1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3 IN THE MATTER OF: )
)
4 TIERED APPROACH TO CORRECTIVE ) R97-12 (B)
ACTION OBJECTIVES ) (
Rulemaking- Land)
5 35 ILL. ADM. CODE 742, )
6
7
8
9 The following is a transcript of a
10 rulemaking hearing held in the above-entitled
11 matter, taken
stenographically by LISA H. BREITER,
12 CSR, RPR, CRR, a notary public within and for the
13 County of
DuPage and State of Illinois, before
14 AMY MURAN FELTON, Hearing Officer, at the Loyola
15 Law School, One East
Pearson Street, Room 324,
16 Chicago, Cook County, Illinois, on the 21st day of
17 May 1997 commencing at 10:00 o'clock a.m.
18
19
20
21
22
23
24
L.A. REPORTING - (312) 419-9292
1
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: MS. AMY MURAN FELTON,
6 HEARING OFFICER.
7 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
8 Ms.
Marili McFawn
Mr. Ronald C. Flemal, Ph.D.
9 Ms. Kathleen
Hennessey
10 ILLINOIS POLLUTION CONTROL BOARD TECHNICAL
ADVISORS PRESENT:
11
Mr. Chuck
Feinen
12 Mr.
Hiten Soni
Ms. Elizabeth Ann
13 Mr.
Anand Rao
14 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
PRESENT:
15
Ms. Kimberly A.
Robinson
16 Mr. Gary P. King
Mr. John
Sherril
17 Dr. Thomas
Hornshaw
Mr. H. Mark
Wight
18 Mr. Christopher L.
Nickell
19 OTHER AUDIENCE MEMBERS WERE PRESENT AT THE HEARING
BUT NOT LISTED ON THIS APPEARANCE PAGE.
20
21
22
23
24
L.A. REPORTING - (312) 419-9292
2
1 I N D E X
2 PAGE
3 GREETING BY HEARING OFFICER................ 4 - 10
4 OPENING COMMENTS OF
DR. THOMAS C. HORNSHAW.................... 10 - 12
5
TESTIMONY OF DR. THOMAS C. HORNSHAW....... 12 - 28
6
QUESTIONS TO DR. THOMAS C. HORNSHAW....... 28 - 64
7
CLOSING COMMENTS BY HEARING OFFICER....... 64 - 67
8
9
10
11
12
13
14
E X H I B I T S:
15
16 MARKED IN EVIDENCE
17
Exhibits 1 and 2........... 4.............. 36
18
19
20
21
22
23
24
L.A. REPORTING - (312) 419-9292
3
1 (Documents marked.)
2 HEARING OFFICER FELTON: Good morning.
3 My name is Amy
Muran Felton, and I'm the named
4 hearing officer in this proceeding. I would like
5 to welcome you to this hearing in the matter of
6 Tiered Approach to Corrective Action Objectives,
7 35 Illinois Administrative Code 742, docket B.
8 Present today on behalf of the
9 Illinois Pollution Control Board and seated to my
10 left is the presiding board member of this
11 rulemaking, Marili McFawn. Also joining us is
12 Board Member Dr. Ronald Flemal and Board Member
13 Kathleen
Hennessey. Further joining us is Chuck
14 Feinen, attorney assistant to board member Joe
Yi,
15 and
Hiten Soni, Anand Rao and Elizabeth Ann, the
16 board's technical advisors.
17 Over here on the table, I have
18 placed notice lists and service list
signup
19 sheets. Please note that if your name is in the
20 notice list, you will receive copies of the
21 board's opinions and orders. If your name is on
22 the service list, you will not only receive copies
23 of the board's opinions and orders, but you will
24 receive documents filed by all parties in the
L.A. REPORTING - (312) 419-9292
4
1 service list in this proceeding. Keep in mind if
2 your name is on the service list, you are also
3 required to provide copies of all documents you
4 file with the board to all parties on the service
5 list.
6 You are not precluded from
7 presenting questions if your name is not on either
8 of the notice or service list. If you have any
9 additional questions regarding the notice and
10 service list, please talk to me during one of our
11 breaks. Copies of the board's May 1st, 1997,
12 opinion and order and the notice and service list
13 signup sheet are also on that table. The agency
14 is in the process of preparing a text of the
15 proposed rules including the necessary
16 strike-
throughs and underlines. The board has
17 prepared a draft text of the proposed rules for
18 the sake of this hearing, and that document is
19 also located on the table.
20 This hearing will be governed by
21 the board's procedural rules for regulatory
22 proceedings. All information which is relevant
23 and repetitious or privileged -- strike that --
24 which is relevant or repetitious will be
L.A. REPORTING - (312) 419-9292
5
1 admitted. All witnesses will be sworn and subject
2 to cross questioning. This hearing will be
3 continued on the record to Thursday, May 22nd,
4 1997, at 10:00 a.m. in the auditorium at the State
5 of Illinois Center in Chicago, if necessary, to
6 accommodate the agency's presentation and response
7 to questions.
8 This proposed
rulemaking was filed
9 on May 1st, 1997, and is intended to fulfill the
10 mandates of Title XVII of the Environmental
11 Protection Act. Title XVII was added to the act
12 by Public Act 89-431 which was signed and became
13 effective on December 15th, 1995. On September
14 16th, 1996, the Illinois Environmental Protection
15 Agency proposed a new part 742 to the board's
16 rules to create a tiered approach to establishing
17 corrective action objectives, also known as
18 T.A.C.O.
19 On November 7th, 1996, the board
20 adopted the T.A.C.O. proposal docket A for first
21 notice. On April 17th, 1997, the board adopted
22 the T.A.C.O. proposal docket A for second notice.
23 The proposed rules in docket B contain amendments
24 to the new, not yet final, part 742. The proposed
L.A. REPORTING - (312) 419-9292
6
1 rules in docket B were originally proposed by the
2 agency after the close of hearings in docket A.
3 Because the agency's proposed
4 amendments to docket A were proposed after the
5 close of hearings in docket A and the issues
6 raised by the agency could not be resolved based
7 upon the record developed during hearings on
8 docket A, the board found in its May 1st, 1997,
9 opinion and order that there was not sufficient
10 time to resolve these issues and adopt any
11 necessary amendments as a part of T.A.C.O. docket
12 A.
13 Accordingly, the board opened this
14 docket B and found it was necessary to conduct
15 public hearings about the proposed rules pursuant
16 to its own
rulemaking authority under sections 27
17 and 28 of the act. The hearing today concerns
18 those rules proposed in docket B. Generally these
19 rules relate to mixtures of similar-acting
20 substances. The purpose of today's hearing is to
21 allow the agency to present their testimony in
22 support of that proposal and to allow questioning
23 of the agency.
24 Procedurally, this is how I plan to
L.A. REPORTING - (312) 419-9292
7
1 proceed. We have received one
prefiled testimony
2 from Thomas C.
Hornshaw of the agency.
3 Mr.
Hornshaw will read his testimony into the
4 record for the benefit of all parties to this
5 proceeding. We will then allow the agency to
6 present any supplemental testimony they may have
7 regarding their proposal. Subsequently, we will
8 allow for questioning of the agency regarding
9 their testimony.
10 I prefer that during the
11 questioning period, all persons with questions
12 raise their hands and wait for me to acknowledge
13 them. When I acknowledge you, please stand and
14 state in a loud, clear voice your name and your
15 organization you represent, if any.
16 Are there any questions regarding
17 the procedures I have just stated before we
18 proceed?
19 MS. ROBINSON: Well, would it be
20 possible for the agency to have all witnesses
21 sworn in and answer in a panel format, if
22 necessary?
23 HEARING OFFICER FELTON: That would be
24 fine. At this time I would like to ask Board
L.A. REPORTING - (312) 419-9292
8
1 Member
McFawn if she has anything else she would
2 like to add to my comments.
3 MS. MC FAWN: Just to welcome you all
4 here. It should be a rather efficient hearing
5 given the people that are here. We're all
6 familiar with T.A.C.O., and the questions have
7 been, I think, pretty well articulated by the
8 board's orders and also by -- framed also by the
9 prefiled testimony we've received. So thank you
10 for coming.
11 HEARING OFFICER FELTON: Board Member
12 Flemal or Board Member
Hennessey, do you have any
13 other additional comments you would like to add?
14 MS. HENNESSEY: No thank you.
15 HEARING OFFICER FELTON: At this time I
16 would ask the agency if they would like to make an
17 opening statement, and we will turn to the
18 agency's presentation of their proposal.
19 MS. ROBINSON: I'm going to let
20 Dr.
Hornshaw do a little opening statement, but as
21 a start matter, I would like to have everybody
22 with the agency introduce themselves.
23 I am Kimberly
Robinson with the
24 Division of Legal Counsel for the Bureau of Land.
L.A. REPORTING - (312) 419-9292
9
1 DR. HORNSHAW: I'm Tom
Hornshaw. I'm a
2 toxicologist in the Office of Chemical Safety.
3 MR. SHERILL: I'm John
Sherril, a
4 project manager in the Bureau of Land.
5 MR. WIGHT: I'm Mark
Wight with the
6 Division of Legal Counsel.
7 MR. NICKELL: I'm Chris
Nickell, the
8 project manager in the Bureau of Land.
9 MR. KING: I'm Gary King. I'm in the
10 Bureau of Land.
11 (Discussion off the record.)
12 MS. ROBINSON: Could we swear the
13 witnesses, please.
14 (Witnesses sworn.)
15 MS. ROBINSON: Dr.
Hornshaw, if you'd
16 like to proceed.
17 DR. HORNSHAW: Before I read my
18 testimony, I'd like to mention that in our review
19 of the various documents talking about mixtures of
20 similar-acting substances, we found slight
21 discrepancies in the various documents.
22 Errata sheet No. 3, second notice
23 and the proposed version of this docket had slight
24 discrepancies in the language. So our discussion
L.A. REPORTING - (312) 419-9292
10
1 will be based on what's in my testimony, and
2 that's how we view the way to address the mixtures
3 of similar-acting substances in this proceeding.
4 MS. ROBINSON: Dr.
Hornshaw, I'm going
5 to show you what's been marked by the court
6 reporter for identification as Exhibit No. 1, if
7 you could look at that and tell me if you
8 recognize it.
9 DR. HORNSHAW: Yes, this is a copy of
10 the testimony I prepared for this proceeding.
11 MS. ROBINSON: Is that a true and
12 accurate copy?
13 DR. HORNSHAW: Yes.
14 MS. ROBINSON: And what's been marked as
15 Exhibit No. 2 for identification, would you take a
16 look at that and tell me if you recognize it.
17 DR. HORNSHAW: Yes. This is a draft of
18 proposed language for docket B that was sent to
19 the agency.
20 MS. ROBINSON: Was this drafted by the
21 board?
22 DR. HORNSHAW: Yes.
23 MS. ROBINSON: Okay. Would you please
24 proceed with the reading of your testimony into
L.A. REPORTING - (312) 419-9292
11
1 the record.
2 MR. RIESER: Excuse me, Ms.
Robinson, is
3 Exhibit 2 the same as draft of agency proposal,
4 copies of which were sent around today?
5 MS. ROBINSON: That's correct.
6 DR. HORNSHAW: Good morning. My name is
7 Thomas C.
Hornshaw. I am a senior public service
8 administrator and the manager of the Toxicity
9 Assessment Unit within the office of Chemical
10 Safety of the Illinois Environmental Protection
11 Agency. I have been employed at the agency since
12 August of 1985, providing expertise to the agency
13 in the area of environmental toxicology.
14 Major duties of my position include
15 development and use of procedures for toxicity and
16 risk assessments, review of toxicology and hazard
17 information in support of agency programs and
18 actions and critical review of risk assessments
19 submitted to the agency for various cleanup and
20 permitting activities. I have previously
21 presented a summary of my qualifications at the
22 first hearing in this
rulemaking and will not
23 repeat them here. My testimony today will be
24 limited to discussion of the agency's rationale
L.A. REPORTING - (312) 419-9292
12
1 for the development of remediation objectives for
2 mixtures of similar-acting substances in soil and
3 groundwater.
4 I must preface my testimony with an
5 apology to the board and to the other participants
6 in this
rulemaking for the agency introducing new
7 language to part 742 regarding mixtures of
8 similar-acting substances in errata sheet No. 3 so
9 late in the
rulemaking process. Please understand
10 that there was no intent by the agency to sidestep
11 the hearing process or in any other manner to try
12 to undo any agreements reached by the agency and
13 the advisory committee.
14 Rather, as will be demonstrated by
15 this testimony, the agency attempted to clarify
16 the approach to be used at sites where groundwater
17 has been found to be contaminated with two or more
18 chemicals which affect a similar target in the
19 body and to avert potential legal disputes where
20 such conditions were found to exist.
21 The agency has included language
22 for addressing mixtures of similar-acting
23 substances in part 742 from the very beginning of
24 this
rulemaking. This concern for mixtures
L.A. REPORTING - (312) 419-9292
13
1 derives in part from long-standing agency policy
2 and more importantly from statutory directive.
3 Section 58.4(c)(4)(B) of Title XVII specifically
4 requires that methodologies adopted by the board
5 for determining remediation objectives must ensure
6 that, in quote, "The presence of multiple
7 substances of concern and multiple exposure
8 pathways," end quote, are taken into account.
9 As a result of this concern, the
10 agency included language in Tier 2 of the original
11 proposal requiring that for
noncarcinogens that
12 affect the same target in the body, soil
13 remediation objectives for such
noncarcinogens be
14 adjusted to account for the additive effects of
15 the mixture in soil. This language, which limits
16 the necessity to address mixtures of
17 similar-acting substances to Tier 2 assessments
18 and to
noncarcinogens, came about because of
19 discussions with the advisory committee.
20 Specifically, it was decided that
21 the inherent
conservatisms built into the process
22 of developing the Tier 1 soil remediation
23 objectives made consideration of the
additivity of
24 effects of similar-acting substances unnecessary
L.A. REPORTING - (312) 419-9292
14
1 -- I'm sorry -- unnecessary in Tier 1. It was
2 only necessary to address mixture effects of
3 noncarcinogens in Tier 2 because for carcinogens,
4 the statutory language of section 58.5(d) of Title
5 XVII specifically provides for the establishment
6 of remediation objectives at an excess lifetime
7 cancer risk of between 1 in 10,000 and 1 in
8 1,000,000.
9 It was agreed that since the
10 statute provides for an acceptable cancer risk
11 range and since even if there are 10 carcinogens
12 present at their respective 1 in 1,000,000
13 remediation objectives (an unusual event) the
14 cumulative cancer risk of 1 in 100,000 is still
15 within the acceptable range. Therefore,
16 consideration of the
additivity of carcinogenic
17 effects in Tier 2 was unnecessary. Since
18 corresponding statutory guidance regarding an
19 acceptable risk range for
noncarcinogens is not
20 provided in Title XVII, the additive effects of
21 noncarcinogens had to be considered and provided
22 for in Tier 2.
23 As a result of the above,
24 provisions relative to mixtures of similar-acting
L.A. REPORTING - (312) 419-9292
15
1 contaminants in soil are still included in the
2 rules sent to second notice. Regarding
3 groundwater, it was assumed, at least by the
4 agency, that the requirements of 35 Illinois
5 Administrative Code 620.615 regarding mixtures of
6 similar-acting substances would govern the
7 development of remediation objectives at a site.
8 Therefore, the inclusion of language in part 742
9 addressing mixtures of similar-acting substances
10 (carcinogens and
noncarcinogens) in groundwater in
11 any tier was not discussed between the agency and
12 the advisory committee.
13 As stated above, the topic of
14 remediation objectives for mixtures in groundwater
15 had been a non-issue throughout the development of
16 part 742. In fact, it wasn't until late in the
17 hearing process that the agency realized that not
18 including specific language regarding mixture
19 effects in groundwater had become an issue. In
20 the context of recommending remediation objectives
21 for a particular site, the agency included an
22 objective for a mixture of similar-acting
23 substances detected in Class I groundwater and was
24 subsequently questioned whether this type of
L.A. REPORTING - (312) 419-9292
16
1 objective was allowed by part 742.
2 After some internal discussion, the
3 agency decided that recommending remediation
4 objectives for mixtures of similar-acting
5 substances in Class I groundwater in any tier and
6 for carcinogens and
noncarcinogens is appropriate
7 because it is required by 620.615 because, quote,
8 "multiple substances of concern," end quote, is
9 included in the factors which, by statute, must be
10 addressed when determining remediation objectives
11 for a site and because it is health protective to
12 do so.
13 However, the agency came to realize
14 as a result of this discussion that by either not
15 cross-referencing the requirements of part 620.615
16 or providing an alternative procedure to part
17 620.615 in 742, the door remained open for future
18 debate over the appropriate remediation objectives
19 when similar-acting chemicals are detected in
20 Class I groundwater. Furthermore, the agency
21 foresaw the possibility of a person expecting to
22 receive a no further remediation determination
23 from the agency by virtue of achieving all Class I
24 groundwater objectives only to be told that
L.A. REPORTING - (312) 419-9292
17
1 further remediation would be necessary because the
2 requirements of part 620.615 have not been met.
3 Even worse, the agency was
4 concerned by the possibility, however remote, that
5 because part 742 is silent about the requirements
6 for mixtures of similar-acting substances in
7 Class I groundwater, a no further remediation
8 letter might be issued and subsequently be
9 challenged for not meeting the requirements of
10 part 620.615. It was with these concerns in mind
11 that the agency informed the advisory committee of
12 its intent to add language cross-referencing the
13 requirements of part 620.615 in Tiers 1, 2 and 3.
14 After admittedly brief discussion, such language
15 was then included in errata sheet No. 3 for the
16 board's consideration.
17 The agency stands by its intent to
18 have the requirements for remediation objectives
19 for mixtures of similar-acting substances in
20 Class I groundwater be very clear. Toward this
21 end, the agency met with the advisory committee on
22 May 12, 1997, to further discuss this issue and
23 the language tentatively included in the proposed
24 rule for R97-12(B) dated April 17, 1997.
L.A. REPORTING - (312) 419-9292
18
1 The agency's meeting with the
2 advisory committee on May 12, 1997, focused on two
3 general areas regarding mixtures of similar-acting
4 substances, whether it was agreed that the
5 language currently included in part 742 relative
6 to mixtures in soil was still acceptable and
7 whether the language proposed by the board
8 relative to mixtures in Class I groundwater in the
9 proposed rule for R97-12(B) is acceptable. Please
10 note that the following discussion pertains only
11 to Class I groundwater since mixture effects need
12 not be considered in Class II groundwater.
13 Regarding mixtures in soil, it was
14 agreed that the language currently in part 742 is
15 acceptable. Thus, there should still be no
16 requirement to address mixtures of carcinogens or
17 noncarcinogens in soil for Tier 1 evaluations or
18 mixtures of carcinogens in soil for Tier 2
19 evaluations for the reasons discussed above. The
20 only requirements regarding mixtures in soil are
21 for
noncarcinogens in Tier 2 evaluations and
22 consideration of mixture effects in formal risk
23 assessments in Tier 3 evaluations for carcinogens
24 and
noncarcinogens.
L.A. REPORTING - (312) 419-9292
19
1 Regarding mixtures in groundwater,
2 several issues were discussed by the agency and
3 the advisory committee. It was generally agreed
4 that the original version of part 742 was unclear
5 regarding the requirements for remediation
6 objectives for mixtures in groundwater, although
7 the statute mandates that they be addressed. It
8 was also generally agreed that consideration of
9 mixture effects is required for
noncarcinogens in
10 Tier 2 evaluations and for carcinogens and
11 noncarcinogens in formal risk assessments in Tier
12 3 evaluations.
13 What was still at issue was whether
14 mixture effects needed to be addressed in Tier 1
15 evaluations (carcinogens and
noncarcinogens) and
16 whether carcinogens needed to be addressed in Tier
17 2 evaluations. In-depth discussion of the
18 remaining issues ultimately provided the basis for
19 conceptual agreement on how to address these
20 mixture concerns.
21 On the necessity for addressing
22 mixtures in Tier 1, it was pointed out by the
23 advisory committee members that the statute
24 requires only lookup tables in Tier 1, and
L.A. REPORTING - (312) 419-9292
20
1 mixtures cannot be addressed in tables. It was
2 also pointed out that there was conservatism built
3 into the development of the Tier 1 groundwater
4 remediation objectives similar to the reasoning by
5 which consideration of mixture effects in soil in
6 Tier 1 was deemed unnecessary. Therefore, it was
7 not necessary to address mixtures in groundwater
8 in Tier 1.
9 On the other hand, it was pointed
10 out by the agency that, as discussed above,
11 consideration of mixture effects was required by
12 both the existing statute (Title XVII) and
13 regulations (part 620) and that for two reasons
14 there is not necessarily the same degree of
15 conservatism built into the Tier 1 groundwater
16 objectives as in the soil objectives. The first
17 reason is that there is an additional layer of
18 conservatism built into the inhalation and the
19 soil component of the groundwater ingestion
20 exposure route soil objectives due to the
21 assumptions made regarding transport in soil.
22 Whereas for the groundwater
23 component of the groundwater ingestion exposure
24 route, the only
conservatisms built into the
L.A. REPORTING - (312) 419-9292
21
1 development of the remediation objectives are the
2 assumptions regarding the toxicity and the actual
3 intake of the chemical.
4 The second reason is that for
5 certain carcinogens whose Tier 1 groundwater
6 objective is based on the chemical's drinking
7 water standard, the groundwater objective does not
8 have the same degree of conservatism as the soil
9 -- as the corresponding soil objective, that is,
10 1 in 1,000,000 cancer risk as the basis. This is
11 due to the consideration of factors other than
12 risk by USEPA in establishing the drinking water
13 standards such as natural occurrence, for example,
14 arsenic; detection limits, for example, vinyl
15 chloride; or risk/benefit analysis, for example,
16 drinking water
disinfection by-products.
17 On the issue of whether mixture
18 effects of carcinogens need to be considered in
19 Tier 2, it was pointed out by the advisory
20 committee that the statute provides for a range of
21 acceptable cancer risks from 1 in 10,000 to 1 in
22 1,000,000. Therefore, even if 10 carcinogens are
23 present in groundwater at their respective
24 objectives, the cumulative cancer risk still falls
L.A. REPORTING - (312) 419-9292
22
1 within the acceptable range (again similar to the
2 reasoning by which consideration of the cumulative
3 risk of carcinogens in soil was determined to be
4 unnecessary in Tier 2).
5 In response, the agency again cited
6 the carcinogens whose groundwater objectives
7 exceed the 1 in 1,000,000 cancer risk level and
8 which, if present in a mixture with other
9 carcinogens, could potentially result in a
10 cumulative cancer risk exceeding 1 in 10,000. The
11 agency also again cited the statutory and
12 regulatory requirements to consider mixture
13 effects in groundwater regardless of what tier is
14 used in evaluating a site.
15 Following considerable discussion,
16 conceptual agreement was reached on the remaining
17 issues. Regarding Tier 1, it was agreed that
18 other than for those carcinogens whose groundwater
19 objective is not based on a 1 in 1,000,000 cancer
20 risk, there is an appropriate degree of
21 conservatism in the Tier 1 groundwater remediation
22 objectives such that consideration of mixture
23 effects is not necessary in Tier 1 provided all
24 other contaminants of concern detected in
L.A. REPORTING - (312) 419-9292
23
1 groundwater achieve their respective remediation
2 objectives.
3 However, if any contaminant of
4 concern (carcinogen or
noncarcinogen) exceeds its
5 respective Tier 1 groundwater remediation
6 objective or if a carcinogen whose Tier 1
7 groundwater objective is not based on a 1 in
8 1,000,000 cancer risk is detected in groundwater,
9 then the potential for cumulative effects of
10 mixtures of such chemicals must be addressed as a
11 Tier 2 evaluation. Regarding Tier 2, it was
12 agreed that only those carcinogens whose Tier 1
13 groundwater objectives exceed the 1 in 1,000,000
14 risk level must be evaluated for mixture effects
15 in Tier 2. It was further agreed that the
16 carcinogens whose Tier 1 groundwater remediation
17 objectives exceed the 1 in 1,000,000 cancer risk
18 level will be specifically identified in part
19 742.
20 In order to include the conceptual
21 agreements discussed above into part 742, the
22 following modifications to proposed rule for
23 R97-12(B) dated April 17, 1997, are proposed:
24 Section 742.505(b)(3), change the proposed
L.A. REPORTING - (312) 419-9292
24
1 language as follows: "The requirements of 35
2 Illinois Administrative Code 620.615 regarding
3 mixtures of similar-acting chemicals shall be
4 considered met for Class I groundwater at the
5 point of human exposure if the following
6 requirements are achieved:
7 "A) the Tier 1 groundwater
8 remediation objective listed in appendix B, table
9 E for Class I groundwater is not exceeded at the
10 point of human exposure for any contaminant of
11 concern detected in groundwater.
12 "And B) any contaminant of concern
13 listed in appendix A, table H is not detected in
14 any groundwater sample associated with the site
15 using analytical procedures capable of achieving
16 either the 1 in 1,000,000 cancer risk
17 concentration or the ADL, whichever is greater, as
18 listed in appendix A, table H." Then delete
19 subsections (A) and (B) currently found in the
20 proposed rule.
21 Section 742.505(b)(4), add a new
22 section as follows: "Sites which do not meet the
23 requirements of section 742.505(b)(3)(A) shall
24 evaluate mixtures of similar-acting chemicals
L.A. REPORTING - (312) 419-9292
25
1 using the procedures of section 742.805(c) or
2 section 742.915(h). Sites which do not meet the
3 requirements of section 742.505(b)(3)(B) shall
4 evaluate mixtures of similar-acting chemicals
5 using the procedures of section 742.805(d) or
6 section 742.915(h)."
7 Section 742.805(c) - delete the
8 language currently proposed for second notice in
9 this section and replace it with the language
10 currently proposed -- I'm sorry -- currently
11 listed in the proposed rule for section
12 742.505(b)(3). Then add a board note after this
13 section as follows: "Board note: Use of the
14 procedures specified above in section 742.805(c)
15 may result in groundwater remediation objectives
16 that are less than the Tier 1 groundwater
17 remediation objectives for chemicals included in
18 these procedures."
19 Section 742.805(d) - add a new
20 section as follows: "The requirements of 35
21 Illinois Administrative Code 620.615 regarding
22 mixtures of similar-acting chemicals shall be
23 considered met if the cumulative risk from any
24 contaminant(s) of concern listed in appendix A,
L.A. REPORTING - (312) 419-9292
26
1 table H, plus any other contaminant(s) of concern
2 detected in groundwater and listed in appendix A,
3 table F as affecting the same target organ/organ
4 system or having a similar mode of action as the
5 contaminant(s) of concern detected from appendix
6 A, table H does not exceed 1 in 10,000."
7 Section 742.900(f) - delete this
8 subsection from section 742.900 of the proposed
9 rule dated April 17, 1997.
10 Section 742.915(h) - substitute the
11 language deleted from section 742.900(f) of the
12 proposed rule above for the language currently
13 listed in section 742.915(h) from second notice.
14 Section 742.915(
i) - create a new
15 section 742.915(
i) by inserting the language of
16 742 -- I'm sorry -- section 742.915(h) currently
17 listed in second notice.
18 And finally, appendix A, table H -
19 create a new table as follows on page 11 of my
20 testimony which I won't read through. Thank you.
21 MS. ROBINSON: Could we have that
22 entered as if read through the exhibit?
23 HEARING OFFICER FELTON: Yes.
24 DR. HORNSHAW: Note: Benzene was not
L.A. REPORTING - (312) 419-9292
27
1 included in appendix A, table H even though its
2 Class I groundwater remediation objective (0.005
3 milligrams per liter) exceeds its 1 in 1,000,000
4 cancer risk concentration (0.001 milligrams per
5 liter) for the following reason: Benzene only
6 appears in one target organ/organ system category
7 in appendix A, table F (circulatory system) and
8 can only be included in a mixture with one other
9 chemical (2,4,6-trichlorophenol).
10 Even if both benzene and
11 2,4,6-trichlorophenol are present in Class I
12 groundwater at their respective groundwater
13 remediation objectives, the cumulative circulatory
14 system cancer risk is only 7.1 in 1,000,000 which
15 is within the acceptable risk range of 1 in 10,000
16 to 1 in 1,000,000. Therefore, it is not possible
17 for benzene to contribute to an unacceptable
18 cancer risk in a mixture without also exceeding
19 its individual groundwater remediation objective.
20 The agency believes the proposed language
21 discussed above adequately addresses the concerns
22 for which this docket was created. This concludes
23 my testimony on this matter.
24 MS. ROBINSON: Dr.
Hornshaw, I'm going
L.A. REPORTING - (312) 419-9292
28
1 to show you now Exhibit No. 2. Could you please
2 tell me is there also a change to section 742.105
3 that was not reflected in your testimony?
4 DR. HORNSHAW: Yes, there is.
5 MS. ROBINSON: Could you explain what
6 that is.
7 DR. HORNSHAW: In discussing or looking
8 through the proposed part 742 second notice, we
9 became aware that there was a reference to
10 mixtures of similar-acting substances in the
11 applicability section.
12 I'm sorry, it's not a specific
13 reference to mixtures of similar-acting
14 substances. It's a reference to section 742.805
15 which we have modified according to my testimony
16 today. So because of our changing section
17 742.805, we are deleting the subsection A which is
18 currently referenced in the applicability section,
19 section 105, to make it read just 742.805 to
20 encompass the changes which we are recommending
21 today.
22 MS. ROBINSON: Thank you. Now I'm going
23 to show you also part of Exhibit No. 2 under
24 742.805(c) and ask you if we've added any language
L.A. REPORTING - (312) 419-9292
29
1 that was not reflected in your testimony there.
2 DR. HORNSHAW: Yes. In section 742.805,
3 again when we were reviewing the language to make
4 sure it captured everything that we intended, we
5 noticed that the language that was proposed in the
6 -- which one was it now? The language that was
7 in the draft of R97-12(B) from the board that was
8 faxed to the agency had language that didn't quite
9 track with how we had proposed in errata sheet 3,
10 in that the requirements specified in this new
11 subsection 805(c) were intended to be an either/or
12 situation.
13 The way the language read in the
14 draft of R97-12(B) made it a requirement that both
15 parts of this section had to be met. So we
16 substituted the language -- I'll just read it.
17 "The requirements of 35 Illinois Administrative
18 Code 620.615 regarding mixtures of similar-acting
19 chemicals shall be considered met for Class I
20 groundwater at the point of human exposure" -- and
21 here is where we added a change -- "if either of
22 the following requirements are achieved."
23 And then to make it completely
24 clear, at the end of subsection 1, roman numeral
L.A. REPORTING - (312) 419-9292
30
1 (ii), we added "or." The (ii) ends with "less
2 than or equal to one." We added an "or" in there
3 so that it reflects that there's a -- it's in the
4 wrong place actually. Well, there should be an
5 additional "or." Wait a minute, let me make sure
6 this is correct.
7 Yes, the way it's currently worded,
8 the "or" is between roman (
i) and roman (ii), and
9 that "or" should actually be after roman (ii).
10 There shouldn't be a choice between the two roman
11 numerals.
12 MS. MC FAWN: So they'll have to satisfy
13 both small letter (
i) and small letter (ii)? You
14 want to delete the one that appears after the --
15 DR. HORNSHAW: After the first (
i), it's
16 not really a choice. You either meet or you do
17 something else to meet. You can't do both (
i) and
18 (ii).
19 MS. MC FAWN: So you can't do both?
20 DR. HORNSHAW: Right. You either exceed
21 and then you have to go do something else, which
22 is (ii), but if you've met, then you never get to
23 (ii). If you meet (
i), you don't have to go into
24 (ii).
L.A. REPORTING - (312) 419-9292
31
1 MS. MC FAWN: All right.
2 DR. HORNSHAW: But then you also have a
3 choice between 1 and 2. You don't have to meet
4 either or both of those.
5 MS. MC FAWN: So what's been marked as
6 Exhibit No. 2, you would propose that the "or" at
7 the conclusion of small letter (
i) of section
8 742.805(C)(1), you would propose that that be
9 deleted?
10 DR. HORNSHAW: Right.
11 MS. MC FAWN: And that the semicolon
12 remain?
13 DR. HORNSHAW: In our copy, it's a
14 period.
15 MS. MC FAWN: The last line does not
16 read "for those chemicals" semicolon "or"?
17 DR. HORNSHAW: Not in the version that
18 was faxed to us.
19 MS. MC FAWN: We can deal with that
20 later. Then you propose that we insert the word
21 "or" at the conclusion of 805 -- let me make sure
22 I get this, (C)(1)(ii)?
23 DR. HORNSHAW: That's correct.
24 MS. MC FAWN: So that the last phrase
L.A. REPORTING - (312) 419-9292
32
1 would read, "In accordance with the equation
2 above, less than or equal to 1, semicolon or"?
3 DR. HORNSHAW: Correct.
4 MS. ROBINSON: When the agency redrafts
5 this version, we are going to commit to send that
6 out to the entire service list hopefully this
7 Friday. That will be reflected in the new draft.
8 MS. MC FAWN: Before we go on, I just
9 want to clarify. The change that you talked about
10 in the first paragraph of 805(c), the words "if
11 either," that is reflected in the copy before you
12 or not?
13 DR. HORNSHAW: Yes.
14 MS. MC FAWN: That's reflected on
15 Exhibit 2 as marked?
16 DR. HORNSHAW: That's correct.
17 MS. MC FAWN: So the only change to
18 Exhibit 2 is the relocation of the word "or"?
19 DR. HORNSHAW: That's correct.
20 MS. ROBINSON: That would conclude the
21 agency's testimony at this time.
22 MR. RAO: Can I have a clarification.
23 About the changes for 742.105, is that change to
24 be made before we go final notice because that's
L.A. REPORTING - (312) 419-9292
33
1 not part of the docket B.
2 MS. ROBINSON: Right, we'll reflect that
3 in the draft that we send out on Friday through
4 strikouts and underlines.
5 MR. FEINEN: Dr.
Hornshaw, in your
6 testimony, you referred to the April 17th, 1997,
7 order. There's been two orders in docket B. I
8 just want to make it clear on the record that the
9 May 1st order also contains the same language as
10 the April 17th, 1997.
11 Would your testimony be true if we
12 were to make that note, that either/or?
13 MS. MC FAWN: Let me try to clarify. On
14 April 17th, the board proposed for first notice
15 revisions to part 742. The joint committee would
16 not allow us to go to first notice. So on May
17 1st, we reissued those same revisions but not for
18 first notice. It was just for the purposes of
19 docket B and what we could discuss in here.
20 So what Mr.
Feinen's asking you is
21 your testimony refers to our first order which was
22 for first notice, would that remain the same for
23 our order as of May 1st?
24 DR. HORNSHAW: Yes.
L.A. REPORTING - (312) 419-9292
34
1 MR. FEINEN: One more question. When
2 you're referring to second notice when you're
3 talking about section 915(I), you're referring to
4 second notice in R97-12(A)?
5 DR. HORNSHAW: That's correct.
6 MR. FEINEN: Thank you.
7 MS. MC FAWN: Can I ask you before we go
8 any further, you have before you what's called the
9 draft of agency proposal which is Exhibit 2,
10 marked as Exhibit 2.
11 Does this reflect -- other than the
12 change in the location of the word "or," does this
13 exhibit reflect what the agency would propose for
14 the board concerning the similar-acting
15 chemicals?
16 DR. HORNSHAW: Yes.
17 MS. MC FAWN: So this would reflect what
18 you testified about in your testimony and the
19 revisions you sought?
20 DR. HORNSHAW: Yes.
21 MS. MC FAWN: Thank you.
22 HEARING OFFICER FELTON: Mr.
Hornshaw,
23 do you have anything additional you would like to
24 add in support of the agency's proposal?
L.A. REPORTING - (312) 419-9292
35
1 DR. HORNSHAW: Not at this time.
2 HEARING OFFICER FELTON: Would anyone
3 else on behalf of the agency like to add anything
4 additional in support of this proposal?
5 MS. ROBINSON: Not at this time.
6 HEARING OFFICER FELTON: At this time
7 would you like to move both Exhibits 1 and 2 into
8 evidence?
9 MS. ROBINSON: Yes, please.
10 HEARING OFFICER FELTON: Are there any
11 objections to moving Exhibit 1, the testimony of
12 Thomas C.
Hornshaw, and Exhibit 2, the draft
13 language of the agency proposal prepared on behalf
14 of the board into evidence at this time?
15 Seeing that there are no
16 objections, we will move both Exhibit 1 and 2 into
17 evidence and into the record of both Thomas C.
18 Hornshaw's testimony and the draft language of the
19 agency proposal prepared on behalf of the board.
20 MS. ROBINSON: Thank you.
21 (Documents received
22 in evidence.)
23 HEARING OFFICER FELTON: We will now
24 proceed with questions for the agency witnesses.
L.A. REPORTING - (312) 419-9292
36
1 As I previously mentioned, if you have any
2 questions for one of the agency witnesses, please
3 raise your hand and wait for me to acknowledge
4 you. When I acknowledge you, please stand and
5 state in a loud and clear voice your name and the
6 organization you represent, if any. Are there any
7 questions at this time? Question.
8 MR. RIESER: My name is David
Rieser.
9 I'm with the law firm of Ross &
Hardies. I
10 represent the Illinois Steel Group and the
11 Illinois Petroleum Council and I have in all these
12 proceedings. I have a series of questions to
13 ask. Some are with respect to the language that's
14 proposed and some with respect to some of the
15 concepts. We'll start with easy ones which are on
16 the language.
17 Looking at Exhibit 2, I'm looking
18 at page 5 which is 805(c), the language we were
19 just talking about. This language talks about
20 mixtures of similar-acting chemicals. Do you see
21 where I'm referring?
22 DR. HORNSHAW: Yes.
23 MR. RIESER: And would you agree with me
24 there's no definition of a similar-acting chemical
L.A. REPORTING - (312) 419-9292
37
1 in the rule?
2 DR. HORNSHAW: Other than by having them
3 listed on the tables that define what are -- what
4 are target organ/organ systems or similar effects.
5 MR. RIESER: Right. And there was
6 language which was stricken here in (c) which
7 talks about chemicals which affect the same target
8 organ/organ system or similar mode of action, is
9 that correct?
10 DR. HORNSHAW: That's correct.
11 MR. RIESER: That's what you mean by
12 similar-acting chemicals?
13 DR. HORNSHAW: Yes.
14 MR. RIESER: Would it be acceptable
15 instead of saying similar-acting chemicals to say
16 regarding mixtures of chemical which affect the
17 same target organ/organ system or similar mode of
18 action?
19 DR. HORNSHAW: That would be
20 appropriate.
21 MR. RIESER: Okay. With respect again
22 looking at Exhibit 2 and actually in that same
23 section moving down to 1 sub 2 -- 1 sub 2 on page
24 6, this is language that was in the original --
L.A. REPORTING - (312) 419-9292
38
1 that's in 97-12(A) in the second notice, it says
2 that, "if the value of the weighted average
3 calculated in accordance with the equations above
4 is greater than 1.0, then additional remediation
5 must be carried out until the level of
6 contaminants remaining in the
remediated area have
7 a weighted average," et cetera. Do you see where
8 I'm referring?
9 DR. HORNSHAW: Yes.
10 MR. RIESER: Is it accurate when it says
11 additional remediation, it may not be necessary to
12 actually do in-site remediation to achieve these
13 values, but that one could use the tiered approach
14 or exclusion of pathways or other methodologies
15 contained in this entire 742 rule to achieve the
16 appropriate remediation objectives at the site?
17 DR. HORNSHAW: That's true.
18 HEARING OFFICER FELTON: Do you have
19 anymore questions at this time?
20 MR. RIESER: Yes, yes. I have a long
21 list of them, and I'm looking for it.
22 HEARING OFFICER FELTON: If you're more
23 comfortable sitting down, that's fine.
24 MR. RIESER: Thank you. Looking at the
L.A. REPORTING - (312) 419-9292
39
1 language of 805(d), how exactly is that intended
2 to work?
3 DR. HORNSHAW: The way we envisioned
4 this working is if in the investigation for a
5 site, if any chemical which is on the new table
6 which we have created, appendix A, table H, those
7 are carcinogens whose Tier 1 objective exceeds the
8 1 in 1,000,000 target cancer risk, if any of those
9 chemicals are detected during the investigation,
10 then by definition the target or the risk level at
11 the site is greater than the 1 in 1,000,000 target
12 that we generally said should apply at all sites;
13 therefore, that chemical or those chemicals plus
14 any other chemicals detected at the site which
15 affect the same target organ in the body, all of
16 those need to be elevated to a further evaluation
17 of the mixture effects in a Tier 2 evaluation.
18 I'm sorry, I've been corrected, any other
19 chemicals of concern for the site.
20 MR. RIESER: And the evaluation in Tier
21 2 is according to looking at either 805(c) or --
22 the procedures identified in either 805(c) or
23 805(d) as you proposed here, correct?
24 DR. HORNSHAW: Correct.
L.A. REPORTING - (312) 419-9292
40
1 MR. RIESER: 805(c) is sort of the
2 cumulative effects formula that's sort of been
3 consistent throughout this
rulemaking. It's
4 appeared in several different places, but it
5 includes adding the ratio of the chemical to its
6 Tier 1 cleanup objective together to arrive at an
7 appropriate weighted average that's used to arrive
8 at a cleanup objective for both or all of the
9 mixture of chemicals that you're looking at,
10 correct?
11 DR. HORNSHAW: Right, and that's only
12 for chemicals that exceed the Tier 1 remediation
13 objective.
14 MR. RIESER: Okay.
15 DR. HORNSHAW: The 805(c) part.
16 MR. RIESER: Okay. And that formula was
17 derived from how the agency dealt with issues that
18 arose under 620.615 mixtures, correct?
19 DR. HORNSHAW: Correct.
20 MR. RIESER: So that was the formula the
21 agency came up with to respond to the mixture
22 issues in 620.615?
23 DR. HORNSHAW: Actually the formula was
24 to address mixtures in soil which has nothing to
L.A. REPORTING - (312) 419-9292
41
1 do with 615.
2 MR. RIESER: Right, but when you were
3 looking to apply 615 in this
rulemaking, this is
4 the formula you arrived at?
5 DR. HORNSHAW: Correct.
6 MR. RIESER: Is it also true that in
7 issues that have arisen under 615 prior to this
8 rulemaking, you also used this formula, this type
9 of formula, to address this formula for mixtures
10 with similar-acting chemicals?
11 DR. HORNSHAW: Yes, unless, for
12 instance, the entire site was addressed by a
13 formal risk assessment and then 620.615 was
14 addressed in the context of the risk assessment
15 which would be a Tier 3 approach.
16 MR. RIESER: Right. And those would be
17 the use of the more formalized health advisories
18 that are provided for in the appendices of 620?
19 DR. HORNSHAW: That is correct.
20 MR. RIESER: 805(d), on the other hand,
21 you're looking at -- is it correct that you're
22 looking at substances which are detected, that are
23 identified detection levels but don't exceed their
24 Tier 1 cleanup objectives for groundwater,
L.A. REPORTING - (312) 419-9292
42
1 correct?
2 DR. HORNSHAW: It can be that way, yes.
3 MR. RIESER: Well, but it's designed to
4 be that way?
5 DR. HORNSHAW: Yes.
6 MR. RIESER: For a chemical to be
7 reviewed under 805(d), it doesn't have to exceed
8 its Tier 1 level? It's sufficient to exceed its
9 detection level?
10 DR. HORNSHAW: That's correct.
11 MR. RIESER: Just that it's being
12 detected?
13 DR. HORNSHAW: Only a detect. It can
14 be, but it doesn't have to be in
exceedence of the
15 Tier 1 remediation objectives.
16 MR. RIESER: And if it's detected, what
17 you do is you look for all other chemicals that
18 might affect the same target organ based on
19 appendix A, table F, and then identify the
20 cumulative risk and determine if that cumulative
21 risk exceeds one times ten -- one times ten to the
22 minus 4th so 1 in 10,000?
23 DR. HORNSHAW: That's correct.
24 MR. RIESER: How is the cumulative risk
L.A. REPORTING - (312) 419-9292
43
1 determined in that scenario?
2 DR. HORNSHAW: That can be determined in
3 a couple of ways. In the table in appendix A,
4 table H, we have given the 1 in 1,000,000 risk
5 level. So a person could calculate the actual
6 risk level by a simple ratio of the detected
7 concentration versus the 1 in 1,000,000 risk
8 concentration, or they could take that through a
9 more formal risk assessment approach and actually
10 calculate the risk of the entire mixture given the
11 exposure assumptions that are either default in
12 approach or developed as part of a Tier 3 risk
13 assessment.
14 MR. RIESER: Is there a specific model
15 or process that's been identified in the 742 rule
16 that specifically provides for that second
17 alternative that you just described?
18 DR. HORNSHAW: Not specifically, no.
19 MR. RIESER: Looking at the first
20 alternative that you described where you were
21 adding the ratio, that's the similar formula to
22 that which is in 805(c) except instead of using
23 the Tier 1 objective in the denominator --
24 DR. HORNSHAW: Very good, Dave.
L.A. REPORTING - (312) 419-9292
44
1 MR. RIESER: I'm working on it.
2 DR. HORNSHAW: I'm impressed.
3 (Laughter.)
4 MR. RIESER: You use the one in a
5 millionth value?
6 DR. HORNSHAW: That's correct. The 1 in
7 1,000,000 cancer risk concentration would be the
8 denominator.
9 MR. RIESER: So by using that formula,
10 however, especially with the 1 in 1,000,000 target
11 risk in the denominator, you may arrive, depending
12 on which chemicals you have that affect the same
13 target organ, at values which are orders of
14 magnitude below the individual Tier 1 groundwater
15 objectives for those individual substances?
16 DR. HORNSHAW: That is a possibility.
17 MR. RIESER: And the purpose of 805(d)
18 is to comply with the statutory direction that you
19 don't have residential standards that are below
20 one in a million? They have target risks below
21 one in a million?
22 DR. HORNSHAW: Could you repeat that.
23 MR. RIESER: The purpose of 805(d) is so
24 that you don't have mixtures of chemicals for a
L.A. REPORTING - (312) 419-9292
45
1 residential site for drinking water that don't
2 give you a target risk of less than 1 in 1,000,000
3 for the site?
4 DR. HORNSHAW: No, less than 1 in
5 10,000.
6 MR. RIESER: 1 in 10,000, thank you.
7 And the purpose of that is to comply with the
8 statutory directive?
9 DR. HORNSHAW: That's correct.
10 MR. RIESER: Doesn't the statute also
11 say at the 805(d) that no groundwater remediation
12 objective adopted pursuant to the section shall be
13 more restrictive than the applicable Class I or
14 Class III groundwater quality standard adopted by
15 the board?
16 DR. HORNSHAW: Yes.
17 MR. RIESER: So that the statute kind of
18 has both issues, it has -- it can't be less than 1
19 in 10,000, but it also has to be no less
20 restrictive than the groundwater objective?
21 DR. HORNSHAW: I think the statute
22 intended for that to be any individual chemical.
23 I don't think it meant a mixture of chemicals.
24 MR. RIESER: Okay. It doesn't state
L.A. REPORTING - (312) 419-9292
46
1 mixtures in describing those two things. I think
2 that's accurate. The groundwater -- excuse me,
3 the Tier 1 groundwater cleanup objectives are
4 based almost entirely on the 620 groundwater
5 quality standards, correct?
6 DR. HORNSHAW: For the most part, yes.
7 MR. RIESER: And those are based almost
8 entirely on the maximum contaminant levels
9 developed by the United States Environmental
10 Protection Agency?
11 DR. HORNSHAW: Not necessarily. Mostly,
12 but I wouldn't say almost entirely.
13 MR. RIESER: And the
MCLs, maximum
14 contaminant levels, are not limited by specified
15 target risk, is that correct?
16 DR. HORNSHAW: For carcinogens, the
17 target is 1 in 1,000,000 risk, but that target is
18 tempered by other considerations such as detection
19 limits, natural occurrence, what I've already
20 testified to.
21 MR. RIESER: Okay. But the MCL value,
22 the numbers selected by the USEPA, still reflects
23 their considered opinion as to what's appropriate
24 and safe for drinking water for that -- in
L.A. REPORTING - (312) 419-9292
47
1 drinking water for that particular substance?
2 DR. HORNSHAW: That's correct, at least
3 at the time it was issued.
4 MR. RIESER: And until that's changed by
5 rulemaking, that remains their opinion?
6 DR. HORNSHAW: Yes.
7 MR. RIESER: If you were just looking at
8 615 -- I'm sorry, 620.615, mixtures of chemicals
9 under 620.615, and you didn't have a statutory
10 directive that you couldn't have a target risk
11 below one times ten and ten to the minus four,
12 would you need 805(d)? Would you need this type
13 of analysis?
14 DR. HORNSHAW: I'm not sure I'm
15 following your question. Could you repeat that.
16 MR. RIESER: Let me ask it a different
17 way. Under -- when you were evaluating mixtures,
18 it's part of your task, your position to evaluate
19 the question of mixture of similar-acting
20 substances at sites under 620.615 on behalf of the
21 agency, correct?
22 DR. HORNSHAW: That's correct.
23 MR. RIESER: If you were doing that task
24 for a site in the absence of the 742
rulemaking,
L.A. REPORTING - (312) 419-9292
48
1 you would look solely at the type of analysis that
2 is in 805(c) or a more formal risk assessment if
3 that was available for the site, is that correct?
4 DR. HORNSHAW: That's correct, and as an
5 example, if the chemical -- one of the chemicals
6 in a mixture did not have a groundwater quality
7 standard as in 620.410, 410, then we would look to
8 620.615 procedures to establish the denominator to
9 be used, and in most cases for a carcinogen,
10 that's going to be a detection limit. You know,
11 the health advisory for carcinogens in 620.615 is
12 the lowest detection limit of any of the USEPA
13 analytical limits. So it would be a detection
14 limit as the denominator.
15 MR. RIESER: If there was a 410 standard
16 for that substance, then you would use the 410
17 standard in that?
18 DR. HORNSHAW: Yes, that would be the
19 denominator, correct.
20 MR. RIESER: Kind of going back to
21 805(c) and (d) -- I'm sorry, 805(d), if the
22 detection limit, the ADL is greater than the
23 target risk value, then you work from the
24 detection limit, is that correct?
L.A. REPORTING - (312) 419-9292
49
1 DR. HORNSHAW: That's correct.
2 MR. RIESER: Would you in that
3 circumstance put the detection limit rather than
4 the target risk value in the denominator?
5 DR. HORNSHAW: That's correct.
6 MR. RIESER: Just a minute, please. Let
7 me move on to another area. The agency proposes
8 that the language the board included in what was
9 originally their first notice and apparently is no
10 longer their first notice at 900(f), the move to
11 915 so that the mixtures of substances are
12 considered only in the context of formal risk
13 assessments, is that correct?
14 DR. HORNSHAW: That's correct.
15 MR. RIESER: What was the agency intent
16 on this point?
17 DR. HORNSHAW: We feel that's the
18 appropriate place to consider mixture effects is
19 in the context of a risk assessment.
20 MR. RIESER: Under other features of
21 Tier 3 such as exclusion of pathways, it really is
22 not an issue, is that correct?
23 DR. HORNSHAW: That's correct.
24 MR. RIESER: I have no further
L.A. REPORTING - (312) 419-9292
50
1 questions.
2 HEARING OFFICER FELTON: Any other
3 questions?
4 MR. FEINEN: I have two follow-up
5 clarification questions based on some of the
6 questions that Mr.
Rieser had for Dr.
Hornshaw.
7 When talking about describing in
8 805(c)(1) (ii), additional remediation, basically
9 what you're talking about when you're talking
10 institutional controls and engineered barriers,
11 you're talking about doing that pursuant to a
12 different tier, Tier 2 or Tier 3? When you're
13 saying you don't have to do any further
14 remediation, you can do institutional control or
15 an engineered barrier pursuant to Tier 2 or
16 Tier 3?
17 DR. HORNSHAW: That could be among the
18 options that could be used to meet the objectives
19 of this section, yes.
20 MR. FEINEN: And in (d) when you're
21 talking about carcinogens detected by different
22 chemicals which exceeded 10 to the minus 6, you
23 need to go to Tier 2?
24 DR. HORNSHAW: Yes.
L.A. REPORTING - (312) 419-9292
51
1 MR. FEINEN: Could you also go to
2 Tier 3?
3 DR. HORNSHAW: Yes, you could,
4 certainly.
5 MR. FEINEN: That's all I have.
6 HEARING OFFICER FELTON: Any other
7 additional questions?
8 MR. RAO: I have some questions.
9 HEARING OFFICER FELTON: Please proceed,
10 Mr.
Rao.
11 MR. RAO: Dr.
Hornshaw, in discussing
12 the similar-acting substances in soil remediation
13 objectives under Tier 1, you said that because of
14 the inherently conservative nature of the
15 remediation objectives that you don't need to
16 consider the effects of similar-acting
17 substances.
18 Can you explain how it's different
19 under Tier 2 for soil remediation objectives if
20 somebody's using the SSL procedure in the Tier 2,
21 you know, does the conservative nature changes in
22 Tier 2 to Tier 1?
23 DR. HORNSHAW: It's less conservative in
24 that we're not making assumptions that are
L.A. REPORTING - (312) 419-9292
52
1 protective of greater than 95 percent of the
2 entire country in Tier 2. In Tier 2 you're making
3 consideration of site specific factors that should
4 still be protective, but the extra layer of
5 conservatism is not there anymore.
6 MR. RAO: Because in your earlier
7 testimony in docket A, you were saying that, you
8 know, essentially both were in a -- the procedure
9 for SSL was essentially the same except for the
10 site specific numbers that they were going to use
11 in the equations, all the safety factors built in
12 are still the same. So just curious, you know,
13 how it changes.
14 DR. HORNSHAW: I think we said equally
15 protective. I don't think we ever said equally
16 conservative.
17 MR. RAO: Do any of the safety factors,
18 whatever that you talk about, inherently
19 conservative, when you say it, does it change
20 other than those parameters listed in one of the
21 tables that they can get it using site specific
22 numbers?
23 DR. HORNSHAW: Could you repeat that?
24 MR. RAO: Yeah. You see, what I'm
L.A. REPORTING - (312) 419-9292
53
1 trying to get at is they're using the same
2 equations. If they use the default numbers,
3 they're supposed to get the Tier 1 numbers?
4 DR. HORNSHAW: That's correct, right.
5 MR. RAO: So if they use site specific
6 numbers, how does it change the conservative
7 nature of the remediation objective?
8 DR. HORNSHAW: I guess I can answer that
9 by giving an example. When you're considering
10 transport of the chemicals from soil to the point
11 of exposure, one of the key assumptions is the
12 amount of organic carbon which is in the soil to
13 retard that transport, and it is conservatively
14 assumed in Tier 1 that there's less than one
15 percent organic carbon in the soil.
16 The specific value is .6 for
17 surface soils and .2 percent for subsurface soils,
18 when in reality most soils are greater than one
19 percent, and if you plug in the site specific
20 value into the calculation, you get a number
21 that's quite a bit different from the Tier 1
22 lookup value, at least for the chemical -- the
23 pathways that have a migration component to them.
24 You know, the direct ingestion
L.A. REPORTING - (312) 419-9292
54
1 pathway, there's no difference because there's no
2 transport. You are just eating the soil straight
3 up. That's an example where there's additional
4 conservatism in the Tier 1 number that is no
5 longer -- it's replaced by site specific data in
6 the Tier 2 evaluation.
7 MR. RAO: Okay. I have one more
8 question.
9 DR. HORNSHAW: And I might add, you
10 don't have that level of conservatism in the Tier
11 1 value for groundwater because you don't have the
12 transport. We are assuming that a person is
13 drinking that water directly the same as if
14 they're eating the soil directly.
15 MR. RAO: On going to your proposed
16 changes under 742.505(b)(3)(A), under these
17 proposed changes, are you saying that for Tier 1
18 groundwater objectives, that the effect of
19 mixtures of similar-acting substances which are
20 noncarcinogens may not be considered under Tier
21 1?
22 Because the way it's proposed, you
23 say if the Tier 1 groundwater remediation
24 objective listed in table -- appendix B, table E
L.A. REPORTING - (312) 419-9292
55
1 is not exceeded, you know, 620.615 requirements
2 are met. So if you have carcinogen --
3 noncarcinogens like ethyl benzene and toluene,
4 which are at their remediation objectives, then
5 they still exceed the hazard index of one, but
6 according to what you propose, you know, they met
7 the 620.615 requirements.
8 DR. HORNSHAW: We've agreed with the
9 advisory committee that there is enough
10 conservatism built into the development of the
11 Tier 1 remediation objectives, other than for
12 those chemicals that already exceed the 1 in
13 1,000,000 risk level, that we're not going to look
14 at the effect of mixtures in Tier 1.
15 MR. RAO: So basically what you're
16 saying is in Tier 1 for groundwater, you are going
17 to look at only for carcinogens, you know, which
18 are higher than one in a million cancer risk,
19 right, and you're not going to consider
20 noncarcinogens under Tier 1?
21 DR. HORNSHAW: If they exceed the Tier 1
22 remediation objective, any chemical exceeds, then
23 that chemical, plus any other chemical that
24 affects the same target, get elevated to a Tier 2
L.A. REPORTING - (312) 419-9292
56
1 evaluation to make sure that the mixture effect is
2 not of concern.
3 MS. MC FAWN: Just so I understand, so
4 you are saying that under Tier 1, you want the
5 board to consider
noncarcinogenic ones as well as
6 carcinogenic ones?
7 DR. HORNSHAW: If they exceed the Tier 1
8 remediation objective, yes, then that chemical
9 plus any others that affect the same target go to
10 a Tier 2 evaluation for groundwater.
11 MS. MC FAWN: Yes, I was talking
12 groundwater as well.
13 MR. FEINEN: So what you're saying,
14 Dr.
Hornshaw, is that for a
noncarcinogen, you
15 don't look at the cumulative effects until it
16 exceeds its Tier 1 number?
17 DR. HORNSHAW: That's correct.
18 MR. FEINEN: And then if it does exceed
19 its Tier 1 number, you look to see if there's any
20 other chemicals that similarly act and then it
21 gets kicked into Tier 2?
22 DR. HORNSHAW: That's correct.
23 MS. MC FAWN: So you only get to the
24 additivity question if it exceeds?
L.A. REPORTING - (312) 419-9292
57
1 DR. HORNSHAW: Right.
2 MS. HENNESSEY: Would you be kicked out
3 of Tier 1 if it didn't meet the Tier 1 groundwater
4 objective anyway?
5 DR. HORNSHAW: No. I think they would
6 be allowed to do other things or try to
remediate
7 to the objective for that chemical only.
8 MS. HENNESSEY: I see.
9 DR. HORNSHAW: But if there's other
10 chemicals that affect the same target, then all of
11 those chemicals go to another level of evaluation
12 to make sure that the mixture of chemicals is not
13 unacceptable.
14 HEARING OFFICER FELTON: Mr.
Rieser.
15 MR. RIESER: Dr.
Hornshaw, when you
16 talked about the
conservatisms that are built into
17 the
noncarcinogenic values, can you give us an
18 example of the levels of conservatism that you're
19 talking about.
20 DR. HORNSHAW: This wasn't discussed a
21 whole lot in the meeting with the advisory
22 committee, but the way the maximum contaminant
23 levels for
noncarcinogens is developed is similar
24 to the approach that we have for health advisories
L.A. REPORTING - (312) 419-9292
58
1 for
noncarcinogens in that there's consideration
2 given to relative source contribution, which
3 accounts for exposure to a chemical from other
4 sources than drinking water, and so that factor is
5 kind of built in as a level of conservatism so
6 that the amount that's allowable in drinking water
7 is usually less than the hazard index of one to
8 account for other exposures during a person's
9 daily activities, work, home, whatever.
10 So there is that level of
11 conservatism built in. There aren't levels of
12 conservatism built in for transport, as I
13 discussed, because we're assuming the person is
14 exposed directly.
15 MR. RIESER: There are also levels of
16 conservatism built into that value based on the
17 assumption that a person is of a certain weight
18 and is drinking a certain quantity of water per
19 day over a certain period of years, 30, 40 years,
20 is that correct?
21 DR. HORNSHAW: 30 years or 70 years. It
22 depends on when the MCL was issued.
23 MR. RIESER: That's also an example of
24 some of the conservatism that's in those values?
L.A. REPORTING - (312) 419-9292
59
1 DR. HORNSHAW: That's correct.
2 MR. RAO: Those things don't change in
3 Tier 2, also, right?
4 DR. HORNSHAW: No, they don't. Those
5 are built into the process all the way through,
6 and a similar statement could be made for the
7 toxicity data themselves. Those
conservatisms are
8 there for all chemicals, all tiers.
9 HEARING OFFICER FELTON: Are there any
10 further questions at this time?
11 MS. HENNESSEY: I have a couple.
12 HEARING OFFICER FELTON: Sure.
13 MS. HENNESSEY: Dr.
Hornshaw, I have a
14 question on 742.915(h). The first sentence of the
15 agency's proposed language reads, quote, "The
16 contaminants of concern which affect the same
17 target organ/organ system or similar mode of
18 action shall be specifically addressed." Can you
19 expand on how that is to be addressed.
20 DR. HORNSHAW: There is guidance in
21 USEPA documents for conducting risk assessments at
22 Super Fund sites, for instance, that tell the
23 responsible party how to address mixture of the
24 carcinogens. Typically, you would -- well,
L.A. REPORTING - (312) 419-9292
60
1 carcinogens and
noncarcinogens, you would go
2 through some evaluation of exposure through all
3 routes and then sum up the total exposure and then
4 compare that against the acceptable exposure, and
5 for mixtures, those similar effects are just
6 added.
7 So if you've got two chemicals that
8 affect the liver, for instance, you would evaluate
9 the exposure to that chemical through all routes
10 that are relevant at a site, do the same thing for
11 the second chemical, and you would develop either
12 a hazard index based on comparison of the total
13 exposure to the acceptable exposure, do the same
14 thing for the second chemical, and then you just
15 add the hazard index or overall hazard quotient,
16 and if it's a
noncarcinogen, after you've added
17 those values, still less than 1.0, then the
18 mixture is acceptable, and similarly for
19 carcinogens, if the total risk is greater than one
20 in a million, then you have a situation that needs
21 to be evaluated further.
22 MS. HENNESSEY: Okay. So in any event,
23 under this section 742.915(h), the risk is going
24 to be quantified?
L.A. REPORTING - (312) 419-9292
61
1 DR. HORNSHAW: Oh, yes. We would fully
2 expect that in a formal risk assessment.
3 MS. HENNESSEY: Okay. A question on 805
4 -- I guess 505(b) as well as 805(c) and (d), you
5 used the phrase, the requirements of section
6 620.615, and specified when those are met.
7 Just for clarification, do I
8 understand this to mean that if you look at
9 620.615(b), it refers you to procedures set forth
10 in appendices A, B and C of part 620.
11 DR. HORNSHAW: I'm sorry, I'm at 615.
12 What exactly are you referring to?
13 MS. HENNESSEY: 620.615(b) says that, if
14 there are mixtures of similarly-acting chemical
15 substances, you evaluate them according to the
16 procedure set forth in appendices A, B and C of
17 part 620?
18 DR. HORNSHAW: Correct.
19 MS. HENNESSEY: Okay. And the language
20 that you proposed for 742 in these various spots,
21 505 and 805, would substitute the procedures in
22 742 for the procedures set forth in appendices A,
23 B and C of part 620?
24 DR. HORNSHAW: Yes. We envision that
L.A. REPORTING - (312) 419-9292
62
1 everything that we put in 742 would satisfy the
2 requirements of 615(a) where it just says, "The
3 need for additional health advice shall be
4 determined by the agency," and in the context of
5 742, this is how we're determining it.
6 MS. HENNESSEY: Okay. What is the
7 effect of the language you proposed on
8 620.615(b)?
9 DR. HORNSHAW: I guess it kind of
10 supplants that.
11 MS. HENNESSEY: Okay.
12 HEARING OFFICER FELTON: Are there any
13 additional questions. Mr.
Feinen?
14 MR. FEINEN: Just a clarification. In
15 responding to one of Ms.
Hennessey's questions,
16 you mentioned some guidance documents by USEPA.
17 I'm wondering if those guidance documents are
18 incorporated by 97-12(A).
19 DR. HORNSHAW: Yes, they are, Risk
20 Assessment Guidance for Super Fund and Exposure
21 Factors Handbook, and I think there's -- there may
22 be others. There are two specifically in there
23 that give guidance on how that's to be done.
24 MR. FEINEN: Thank you.
L.A. REPORTING - (312) 419-9292
63
1 MS. HENNESSEY: Just one grammatical
2 question, 742.505(d), both sentences start out,
3 "sites which do not meet." Would it be more
4 appropriate to say that the language would be,
5 "sites that do not meet"?
6 DR. HORNSHAW: I believe so, yes.
7 MS. HENNESSEY: Okay. I just took a
8 grammar seminar, sorry. I don't have anything
9 else.
10 HEARING OFFICER FELTON: Board Member
11 Hennessey, you were referring to 505(b)(4)?
12 MS. HENNESSEY: That's correct, yes.
13 HEARING OFFICER FELTON: Thank you. Are
14 there any other additional questions at this
15 time?
16 MS. MC FAWN: Why don't we take a break
17 and go.
18 HEARING OFFICER FELTON: Take a brief
19 10-minute break. We will
readjourn at about
20 11:30.
21 (Recess taken.)
22 HEARING OFFICER FELTON: Back on the
23 record. Are there any further questions for the
24 agency at this time? Seeing none, as we have
L.A. REPORTING - (312) 419-9292
64
1 completed earlier -- actually one follow-up
2 question or one comment I want to make is would
3 anyone today like to testify in support or in
4 opposition to this
rulemaking?
5 As we have ended or come to a close
6 of this, it appears that we will not need the
7 hearing scheduled for tomorrow. So that hearing
8 is canceled. Please note that the second hearing
9 for this proposed rule in docket B has been
10 scheduled and will proceed on Thursday, May 29th,
11 1997, in Springfield at 10:00 a.m. in the Lincoln
12 room in the Stratton Building.
13 The hearing may be continued on the
14 record to Friday, May 30th, 1997, at that same
15 time in a location necessary to accommodate any
16 questions or additional testimony that provides
17 us. Excuse me, that would be the
Howlett
18 Building. Is there anyone at this time that knows
19 that they will be testifying at the May 29th
20 hearing? And if so, just let us know at this
21 time. Does anyone anticipate that they will be
22 testifying next week?
23 Please note that if you are
24 testifying or if you would like to submit
prefiled
L.A. REPORTING - (312) 419-9292
65
1 testimony, pursuant to my hearing officer order
2 dated May 2nd, 1997, all other testimony that
3 would be
prefiled must be filed by May 23rd,
4 1997. There's no requirement to
prefile testimony
5 for the May 29th, 1997, hearing, and this will not
6 preclude you if you fail to testify at that time.
7 The mailbox will set forth 35 Illinois
8 Administrative Code 101. 102(d) will not apply to
9 these filings.
10 Are there any other matters that
11 need to be addressed at this time? We would like
12 to note at this time that the agency will not be
13 at this time preparing a draft or a language draft
14 proposal of the rules. We will be relying at this
15 time on Exhibit 2. If that changes at the second
16 hearing, we will address that issue at that time.
17 MS. HENNESSEY: That would be Exhibit 2
18 as corrected by Dr.
Hornshaw's testimony?
19 HEARING OFFICER FELTON: Correct.
20 Seeing that there are no other further questions
21 at this time, I would like to thank everyone for
22 being prepared for this first hearing, and this
23
24
L.A. REPORTING - (312) 419-9292
66
1 hearing is hereby adjourned. We look forward to
2 seeing you all in Springfield on May 29th. Thank
3 you.
4 (Which were all the proceedings
5 had in the above-entitled case.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING - (312) 419-9292
67
1 ILLINOIS POLLUTION CONTROL BOARD
2
3 LISA H. BREITER, CSR, RPR, CRR, being
4 first duly sworn, on oath says that she is a court
5 reporter doing business in the City of Chicago;
6 that she reported in shorthand the proceedings at
7 the taking of said hearing and that the foregoing
8 is a true and correct transcript of her shorthand
9 notes so taken as aforesaid, and contains all of
10 the proceedings had at said hearing.
11
12
13
14
LISA H. BREITER, CSR, RPR, CRR
15
L.A. REPORTING
79 West Monroe Street
16 Suite 1219
Chicago, Illinois 60603
17 (312) 419-9292
(312) 419-9294 Fax
18 License No. 84-003155
19
20
21
22
23
24
L.A. REPORTING - (312) 419-9292
68