not be derived from Tier 2 equations.
22 That's the case for PCB's, lead and
23 pentachlorophenol. We've discussed the reasons
24 for all three of those previously.
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1 MR. RIESER: Thank you.
2 MS. SHARKEY: Could I do one? Are you
3 saying then that the default values are the Tier 1
4 values for every other chemical besides those that
5 you've mentioned?
6 MR. HORNSHAW: Yes.
7 MR. SONI: Before we go to 615, 742.610,
8 the equation calculate the weighted average. It
9 seems to be missing left side of the equation. It
10 says weighted average equals.
11 MR. HORNSHAW: You're correct.
12 MS. ROBINSON: We'll take a look at
13 those for correcting in errata No. 2. While we're
14 on this topic, since we're now going to meet next
15 Tuesday, it's going to be a little more difficult
16 for us to commit to getting you an errata sheet
17 next Tuesday rather than in January. So is it
18 still okay to do those follow-up issues we
19 committed to in January in January?
20 MS. MC FAWN: Yes. That's what I was
21 anticipating.
22 MS. ROBINSON: Okay.
23 HEARING OFFICER FEINEN: Any more
24 follow-up? 742.615,
Mayer, Brown & Platt,
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1 Ms.
Sharkey.
2 MS. SHARKEY: My question has been
3 answered. Thank you.
4 HEARING OFFICER FEINEN: Should we move
5 on to 742.700, subpart G, Tier 2 soil evaluation,
6 Site
Remediation Advisory Committee.
7 MR. RIESER: This section --
8 MR. WATSON: Excuse me, I have one other
9 follow-up question -- and forgive me if I'm
10 missing the boat here.
11 On 615(b)(2), the Site
Remediation
12 group's question 2, are all of the Tier 1
13 residential values in appendix B, table A
14 calculated from Tier 2 SSL equation using default
15 values identified in the appendices. Just for my
16 purposes, not all of the values in that table are
17 calculated from the SSL equations, correct? There
18 are some of those that are calculated using TCLP
19 values, right?
20 MR. HORNSHAW: That's correct, also.
21 It's not calculated. It's just the result of the
22 TCLP test.
23 MR. WATSON: And two of those values are
24 calculated using the sulfates, and the chlorides
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1 are calculated based on something else, is that
2 right?
3 MR. HORNSHAW: Those values were in the
4 620
rulemaking and established the standards for
5 Class 2 and 1. In the case of sulfate and
6 chloride, the standard was based on 95th
7 percentile occurrence in monitoring data rather
8 than any toxicological criteria.
9 MR. WATSON: Could you just explain that
10 standard, that 95th percentile standard.
11 MR. HORNSHAW: Public water supplies are
12 required to monitor for chloride and sulfate and
13 report the results to the agency, and the agency
14 maintains all this information in a database and
15 pulled out the 95th percentile occurrence of all
16 the monitoring results that had been reported at
17 the time of that
rulemaking.
18 MR. WATSON: Thank you.
19 HEARING OFFICER FEINEN: Any more
20 follow-up? Mr.
Rieser, section 742.700.
21 MR. RIESER: Thank you. This is with
22 respect to subsection (d), which should be
23 subsection (f) under this section. This section
24 indicates that a person must calculate
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1 construction worker objectives and be bound by
2 those objectives if more stringent than for other
3 pathways.
4 For a construction worker scenario,
5 is it possible to use an institutional control
6 which identifies the area of contaminated media
7 and requires compliance with OSHA for workers
8 performing invasive construction work in that
9 area?
10 MR. SHERRIL: Let me say generally yes
11 and kind of break that up into three parts. It
12 identifies the area of the contaminated media.
13 This word compliance with OSHA for workers, let's
14 say, performing in basic construction work in that
15 area, maybe a better term would be like place a
16 duty upon an employer.
17 I may have used the word compliance
18 in my testimony, I'm not sure, but it's more like
19 placing a duty on the employer for safe working
20 conditions, and then also some kind of
21 notification, which would include some kind of
22 notification for construction and emergency
23 workers prior to work in these contaminated areas.
24 MR. RIESER: So the basic point being
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1 that you can address levels that are in excess of
2 the construction worker scenario by the use of
3 institutional controls such as the types you
4 described rather than
remediating a level --
5 remediating the contaminants to those levels?
6 MR. SHERRIL: Yes.
7 MR. HORNSHAW: While we're on the
8 subject of construction worker, could I correct a
9 minor problem in my earlier testimony? In
10 response to Mr.
Reott's question about what the
11 agency changed from the ASTM model, I neglected to
12 include that we have included the use of
13 subchronic reference doses and reference
14 concentrations for the construction worker,
15 whereas
ASTM's approach only uses the chronic
16 reference doses and reference concentrations.
17 Thanks.
18 MR. RIESER: Going to page 2 -- I'm
19 sorry, item 2. On page 29 of Mr.
Sherril's
20 testimony, he indicates that the default values
21 for physical soil properties are, quote, "health
22 protective," unquote.
23 Does this mean that they are values
24 which will produce a low remedial objective when
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1 used in the Tier 2 formulas or values that
2 represent typical Illinois soil conditions?
3 MR. SHERRIL: Let me answer that by
4 saying for a low remedial objective, I assume you
5 mean the more health protective remedial
6 objective.
7 MR. RIESER: I guess a mean a more
8 conservative or valued number.
9 MR. SHERRIL: We've thrown this word out
10 "default" several times, and there's been some
11 confusion. We've heard what that means. Many of
12 the, quote, default values were primarily provided
13 for USEPA documents which are incorporated by
14 reference and ASTM, and a default value is not to
15 be interpreted as if the agency like no other
16 value could be obtained so we just thought up some
17 number.
18 It is not to be interpreted as
19 that, and the Tier 1 objectives were calculated,
20 though, using these default, let's say, values
21 which we have provided in the appendices, and they
22 do present values which are conservative and
23 health protective, and we have a little trouble,
24 though, with like typical Illinois soil
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1 conditions.
2 It represents values that are
3 protective of, for example, soils that would tend
4 to migrate -- lets contaminants migrate freely,
5 and since we have such a wide variety of soils in
6 Illinois, we really don't have typical Illinois
7 soil conditions.
8 There's some soil parameters in the
9 -- and I kind of went through some of them like
10 soil particle density is a value that generally
11 almost all the textbooks give one value for it,
12 and there's no use really even obtaining another
13 value for it and the equations aren't sensitive to
14 it anyway.
15 MR. RIESER: But where there were
16 potential range of physical chemical values, you
17 could assign -- the default values that were
18 selected were based on a soil scenario that would
19 be, let's say, identified more permeability, more
20 transport opportunities.
21 MR. SHERRIL: That would be fair to
22 characterize that, yes.
23 MR. RIESER: And yet the purpose of Tier
24 2, of course, is that an applicant can evaluate
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1 the in-site specific soil for certain parameters
2 which you've identified and put into the equations
3 those values that are representative of site
4 conditions?
5 MR. SHERRIL: Yes.
6 MR. RIESER: On page 33 of Mr.
Sherril's
7 testimony, he states that, the purpose of Tier 2
8 soil objectives is to ensure that the 35 Illinois
9 Administrative Code standards are not exceeded.
10 Is not it more accurate to say that the purpose of
11 Tier 2 soil equations is to ensure that the
12 appropriate groundwater
remediation objectives are
13 met at the point of human exposure?
14 MR. SHERRIL: Yes.
15 MS. MC FAWN: I would note for the
16 record that you're referring to the standards,
17 that's part 620. I think you skipped that.
18 MR. RIESER: The 620 standards are
19 identified, and then the appropriate groundwater
20 remediation objectives which I have in the
21 question are really the groundwater
remediation
22 objectives identified in this, the Tier 1
23 groundwater
remediation objectives which are
24 identified in this proposal.
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1 Mr.
Sherril, is that how you
2 understood that?
3 MR. SHERRIL: Yes.
4 HEARING OFFICER FEINEN: Any follow-up
5 questions? Move on to 742.805, subpart H, Tier 2
6 groundwater evaluations, Site
Remediation.
7 MR. REOTT: You know, I've actually got
8 questions I think fit more into the prior section.
9 MR. RIESER: I think that's correct.
10 MR. REOTT: I want to do these. Turn to
11 question 18. For both metals and other
12 contaminants regulated by part 742, may the site
13 use
leachate data obtained from actual site
14 leaching tests to replace the calculated target
15 soil
leachate values -- which was the form of the
16 terms -- used in formula S18 for the SSL model and
17 formula R14 for the ASTM model. And then I go on,
18 actual site leaching tests eliminate the
19 uncertainty of estimating
leachability based on
20 laboratory analysis and literature values and
21 already have been approved by the agency in some
22 contexts such as landfill modeling?
23 MR. SHERRIL: The part that you have on
24 the question, we would say yes. Under Tier 3, we
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1 would think this is quite a more extensive and
2 rigorous approach, more samples would be needed
3 and so forth, and then on the second part, I guess
4 which is a statement, I don't have any response
5 one way or the other on that.
6 MR. REOTT: You see what I'm trying to
7 say. Instead of trying to guess at -- based on
8 the science, to guess at
leachability, why not do
9 actual leaching testing and then plug that into
10 the formula?
11 MR. O'BRIEN: That would be a Tier 3
12 issue. We could consider that, yeah.
13 MR. REOTT: Then skip ahead to No. 40,
14 may you meet cleanup criteria by demonstrating the
15 site does not exceed background for one pathway or
16 contaminant and then use one of the models for the
17 other pathways?
18 MR. SHERRIL: Yes.
19 MR. REOTT: And then in 41, in the Tier
20 2 calculations, do the formulas assume Class 1
21 groundwater?
22 MR. SHERRIL: No.
23 MR. REOTT: So if you had a site with
24 Class 2 groundwater, if that was the actual
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1 groundwater beneath the site, you could use
2 Class 2 groundwater, plug them into the formulas
3 and then rerun the Tier 2 numbers?
4 MR. SHERRIL: Yes.
5 MR. REOTT: I skipped one, No. 15. I
6 just realized I skipped one.
7 MS. ROBINSON: Was that 15?
8 MR. REOTT: 15. The use of the Tier 2
9 equations for metals is unclear. How do sites
10 with metals contamination problems use the
11 equations in Tiers 2 -- and I said in 3, but you
12 just focus on 2 -- to determine more realistic
13 site specific cleanup objectives?
14 MR. SHERRIL: Appendix C, table J, has
15 12 inorganic values in these pH specific ranges
16 that can be used to determine a more realistic
17 migration of groundwater objective.
18 MR. REOTT: But that doesn't use the SSL
19 model or the ASTM model?
20 MR. SHERRIL: It's an SSL model.
21 MR. REOTT: The pH table comes from
22 SSL?
23 MR. HORNSHAW: Correct.
24 MR. REOTT: From their fact sheet or
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1 whatever it's called?
2 MR. HORNSHAW: Well, yes, and it also
3 derives from equation.
4 MS. ROBINSON: Just for clarification
5 for the record, it's on page 164 of the board's
6 copy.
7 MR. SHERRIL: This is a different pH
8 table than what we were talking about before.
9 This one is a pH table that you obtain these
10 values from this table depending on your pH and
11 then plug them right into the Tier 2 equations
12 versus the other pH table you look at the pH and
13 it gives you the
remediation objective just right
14 out of the table.
15 MR. HORNSHAW: And for
inorganics, the
16 KD value, which is defined in equation S19 as KOC
17 times FOC, the KOC times FOC part is irrelevant
18 for
inorganics. So you just use the KD that's in
19 the table and use it in equation S17.
20 MR. REOTT: Appendix C, table J, has the
21 substitution values for, I think, 12
inorganics.
22 For the other
inorganics that don't have the
23 values, are you not able to do Tier 2 analysis?
24 MR. HORNSHAW: That's correct. That
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1 would have to be handled as a Tier 3 issue. For
2 instance, you could derive a site specific KD
3 using I think it's
USEPA's Minteq, M-I-N-T-E-Q,
4 model and then plug that KD value again into that
5 equation that I just mentioned.
6 You could also do a literature
7 search and propose a KD value based on studies
8 that have been reported in the literature for the
9 agency to review. These would be ways that
10 somebody could do the
inorganics that aren't
11 included in the tables we've already provided.
12 MR. REOTT: One of the things that's
13 hard to evaluate from your proposal is it's very
14 difficult to figure out all the gaps when you
15 can't use the formulas for particular
16 contaminants, and we went through this before
17 where, you know, it isn't until you go through the
18 list you realize that you just skipped the
19 contaminant and it wasn't listed so you don't have
20 any values and you can't use the formulas.
21 Would you mind putting together a
22 list of the instances where the use of the
23 formulas is unavailable for particular
24 contaminants because we don't have values listed
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1 in the back.
2 MR. SHERRIL: I don't think we have the
3 time to do that because there again there's tens
4 of thousands of hazardous substances, and to go
5 through each one and make a determination --
6 MR. REOTT: John, let me make it
7 simple --
8 MR. SHERRIL: -- it would be unwieldy.
9 MR. REOTT: Let me make it simple. Just
10 start with the list that's in Tier 1 and look at
11 that list because what happens, I think, is -- and
12 some of these were discovered this morning, at
13 least I haven't focused on them before.
14 When you go back into the tables,
15 if you don't actually have values for certain
16 contaminants, you can't run the formulas. You're
17 stuck then with Tier 3 or Tier 1, and you don't
18 have any Tier 2 options
19 MR. SHERRIL: I would be hesitant to
20 agree to that because some of the chemicals you
21 can use in some of the equations. It's not a
22 blanket like you can use them and you can't use
23 them because that first order of degradation
24 constant, when we ran into that problem, we said,
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1 okay, we'll use a substitution of zero.
2 Well, that applies for certain of
3 the chemicals, but I would be hesitant to do it
4 for time constraints, but also, you know, we could
5 easily miss something on that.
6 MR. REOTT: I think it's hard for us to
7 evaluate the proposal fully without being able to
8 figure out exactly which of the contaminants are
9 listed in Tier 1 we can even do a Tier 2 analysis
10 for, and if we can do it, can we only do it with
11 SSL or do we have to use ASTM or are both options
12 available?
13 You end up having to search through
14 the real fine detail here to find what's sometimes
15 very important issues. I'm not saying you need to
16 have it by Tuesday, but I don't think it's
17 unreasonable to ask for it by January. If you
18 tell me you're not going to do it, I can't make
19 you do it.
20 MR. KING: That's a comment we have to
21 evaluate. If we don't have the time and resources
22 to do it, we won't be able to do it.
23 MR. REOTT: That's all at this point.
24 HEARING OFFICER FEINEN: Next we switch
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1 back to the Site
Remediation Advisory Committee,
2 742.805.
3 MR. RIESER: I had a couple of questions
4 that probably come up under 700 that really come
5 out of the provisions that the agency made to
6 their appendices which we got yesterday, and if I
7 can ask those real quick and if you want to answer
8 them at a later time, that's fine. I think this
9 is pretty much where they happen.
10 The primary one I wanted to ask
11 about is that the target risk that is described in
12 appendix C, table B, originally had different
13 values between the commercial and residential and
14 construction worker or at least allowed the range
15 for the commercial and residential and
16 construction worker and not for the residential,
17 and there's also other points in the regulation
18 itself, 710(b)(3), 710(c)(2)(a), 710(3)(b)(c) and
19 715(d), that talk about a shifting target risk of
20 more than 1 million, and the question is how do
21 these all work together now with the change in the
22 appendix?
23 MR. KING: I don't think we can give an
24 organized answer to that question as we sit here.
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1 We'll have to do that later.
2 MR. RIESER: Okay, thank you. One of
3 the other values that was changed again in the
4 same table was the Q over C, used the VF
5 equations, and one was added, a Q over C used in
6 the PEF equations, and the parameter values
7 between the two -- well, at least the parameter
8 values for residential appear to be different.
9 Am I understanding that these are
10 values that are derived from USEP -- I'm sorry,
11 the SSL tables per a five-acre site and that the
12 68.81 value is for a site in Los Angeles. A
13 residential site in Chicago would be a larger
14 value. And
amy question is why not use -- why do
15 we have two different Q over Cs, and why not use
16 the Chicago value from the SSL?
17 MR. HORNSHAW: We continue to use
18 USEPA's Q over C value for the residential
19 scenario so that our table would be consistent
20 with their table. We didn't want to do a complete
21 recalculation of the residential table. Since
22 USEPA doesn't have an industrial commercial table,
23 we felt we could use the Chicago Q over C value in
24 constructing that table.
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1 MR. RIESER: But isn't the Chicago value
2 higher than the value you are using here?
3 MR. HORNSHAW: Yes, it is.
4 MR. RIESER: So the Chicago value was
5 used or was not used?
6 MR. HORNSHAW: Was used for the
7 industrial tables, was not used for the
8 residential tables.
9 MR. RIESER: Is there any thought about
10 recalculating based on the Chicago -- using the
11 Chicago value?
12 MR. HORNSHAW: I think we would prefer
13 to maintain consistency with the federal program
14 as much as possible, which is, for instance, the
15 reason we continued to use their health base
16 levels instead of the 620, subpart F values where
17 the chemical doesn't have MCL
18 MR. RIESER: Wouldn't using the Chicago
19 values be more consistent with the federal
20 program?
21 MR. HORNSHAW: Consistent in what way?
22 MR. RIESER: Consistent with using the
23 values they identified as being appropriate for
24 the climate conditions in Chicago.
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1 MR. HORNSHAW: Possibly, but if we're
2 going to be consistent with Illinois, then we
3 would probably want to go to the Illinois
4 groundwater values, too.
5 MR. RIESER: And in most instances where
6 you would have them, that's what you did, is that
7 correct?
8 MR. HORNSHAW: For groundwater?
9 MR. RIESER: Yeah.
10 MR. HORNSHAW: No. As I stated in my
11 testimony, we decided to use the health-based
12 levels so that the values in our look-up table
13 would be consistent with the values in the
USEPA's
14 look up table, even though the use of groundwater
15 values for subpart F of 620 would have been
16 probably five times more stringent than the
17 health-based values that the USEPA used.
18 MR. RIESER: I'm sorry, I cut you off.
19 What did you say?
20 MR. HORNSHAW: If we used 620, subpart F
21 to calculate groundwater values for chemicals that
22 don't have
MCL's, those values would have probably
23 in most cases been five times more stringent than
24 the
USEPA's health-based levels which we decided
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1 to use in the interest of being consistent as much
2 as possible.
3 MR. RIESER: But when you had values
4 from 620 that were adopted and didn't require
5 calculations through subpart F, you used those
6 values, isn't that correct?
7 MR. HORNSHAW: I'm not sure I'm
8 following your question.
9 MR. RIESER: I'm just going to leave
10 this.
11 Also, in the same table with
12 respect to infiltration rates, you've got an
13 infiltration rate and then an infiltration rate to
14 be used for the mass loading equation.
15 MS. ROBINSON: Is that in the errata
16 sheet?
17 MR. RIESER: Yes, it is.
18 MS. ROBINSON: You're looking at the
19 appendices, I believe.
20 MR. RIESER: This is the revised
21 appendices.
22 MS. ROBINSON: Right, and some of those,
23 as we stated yesterday, have not gotten into the
24 errata yet. They're going to go into errata 2.
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1 They may be shaded there but not referenced here.
2 I want to see if the reference here we're looking
3 at the same place.
4 MR. RIESER: I am looking at the
5 appendices that were passed out that were provided
6 yesterday with shading, and obviously we haven't
7 had time to cross reference these to the errata
8 sheet.
9 MS. ROBINSON: Is that appendix C, table
10 B?
11 MR. RIESER: Yes, it is.
12 MS. ROBINSON: Can we defer this
13 question until we get errata No. 2 done?
14 MR. RIESER: That's fine.
15 MR. HORNSHAW: If you're referring to I,
16 sub M-L --
17 MR. RIESER: Yes.
18 MR. HORNSHAW: -- the value that's in
19 there is the one that's specified in
USEPA's
20 document, if that answers your question.
21 MR. RIESER: How is that different from
22 I?
23 MR. HORNSHAW: Numerically or -- both of
24 the values are specified by USEPA, and I'm not
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1 sure how either of them were derived.
2 MR. RIESER: Thank you.
3 MS. ROBINSON: I'd like to clarify here,
4 too, if we are referring to I, sub M-L, that that
5 is in the first errata sheet on page 8.
6 MR. RIESER: Okay, thanks very much, and
7 I'm ready to go on to 805
prefile.
8 HEARING OFFICER FEINEN: We have a
9 follow-up question in the back.
10 MR. JAMES: Ken James,
Carlson
11 Environmental. I have a follow-up to Mr.
Rieser's
12 question about the table in appendix C, that you
13 spoke to the SSL parameters and the RBCA
14 parameters in regards to TR cancer risk. I know
15 you mentioned it briefly in his question about
16 this table, but I would like a little
17 clarification, in that the
TR's that were allowed
18 originally were 10 to the minus 4 and ranged up to
19 10 to the minus 6 down to 10 minus 6, and now in
20 your new errata sheet and in this new appendix
21 that was handed out, they have been limited to 10
22 to the minus 4 at the point of exposure, and I
23 would just like to hear the agency's --
24 MR. REOTT: 10 to the minus 6.
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1 MR. JAMES: 10 to the minus 6 at the
2 point of exposure, and I would like to hear the
3 agency's reason for that change and how would
4 that, in the agency's opinion, affect the
5 calculation of objectives at the Tier 2 level and
6 how that would affect the use or nonuse of an
7 engineered barriers?
8 MR. KING: I thought we -- at least the
9 first part of that, I thought we answered that
10 already.
11 MS. MC FAWN: You know, I don't believe
12 Mr. James was here when we had that discussion,
13 could you summarize it? Is that possible?
14 MR. KING: I really hate to try to do
15 that because I'm going to end up with a different
16 statement than what I had on the record earlier,
17 and then the record is going to be confused on
18 that point. So perhaps, Mr. James, I could have a
19 conversation at some point in the future on that
20 off the record. If need be, we can go over it.
21 MS. MC FAWN: I would just note for your
22 information, Mr. James, we did discuss the change
23 from 10 to the minus 4 to 10 to the minus 6, I
24 believe, this morning before lunch, but I'm not
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1 even sure of the time.
2 MR. JAMES: And how it ties into the use
3 and nonuse of engineered barriers?
4 MS. MC FAWN: And how it -- pardon me?
5 MR. JAMES: Ties into the use and nonuse
6 of engineered barriers.
7 MR. KING: I don't think we directly
8 discussed that. The engineered barrier, when it's
9 coupled with an institutional control, is a
10 mechanism to shift the point of human exposure
11 away from the source.
12 MR. JAMES: So then the use of an
13 engineered barrier would eliminate the need to
14 calculate an objective?
15 MR. KING: No, I wouldn't agree with
16 that. It depends on the context that you're using
17 it in. That would not be true in all cases.
18 MS. ROBINSON: Mr. King, isn't it true
19 that any time you use an engineered barrier, you
20 also have to have an institutional control?
21 MR. KING: Right, that's correct.
22 MR. JAMES: Yeah, so?
23 HEARING OFFICER FEINEN: More
24 follow-up?
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1 MR. JAMES: No, no thank you.
2 MR. FEINEN: I guess we're ready to
3 begin I think for the third time 742.805.
4 MR. RIESER: Thank you very much.
5 Subsection (a)(1) requires that the horizontal and
6 vertical extent of the contamination be
7 identified. Can this be done through a
8 combination of modeling and sampling?
9 MR. SHERRIL: Yes. The extended
10 groundwater contamination can be determined
11 through a combination of modeling and sampling.
12 MR. RIESER: Will the agency allow
13 direct push technology for identifying the extent
14 of the contamination?
15 MR. SHERRIL: The agency allows direct
16 push technology such as a
geoprobe, if you're
17 familiar with that. We've recently purchased a
18 geoprobe for use. The term direct push technology
19 incorporates other sampling techniques and methods
20 other than just a
geoprobe. If it was a technique
21 we're not familiar with, I can't really state on
22 the record whether we would approve of that.
23 MR. RIESER: Are there direct push
24 technologies that you determined to rule out at
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1 this point that you're familiar with?
2 MR. SHERRIL: I don't think we've
3 necessarily ruled any out. The technology is
4 still somewhat new, and the techniques, for
5 example, to collect groundwater samples, collect
6 soil samples is still an emerging technology on
7 their proper use.
8 MR. RIESER: Okay, thank you.
9 Subsection (a)(2) requires that corrective action
10 be taken to the maximum extent practicable to
11 remove free product. If the default values in
12 section 742.215 (determination of soil attenuation
13 capacity) and 742.220 (determination of soil
14 saturation limit) are not exceeded, does the
15 agency consider free product present in the
16 soils?
17 MR. SHERRIL: It may not necessarily be
18 in the soils. It may be in groundwater.
19 MR. RIESER: I think we had a discussion
20 yesterday that there was an addition to the -- an
21 addition to the evaluation of groundwater where --
22 there was an addition in the errata where it was
23 in 320(b), to the maximum extent practicable,
24 corrective action has been taken to remove any
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1 free product where there was this discussion, that
2 these particular sections, Section 215 and 220,
3 would not be applied to the valuation of
4 groundwater, is that correct?
5 MR. SHERRIL: Correct.
6 MR. RIESER: So this is sort of an
7 extension of that same thought?
8 MR. SHERRIL: Correct.
9 MR. RIESER: What are the standards for
10 determining the practicability of removing free
11 product?
12 MR. SHERRIL: The items that are used to
13 determine the practicability of free product
14 removal includes site specific criteria such as
15 the concentration of contaminants, the toxicity of
16 the contaminants, the amount of contaminants, the
17 estimated migratory pathways, whether any free
18 product, free faced contaminant is present,
19 whether the soil attenuation capacity is exceeded,
20 whether a sheen is visible either in the soil,
21 groundwater or surface water, whether remaining
22 contamination will be disturbed by construction
23 workers or other human activities, whether
24 remaining contamination will be disturbed by
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1 natural or animal forces, high infiltration rates,
2 highly permeable units such as a
Karst geology,
3 burrowing animals, whether the release point of
4 the contamination can be located.
5 Such as in the LUST program, we
6 know where the release point is at the tank versus
7 many sites in the site
remediation program where
8 we do not know where the release points are, and
9 the intended post remedial use of the property, if
10 it's going to be residential, is it going to be a
11 playground. Those are factors that we look at.
12 MR. RIESER: Could you list among those
13 whether there were technologies available to
14 remove the free product?
15 MR. SHERRIL: I didn't hear you.
16 MR. RIESER: Did you include among that
17 list whether there were technologies available to
18 remove the free product?
19 MR. SHERRIL: No.
20 MR. RIESER: Would you consider that as
21 well?
22 MR. SHERRIL: Yes.
23 MR. RIESER: And so you would consider
24 the technical and practicability, whether it was
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1 technically possible to remove the free product as
2 part of the consideration?
3 MR. SHERRIL: Yes. The list I gave was
4 not intended to be an all-inclusive list. This is
5 just things we looked at.
6 MR. WATSON: Let me ask you a follow-up
7 on that question. That is, what kind of showing
8 would have to be made to show that something
9 wasn't technically practicable?
10 MR. SHERRIL: Really to the items that I
11 just listed would be we look at those and then we
12 look at, you know, with the state of engineering
13 that it is today, whether it's feasible to remove
14 free product.
15 MR. WATSON: If someone used the -- if
16 someone went out and did a free product removal
17 action out there with the recognized technical
18 equipment available to do free product removal,
19 would the agency consider that sufficient --
20 whatever the results of that removal activity
21 yield, would the agency consider that sufficient
22 to satisfy what was technically practicable?
23 MR. SHERRIL: I guess that's such a site
24 specific question. Sometimes free product is just
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1 a couple of feet below the surface and all you
2 have to do is dig it out with an excavator and you
3 remove it.
4 Sometimes free product is 40 feet
5 below the surface and pumping technology becomes
6 difficult, or under buildings, and it becomes
7 difficult. But it's such a site specific
8 question, I don't know if I could answer that.
9 MR. WATSON: I guess it's my
10 understanding that removing free product is a
11 difficult task, and regardless of the equipment
12 you're using, you're still only going to be able
13 to remove, you know, some consultants will say
14 only as much as 30 percent of the free product in
15 the soil, and I guess what I'm wondering is what
16 kind of good faith effort has to be made before
17 the agency will say enough is enough on free
18 product removal?
19 MR. SHERRIL: We've stated to the
20 maximum extent practicable -- and I wouldn't agree
21 that -- I've had many sites where they removed all
22 the free product 100 percent. So --
23 MR. WATSON: I guess I'm concerned about
24 the factors you've articulated because really what
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1 you've articulated are site specific factors where
2 free product would create a problem if left in the
3 soil as opposed to what the regulations really
4 focus on and that is what is the level of
5 technical capability available to remove free
6 product from the soil?
7 MR. KING: That's not what the rule
8 says.
9 MR. WATSON: It says that you have an
10 obligation to take corrective action to the
11 maximum extent practicable to remove any free
12 product.
13 MR. KING: Right.
14 MR. WATSON: Doesn't that necessarily
15 involve limitations on the technologies used to
16 remove free product?
17 MR. KING: Among the other factors that
18 Mr.
Sherril talked about, I mean, if you're going
19 to do it based on a technology base, then you
20 would say, tear the building down, then you can
21 get to it and then the technology could remove the
22 material. That would not be an appropriate
23 conclusion.
24 That would not be practical to look
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1 at it that way. That's why we've tried to
2 enumerate a series of factors that you need to
3 consider the entirety of the site that you're
4 dealing with and not just focus on one single
5 factor as being the determinative issue.
6 HEARING OFFICER FEINEN: Any further
7 follow-up?
8 MR. RIESER: Just real quickly, is it
9 safe to take from Mr. King's last answer that
10 among the things that would be considered is a
11 comparison of the potential risk which is among a
12 lot of the factors that Mr.
Sherril listed in
13 comparison to the risk and cost and technical
14 practicality of dealing with a free product?
15 MR. KING: I think that's correct.
16 MR. RIESER: Will the agency approve
17 corrective action plans in which free product is
18 managed and controlled but not removed if it can
19 be demonstrated that those conditions will not
20 cause
exceedences of Tier 1 groundwater objectives
21 at the property boundaries? And I should add that
22 appropriate institutional controls are placed on
23 the property.
24 MR. KING: If you did that as part of a
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1 Tier 3 evaluation, that would be correct.
2 MR. RIESER: With respect to subsection
3 (a)(5), must a person show that a contaminant
4 released will not exceed applicable surface water
5 quality standards or that the affected surface
6 water body will not exceed the water quality
7 standard?
8 MR. KING: The way we have written that,
9 the contaminant levels have to meet the surface
10 water quality standards when the contaminant --
11 basically when it hits the surface water. There's
12 no mixing zone compound.
13 MR. RIESER: Are there methods for
14 determining the levels of contaminants when they
15 hit a surface water body?
16 MR. SHERRIL: You could sample for it.
17 You could model it.
18 MR. RIESER: Are there models that
19 identify that along --
20 MR. HORNSHAW: That's what model or
21 equation R26 does. You just back calculate from
22 the surface water quality standard whatever
23 distance there is to the nearest surface water
24 body is what's plugged in to get that equation
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1 run.
2 MR. RIESER: Okay, thank you.
3 MR. WATSON: I got one follow-up
4 question. What you're saying on free product is
5 that you can leave free product in place if you
6 can show under a Tier 3 analysis that there's an
7 appropriate risk attached to that?
8 MR. SHERRIL: On that particular issue,
9 it encompasses many of those factors that I
10 discussed before. Because it may be very easily
11 obtained to remove free product from a practical
12 viewpoint, I mean, it may be almost acidic sitting
13 there on the surface, and there could maybe be
14 relatively little risk associated with it, but we
15 would want it removed so it encompasses many
16 different criteria looking into removal.
17 HEARING OFFICER FEINEN: Mr.
Rieser.
18 MR. RIESER: The discussion of free
19 product removal that we've had, that applies to
20 free product that's actually on the water table,
21 not free product -- not necessarily I should say
22 free product in the soil, is that correct, because
23 free product in the soil is, so long as it doesn't
24 exceed the values of 215 and 220, is not an
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1 issue?
2 MR. SHERRIL: That's correct, and we
3 wouldn't -- that's correct.
4 MR. RIESER: Okay.
5 MR. WATSON: But if it exceeds the
6 values in 215 and 220, then would you have the
7 ability to argue under a Tier 3 analysis that it
8 may be appropriate to leave that free product in
9 the ground?
10 MR. SHERRIL: Yes.
11 HEARING OFFICER FEINEN: Further
12 follow-up on that? Mr.
Watson, I think you have a
13 question on 742.805. It's marked as No. 9, I
14 believe. Has that been answered?
15 MR. WATSON: That has been answered.
16 HEARING OFFICER FEINEN: Mr.
Reott, do
17 you have any more questions?
18 MR. REOTT: I think everything else I've
19 got really goes to Tier 3.
20 HEARING OFFICER FEINEN: Tier 3, okay.
21 Off the record for a second.
22 (Discussion off the record.)
23 HEARING OFFICER FEINEN: Let's go back
24 on the record. I believe Mr.
Soni has one
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1 question for the agency.
2 MR. SONI: In Tier 2 does your equations
3 or any equations take into consideration life
4 safety factors?
5 MR. HORNSHAW: How are you using the
6 term safety factors, on the toxicity end or the
7 model end?
8 MR. SONI: Model end.
9 MR. KING: That was a question -- that
10 is one of Mr.
Reott's questions as well. When we
11 were discussing that, we were having a little bit
12 of difficulty with it because when I think of
13 safety factor, I really think of it in terms of
14 when you do a design relative to a structure where
15 you incorporate and you come up with a design
16 level for what the structure could support and you
17 multiply it by a safety factor, and so we
18 struggled with that because it doesn't seem like
19 the term safety factor really fits into the
20 context of these models.
21 MR. SONI: In the context of safety
22 factor, what I meant was there exist degree of
23 uncertainty with all the model parameters, and the
24 agency has suggested in the past that for every
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1 uncertain parameter, we use a factor of 10 for
2 amount, and in R94-2B, I believe agency had
3 recommended that we use safety factor of 100. The
4 board had to use the safety factor of 1,000, but
5 there are similar equations in appendix C,
6 equation R12 or R13 where a safety factor may be
7 used to incorporate or account for any
8 uncertainties in the models associated with it.
9 MR. KING: I don't think these models
10 work that way.
11 MR. SONI: In R94-2?
12 MR. KING: Right. I recall that was
13 done. I think with these models, because of the
14 way the whole toxicity issues are structured and
15 the way the modeling is done, I think the models
16 incorporate what we call a safety factor into it
17 without getting to a result and then multiplying
18 it by some additional factor.
19 MR. SONI: Do you know if soil screening
20 level, does it do that?
21 MR. HORNSHAW: The soil screening levels
22 were developed by USEPA with a very large
23 database, and they picked 95th percentile or 90th
24 percentile values out of that database so as to be
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1 protective of most sites around the country. So
2 the safety factor approach is more or less built
3 in, even though there isn't a single number that
4 says what the safety factor is.
5 MR. SONI: What about in RBCA?
6 MR. HORNSHAW: I'm not as familiar with
7 the RBCA equations as I am with the SSL equations,
8 but I think you can probably assume that the same
9 thing is true. However, with the RBCA system --
10 MR. SONI: At that time the agency has
11 supported safety factor of 100 and never the same
12 model that's being used now so is that something
13 you could --
14 MR. KING: I think that's something we
15 can look at.
16 HEARING OFFICER FEINEN: Mr.
Reott, do
17 you have some follow-up?
18 MR. REOTT: I do, two things. In the
19 R94-2
rulemaking -- it's hard to believe that was
20 even on a more abbreviated schedule than this one
21 with regard to these issues. From the development
22 of testimony to the development of the board's
23 actual rule was very, very compressed, and I think
24 the safety factor was partially a result of the
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1 board's decision to take a divergent view from
2 what the agency originally proposed and knowing
3 that it was an interim rule and that it was going
4 to be revisited again promptly.
5 As far as the way the models work,
6 they all start with something based on
MCL's, and
7 MCL's have huge safety factors in them. So
8 there's a safety factor at the very, very
9 beginning of the process in the
MCL's themselves
10 if you go back.
11 MS. MC FAWN: Mr.
Reott, I think you're
12 trying to help explain, but you are testifying.
13 Would you like to be sworn in?
14 MR. REOTT: All right.
15 HEARING OFFICER FEINEN: Mr.
Reott, we
16 have some questions.
17 MS. MC FAWN: Did you have something
18 further to add?
19 MR. REOTT: No. I was the one who used
20 the term safety factors, Gary said, and that's the
21 source of it, and that's how I used it in my
22 question which has now been answered.
23 HEARING OFFICER FEINEN: Mr.
Reott, I
24 want to make sure that we're covered with your
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1 questions. You stated the questions haven't been
2 answered or asked for Tier 3?
3 MR. REOTT: Either Tier 3 or the things
4 that were already done previously that I'll pick
5 up at the very end.
6 HEARING OFFICER FEINEN: And the very
7 end, you mean like the end of the hearings on
8 December 10th?
9 MR. REOTT: Well, hopefully.
10 MS. MC FAWN: Are those the questions
11 you have concerning --
12 MR. REOTT: Halfway exclusions, the
13 things I would have done at the end of today. A
14 lot of those have been asked but there's a couple
15 of them that haven't so I'll have to go through
16 and pick them.
17 MS. MC FAWN: Do you think you could do
18 that now?
19 MR. REOTT: Yeah.
20 MS. MC FAWN: I would very much just
21 like to leave, break this afternoon looking
22 forward to Tier 3.
23 MR. REOTT: That's fine.
24 MR. WATSON: Question 12, is that a Tier
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1 2 question?
2 MR. REOTT: I think they've already
3 answered that one, which the answer is no.
4 HEARING OFFICER FEINEN: Can we just go
5 through the beginning and just --
6 MR. REOTT: No. 8 was the first one I
7 skipped then, and this has to do with the point of
8 compliance which in the UST program would sort of
9 be the property line. If you're doing T.A.C.O.
10 modeling for the site
remediation program, what
11 are you using as your point of compliance?
12 And if I've heard you right, I
13 think what you're saying is the point of human
14 exposure is your point of compliance.
15 MR. KING: Well, not necessarily. You
16 could use the point of human exposure and then
17 back calculate and establish a point of compliance
18 at a place closer to the source which is then
19 predictive of meeting the required number at the
20 point of human exposure. In essence your point of
21 monitoring might be different than the point of
22 human exposure.
23 MR. REOTT: In other words, you might
24 monitor at the edge of your property for access
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1 reasons, but you're actually trying to predict
2 what's another 100 feet down the road or
3 something?
4 MR. KING: That's exactly right.
5 MR. REOTT: Does the agency have any
6 proposal with regard to trying to pick a specific
7 point of compliance for the site
remediation
8 program that we would use here?
9 MR. KING: No.
10 MR. REOTT: So that will just be a site
11 specific determination?
12 MR. KING: That's correct.
13 MR. REOTT: I thought this was answered,
14 but then somebody else thought maybe it wasn't so
15 I'm going to ask No. 12.
16 At this point am I correct that
17 there's no longer any ability to use different
18 risk levels in Tiers 2 and 3?
19 MR. HORNSHAW: Not in Tier 2. That's
20 still an option in Tier 3.
21 MR. REOTT: Oh, it's still an option in
22 Tier 3 so the errata sheets don't change that
23 option then?
24 MR. HORNSHAW: No.
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1 MR. REOTT: What do you have to show
2 then -- I guess this is really a Tier 3 question.
3 We'll hold that one then.
4 Skip ahead to 24. This is the
5 averaging and
compositing section. The agency set
6 this up so you could do it within the
borehole,
7 you know, vertically. At some sites, though, you
8 might be more interested in going horizontally at
9 given depths. Would the agency be willing to
10 modify its proposal to be able to do that?
11 MR. KING: You're not very clear on what
12 pathway you're talking about there. We would
13 assume that you're talking about the migration to
14 groundwater pathway.
15 MR. REOTT: Right.
16 MR. KING: And the answer would be no.
17 MR. REOTT: Why not?
18 MR. KING: I'll let you guys --
19 MR. SHERRIL: It would require extensive
20 sampling of multiple
boreholes. We would --
21 because we don't know where the center line of the
22 plume is, what we try to be is consistent with
23 USEPA policy in their SSL guidance, and you would
24 be -- I don't want to say guessing. You would be
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1 trying -- taking a chance on trying to figure out
2 where the center line of the plume is versus doing
3 it vertically within the
borehole.
4 MR. REOTT: In 225(e) you have a
5 provision that deals with what happens with
6 non-detect results in the averaging process, and
7 the way it's written if less than 50 percent of
8 the results are non-detect, you included it one
9 half of the reported analytical detection limit of
10 the contaminant for purposes of averaging.
11 And then it says, if more than 50
12 percent of the sample results are non-detect,
13 another procedure acceptable to the agency may be
14 used to determine an average. Do you always have
15 to go get agency approval at that point before you
16 can do your averaging?
17 MR. HORNSHAW: You mean greater than 50
18 percent non-detects?
19 MR. REOTT: Right.
20 MR. HORNSHAW: Yes.
21 MR. REOTT: So you're not able to use
22 the other options?
23 MR. HORNSHAW: That's correct.
24 MR. REOTT: Why don't we skip to 29. I
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1 think the others have been dealt with. This is
2 the pathway exclusion. In the House 300 reforms,
3 you know, Illinois adopted the concept of
4 excluding pathways based on geology. Essentially
5 I think that's sort of shorthand for what House
6 300 did, you know, if you tried to convert it to
7 more modern language.
8 And given favorable geology, many
9 UST sites become no further action sites based
10 largely on geology. How does your pathway
11 exclusion proposal preserve this option for (a)
12 UST sites and (b) other types of sites?
13 MR. KING: I don't want to get into a
14 discussion as far as your statements how the Berg
15 Circular works with 300 and the geology thing. I
16 don't think your statement is quite correct the
17 way you've got them, but nonetheless, the option
18 of going through the no further action
19 classification procedure that's in 732 is still
20 available for UST sites, and that's preserved
21 under part 732, and for other types of sites, it
22 doesn't apply.
23 MR. REOTT: Let me stipulate ahead to a
24 couple of these. We're going to get it when we
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1 get to the barrier stuff at the end. Skip ahead
2 to 34. 305(c), it's the one that deals with
3 characteristics of reactivity.
4 How does the reactivity limit on
5 being able to use pathway exclusion relate to the
6 risk to groundwater pathway?
7 MR. SHERRIL: There's two different
8 aspects here. It can relate to the risk of -- it
9 can relate to the migration of the contaminant by
10 changing the properties of the soil, but one of
11 the reasons we put the reactivity limit on there
12 is to protect from chronic and acute hazards. It
13 also violates the models. We just don't want
14 these excessive risks potentially out there. Did
15 you want to add anything?
16 MR. O'BRIEN: That's fine.
17 MR. REOTT: I'm just trying to break
18 those risks down into their components, John, and
19 focusing just on the risk to groundwater pathway,
20 how does this affect that particular pathway? I
21 realize that it would obviously affect things like
22 human contact. How does it affect risk to
23 groundwater?
24 MR. O'BRIEN: Well, things that don't
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1 pass this are source material that need to be
2 removed so that we can address contamination, and
3 that anything that doesn't pass these tests is
4 pretty aggressive material reactivity-wise and
5 toxic-wise, and the agency just feels that that
6 needs to be addressed in a manner that is more
7 forthright and doesn't rely on management criteria
8 that we would otherwise feel more comfortable
9 with.
10 MR. REOTT: Is there a specific link,
11 though? I understand the policy decision you're
12 articulating Jim. Is there a specific link
13 between having soils that flunk for reactivity and
14 whether that is in fact a risk to groundwater --
15 an increased risk to groundwater?
16 MR. O'BRIEN: No, it's a qualitative
17 decision that the agency has made. I can't take
18 an equation that show that failing these criteria
19 violate -- you know, through some calculation,
20 they're going to cause a problem.
21 MR. REOTT: When you say "these," you
22 mean both (c), (d) and (e) then, all three of
23 those? Are you lumping them together or breaking
24 them out separately?
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1 MR. O'BRIEN: I'm lumping them together.
2 MR. RIESER: Just something to follow up
3 on Mr.
O'Brien's statement. To a certain extent,
4 you addressed it during his statement, but when we
5 first started talking about the soils that failed
6 the reactivity test, what he said was soils have
7 to be removed, but then later he said they have to
8 be addressed.
9 I just want to clarify that the
10 subpart C which includes 305 is a voluntary
11 activity that a
remediation applicant can go
12 through to include pathways and so that that's
13 number one. Just because the soils are reactive
14 doesn't mean they necessarily have to be removed,
15 but they just have to be addressed in a more
16 thorough way in the rest of the program.
17 MR. O'BRIEN: I misspoke. I meant
18 addressed. It may be possible with a pH soil to
19 change the pH without having to remove the
20 material. Other techniques are available for the
21 other hazards.
22 MR. RIESER: Thank you.
23 MR. WATSON: It may also be possible to,
24 under a Tier 3 cleanup standard, not address those
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1 conditions?
2 MR. SHERRIL: You would have to at least
3 address it.
4 MR. WATSON: Right, but consistent with
5 -- but if you went through a Tier 3 risk analysis
6 and addressed those issues as part of the risk,
7 there could be circumstances where the result
8 would be that you would not have to take
9 corrective action to remove that soil?
10 MR. O'BRIEN: That's possible and
11 allowed under Tier 3, as you stated.
12 MR. RIESER: Thank you.
13 MR. REOTT: I think the other ones were
14 done.
15 MR. WATSON: I've got one follow-up
16 question on what Mr.
Reott said or his questions,
17 and I just wanted to confirm the answer to
18 No. 12. At what point in Tier 2 is the regulated
19 community able to use different risk levels? Is
20 it true that your answer was that you cannot use
21 anything other than 10 to the minus 6 risk level?
22 Is that true in Tier 2?
23 MR. HORNSHAW: At the point of human
24 exposure, yes.
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1 MR. WATSON: So risk levels of 10 to the
2 minus 5 and 10 to the minus 4 are not available
3 under Tier 2?
4 MR. HORNSHAW: Correct.
5 HEARING OFFICER FEINEN: Mr.
Rieser.
6 MR. RIESER: Isn't there language -- and
7 I think I mentioned the sections earlier -- in 710
8 in particular where they talk about or the
9 proposal talks about allowing target risk more
10 than one in a million if applicable exposure
11 routes have been managed through institutional
12 controls, and how --
13 MR. HORNSHAW: My answer was at the
14 point of human exposure.
15 MR. RIESER: Okay. So if you had an
16 institutional control on the site, that the point
17 of human exposure would be the edge of that
18 institutional control?
19 MR. HORNSHAW: Correct.
20 MR. RIESER: And within that
21 institutional control, the target risk varied
22 wherever --
23 MR. KING: Let's not get too far. We
24 promised that we would try to do an organized
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1 statement with regards to that, and let's not get
2 too far afield because if you're within the
3 institutional control, then we don't want to talk
4 about a higher risk level because there's not a
5 risk level.
6 HEARING OFFICER FEINEN: Then I think if
7 there's no more --
8 MR. RIESER: I'm really sorry, but I do
9 have one more just to get that Tier 2 behind us,
10 and we don't have to worry about it.
11 In Tier 2 is it correct that
12 chemical specific default degradation rates, as
13 listed in appendix C, table E, can be used in
14 equation R26?
15 MR. SHERRIL: State that again, please.
16 MR. RIESER: In Tier 2 is it correct
17 that chemical specific default degradation rates,
18 as listed in appendix C, table E, can be used in
19 R26?
20 MR. SHERRIL: Yes.
21 MR. RIESER: Is it also correct that in
22 Tier 2, a degradation constant for measured
23 groundwater can be used in R26?
24 MR. HORNSHAW: Are you talking about a
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1 laboratory derived value instead of the default
2 value? Is that what you're asking?
3 MR. RIESER: A laboratory or in situ
4 derived value, yes.
5 MS. ROBINSON: Could you read back the
6 question just to make it clear.
7 MR. RIESER: Maybe this would be a
8 suggestion. Maybe I can write these down, get
9 them to the agency and everybody else on the list,
10 and this will be something that we could hit on
11 Tuesday unless you have specific answers right
12 now.
13 MR. LISS: I would prefer to have them
14 written, and I think that's something we need to
15 discuss. What we were discussing there's a big
16 variation between field-derived values and
17 laboratory values, not only due to the methods
18 that's used for in situ but the laboratory methods
19 themselves.
20 I'll give you one that's not
21 related to your question by the parameters
22 specifically, but say it's a good one that's well
23 documented is the hydraulic conductivity
24 measurements. They can vary in orders of degree
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1 and magnitude. So I don't think that we would
2 accept as a blanket proposal somebody to
3 substitute for a laboratory derived value without
4 us looking at it. Maybe under Tier 3 would be the
5 more appropriate place to do that. We're talking
6 about Tier 2, right?
7 MR. RIESER: I'm sorry, I think within
8 the rule itself, 805 -- I'm sorry, 810 (a)(1)(h)
9 talks about the first order of degradation
10 constant can be obtained from appendix C, table E,
11 or from measured groundwater data. Do you see
12 where I am, the measuring?
13 How would the agency envision
14 people measuring? That measured groundwater data,
15 how would that be obtained?
16 MR. LISS: Let me find the exact, you
17 said it was 810(a)? I got it. I can't answer
18 that today. You want to know how specifically we
19 expect somebody to measure that in the field?
20 MR. RIESER: Yes.
21 MR. LISS: That's your question. I
22 can't answer that right now.
23 MS. ROBINSON: Mr.
Rieser, would you put
24 the specific questions in writing, please, and
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1 we'll address them in January?
2 MR. RIESER: I'll do that.
3 MR. LISS: You had also mentioned when
4 you made that statement, that earlier question,
5 laboratory derived values.
6 MR. RIESER: I realize that. I'll put
7 them in writing, and that would be something we
8 can get on Tuesday.
9 HEARING OFFICER FEINEN: Any other
10 questions? I guess then we'll stop here and
11 continue on the record until December 10th at
12 10:00 o'clock at A-1, the Stratton Building.
13 Please remember that even though we're having the
14 hearing on December 10th, which is a Tuesday, the
15 hearing officer order of October 28th established
16 prefiled testimony for the hearings which have
17 been set for January 15th through 17th in
18 Springfield.
19 Those dates are the
prefiled
20 testimony must be in by December 23rd, 1996, and
21 the
prefiled questions from that testimony -- for
22 that testimony, I should say, is January 6, 1997.
23 MS. MC FAWN: Those were the dates
24 agreed to at the pre-hearing conference, also.
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1 And just for the record, you're going to get that
2 last series of questions dealing with Tier 2 to
3 the agency in sufficient time for them to possibly
4 address those on Tuesday?
5 MR. RIESER: I will get it out
6 tomorrow. It's a simple set, and I'll send them
7 to everybody here.
8 MS. ROBINSON: Okay.
9 HEARING OFFICER FEINEN: I guess that's
10 it, and then we'll close -- or we'll continue on
11 Tuesday.
12 MS. MC FAWN: Yes, we are continued
13 until Tuesday morning. Thank you for your
14 participation today.
15 (Whereupon, these proceedings
16 were continued until December
17 10, 1996, at 10:00 o'clock a.m.)
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1 STATE OF ILLINOIS )
) SS:
2 COUNTY OF COOK )
3
4
5 LISA H. BREITER, CSR, being first duly
6 sworn, on oath says that she is a court reporter
7 doing business in the City of Chicago; that she
8 reported in shorthand the proceedings at the
9 taking of said hearing and that the foregoing is a
10 true and correct transcript of her shorthand notes
11 so taken as aforesaid, and contains all of the
12 proceedings had at said hearing.
13
14
15
16
LISA H. BREITER, CSR, RPR, CRR
17
L.A. REPORTING
79 West Monroe Street
18 Suite 714
Chicago, Illinois 60603
19 (312) 419-9292
License No. 84-003155
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