1
1 BEFORE THE POLLUTION CONTROL BOARD
2 STATE OF ILLINOIS
3
4
5 IN THE MATTER OF:
6 REGULATION OF PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS Docket No. R97-010
7 (35 Ill. Adm. Code 732)
8
9
10
11
12
13
14 Hearing held, pursuant to Notice, on the 9th day
15 of December, 1996, at the hour of 10:00 a.m., at
16 Room A-1, William Stratton Office Building,
17 Springfield, Illinois, before Ms. Marie Tipsord, duly
18 appointed Hearing Officer.
19
20
21
22 TRANSCRIPT OF PROCEEDINGS
23
24
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1 PRESENT:
2 MR. G. TANNER GIRARD Board Member
MR. JOSEPH YI Board Member
3 MR. CHARLES M. FEINEN Attorney, IPCB
MS. K. C. POULOS Attorney, IPCB
4 MR. ANAND RAO Environmental Scientist,
IPCB
5 MS. KIMBERLY A. ROBINSON Assistant Counsel,
Bureau of Land, IEPA
6 MS. VICKY VonLANKEN Assistant Counsel,
Bureau of Land, IEPA
7 MR. GARY P. King, Manager Division of Remediation
Management,
8 Bureau of Land, IEPA
MR. DOUGLAS W. CLAY Manager, LUST Section,
9 Bureau of Land, IEPA
MR. DAVID L. RIESER Attorney at Law
10 MR. JOHN W. WATSON, III Attorney at Law
MR. MICHAEL W. RAPPS, P.E. Rapps Engineering &
11 Applied Science
MR. PETER D. GATES Field Engineer,
12 Mobil Business
Resources Corporation
13
14
15
16
INDEX
17 EXHIBITS IDENTIFIED ADMITTED
Exhibit No. 3 5 5
18 Exhibit No. 4 5 5
Exhibit No. 5 5 5
19 Exhibit No. 6 54 54
Exhibit No. 7 59 59
20 Exhibit No. 8 59 59
Exhibit No. 9 95 96
21 Exhibit No. 10 101 101
22
23
24
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1 HEARING OFFICER TIPSORD: Let's begin. Good
2 morning.
3 Once again, my name is Marie Tipsord, and I am the
4 Hearing Officer for the Illinois Pollution Control
5 Board in this proceeding known as Regulation of
6 Petroleum Leaking Underground Storage Tanks, 35 Ill.
7 Adm. Code 732, Board Docket Number R97-10.
8 With me today are two of the presiding Board
9 Members. To my immediate right is Dr. G. Tanner
10 Girard, and to my left is Mr. Joseph Yi. To Mr. Yi's
11 left is his assistant, Charles Feinen. To Dr.
12 Girard's right is Anand Rao with our Technical Unit,
13 and to his right is K. C. Doyle, assistant to Board
14 Member J. Theodore Meyer, who is the other presiding
15 Board Member.
16 This proceeding was filed pursuant to Public Act
17 89-457, and it was filed on September 16th, 1996.
18 Pursuant to that Public Act, the Board must adopt a
19 final rule on or before March 15, 1997. As of this
20 date there has been no extension of that date.
21 The purpose of today's hearing is to allow the
22 Agency the opportunity to follow up with some
23 additional comments regarding comments which arose
24 during the first hearing, and to present testimony on
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1 behalf of the Illinois Petroleum Council and the
2 Petroleum Marketers Association. Those are the
3 prefiled testimonies we have received.
4 If there are any additional testimonies at the end
5 of the hearing, we will allow them as time permits.
6 We will also allow questioning of the witnesses
7 today with special deference to the Illinois
8 Environmental Protection Agency's prefiled questions.
9 We will begin this hearing today with allowing the
10 Agency to complete its comments. And I believe the
11 Agency has some exhibits which we'll admit during
12 those comments.
13 Are there any questions with how we're going to
14 proceed today?
15 Seeing none, Ms. Robinson, would you like to
16 begin?
17 MS. ROBINSON: Good morning. My name is
18 Kimberly Robinson. I'm Assistant Counsel with the
19 Division of Legal Counsel, Illinois Environmental
20 Protection Agency.
21 As an initial matter, I would like to introduce
22 Doug Clay to my immediate right. He is the Manager of
23 the Leaking Underground Storage Tank Section for the
24 Bureau of Land, and to his right Gary King, the
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1 Manager of the Division of Remediation Management for
2 the Bureau of Land, both at IEPA. And behind me we
3 have Vicky VonLanken, who is our legal investigator
4 here today.
5 If I could start by identifying three more
6 exhibits for the record.
7 We have Exhibit Number 3, which I had the court
8 reporter mark for identification. It's a letter from
9 Gardner, Carton & Douglas as a follow-up to the first
10 set of hearings and also a follow-up to our Errata
11 Sheet Number 1.
12 And the second one, which is Exhibit Number 4, a
13 letter from Ross & Hardies, which is also a follow-up
14 to the first set of hearings and follow-up to our
15 Errata Sheet Number 1.
16 And Exhibit Number 5, which is our actual Errata
17 Sheet Number 1, which was dated November 22nd, 1996.
18 And if there's no objection, I would move to have
19 these admitted into the record at this time.
20 HEARING OFFICER TIPSORD: Is there any
21 objection?
22 Seeing none, we will admit those.
23 (Exhibits 3, 4 and 5 admitted.)
24 HEARING OFFICER: Oh, I'm sorry.
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1 MR. RIESER: I have no objection.
2 David Rieser from the Illinois Petroleum Council.
3 Just for the record I would like to note that the
4 errata sheet was issued and received by myself and I
5 also believe Mr. Watson before we submitted our
6 letters. So I think both letters reference the errata
7 sheet.
8 HEARING OFFICER TIPSORD: Okay, thank you.
9 MS. ROBINSON: And I think the easiest way
10 for us to proceed would be to have Gary King do a
11 summary of what's in the errata sheet and then we can
12 proceed with the two letters and try to address all
13 the issues that arose in those letters.
14 HEARING OFFICER TIPSORD: Before we proceed,
15 do you have extra copies of the letters? Because we
16 don't have one up here at all.
17 MS. ROBINSON: I have -- do we have one extra
18 copy? We have one extra copy of each. And there are
19 several extra copies of our errata sheet over on the
20 rail over there.
21 Mr. King, if you would please give a summary of
22 Errata Sheet Number 1.
23 MR. KING: I thought we had a very good
24 discussion at the last hearing on November 18th, and I
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1 think the comments that we received in terms of the
2 questions that were asked was -- I thought were very
3 helpful in focusing on various issues within the
4 context of our proposal. And as a result of those
5 questions, we thought it was appropriate to go back
6 and make some further modifications to our proposal
7 that was filed on September 16th.
8 So Errata Sheet Number 1 is really -- basically is
9 looking at those issues. I'll point out the two or
10 three places where in essence we weren't directly
11 responding to comments but in essence picked up some
12 other issues to be resolved.
13 I should note that, turning to page 2, for
14 instance, where there's a double underlining, we did
15 that because the -- in that subsection, for instance,
16 300(b)(1), the original section was being -- already
17 being proposed to be modified, so the double
18 underlining represents the new language changes we
19 would be suggesting.
20 The change -- we did -- there's a change on
21 302(a)(4), 303(d), 304(d). Those were not -- that was
22 not anything discussed at the last hearing, but we
23 just thought, again, it was to make sure that we're
24 using terminology consistently, and that's kind of a
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1 leftover. The use of the word "site" is a leftover.
2 To be consistent we should use the term UST system.
3 On the next -- on page 3, 310(g)(3), just a
4 typographical change from cleanup to remediation.
5 And in 403(d) there's a change from plant to plan.
6 Other than those, I believe those are -- all the
7 other changes are really intended to address specific
8 points that were raised at the hearing on November
9 18th.
10 And unless there's further questions, I wouldn't
11 have any additional comments at this time on that.
12 HEARING OFFICER TIPSORD: Are there any
13 questions concerning the errata sheet?
14 Mr. Rieser.
15 MR. RIESER: Mr. King, I just had a couple of
16 questions.
17 HEARING OFFICER TIPSORD: Could you speak up,
18 Mr. Rieser?
19 MR. RIESER: I'm sorry. I had a couple of
20 questions.
21 The first one was regarding 732.300(b)(1) on page
22 2 of the errata sheet. With respect to (b)(1)(A),
23 which says, "There is evidence that groundwater wells
24 have been impacted by the release above the Tier 1
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1 residential numbers ..." et cetera. If an
2 owner/operator can demonstrate that the exceedence in
3 the groundwater above the Tier 1 levels is not as a
4 result of their release, would that mean that it would
5 not meet this condition?
6 MR. KING: The purpose of this is to identify
7 a situation where you have to do some further
8 investigation, and I think, as I understand the
9 example you're stating, that is reflective of doing
10 additional investigation to be able to make that kind
11 of conclusion.
12 MR. RIESER: Well for --
13 MR. KING: So --
14 MR. RIESER: Go ahead. I'm sorry.
15 MR. KING: I guess in a specific situation
16 what you're anticipating doing probably would, you
17 know, fit in with the context of doing a groundwater
18 investigation anyway.
19 MR. RIESER: Well, for example, if you had a
20 gasoline tank and the exceedences of the Tier 1 levels
21 was an entirely different contaminant, say a
22 chlorinated solvent, that would not trigger this, is
23 that correct?
24 MR. KING: That's correct.
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1 MR. RIESER: Thank you.
2 With respect to (b)(1)(B) you've added free
3 product "that may impact groundwater." How will that
4 determination be made?
5 MR. KING: That will have to be on a
6 site-specific basis.
7 MR. RIESER: What factors will the Agency use
8 in making that decision?
9 MR. CLAY: I think what we would look at is
10 -- could be a number of things, including the geology
11 of the site, the amount of free product, depth of
12 groundwater are just a few issues that we would take
13 into consideration.
14 MR. RIESER: So objective and pragmatic
15 issues regarding the site would all be usable as
16 factors in making this determination?
17 MR. CLAY: Correct.
18 MR. RIESER: Thank you.
19 HEARING OFFICER TIPSORD: Are there any
20 additional questions?
21 MR. RIESER: Not with respect to the errata.
22 HEARING OFFICER TIPSORD: Okay. Seeing none,
23 if you would like to proceed.
24 MS. ROBINSON: I think I would like some
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1 input here as to whether or not Mr. Watson and Mr.
2 Rieser would like to read their comments from the
3 letters in or how would you like to handle that?
4 Would that be the easiest way?
5 MR. RIESER: However the Board would prefer.
6 I'll be happy to read mine if the Board would like
7 that.
8 HEARING OFFICER TIPSORD: Let's go off the
9 record for just a second.
10 (Discussion off the record.)
11 HEARING OFFICER TIPSORD: Mr. Rieser, we'll
12 have you summarize, then direct your comments to the
13 Agency from I believe it's Exhibit Number 4.
14 MR. RIESER: Exhibit Number 4, yes, Ms.
15 Tipsord.
16 The first -- this was a letter that I wrote on
17 behalf of the Illinois Petroleum Council after we
18 received the errata, and this letter was intended to
19 embody the -- some of the issues that I saw as still
20 remaining after the hearing, some of which were
21 resolved by the errata and some of which were not.
22 The first issue was with respect to Section
23 732.307(d)(2). And I said: "The issue here is the
24 limitation of physical testing to those units most
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1 likely to transport contaminants off site and not each
2 stratigraphic unit."
3 In breaking away from the letter, I would like to
4 say that this was an extended discussion that we had
5 both at the hearing and prior to the hearing regarding
6 the requirements in 307(d)(2) to test each
7 stratigraphic unit. This is in the context of the
8 Method Two soil classification. There's a very narrow
9 definition of stratigraphic unit, and then each of
10 those defined units has to be tested according to the
11 Agency's proposal.
12 The Agency indicated at the hearing that they
13 would modify that to address those units which were
14 most conducive to contaminant transport, which is the
15 point of the Method Two evaluation, to look for -- to
16 look to determine whether those most permeable units
17 would allow the transport of materials away from -- of
18 contaminants away from the site.
19 Going back to the letter, what I said was: "Since
20 permeability is not defined and is not the only issue
21 to be considered, we propose the following:
22 The following tests shall be performed on a
23 representative sample of" -- we struck each and added
24 -- "the stratigraphic units encountered in the native
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1 soil boring" -- this was the language we added --
2 "which are most conducive to transporting contaminants
3 from the source, based on visual observation."
4 That was the proposal.
5 MR. CLAY: The Agency, as we stated in the
6 last hearing, does believe that the unit that we're
7 most concerned with is the one that is most conductive
8 for transporting contaminants. However, we do not
9 believe that this can be determined visually. We've
10 had a number of situations where an engineer or
11 geologist when doing the soil boring has identified a
12 unit as a certain -- by a certain classification, such
13 as a clayey silt, and when they actually do the
14 physical testing of that unit, it's something much
15 different. So we do not believe that you can
16 determine visually -- without doing the physical soil
17 testing that's required, we don't believe you can
18 determine what unit is going to be the most
19 conductive.
20 The tests that are required are fairly
21 inexpensive, in the range of 500 dollars for the
22 entire testing per stratigraphic unit, and we
23 typically see two to three stratigraphic units for a
24 Method Two classification. So we don't think that
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1 this change is justified.
2 And that one of the problems we see is by making
3 this change this could set up a situation where we
4 have a lot more appeals because the engineer or
5 geologist sampled one stratigraphic unit which they
6 thought was most conductive and the Agency disagrees
7 and ends up denying the classification because of
8 that.
9 MR. RIESER: Is the issue, Mr. -- does that
10 complete your response?
11 MR. CLAY: Yes, yes.
12 MR. RIESER: Is the issue the visual part of
13 the determination or limiting or allowing the
14 geologist or whoever is doing the sampling in
15 precluding them from making field determinations of
16 any sort with respect to which unit or units they
17 believe are the most conducive to transporting
18 materials off the site?
19 MR. CLAY: I don't think it's an issue of
20 precluding the geologist or engineer from making any
21 field judgments. It's -- the problem comes when the
22 judgments that are made the Agency doesn't agree with
23 or concur with, and then you've got to do additional
24 sampling, additional testing, modifying budgets, that
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1 type of thing, rather than testing each stratigraphic
2 unit initially, which as I said, is typically we've
3 seen two or three stratigraphic units per Method Two
4 evaluation.
5 And frankly, the visual -- visually identifying
6 these units following -- followed up with testing
7 hasn't concurred. I mean we'll see someone classify
8 or identify one unit visually and it be something
9 completely different once they do the particle size
10 analysis.
11 MR. RIESER: What I'm trying to do is kind of
12 separate purely the visual, i.e. just the observation,
13 from the other information that a geologist would have
14 in the field without doing actual soil classification
15 testing of the type that you require. There are other
16 field measurements that people make in doing the
17 logging of the sample, isn't that correct?
18 MR. CLAY: Actually, I'm not sure about that.
19 MR. RIESER: Okay. So issues such as -- so
20 the answer -- okay, never mind.
21 Okay. I understand.
22 Going on to the next point. This was with regard
23 to 732.307(d)(2)(B), and I said: "Here, we were
24 concerned with the requirement to calculate a yield
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1 value even though Doug Clay acknowledged in his
2 testimony that this value would not be meaningful if
3 there was no water bearing strata in the boring. He
4 also testified that the calculated value might
5 eliminate a site from consideration as a No Further
6 Action site even if there was no water to produce a
7 yield. We suggest the following addition to be
8 inserted after the sentence which begins 'Well yield
9 should be determined ...'"
10 This was the additional language. "If the boring
11 does not accumulate water after completion of the
12 drilling, the yield does not have to be calculated."
13 That's the conclusion of the additional proposal.
14 "This would also require the following addition to
15 the end of 732.307(d)(3)(C):"
16 This was my proposed language which was in
17 parentheses: "(unless the calculation of a yield has
18 been excluded pursuant to Section 732.307(d)(2)(B)."
19 And that was closed parentheses.
20 MR. CLAY: We believe that it is important to
21 provide both the hydraulic conductivity and yield
22 numbers for each unit. You do a field measurement or
23 lab measurement to test -- to do either the yield or
24 the hydraulic conductivity and then calculate the
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1 other from that.
2 In Mr. Rieser's proposal, just because a unit does
3 not accumulate water doesn't mean that at some point
4 there won't be water in that unit. This doesn't
5 account for seasonal fluctuation of groundwater
6 elevations. We believe that the calculation is very
7 simple. As one of my geologists has stated, it's a
8 two-minute calculation if you've got the hydraulic
9 conductivity to calculate the yield. And to make a
10 demonstration that seasonal fluctuation is not an
11 issue is probably more resource intensive and takes
12 more time and is more costly than simply doing the
13 calculation. So, we would like to see both the yield
14 and hydraulic conductivity provided to the Agency in
15 all cases.
16 Let me also just real briefly in layman's terms
17 define the two terms. Yield is a ratio of volume of
18 water that a given mass of saturated rock or soil will
19 yield by gravity to a volume of that mass, and the
20 hydraulic conductivity is the ability of the substance
21 to conduct a fluid.
22 MR. RIESER: At the last hearing I asked a
23 series of questions about providing the analytical
24 methods which the Agency would recognize in
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1 calculating the yield. Is the Agency prepared to do
2 that today?
3 MR. CLAY: Yeah. There's -- I've got -- the
4 most common ones the Agency has seen are -- and I'm
5 going to spell these -- Bouwer and Rice Equation,
6 B-o-u-w-e-r and R-i-c-e, Theis, T-h-e-i-s, which is a
7 different equation, the Hantush-Jacob,
8 H-a-n-t-u-s-h-J-a-c-o-b, Theim Equation, T-h-e-i-m,
9 and the -- I'm just going to spell this one
10 H-v-o-r-s-l-e-v Equation. Those are the ones the
11 Agency sees most often, but there are numerous other
12 equations that would be acceptable.
13 MR. RIESER: So derivations of equations
14 based on any of those would be acceptable?
15 MR. CLAY: The Agency would have to evaluate
16 those derivations, but they potentially could be
17 acceptable, yes.
18 MR. RIESER: So even though your testimony
19 was that it's not meaningful to calculate yield for a
20 dry zone and even though that calculation might knock
21 a facility out from being a No Further Action
22 facility, you still believe that that should be done
23 and that should be a basis for determining that a site
24 is not a No Further Action facility?
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1 MR. CLAY: Yes, because the seasonal
2 variation is not taken into account. So even though
3 there is no water in that unit at a given time does
4 not mean there will not be water at another point in
5 time.
6 MR. RIESER: And the reason yield is even an
7 issue in this context is based on the importation of
8 the Board's definition of what is a Class I
9 groundwater from Part 620, correct?
10 MR. CLAY: I believe that that's where the
11 conditions under which you'd do a Method --
12 HEARING OFFICER TIPSORD: Doug, can you speak
13 up? We have a noise source up here, and when you turn
14 your head, we lose your voice completely.
15 MR. CLAY: Okay, I'm sorry.
16 I believe from 620 is where many of the
17 requirements for a Method Two demonstration, including
18 the yield and hydraulic conductivity, were derived
19 from, yes.
20 MR. RIESER: Isn't the language for what
21 constitutes a Method Two No Further Action site taken
22 directly from 620?
23 MR. CLAY: I think there were some wording
24 changes, but, yes, it was derived from 620.
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1 MR. RIESER: And the language in 620 is being
2 applied to an actual water-bearing aquifer, correct?
3 MR. CLAY: Yes.
4 MR. RIESER: Thank you.
5 HEARING OFFICER TIPSORD: Any other
6 follow-up?
7 Okay, Mr. Rieser, would you like to continue?
8 MR. RIESER: The next issue was
9 732.307(j)(1), which I think the Agency addressed
10 satisfactorily in its errata. I'm going to leave that
11 one. That was number 3.
12 Number 4 was with respect to 732.312(a)(1), and I
13 said: "To codify Doug Clay's testimony that this
14 election can be made at any time, we propose the
15 following sentence to be added at the end of this
16 subsection:"
17 The proposed language was: "Such election may be
18 made at any time until the Agency issues a No Further
19 Remediation Letter."
20 And I added that: "You may wish to add a Board
21 note which indicates that the Agency will not
22 reimburse the cost of performing more than one method
23 of site classification."
24 MR. CLAY: We agree with the statement in the
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1 proposed changes.
2 MR. RIESER: So you're going to propose a
3 subsequent errata which embodies those changes?
4 MR. CLAY: Yes. And I think it is a good
5 idea to include that Board note if at all possible.
6 MR. RIESER: Thank you.
7 My next proposal was with regard to 732.312(c).
8 And what I said was: "The use of the phrase 'physical
9 soil classification' is inappropriate since it is a
10 statutorily defined term which refers to the tasks
11 necessary to compare the soil to the Berg map.
12 Although the regulation contains a slightly different
13 definition, the connotation and connection with the
14 tasks defined in Section 732.307 is still very strong.
15 Yet as Doug Clay acknowledged, the tasks outlined in
16 Section 307 would not be required for soils under this
17 section. We propose deleting the term 'physical soil
18 classification' and substituting soil investigation."
19 MR. KING: We don't think this is a good
20 change. We were very specific in the reason why we
21 picked physical soil classification and that was
22 because it's really consistent with the Board's
23 authority. Unless this -- the Board's authority to
24 delineate an additional Method Three, as we've kind of
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1 called this, comes from 57.7(b)(6) of the Act. And
2 there's a specific reference there to authorizing the
3 Board to adopt additional methods for purposes of
4 physical soil classification. And if we take out that
5 term here and substitute something else, then I think
6 it throws into question the Board's authority to even
7 adopt Method Three.
8 MR. RIESER: So the issue is not that -- not
9 that the investigation required for soils under 312 is
10 -- let me start over.
11 You agree that the investigation required under
12 Section 312 for soils is different than the
13 investigation required under 307, correct?
14 MR. KING: That's correct.
15 MR. RIESER: And so the concern with making
16 the change is because the -- not using the term
17 physical soil classification might call into question
18 the Board's authority to adopt this Section 312?
19 MR. KING: That's correct.
20 MR. RIESER: Okay, thank you.
21 My next comment was on 732.403(i), which had to do
22 with -- which the Agency addressed in its errata. I
23 had a simpler suggestion, and I may just put that
24 before the Board in our posthearing comments rather
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1 than burdening here. I think my language is simpler,
2 but their language accomplishes the same goal.
3 My next comment was on Section 732.503(f), which
4 said: "We propose adding language to clarify that a
5 report rejected by operation of law can be
6 resubmitted. We suggest the following language to be
7 placed at the end of this section:"
8 We proposed: "Any plan or report rejected by
9 operation of law may be resubmitted by the owner or
10 operator."
11 MR. CLAY: The Agency concurs with that. We
12 may also suggest in the next errata that we add the
13 90-day extension wording, too.
14 MR. RIESER: Thank you.
15 My next comment was with respect to 732.703(b),
16 which has to do with the copy of a recorded document.
17 And the Agency made a change in its errata, but I have
18 a concern with that that I -- makes me want to just
19 read in what I had, and then we'll go from there.
20 Section 732.703(b). "We discussed at the hearing
21 that the Agency would accept a copy of the recorded
22 document so long as it reflected the various stamps
23 from the Recorder's office indicating it had been
24 recorded. Your proposed revision still requires a
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1 'official' copy which implies that the copy of the
2 original must be obtained from the Recorder's office
3 despite my understanding of the testimony that this
4 was not necessary. We suggest that the Agency add
5 after 'certified' the phrase or accurate."
6 MR. KING: What we're looking for is -- and
7 maybe it's just kind of stumbling around the real
8 meaning of this language. What we want is a copy that
9 shows it's been filed with the Recorder and so we see
10 that we have that coming back to us and we put it in
11 our records and it shows that there's -- it was in
12 fact filed and it's got that original -- original
13 stamp on it as having been filed. That's the issue
14 for us and that's what we would consider something to
15 be accurate and official. So basically a file-stamped
16 copy.
17 MR. RIESER: Is it correct that the Agency
18 does not want a -- is not requiring an additional
19 document from the Recorder's office verifying the
20 authenticity of the copy that they are receiving?
21 MR. KING: Right. That's correct. Just so
22 it's a file-stamped copy. We don't have to have a
23 separate certification.
24 MR. RIESER: So a person could take a copy of
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1 their original recorded document, make a copy of that
2 that reflected all the stamps indicating that it had
3 been recorded and submit that to the Agency and that
4 will be acceptable.
5 MR. KING: We want an original stamp. We
6 want an original stamp on it.
7 MR. RIESER: So you want the original
8 document.
9 MR. KING: No. We want -- we want a document
10 that shows an original stamp on it.
11 MR. RIESER: Okay.
12 HEARING OFFICER TIPSORD: Mr. King, would it
13 be acceptable if someone just took in two copies, one
14 to give and leave with the clerk, and the second to
15 have it stamped?
16 MR. KING: Yes, exactly. That's what I
17 was --
18 MR. RIESER: Would a certification
19 from the PE that the document had been filed be
20 adequate?
21 MR. KING: No.
22 MR. RIESER: All right. My next point was on
23 732.704(a)(4), and this is with respect to the voiding
24 of the NFR letter based on additional information.
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1 And I think there was a real issue with this because
2 there was testimony that this could be done on the
3 basis of identification of contaminant levels in
4 excess of Tier 1 residential values from Part 742
5 regulations. And I had numerous problems with -- the
6 Illinois Petroleum Council had numerous problems with
7 that, which I addressed.
8 First of all, in the testimony before the Board on
9 Part 740, Mr. Eastep of the Agency testified that it
10 would take something more than mere exceedences of
11 Tier 1. It would take a site evaluation based on a
12 review of all pathways and conditions at the site
13 before the Agency would void a letter under NF --
14 under the analog to the same section under proposed
15 Part 740 rules.
16 And it struck me that with these regulations there
17 was even more need to be restrictive about the
18 conditions under which you could void an NFR letter.
19 I said: "First, it should be clear that NFR
20 letters issued to NFA or Low Priority sites that are
21 deemed complete based on the statutory criteria scheme
22 cannot be voided under this subsection, with the one
23 exception of NFA sites at which there is a finding of
24 groundwater exceedences under Section 732.302(b). To
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1 do otherwise would violate the direct legislative
2 finding as to how those sites should be resolved and
3 create vast uncertainty as to the finality of those
4 NFR letters."
5 In other words, those sites may exceed the Parts
6 732.
7 "The second issue is that those letters are based
8 on very specific releases from identified units and
9 are even more narrowly focused than the 'focused' site
10 investigations are handled in 35 Ill. Adm. Code 740."
11 Here we know the source, we know the contaminants
12 involved in the release, so you don't have a concern
13 that you would have under the Site Remediation Act
14 that there would be unidentified contaminants from an
15 unidentified source. The Agency would be giving a
16 broader NFR letter than would be necessary or
17 appropriate under actual site conditions.
18 I propose to the Agency that they delete this
19 section entirely, because it really wasn't applicable
20 to the tank program. The Agency can obviously propose
21 to the Board to void a letter based on fraud or
22 misrepresentation of the conditions, but to delete a
23 -- to void an NFR letter because additional
24 contaminants were found simply because they exceeded
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1 Tier 1 values was just inappropriate and inconsistent
2 with the statute.
3 It would still be my recommendation that the
4 Agency consider proposing that this section be
5 deleted.
6 MR. KING: I thought the points that Mr.
7 Rieser raised were all valid ones for consideration
8 and evaluation except the last one, because I don't
9 think we should go so far as to deleting the concept.
10 We have come up with some additional language which
11 we've intended to kind of meet the concerns that were
12 raised and yet still maintain the concept that was in
13 the proposal.
14 This would be language that we would propose as
15 part of a second errata. I'm going to read the
16 language of this proposed section and I'll indicate
17 which is new language as I'm reading through it.
18 It's Section 732.704(a)(4). Subsequent discovery
19 of -- and then there would be an added word --
20 indicator contaminants -- and then we're going to add
21 the phrase -- related to the occurrence upon which the
22 No Further Remediation Letter was based but which were
23 -- and then we continue with the rest of the section,
24 which says -- not identified as part of the
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1 investigative or remedial activities upon which the
2 issuance of the No Further Remediation Letter was
3 based that pose a threat to human health or the
4 environment.
5 What we saw as being the critical concern of the
6 comments that were brought forward was that it needed
7 to -- we needed to make sure that we were -- we were
8 narrowing the application of this concept to the
9 occurrence that was originally dealt with, that was
10 originally reported, and which the remediation efforts
11 addressed. So that's why we added this language of
12 being related to the occurrence.
13 So that it's clear, if, for instance, if you have
14 subsequent discovery of contaminants that were not
15 related to that occurrence, well, that would not be
16 cause to void the NFR letter that was issued. That
17 would simply be another occurrence that would have to
18 be remediated.
19 Similarly, if you had a situation where you had
20 identified -- you'd done an investigation and you
21 identified contaminants and then you have a subsequent
22 discovery of contaminants that were already part of
23 that investigation, well, that wouldn't be cause for
24 No Further Remediation -- voidance of a No Further
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1 Remediation Letter, either.
2 But if you did have a situation, for instance,
3 where the owner/operator had totally mischaracterized
4 the extent of the contamination and it was related to
5 the release that was reported, then that would be the
6 kind of situation where it would be a subsequent
7 discovery that would fall within the context of being
8 voidable relative to the No Further Remediation Letter
9 on which it was based.
10 The language here continues to talk about posing a
11 threat to human health or the environment, so I don't
12 think just an exceedence of the Tier 1 numbers would
13 automatically put anybody into that kind of situation.
14 It would have to be evaluated on a site-specific
15 basis.
16 MR. RIESER: Just taking out the last point
17 first, what would the factors be -- what factors would
18 be used in evaluating?
19 HEARING OFFICER TIPSORD: Mr. Rieser, could
20 you speak up?
21 MR. RIESER: I'm sorry.
22 Taking the last point first, what factors would be
23 used in making that evaluation?
24 MR. KING: We'd have to look at how high the
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1 levels were, what potential receptors could be
2 impacted, what potential migration pathways would be
3 in existence, the kind of site-specific factors that
4 we envision using under the Part 742 rules.
5 MR. RIESER: And the Part 740 rules, correct?
6 740?
7 MR. KING: I said 742.
8 MR. RIESER: Okay. I see. But also the same
9 as the factors you would use in voiding NFR letters
10 under Part 740, which --
11 MR. KING: Oh, yes, that's correct.
12 MR. RIESER: -- contains the same language.
13 MR. KING: That's correct.
14 MR. RIESER: The language says subsequent to
15 discovery of indicator contaminants related to the
16 occurrence but which were not identified as part of
17 the investigation. So if there was a gasoline tank
18 and BETX were the indicator contaminants that were
19 identified, and subsequently PNAs or used oil
20 indicator contaminants were identified at the site,
21 would that be a basis for voiding the NFR letter?
22 MR. KING: No, that wouldn't be. Again,
23 you'd have to -- unless -- unless there was a
24 situation where the -- for instance, the contaminants
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1 in the tank were originally mischaracterized.
2 MR. RIESER: If -- going back to the example
3 of a gasoline tank, if you had a gasoline tank which
4 had a release and the site was determined to be an NFA
5 site based on the soil geology according to Method One
6 or Method Two, and a subsequent owner determined that
7 there were gasoline constituents on the site, and it
8 was only soil contamination, but let's say it was
9 significant soil contamination, would that be a basis
10 for voiding the NFR letter?
11 MR. KING: It would depend on whether that --
12 whether those contaminants were there related to the
13 occurrence that was originally managed.
14 MR. RIESER: Well, again, assuming that they
15 are only the indicator contaminants associated with
16 the gasoline tank.
17 MR. KING: Well, you still could have -- you
18 still could have gasoline contamination on a site that
19 was not -- that was there but not as the result of a
20 specific release that had been dealt with previously
21 under the tank program. And if that -- that
22 contamination was found, that would not subject the
23 letter to be voided.
24 MR. RIESER: If that contamination was part
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1 of the original release, that would not be subject to
2 being voided?
3 MR. KING: If it was part of the original
4 release, yes, it would.
5 MR. RIESER: I'm sorry, I misunderstand.
6 MR. KING: Let me give you a different
7 example. For instance, if you had a release from tank
8 one and that's all you addressed, and you cleaned up
9 that contamination and that was -- the BETX was the
10 indicator contaminants. If on another part of the
11 site, a totally different tank field, you could have
12 another tank there, which is kind of common, you could
13 also find BETX there if it was a gasoline tank. If
14 you found that BETX, that would be a totally separate
15 release. It wouldn't have any effect on the first NFR
16 letter.
17 MR. RIESER: Okay, I understand. So that
18 first NFR letter wouldn't be voidable based on that
19 second release, is that correct?
20 MR. KING: That's correct. It would not be
21 voidable.
22 MR. RIESER: Thank you.
23 HEARING OFFICER TIPSORD: Mr. Watson.
24 MR. WATSON: For the record, my name is John
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1 Watson from Gardner, Carton & Douglas.
2 I don't know -- at least in my mind, I don't know
3 if we've resolved the issue fully, and I guess what
4 I'm hearing you say is that you can have a site that
5 you've got a No Further Action determination or a Low
6 Priority determination, both of which say that or both
7 of which are based upon conditions unrelated to soil
8 contamination. Is that right?
9 I mean if you've got sites where -- I mean for No
10 Further Action, basically you look at the geology, and
11 if you can confirm the appropriate geology for your
12 site, arguably you have no obligation to do any
13 sampling; and therefore, soil contamination cannot be
14 a relevant factor in determining No Further Action
15 determination. Correct?
16 MR. KING: No, that would not be a proper
17 characterization of what's required.
18 MR. CLAY: There are other factors besides
19 the geology of the site that need to be taken into
20 account.
21 MR. WATSON: Right.
22 MR. CLAY: And in most cases, investigation
23 of migration pathways does require soil sampling.
24 MR. WATSON: Under the No Further -- under
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1 the No Further Action site classification?
2 MR. CLAY: Right.
3 MR. WATSON: And then you have the Low
4 Priority site classification which says you look at
5 your geology and then you -- if you don't have
6 groundwater exceedences and you satisfy some other
7 criteria, then you're also not required to do any
8 sampling at that point.
9 MR. KING: That's not correct, either. You
10 still have the same -- you still are to address all
11 five pathways.
12 MR. WATSON: So it's your position then that
13 No Further Action determinations and Low Priority site
14 classifications are dependent upon the levels of
15 contaminants in the soil?
16 MR. KING: No, I don't think that's correct.
17 MR. CLAY: I would say that the level of
18 contamination in the soil --
19 HEARING OFFICER TIPSORD: Doug, we're losing
20 you again.
21 MR. CLAY: I'm sorry.
22 The level of contamination in the soil is not a
23 factor for a No Further Action site or Low Priority
24 site. There are other factors that need to be taken
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1 into account, but the degree of contamination, as long
2 as it's not free product, is not part of that
3 evaluation.
4 MR. WATSON: Okay. So then how can it be
5 appropriate under a voidance -- under 704 to have the
6 voidance of a No Further Remediation Letter be
7 dependent upon the existence of contamination in the
8 soil for No Further Action and Low Priority sites?
9 MR. KING: Well --
10 MR. WATSON: And I guess let me just say that
11 just to complete the record, what we have proposed is
12 language at the end of 704(a)(4) which says that you
13 can void a No Further Action letter -- No Further
14 Remediation Letter to the extent that you find
15 additional contaminants which are directly related to
16 the release that pose a threat to human health or the
17 environment, and what we've proposed is "as defined by
18 the particular criteria upon which the No Further
19 Remediation determination was based."
20 And I guess what we're trying to get at there is
21 if soil -- if contamination levels in the soil are not
22 relevant
23 to a No Further Action and Low Priority determination,
24 we believe that those -- that soil contamination can
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1 also not be relevant for voiding the No Further
2 Remediation Letter when you're talking about those two
3 classes of sites.
4 HEARING OFFICER TIPSORD: For the record let
5 me point out that Mr. Watson is referring to what is
6 in point number 5 on Exhibit 3.
7 MR. WATSON: Thank you.
8 MR. KING: Well, to do what you're suggesting
9 then, I'm not sure -- when you say is defined by the
10 particular criteria upon which the No Further
11 Remediation determination was based, well, every --
12 it's -- every No Further Remediation determination is
13 based upon compliance with all of the applicable
14 criteria. So I mean you have to comply with all the
15 criteria. So I'm not sure what this really means.
16 MR. WATSON: Well, I mean I'm not professing
17 that the language is all that great, but I guess, you
18 know, the concept I think is an important one. And I
19 think Mr. Clay has said that if soil contamination is
20 not relevant to the issuance of the No Further
21 Remediation Letter, then we ought to develop a system
22 where if you're going to void that No Further
23 Remediation Letter, the levels of soil contamination
24 should also not be relevant to that determination. I
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1 mean isn't that fair?
2 MR. KING: Well, I --
3 MR. WATSON: Because we're going to get --
4 we're going to have sites where it's a No Further
5 Action site, there's been no sampling in the soil, and
6 then maybe a new owner comes in, puts a -- you know,
7 takes a sample perhaps as part of the due diligence
8 before the acquisition, comes up with huge benzene
9 numbers above the Tier 1 levels, and then they want to
10 go back to the State and reopen this thing. And I
11 guess it's not so much a concern on the part of
12 what --
13 MR. KING: I don't see that would be -- what
14 you just described as a reason to void the NFR letter
15 under what we've got proposed here.
16 MR. WATSON: Why not? I mean --
17 MR. KING: Well, as I was saying, that --
18 this -- and I think your comments really pointed this
19 out as well. The issue is whether the contamination
20 is related to the occurrence upon which the letter was
21 based.
22 MR. WATSON: Well, I mean what if it --
23 MR. KING: Just because you find
24 contamination somewhere on a site doesn't say anything
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1 about whether that was related to a specific
2 occurrence. If a guy takes a sample at a foot below
3 the surface and the NFR letter was based on a tank
4 release at ten feet below the surface --
5 MR. WATSON: Right.
6 MR. KING: -- I don't know what that says
7 about anything as far as that sample near the surface.
8 MR. WATSON: Right. But put it in the
9 context of a clearly related incident. I mean there
10 are going to be No Further Action sites, again, where
11 you perhaps know that there's been a release from the
12 tank, yet the geology is appropriate for a No Further
13 Action determination without doing any soil sampling.
14 Then again, a new owner comes in, takes a soil sample,
15 finds that, yeah, there is contamination -- benzene
16 contamination in the soil that is related to the tank
17 release. It's way above Tier 1 numbers, which I think
18 everyone understands will, in fact, exist most likely,
19 given that that benzene number is so low, and then all
20 of a sudden, you know, they're running to the State
21 saying, well, we've got to void this No Further Action
22 determination. And what they're saying is --
23 MR. KING: Then I wouldn't agree that's not
24 consistent with the language we've got here. Because,
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1 again, if those contamination levels were identified
2 as part of the investigative or remedial activities,
3 then there wouldn't be a reason for voiding the
4 letter.
5 MR. WATSON: But they never would -- I guess
6 what I'm saying is they never would be in the case of
7 a No Further Remediation site because there isn't a
8 requirement to do -- you do your 50 foot boring to
9 confirm the geology and then you're done.
10 MR. KING: In my mind you're really -- you're
11 really suggesting that we change the drafting of this
12 rule based on a hypothetical case that I see as being,
13 I don't know, so rare that I don't know if we'll ever
14 even run into it. Because you're always going to have
15 some kind of soil sampling that's going to show
16 something about what the level of contaminants are
17 there. So I mean you're presupposing that that's not
18 going to be the case and I -- I'm just trying to
19 figure out when that would be the case.
20 MR. WATSON: I guess I would disagree with
21 you on that. I think that this is a situation that
22 has come up a lot and we anticipate certainly will
23 come up with a lot in No Further Remediation and Low
24 Priority sites. And I guess what we would like the
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1 Agency -- because the Agency has said here today that
2 soil -- the levels of contamination in the soil is not
3 relevant to a No Further Remediation or Low Priority
4 determination, I guess --
5 MR. KING: I don't think we said that.
6 MR. WATSON: I believe that that's what Mr.
7 Clay said. But in any event, we believe that it must
8 be that voiding the no further determination -- in
9 voiding the no further determination you cannot rely
10 on those soil contamination numbers because they are
11 not relevant to the original determination.
12 HEARING OFFICER TIPSORD: Are there any
13 further questions or comment on this issue?
14 DR. GIRARD: Could I just ask a clarifying
15 question of Mr. King?
16 It seems like the important issue here is what
17 factors is the Agency going to look at in making that
18 determination about whether something poses a threat
19 to human health or the environment, and I think I've
20 heard about five factors mentioned in the
21 back-and-forth discussion in the last several
22 questions.
23 These site-specific factors then would be, one
24 would be contaminant levels; two would be potential
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1 receptors; three would be potential migration
2 pathways; a fourth would be history of the site; and a
3 fifth would be geology of the site, including any soil
4 sampling.
5 Now, are there other factors that you would look
6 at in determining whether some newly-identified
7 indicator contaminant poses a threat to human health
8 or the environment?
9 MR. KING: I think generically those are
10 pretty comprehensive. We were just commenting that
11 there might also be an issue of groundwater
12 contamination. I think we talked about potential
13 receptors that would -- I guess that would also
14 include land use, potential exposures.
15 DR. GIRARD: Thank you.
16 MR. WATSON: I just -- I just want to get
17 this at least clear in my mind as to what your
18 position is, Mr. King, on what do you believe in terms
19 of a No Further Remediation site -- what is the basis
20 for your understanding that the level of contaminants
21 in the soil is somehow relevant to that determination?
22 MR. KING: Would you repeat the question?
23 MR. WATSON: The question is, what is your
24 understanding as to the relevance of contamination --
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1 petroleum contamination in the soil at a No Further
2 Remediation site?
3 MS. ROBINSON: Do you mean No Further Action
4 site?
5 MR. WATSON: Yes, I do.
6 MS. ROBINSON: Based on classification?
7 MR. WATSON: Based on -- right. Under
8 732.302.
9 MR. KING: Are we talking about this in the
10 context of 732.704(a)(4) or are you broadening this to
11 some context? I've been trying to focus my answers
12 specifically on this issue of voidability, and you're
13 phrasing the question, I think, in a much broader
14 fashion.
15 MR. WATSON: Okay. I'm sorry. I want to --
16 what I want to focus on is 732.302, which are the
17 criteria for establishing a No Further Action site
18 classification. And I was wondering --.
19 HEARING OFFICER TIPSORD: Excuse me. Mr.
20 Watson, before we go back to 732.302, I think first we
21 need to finish with 732.704 and be sure that we're
22 clear on where we are with 732.704. Because you're
23 taking us back somewhere that was covered at the first
24 hearing, and you may have some additional questions in
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1 your exhibit, but I would like to close one issue
2 before we go back to other issues.
3 MR. WATSON: Okay.
4 HEARING OFFICER TIPSORD: I realize they're
5 connected but -- if that's not a problem.
6 MR. WATSON: The reason I'm asking the
7 question is because it relates to 704 in my mind, but
8 if you want me to reserve that, I'm happy to do that.
9 HEARING OFFICER TIPSORD: Yeah. I would
10 prefer that we finish up with 704 so that we don't go
11 off on a lot of different areas.
12 MR. WATSON: Sorry.
13 HEARING OFFICER TIPSORD: Is there anything
14 further on 704?
15 MR. FEINEN: I just have a question about
16 when a No Further Remediation Letter is issued, yet
17 it's done based on everything but doing sampling of
18 the soil. So according to your 704, soil sampling was
19 not one of the reasons why the letter was issued. If
20 later someone does find and -- go out and does sample
21 and does find the high BETX, since the letter wasn't
22 issued based upon sampling, how would that be a reason
23 to avoid that -- or void that remediation letter?
24 MR. KING: The issue in my mind is whether
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1 that additional information is related to the
2 occurrence upon which the letter was based.
3 MR. FEINEN: So if it was but it wasn't
4 required in the issuance of the No Further Remediation
5 Letter?
6 MR. KING: If that additional information
7 shows that somehow the extent of contamination
8 relative to the original release, that it was
9 mischaracterized, okay, that the contamination that
10 was found as a part of looking at the release the
11 first time, somebody goes back in and finds out that
12 -- through additional sampling or whatever, finds out
13 that that extent of contamination was highly
14 mischaracterized, you then may have a situation where
15 you have something else that needs to be evaluated.
16 Maybe now you have another problem with migratory
17 pathways.
18 MR. FEINEN: Well, is it possible for a No
19 Further Remediation Letter to be issued without
20 sampling to be done?
21 MR. CLAY: It's -- I guess it's possible, but
22 I mean there's usually at least sampling done for
23 migration pathways, natural or man-made migration
24 pathways. So usually there is some sampling done for
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1 those purposes. But it's not to determine the --
2 MR. FEINEN: Extent of the contamination.
3 MR. CLAY: -- concentration necessarily at
4 any given point. It's more to evaluate natural and
5 man-made pathways.
6 MR. FEINEN: So I guess I'm trying to figure
7 out if a remediation letter can be based on
8 information that doesn't include the extent or the
9 level of BETX out there and if that's true and then
10 someone else comes out later and does sampling for the
11 level of contamination of BETX and says it's high, how
12 can we go back and say, well, we're voiding your No
13 Further Remediation Letter because now something of
14 which we didn't need originally to base that letter on
15 is now telling us we shouldn't have issued that
16 letter?
17 MR. KING: I would agree with you.
18 MR. FEINEN: Okay.
19 MR. KING: But again, what I was trying to
20 point out is what you're using that information
21 relative to. You can't just void the letter based on
22 that information, but what does that information tell
23 you as to what transpired relative to the information
24 submitted concerning that release.
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1 MS. ROBINSON: I don't believe we have
2 anything further.
3 HEARING OFFICER TIPSORD: Anything further?
4 DR. GIRARD: Well, I'd like to ask a question
5 that I think hopefully may clarify this.
6 If soil sampling is done and you come up with a
7 contaminant level, that contaminant level by itself
8 would not be reason to void the No Further Remediation
9 Letter because you would then -- you would also look
10 at these other factors that we've just named. You
11 would look at potential receptors, potential migration
12 pathways, history of the site, geology of the site,
13 land use, groundwater. Is that correct?
14 MR. KING: That's correct.
15 DR. GIRARD: It's not just the level itself.
16 MR. KING: That's correct.
17 DR. GIRARD: Thank you.
18 HEARING OFFICER TIPSORD: Any further on Part
19 732.704?
20 Okay, seeing none, Mr. Watson, if you would like
21 to back up to 302.
22 MR. WATSON: Let me just ask one more. I
23 think that the follow-up that we've had subsequent to
24 my questions was sufficient to clarify, I think, what
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1 the requirements are under --
2 HEARING OFFICER TIPSORD: Speak up.
3 MR. WATSON: I'm sorry.
4 I think that the clarification that was provided
5 was sufficient to satisfy my questions on some of the
6 confusion that I had, but let me ask one more
7 question.
8 At a No Further Action site which is based on
9 geology under 704, what would be the factors that one
10 could -- would you look at all the factors that Mr.
11 Girard had identified in determining whether or not a
12 No Further Remediation Letter would be voided or would
13 you focus only on the geological information that
14 would be called for under 732.302?
15 MR. KING: You'd be looking at all of those
16 factors. Now, just -- again, just to make sure we
17 don't get -- you know, you can have an NFA site for
18 geology, but to get an NFR letter you still have to
19 look at the other pathway issues. Just so that's
20 clear.
21 MR. WATSON: And those other pathway issues
22 that you're referring to, those are set forth in
23 732.302?
24 MR. KING: That's correct.
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1 MR. WATSON: Okay. I've got nothing further.
2 HEARING OFFICER TIPSORD: Okay. Then if it's
3 all right with the Agency, let's move ahead to a
4 discussion of the letter presented as Exhibit Number 3
5 from Gardner, Carton & Douglas.
6 Mr. Watson, in looking at this, I believe point
7 number 3 is the only issue that wasn't already
8 covered. Would you agree with that? Or do you have
9 some follow-up on some of the others?
10 MR. WATSON: No, I think that's fine. 3 and
11 4 I believe.
12 HEARING OFFICER TIPSORD: Okay. Okay.
13 MR. WATSON: 3 relates to the provision in
14 the draft -- the proposed regulations that sets forth
15 the instances where the site work can be deferred, and
16 specifically there's an exception in the proposed
17 regulations where there's a threat to human health or
18 the environment through migratory pathways.
19 I think it was pretty clear at the first hearing
20 that Mr. Clay had indicated that in looking at that
21 threat to human health or the environment that would
22 be done through an examination of the factors set
23 forth at 732.307(g). And I guess we were wondering
24 whether or not for clarification purposes we could add
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1 a reference to that section.
2 MR. CLAY: Yes, we can add that. We'll
3 include that in our next errata sheet.
4 MR. WATSON: And number 4 related to Section
5 732.503(f) and 732.701(c), and this is relating to
6 appeals from the denial by operation of law. And I
7 guess one of the questions that we had was can the
8 Agency propose some language under which we would have
9 a -- the State would be obligated to set forth the
10 bases for their denial so we could have, you know --
11 on appeal we could know what we were appealing, as
12 opposed to in the circumstances presented in the
13 proposed regulations where there's a denial and
14 there's no bases given for the denial?
15 MS. ROBINSON: I'm not sure if maybe we
16 already answered this question when it came in from
17 the context of Mr. Rieser's questions. But I think
18 besides allowing for resubmittal, Mr. Clay stated that
19 we would also put in some language about 90-day
20 extensions. Does that help resolve the issue?
21 MR. WATSON: I think so.
22 HEARING OFFICER TIPSORD: Anything further?
23 MR. WATSON: I've got nothing further. Thank
24 you.
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1 HEARING OFFICER TIPSORD: Is there anything
2 further of the Agency at this time?
3 MR. RIESER: I do have an additional
4 question, something that I just want to clarify from
5 the last hearing if I can.
6 I just want to clarify that for Method Three the
7 point of -- for a Method Three site, which would be a
8 site evaluated under Section 732.312, the point of
9 compliance for a Method Three -- that type of site is
10 at the point of human exposure defined under Part 742,
11 which in the instance of a -- if there was an
12 institutional control, it would be the edge of the
13 institutional control, which would typically be the
14 property boundary. Is that correct?
15 MR. KING: No.
16 MR. RIESER: Answer this one again then,
17 Gary.
18 MR. KING: The point of compliance is still
19 going to be at 200 feet or the property line. The
20 point of human exposure by moving that may allow you
21 to establish a different number at your point of
22 compliance than what otherwise may be the case.
23 MR. RIESER: Okay. Under Section 307 --
24 thank you for that clarification.
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1 Under Section 307(j)(1), there's been a slight
2 amendment to this, but I'll read the original
3 proposal, which is: "The Licensed Professional
4 Engineer shall perform a groundwater investigation in
5 accordance with this subsection to determine whether
6 an applicable indicator contaminant groundwater
7 quality standard has been exceeded at the property
8 boundary or 200 feet from the excavation, whichever is
9 less, as a result of the UST release of petroleum."
10 If you look back to Section 312, when we talked
11 about the scope of the groundwater investigation,
12 there was a reference back to 307(j)(1), that section.
13 When I asked Doug Clay at the last hearing regarding
14 the extent of that investigation, he said yes, that
15 was the same investigation required under 312.
16 Would you -- I'm sorry, under 307. Would you
17 agree that you would only have to evaluate groundwater
18 consistent with the determination of what the
19 compliance value was at the compliance point as you
20 described it and not just exceedences of the Tier 1
21 levels at that point?
22 MR. KING: I would say no. Because the issue
23 -- there's -- in my mind the process is you're doing
24 an investigation and what is the criteria for doing
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1 the investigation. Okay? The criteria for doing the
2 investigation are and should be different than what
3 may be the criteria for -- relative to the compliance
4 point, what level you have to meet. Because otherwise
5 -- otherwise, you wouldn't know how you started the
6 process. Because 312 is really envisioning that
7 you're going to end up using Part 742 to develop a
8 remediation objective. Well, how do you even start
9 that unless you know what your starting point is. And
10 the starting point is the water -- the groundwater
11 standards at the 200 feet issue.
12 MR. RIESER: Okay. Let me ask it another
13 way. 307(j)(1) talks about the purpose of the
14 groundwater investigation is to determine whether an
15 applicable indicator contaminant groundwater quality
16 standard has been exceeded at a certain point. Is it
17 accurate that the applicable indicator contaminant
18 groundwater quality standard under 312 can be a
19 groundwater quality standard determined according to
20 Part 742?
21 MR. KING: Yes.
22 MR. RIESER: Thank you.
23 HEARING OFFICER TIPSORD: Any further
24 questions?
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1 Ms. Robinson, did you have anything further?
2 MS. ROBINSON: I did. I think also as a
3 follow-up to the last set of hearings you had
4 requested the Agency to provide copies of our forms.
5 We have a couple copies for you. How many do you
6 need?
7 HEARING OFFICER TIPSORD: Why don't we enter
8 them as an exhibit, if that's all right with you, as a
9 group exhibit.
10 MS. ROBINSON: Okay.
11 HEARING OFFICER TIPSORD: We'll call it
12 Exhibit Number 6.
13 (Exhibit Number 6 admitted.)
14 MS. ROBINSON: Okay. I'll give you a couple
15 of extra copies also. If you could mark one of those
16 as Exhibit Number 6, please.
17 If at any time there's a necessity for changing
18 the forms, you know, I don't know that we need Board
19 approval for that, but this is what we have to date.
20 So --
21 MR. CLAY: We are getting ready to go to
22 printing for a large number of those, but there are
23 times that we change the forms just because it's, you
24 know, a better way to do it or we get comments from
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1 the regulated community. And so those changes aren't
2 subject to Board approval. Is that correct?
3 HEARING OFFICER TIPSORD: At this point in
4 time my answer to that would be I do not anticipate
5 that the Board would include these as a part of the
6 regulation. And as such, they are IEPA forms, not
7 Board forms.
8 MR. CLAY: Okay.
9 MS. ROBINSON: And as a second matter, the
10 Board had requested that we provide a list of new
11 appeal points based on the amendments. Would you like
12 me to do that at this time verbally or would you like
13 me to do that in final comments?
14 HEARING OFFICER TIPSORD: Whichever is more
15 comfortable for you. Final comments is fine or we can
16 put it on the record here. Probably final comments is
17 best so we have hard copy, I think.
18 MR. RIESER: Actually, if it's not long, I
19 wouldn't mind hearing it now so if there's something
20 we disagree with, it can be addressed at the -- it can
21 be addressed in our comments as well.
22 HEARING OFFICER TIPSORD: Good point, Mr.
23 Rieser.
24 MS. ROBINSON: Okay. The first one is
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1 Section 732.202(g), which has to do with the Agency
2 approval of special circumstances warranting
3 continuing corrective action beyond 45 days.
4 The second section is 732.202 -- one moment. Also
5 Section 202(g), but dealing with the issue of Agency
6 determination of whether costs incurred beyond 45 days
7 after a release confirmation are eligible for
8 reimbursement.
9 The third section would be 302(b) regarding Agency
10 reclassification of a site as High Priority if
11 groundwater investigation confirms exceedence of
12 applicable indicator contaminant objectives.
13 The fourth would be Section 307(j)(6)(C) regarding
14 Agency rejection of a site-specific evaluation to
15 demonstrate that a groundwater investigation should
16 not be required.
17 The fifth would be regarding Section 312(j) on
18 Agency approval, rejection, or requirement of
19 modification of any plan or report submitted pursuant
20 to Section 312.
21 The next one would be regarding 312(l), Agency
22 approval, rejection, or requirement of modification of
23 an amended site classification plan or associated
24 budget plan.
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1 The next one is regarding Section 608(b), Agency
2 determination of which method of apportionment of
3 costs will be most favorable to the owner or operator.
4 Section 701(c) regarding Agency denial of a No
5 Further Remediation Letter.
6 704(b) and (c) regarding Agency action to void
7 previously issued No Further Remediation Letters.
8 And then there's two more that are questionable
9 that we could be open to comment on.
10 One is 307(j)(3), which is Agency approval of a
11 request to place groundwater monitoring wells further
12 from the property boundary or UST system.
13 And Section 404(b)(4) regarding Agency approval of
14 sufficiency of an engineered barrier relied upon to
15 achieve compliance with remediation objectives.
16 And I'll, again, address those in final comments
17 so you have them in writing.
18 HEARING OFFICER TIPSORD: Thank you, Ms.
19 Robinson.
20 MR. RIESER: Ms. Robinson, with respect to
21 the last two, wouldn't those be part of a filed plan,
22 either an investigation plan or remedial action
23 completion plan?
24 MS. ROBINSON: Yes, they would. But because
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1 they're new amendments, it's sort of a twist on the
2 already appeal point of rejecting or requiring
3 modification of a plan. So I just wanted to throw
4 those out as extra issues.
5 MR. RIESER: And what we've addressed, these
6 are all the additional appeal points that the Agency
7 has added by their proposed revisions?
8 MS. ROBINSON: That's correct.
9 MR. RIESER: Thank you.
10 HEARING OFFICER TIPSORD: I would just also
11 like to make a housekeeping note.
12 Mr. King and Mr. Clay were previously sworn at the
13 first hearing and as such were considered sworn
14 throughout this hearing. That's why I didn't have
15 them resworn.
16 Okay. Are there any -- anything further?
17 Okay. Then I believe we're ready to begin with
18 the additional prefiled testimony. Why don't we take
19 a short break so everyone can rearrange. Let's say
20 about five minutes or so.
21 (A recess was taken.)
22 HEARING OFFICER TIPSORD: If we could go back
23 on the record for just a moment. I understand the
24 Illinois Petroleum Marketers and the Illinois
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1 Petroleum Council have agreed to change the order a
2 little bit, and Mr. Michael Rapps will be the first
3 witness with prefiled testimony.
4 I want to take care of some housekeeping things
5 before we start.
6 Mr. Rapps' testimony was prefiled -- let me get
7 the date on that -- and received by the Board on
8 October 28th, 1996. For the record, if there is no
9 objection, we will admit Mr. Rapps' testimony as
10 Exhibit Number 8.
11 There any objection to that?
12 Seeing none, we will make that admission then.
13 (Exhibit Number 8 admitted.)
14 HEARING OFFICER TIPSORD: In addition, Mr.
15 Rapps has given me, and I believe he's distributed to
16 everyone in the audience that would like a copy, a
17 copy of a Stack Unit Map Sangamon County, Illinois,
18 and we will mark that, if there is no objection, as
19 Exhibit Number 7.
20 Seeing no objection, we'll mark that as Exhibit
21 Number 7.
22 (Exhibit Number 7 admitted.)
23 MR. RIESER: Shouldn't it be Exhibit Number
24 9?
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1 HEARING OFFICER TIPSORD: No. I mismarked
2 things initially. We have Exhibit Number 6 is
3 actually the Agency forms and then Exhibit Number 7 is
4 the Stack Map, and then Mr. Rapps' testimony will be
5 Exhibit Number 8.
6 MR. RIESER: Okay.
7 HEARING OFFICER TIPSORD: And then Mr. Rapps
8 if we could have you sworn.
9 (Michael W. Rapps was duly sworn.)
10 HEARING OFFICER TIPSORD: Would you like to
11 give us a short summary of your testimony or would you
12 like to just answer the questions?
13 MR. RAPPS: Yes, I would. I don't want to
14 read the testimony into the record. I think it speaks
15 for itself. I was -- after having filed that
16 testimony, I received some prefiled questions from the
17 Agency which I'm here to respond to.
18 But before I do that, I think I should preface my
19 responses by saying that I've been a part of this
20 process beginning with House Bill 300, going through
21 the subsequent rulemaking, and now to the present,
22 representing as a technical representative IPMA, the
23 Petroleum Marketers Association. We represent
24 typically the small mom and pop service station
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1 owners, as opposed to the major oil companies.
2 I should tell you, too, that historically going
3 back several years, House Bill 300 was not something I
4 particularly cared for, but I understand why it
5 happened. I think it certainly caused a stir. It was
6 somewhat draconian when it was adopted, but
7 nonetheless, the legislature has spoken and it is part
8 of law so we have to deal with it.
9 Myself personally, come September I will now have
10 been practicing in this field for 25 years, which
11 astonishes me. But the first five of those years I
12 worked at the Agency. I had cause to review permit
13 applications and make decisions, the kinds of
14 decisions that come up day to day in which there are
15 frequently disputes over interpretations of rules and
16 so forth. For 20 years I've had to deal on the other
17 side of the issue representing people in industry. So
18 I understand how these matters can grow into disputes.
19 I should say, too, that the IPMA through my
20 testimony actually had darn few comments. We feel
21 that the last proceeding we virtually moved a
22 mountain. Philosophies changed for the better, we
23 think. We were not prepared to quibble over a great
24 deal of details. We've only flagged two issues that
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1 -- one of which caught my attention as a practicing
2 engineer. The other caught my attention on behalf of
3 the IPMA and certain practical problems that might
4 arise from it.
5 Those two issues are, one, stratigraphic unit. I
6 believe that, as I've stated in my testimony, that the
7 definition of stratigraphic unit as proposed by the
8 Agency will in my opinion lead to a number of disputes
9 because it's so highly subjective.
10 Second, the issue of opening -- reopening NFA
11 sites due to the presence of evidence of
12 contamination, however that might play out, causes the
13 Petroleum Marketers some problems insofar as some
14 members have NFA sites based on Method One and the
15 Berg Circular. What has happened with many of these
16 sites is that they have been transferred to other
17 property owners, and as far as anybody knows, these
18 are clean sites. Now to reopen those issues while
19 these properties are in commerce will cause terrible
20 difficulties, I believe, to the IPMA members.
21 Now, I believe I just mentioned that House Bill
22 300 is not something I was really fond of. For the
23 most part, my firm does not recommend to people that
24 they seek No Further Action sites through the Berg
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1 Circular. But we have on occasion done that. My
2 impression is that when people then go back to examine
3 sites with Phase 1s, Phase 2s, they're going to find
4 contamination probably on these sites. But that was
5 not what House Bill 300 was intended to deal with.
6 House Bill 300 dealt with the notion that there were
7 some properties that just didn't pose a risk to
8 anybody. Whether we like the method or not, that's
9 what it did.
10 Now, if I can respond to the questions, I think it
11 may -- it might be better if I respond to -- there
12 were two questions raised to me -- three questions.
13 It might be better if I respond to them one at a time
14 before having any cross. I'm just suggesting that.
15 HEARING OFFICER TIPSORD: Mr. Rapps, what
16 we'll have is we'll have Kim Robinson read the
17 question in the record and I allow to you respond to
18 it.
19 MR. RAPPS: Okay, terrific.
20 HEARING OFFICER TIPSORD: That will keep the
21 record smooth.
22 MS. ROBINSON: Number one is: "With regard
23 to Mr. Rapps' testimony on a proposed change to the
24 definition of stratigraphic unit and related changes
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1 to sections of the rules that use that term, the
2 Agency is concerned that the proposed changes would
3 result in more subjective judgment calls by
4 consultants and Agency staff."
5 The first subpart of that question is: "Under Mr.
6 Rapps' definition, who is to determine which
7 stratigraphic unit at the site exhibits physical
8 features that are most conducive to migration of
9 contaminants?"
10 MR. RAPPS: I believe that the person who's
11 conducting the investigation must make that judgment.
12 I believe it's a professional judgment, as people in
13 my line of work and people in your line of work are
14 often called to do. I think that professionals are in
15 this State licensed, and the public can take some
16 security from that fact, just as members of the Bar
17 are admitted to the Bar. It affords a level of
18 protection to the public. At some point professional
19 judgments are made and I believe that were you to pose
20 this question in a referendum to the public at large,
21 they would say yes, a professional should be allowed
22 to make professional judgments. It's really that
23 simple.
24 And I understand that there frequently come up
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1 questions as to professional judgment that maybe the
2 Agency doesn't agree with the judgments made by some
3 people or other. But if there is fraud or anything of
4 that sort, there is a mechanism by which the Agency
5 can go to the State and file a complaint.
6 So I believe that to answer your question, to
7 reaffirm, professional judgment must be relied upon by
8 the person who does this work in the field. I think
9 the person in the field is in a much better position
10 to make those judgments than a person reading a log in
11 an office.
12 MS. ROBINSON: By professional do you mean a
13 Licensed Professional Engineer registered in the State
14 of Illinois?
15 MR. RAPPS: The LPE must ultimately certify
16 his work. Now, he may have geologists who he relies
17 upon or other staff, but he has to take responsibility
18 for their work. So I do mean that.
19 Let me add that we now will have geologists
20 registration. The regulations have not been
21 promulgated yet, but when that happens, the geologists
22 will also have the same sort of authority that
23 engineers do.
24 MS. ROBINSON: Okay. The second subpart to
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1 my first question is: "What criteria should be used
2 to make that determination?"
3 MR. RAPPS: I think I've already answered
4 that. I think it is a professional judgment that
5 people who are trained professionals can make and must
6 make.
7 MS. ROBINSON: As a follow-up then, how can a
8 person determine which unit is most permeable by, say
9 for instance, a field observation, which I think you
10 referenced in your testimony?
11 MR. RAPPS: Well, I believe that sand seams,
12 for example, are something one can physically notice
13 and observe in the field, breaks, fractures, that type
14 of thing. But it's a field judgment.
15 MS. ROBINSON: The third subpart to my first
16 question is: "If the Agency does not agree with the
17 location in which the sample or samples was or were
18 collected for geotechnical testing, what is the next
19 step?"
20 And then I have a for instance. "In the event
21 that the Agency agrees with the units that were logged
22 but does not think that the appropriate zone or zones
23 were sampled (based on permeability), what happens?"
24 MR. RAPPS: Well, I suppose that the Agency
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1 could reject the consultant's submittal, and I suppose
2 then also if it were a matter of dispute, it could be
3 taken to the Board.
4 MS. ROBINSON: As a follow-up to that, in the
5 instance where a boring log indicates one type of
6 geologic material but the results of the particle size
7 analysis indicate that the type of material identified
8 in the field boring log is inaccurate, then what do
9 you suggest?
10 MR. RAPPS: How -- well, tell me how it would
11 be inaccurate.
12 MS. ROBINSON: Can you give an example?
13 MR. CLAY: For example -- Doug Clay -- if the
14 person in the field characterizes a specific zone as a
15 -- maybe a silty clay, but when doing the particle
16 size analysis and the classification of that zone,
17 it's not a silty clay, it's a clayey silt, or whatever
18 the appropriate classification is -- and the Agency
19 sees that quite frequently -- what would be the --
20 your response in that case?
21 MR. RAPPS: Well, I think that when we get
22 into question 2 it will be -- I think my response will
23 be a little bit better. We haven't dealt with that
24 yet.
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1 But let's take a stratigraphic unit as I define
2 it. Let's say a till unit, part of the Glasford
3 Formation. The Vandalia Till is the most common one
4 around this area. Probably this building is built on
5 top of it. The Vandalia Till has striations of sand.
6 It's, in fact, known as a sandy till, but it's a till
7 nonetheless, and the Berg Circular is based on the
8 fact that it's a till, not that it might have a sandy
9 striation or two in it.
10 So it depends upon whether you're going to look
11 under a microscope at these properties or if you're
12 going to take the bigger picture, which I believe is
13 what Berg has done and which House Bill 300 has done.
14 MR. CLAY: Mr. Rapps, in the till as you
15 described it would it not be uncommon that there would
16 be, for instance, sand seams or more permeable seams
17 that would be -- that would conduct contaminant
18 migration?
19 MR. RAPPS: Yes, yes. The till unit I just
20 mentioned is known for that.
21 MR. CLAY: Okay. And in those cases where
22 would you propose that the physical -- the sample for
23 the physical soil testing be taken?
24 MR. RAPPS: Well, I -- going back to the
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1 first part of the question on professional judgment, I
2 believe the sandy zones is what the Agency is
3 interested in. Now, that -- I should comment, too,
4 that that might not have anything to do with what's
5 happening in reality, because when you're dealing with
6 massive units that have small imperfections, the
7 massive unit is really dictating what's happening in
8 the field. Although the small imperfections may be
9 subject for academic study, but they really have
10 nothing to do with the larger -- larger scheme of
11 things.
12 I'm not sure if I've answered that properly but --
13 MR. CLAY: Mr. Rapps, even on a small scale,
14 though, I mean that small sand seam, even though over
15 a large geologic -- large geographical area it may be
16 small, it could provide a migration pathway off site,
17 certainly.
18 MR. RAPPS: That's true. I think that's
19 true, sure. But what you find -- and this goes back
20 to stratigraphy that we're going to talk about next.
21 Sand seams that you find in these till units are
22 generally pretty limited. If they're extensive,
23 areally extensive, they generally have a name.
24 MR. CLAY: One more question. Mr. Rapps, you
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1 said that, you know, you as a professional engineer
2 would tend to sample the sand seam since that is
3 really what we're concerned with and being the most
4 potential for contaminant migration. But another
5 professional in your field could also make an argument
6 that he's going to -- he or she is going to sample a
7 unit that they consider most representative of the
8 whole till material which may not include that sand
9 seam, isn't that correct?
10 MR. RAPPS: I think that's true. I'm not to
11 say which is better or worse. For the till unit I was
12 talking about that probably even makes more sense.
13 But if you're simply dealing with little sand
14 striations that don't amount to anything, why sample
15 them. But I understand what -- the Agency's concern,
16 and I think that's why we had suggested putting in
17 language that the most permeable unit be sampled,
18 because we thought that's what the Agency was really
19 getting at.
20 MS. ROBINSON: Question number 2: "How does
21 the definition of stratigraphic unit as proposed by
22 Mr. Rapps correlate with the Berg classification
23 determination in Circular 532?"
24 MR. RAPPS: Exhibit Number 7, which I think
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1 you have one, Kim, and I think the Board Members have
2 one, I think will illustrate how this is done. This
3 is -- what you're seeing on page number 1 -- I've
4 numbered these on the exhibit -- the stack unit map
5 identifies the map subsurface to a depth of 15 meters
6 put together by Mr. John Kempton and company at the
7 State Geological Survey. The legend for that is on
8 page number 2.
9 Page number 3 is the Berg Circular in effect. And
10 if you lay page number 3 against page number 2, you
11 will find that there is a basis by which Berg has
12 given the classifications G, F, and E, which are the
13 No Further Action zones, and they correlate to known
14 strata, and the key for those strata are given.
15 The reference also given in the stack unit maps,
16 and which we've proposed in our definition, is the
17 Handbook of Illinois Stratigraphy, Bulletin Number 95,
18 dated 1975, from the Illinois State Geological Survey,
19 in which all strata in this State have a name.
20 MS. ROBINSON: Is there a more current
21 version of that out, do you know?
22 MR. RAPPS: No, there is not.
23 And to take this a little farther, the Berg
24 Circular Potential for Contamination of Shallow
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1 Aquifers in Illinois was published in 1984. The stack
2 unit map that you're looking at wasn't published until
3 1988. And the publication was Stack Unit Mapping of
4 Geological Materials in Illinois to a Depth of 15
5 Meters, and that's Circular 542. But actually,
6 Kempton and others at the Survey were working on this
7 as long ago as October 1981 when they published
8 Environmental Geology Note 100, Three Dimensional
9 Geologic Mapping for Environmental Studies in
10 Illinois. These all tie together. And the Berg
11 Circular map, which we're talking about how one goes
12 about verifying it, correlates directly to the stack
13 unit map. And in my opinion if you can verify that
14 the materials that Berg thought were present when he
15 mapped out the stack unit map and the pollution
16 potential map, you can correlate quite well and you
17 should be able to certify on that basis alone.
18 MR. CLAY: Mr. Rapps, when Mr. -- Dr. Berg --
19 is it Dr. Berg?
20 MR. RAPPS: Dr. Berg.
21 MR. CLAY: Put this map together, was it
22 intended to be used for leaking underground storage
23 tank sites?
24 MR. RAPPS: Oh, of course not. It was
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1 adopted by the legislature for those purposes.
2 MR. CLAY: Okay. And are you -- I believe
3 that Dr. Berg also stated that verification of his map
4 on a site-specific basis is necessary. Are you
5 familiar with something to that --
6 MR. RAPPS: I haven't read the entirety of
7 that, but he did discuss that in some testimony given
8 in a Board proceeding. I'm not sure which one that
9 was off the top of my head.
10 MS. ROBINSON: Mr. Clay, are you making
11 reference to Exhibit Number 2, which is a letter to
12 Chairman Manning at the Pollution Control Board from
13 Dr. Berg?
14 MR. CLAY: I believe it was in that letter.
15 MR. RAPPS: I haven't seen that letter.
16 HEARING OFFICER TIPSORD: For the record, I
17 believe that was also a previous public comment in the
18 first underground storage tank proceeding 94-2, I
19 believe it was.
20 MR. RAPPS: I should comment I'm familiar
21 with Dr. Berg's feeling about having his map used for
22 these purposes. He's not particularly delighted by
23 that.
24 MS. ROBINSON: Question number 3 then, we'll
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1 go on. "The use of the definition as proposed by Mr.
2 Rapps does not appear to evaluate the variability
3 within the geologic material located at a site. Isn't
4 it important to evaluate the variability within the
5 geologic material in order to determine if there is a
6 potential for transportation of contaminants?"
7 MR. RAPPS: I think that I probably already
8 answered that a few minutes ago talking about sand
9 seams, and I think that does appear to be the issue.
10 MS. ROBINSON: I have nothing further.
11 Mr. Clay or Mr. King, do you have anything to add?
12 MR. KING: Mike, I guess I'm a little -- I
13 saw some -- your proposed language changes there.
14 Could you maybe just summarize what you're -- how
15 you're thinking things need to be redone from what we
16 had proposed?
17 MR. RAPPS: I think that, Gary, what we were
18 saying here is that the definition of stratigraphic
19 unit as proposed is really in the eye of the beholder.
20 And for purposes of classifying strata, it's already
21 been done for the most part. Units have names. Their
22 properties have been described. There is a large body
23 of scientific research in this area.
24 This is publication number -- Bulletin Number 95
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1 is just a remarkable publication, the depth of detail
2 that it goes into. There's a lot of supporting in the
3 Survey that backs this up. We think that the question
4 of stratigraphic unit has really already been answered
5 by the scientists over at the Survey.
6 And what really concerns me more than anything is
7 that we have petty disputes over you should have
8 sampled this, you should have sampled that. You can
9 do that -- you can get into those on just about any
10 part of the regs, but I think stratigraphic unit in
11 particular just opens the barn door to an awful lot of
12 unnecessary expenditure of energy.
13 MR. KING: I would agree that we shouldn't be
14 spending energy on unnecessary issues. One of the
15 things we were trying to do was to close that gap in
16 terms of making decisions -- assuring that decisions
17 were based on objective evidence. Do you concur that
18 it should be based on wherever possible you make
19 decisions on objective evidence as opposed to just
20 opinion?
21 MR. RAPPS: Yes, Gary. In practice we have
22 to wrestle with these issues all the time when we go
23 out in the field and we -- obviously, the world is not
24 as perfect as some of these maps suggest. We go out
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1 in the field all the time and have to make certain
2 judgments as to whether we're dealing with pathways or
3 nonpathways and that sort of thing.
4 But I guess my feeling is that somebody has to
5 make that judgment and I would like to leave it in the
6 hands of the professionals who are out in the field
7 doing the work. And we have a code of ethics, just
8 like lawyers have a code of ethics. And I like to
9 think the best of people, not the worst. I'm sure
10 there's some bad apples out there who are going to,
11 you know, bend the rules. But I don't think you can
12 go into this believing that that's the way it
13 operates, because I don't think it does.
14 MR. KING: To me then it leaves you in a
15 situation where if you've got -- where you have a
16 dispute where the dispute then becomes one simply of
17 opinions where it's the opinion of the person in the
18 field versus the Agency person, and they may have
19 equally good credentials, they may have equally good
20 reasons for making the decision that they do, but it
21 comes down to issues of opinion. Isn't it better to
22 find a way to resolve those issues through objective
23 evidence rather than just disputes based on opinions?
24 MR. RAPPS: Well, I think that's a perfect
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1 world. But just like in medical cases, there are
2 always professional opinions disputes that arise among
3 professionals. My guess is if there is going to be a
4 dispute from the Agency's perspective, they ought to
5 have a pretty darn good reason for disputing a
6 classification or whatever made by a licensed
7 professional.
8 MR. KING: But if you had two doctors that
9 were disputing the extent of something in the blood
10 stream, you wouldn't want a decision based on just
11 their opinions. Wouldn't you want some kind of
12 analysis, some objective evidence related to what was
13 there?
14 MR. RAPPS: Well, yes. And I probably
15 shouldn't have brought up that example because that's
16 not in the field I work in. But, generally, there is
17 evidence to support opinions on both sides in cases
18 like that and at some point someone has to make a
19 judgment. I believe that would be the role of the
20 Pollution Control Board.
21 MR. KING: But once again, wouldn't it be
22 better for the Board in rendering their decision to
23 have that based on objective evidence relative to
24 analytical data?
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1 MR. RAPPS: Absolutely. Maybe it's possible
2 to tighten up the description of how one goes about
3 sampling stratigraphic units. But I guess I just saw
4 it as the tail wagging the dog by changing
5 stratigraphic units as a concept to mean anything
6 anybody wants it to mean when in fact we have a pretty
7 good Bible here on stratigraphic units in the State.
8 So maybe I -- we don't disagree with what you're
9 trying to do, Gary, but I think there's probably a
10 much better way to do it.
11 MR. KING: Do you see the fundamental issue
12 being the definition of stratigraphic unit or how that
13 issue is applied in the context of Section 307?
14 MR. RAPPS: I think it's the application of
15 the concept. I think that the -- the definition
16 troubles me because I think it's not a good definition
17 and I think we have a good definition. But how one
18 goes about sampling the soil -- we really don't
19 dispute if you want five tests, for that matter. But
20 let's not change the science to meet our objective.
21 And I just think there's a much better way to do it
22 than we have already seen. I wanted the Board to be
23 aware that we do have some pretty good body of
24 information on stratigraphic units in the State.
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1 HEARING OFFICER TIPSORD: Mr. Rapps, would
2 you identify again -- when you referred to the Bible
3 on the definition of stratigraphic unit, would you
4 identify that again, please?
5 MR. RAPPS: This is the called the Handbook
6 of Illinois Stratigraphy by H. B. Willman, et al.
7 It's Bulletin Number 95 from the Illinois Geological
8 Survey.
9 MR. KING: Does that document contain
10 narrative language as to what is the scientific
11 definition of a stratigraphic unit? I mean how would
12 they decide whether one stratigraphic unit was one way
13 or another unless they had some kind of definition?
14 MR. RAPPS: Well, they do have definitions,
15 Gary. Just in the way of example, I'll read this one
16 because we've already talked about the Vandalia Till,
17 if I can find it here.
18 It's part of the Glasford Formation. "The
19 Vandalia Till Member of the Glasford Formation, with
20 reference to Jacobs and Lineback, 1969, page 12, is
21 named for Vandalia, Fayette County, and the type
22 section is in the Vandalia Bridge Section, along the
23 Kaskaskia River, at Vandalia, in the Northwest corner
24 of the Northeast corner of the Southeast corner of
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1 Section 16, Township 6 North, Range 1 East, where it
2 is about 20 feet thick. The Member consists of sandy
3 till with thin lenticular bodies of silt, sand, and
4 gravel. It is calcareous, except where weathered,
5 generally gray, and moderately compact. It is bounded
6 below by the Mulberry Grove, Smithboro, or older beds,
7 or the top of the Sangamon Soil. It commonly is 25 to
8 50 feet thick, and it occurs widely in south-central
9 and central eastern Illinois."
10 That is the level of detail they've gone into
11 here, but there are supporting documents which I have.
12 In fact, there's major work called The Pleistocene of
13 Greater Illinois, which goes into greater detail.
14 MR. KING: Now, what you've read describes a
15 specific stratigraphic unit, correct?
16 MR. RAPPS: Yes.
17 MR. KING: But that does not define that
18 term. It doesn't -- that -- what you just read
19 doesn't say this is what a stratigraphic unit is. I
20 mean it describes the conditions of one stratigraphic
21 unit. Do they describe -- you know, because before
22 you can say this stratigraphic unit is described as
23 follows, you have to know what you mean by the term
24 stratigraphic unit.
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1 MR. RAPPS: Well, the Vandalia Till is by
2 definition a stratigraphic unit as used in this
3 publication. The other -- the companion publication,
4 the Pleistocene Stratigraphy, that I mentioned has a
5 great deal of data on grain size analysis of the
6 Vandalia Till, on plasticity, and so forth. Not just
7 the Vandalia Till. That's merely an example. All the
8 materials.
9 MR. KING: So you're not offering a
10 definition of stratigraphic unit. What you're
11 offering is a compilation of description of
12 stratigraphic units?
13 MR. RAPPS: I think that's probably fair to
14 say that.
15 MS. ROBINSON: Is it possible that any of the
16 information in that book could have changed since the
17 date of its publication?
18
19 MR. RAPPS: I think it's a work in progress
20 only insofar as it's predicated on all the soil
21 borings and information that existed at the time of
22 its writing. I think it's from my own observations
23 pretty accurate, but there are areas where you find
24 that it's just not quite accurate. As more borings
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1 have become available, I think there are other
2 publications that may tidy up some of the areas where
3 there are some questions. But this as a State-owned
4 document is the best available right now.
5 MS. ROBINSON: Wouldn't it be important based
6 on the fact that that could have changed some then to
7 look at everything on a site-specific basis as far as
8 determining what a stratigraphic unit at a certain
9 site might be?
10 MR. RAPPS: For verifying this information?
11 For verifying the Berg Circular? Sure.
12 MS. ROBINSON: For defining what a
13 stratigraphic unit is.
14 MR. RAPPS: I guess what I'm saying is that
15 stratigraphic units are already out there and they
16 have a name. It's their thickness and extent, so
17 forth, that should be the question as opposed to a
18 sand seam within the Vandalia Till that by definition
19 the Vandalia Till already has sand seams. It says
20 that. I don't view that sand seam as a stratigraphic
21 unit.
22 MR. KING: If we could go back -- I want to
23 go back to the definition that we had of stratigraphic
24 unit. Mike, are you disagreeing that that's an
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1 inaccurate scientific description or is it your --
2 you're disagreeing with the application of how we're
3 using that definition?
4 MR. RAPPS: I think it's a poor scientific
5 definition, but my dispute is really more on what it
6 would mean in application. What I would suggest is
7 rather than going with a definition that -- the
8 definition that you have for stratigraphic unit, that
9 you use a real nice good scientific definition, but
10 then deal with how you want that applied, how many
11 tests and so forth you want done on that stratigraphic
12 unit, why you do it, when you do it, and so forth.
13 MR. KING: I guess what's bothering me is I'm
14 having trouble figuring out where the definition of
15 stratigraphic unit is in the document you're reading.
16 I mean if it's just a compilation of descriptions, how
17 do they start -- how do they start off by saying what
18 is a -- what describes that type of thing?
19 MR. RAPPS: Gary, these relate to time
20 periods and the methods of deposition. For example,
21 LUST or windblown deposits, there are alluvial soils
22 described here which are water lane deposits. There
23 are terrace deposits, the Henry Formation, which is
24 laid by another type of water action. You have
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1 glacial tills. You have some windblown soils which
2 exist interlaced with the various tills which are
3 defined by age, the Wisconsin Age, the Illinoisan Age,
4 Kansan Age. That's how you make definitions of
5 materials, even though you don't readily observe a
6 break, are thousands of years younger or older than
7 others, and that's how they're defined in geologic
8 terms. But these materials have properties. They've
9 been studied. They have names.
10 Not everyone, I will readily admit -- it's unusual
11 as an engineer that I know about this because most
12 engineers don't deal with this kind of thing, but
13 geologists tend to know what we're talking about here.
14 MR. KING: Well, we describe it as --
15 stratigraphic unit as being a site-specific geologic
16 unit of native deposited material and/or bedrock of
17 varying thickness, and give some examples. I guess
18 I'm wondering what troubles you as far as just a
19 definitional use of the words.
20 MR. RAPPS: By that definition the -- again,
21 focusing on Vandalia Till, one segment of Vandalia
22 Till 25 foot thick might by your definition have five
23 stratigraphic units or six or seven or whatever. I
24 don't think that -- you're looking at -- you're
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1 focusing, I think, in the Agency on physical
2 properties of material within the strata as opposed to
3 the strata itself. I just would like to get to a good
4 sound definition.
5 And whether you take a sample of every sand seam
6 you find within the Vandalia Till or not, that doesn't
7 bother me. But I don't want to run into disputes
8 because the soil's identified as going from gray black
9 or gray brown to brown gray and having someone at the
10 Agency say, well, that's obviously another
11 stratigraphic unit. I think it's very subjective the
12 way it's been laid out, and I don't think it's going
13 to help the Agency or the regulated community at all.
14 MR. CLAY: Are you saying that there isn't a
15 problem with the number of samples being required? I
16 mean, for instance, if there are seven changes in
17 material within the Vandalia Till, it's not a problem
18 having seven samples in that Vandalia Till. It's the
19 fact that we characterize that as seven stratigraphic
20 units?
21 MR. RAPPS: Well, I think that that's what
22 troubles me. The question of whether it's seven or
23 ten or fifteen is still subjective when you're talking
24 about little striations and little changes of color
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1 and so forth. I think that that could just lead to
2 numerous disputes over what's a stratigraphic unit,
3 how many samples should you take of that unit, and so
4 forth.
5 Maybe if this can be clarified as to why you
6 wanted that done with some -- maybe expand the
7 language a bit, that would be helpful. I don't think
8 that we are challenging the Agency's notion that there
9 should be some sampling done. We're not. But we
10 don't want to get into disputes.
11 As a consultant I run into this all the time and,
12 gee, you're always called into question why did you do
13 this, why did you do that. I don't think that's
14 necessary.
15 MR. KING: Are you suggesting that maybe
16 we're using the wrong term as stratigraphic unit?
17 That it should be stratigraphic strata?
18 MR. RAPPS: No. I'm suggesting that the term
19 stratigraphic unit is already defined by science, and
20 that in this State every stratigraphic unit has a
21 name, and there are definitions and descriptions of
22 these stratigraphic units. The question is how do you
23 want those stratigraphic units tested. It's really
24 that simple.
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1 MS. ROBINSON: We have nothing further.
2 HEARING OFFICER TIPSORD: Mr. Rieser.
3 MR. RIESER: Yeah. Going back to your
4 initial statement about the importance of professional
5 judgment, I just want to confirm something for the
6 Board. Doesn't the evaluation of pathways -- isn't
7 that in the judgment of the Professional Engineer
8 certifying the site which the Agency can only -- which
9 is presumed to be correct and the Agency can only
10 dispute based on their own objective evidence to the
11 contrary?
12 MR. RAPPS: It is. And it's also for the
13 record probably the toughest call that you make in the
14 field.
15 MR. RIESER: So you're talking about giving
16 this determination the same type of deference, if you
17 will, that's given to the generalized pathway
18 evaluation?
19 MR. RAPPS: With respect to professional
20 judgment, yes.
21 MR. RIESER: Were you here for the testimony
22 earlier this morning presented by the Agency?
23 MR. RAPPS: I believe I heard most, if not
24 all, of it.
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1 MR. RIESER: There was a discussion about --
2 and it's come up in some of the questions about the --
3 how you make determinations and how you make these
4 types of decisions while you are logging a sample.
5 Could you go through for the Board what types of
6 observations are typically made, both visual and
7 tactile, while logging a soil sample?
8 MR. RAPPS: Well, a number of things. I
9 don't do a lot of that myself. Typically geologists
10 from our company do. But there are -- we use pocket
11 penetrometers, for example. They measure the
12 unconfined compressive strength. That's actually an
13 engineer's tool. You examine, physically look at the
14 soil and typically rub some in your fingers to see if
15 there's some sandy materials there or if it's highly
16 plastic, things of that sort. There's some
17 guidebooks. ASTM has some methods that they use to
18 judge -- define colors of soils and texture and so
19 forth. You do all of those things taken in concert
20 and using this guidebook typically -- we have a number
21 of these guidebooks floating around our office. They
22 all have mud all over them because people take them
23 out in the field and use them to look up soil terms to
24 see what you're dealing with.
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1 MR. RIESER: The Agency currently requires
2 people to use the Unified Soil Classification System
3 while doing the logs, is that correct, doing the
4 boring logs and identifying the soil types in the
5 logs?
6 MR. RAPPS: You know, I'm not certain. I
7 think that that is certainly one that is commonly
8 used. That's really more of an engineering system
9 that does not relate necessarily to what the guidebook
10 I was talking about. We do it both ways.
11 MR. RIESER: That would be 308(a)(2)(C).
12 With that soil classification you're able to identify
13 the types of soil that would tie into the text that
14 you're referencing here?
15 MR. RAPPS: Actually, the Unified System
16 doesn't do you a great deal of good with this type of
17 classification based on particle size and other
18 matters, plasticity index, and so forth. You can
19 classify soils as CL, CH, silty clays, clay silts, and
20 that sort of thing, which is really an engineering --
21 that's an engineering terminology for purposes of
22 structures and building and so forth. The geologic
23 units that I reference in Bulletin 95 are really
24 different. You can't really tie the two together.
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1 Other than to say that typically Vandalia Till is
2 typically a sandy clay.
3 MR. RIESER: Turning back to the Unified Soil
4 Classification instrument, it does allow you to make
5 certain types of classifications regarding the soil
6 which are then entered in the log which are reviewed
7 by the Agency?
8 MR. RAPPS: Yes.
9 MR. RIESER: And then you can -- based on
10 those types of soils and all of those visual and
11 tactile observations, you can make some decisions
12 regarding the ability of that material to transport
13 contaminants?
14 MR. RAPPS: Yes. That's found in most
15 standard textbooks and reference books.
16 MR. RIESER: Let me ask you one other
17 question, slightly apart from what we've been talking
18 about. And this is to the issue of yield.
19 You were here when Mr. Clay identified certain
20 types of analyses that could be used for calculating
21 yield from hydraulic conductivity, is that correct?
22 MR. RAPPS: Yes.
23 MR. RIESER: Can any of those tests be used
24 for nonsaturated soils?
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1 HEARING OFFICER TIPSORD: Could you speak up,
2 Mr. Rieser? We're losing you.
3 MR. RIESER: Can any of those tests be used
4 for nonsaturated soils?
5 MR. RAPPS: No. They're saturated zone
6 tests.
7 MR. RIESER: Thank you. I have nothing
8 further.
9 MR. RAO: You want to go first?
10 MR. KING: Well, I wanted to follow up on an
11 issue other than the stratigraphic unit issue.
12 MR. RAO: Okay. Then maybe I will go first.
13 Mr. Rapps, in response to Mr. King's question you
14 said that the issue here is not about how you -- you
15 know, the definition of stratigraphic unit, and it's
16 an issue of how you go about testing the geologic
17 material. So, you know, from what you have proposed
18 here as a definition for stratigraphic unit, how would
19 you characterize the stratigraphic unit? What kind of
20 testing would you do? Would you just look at the
21 manual there and say, you know, if it's Vandalia Till,
22 you just say it is whatever the manual says is what it
23 is or --
24 MR. RAPPS: Well, that's typically what you
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1 would do. You don't need to do a great deal of
2 physical testing on soils to identify them in the
3 field as to what they are versus, you know, the LUST,
4 for example versus some -- a buried paleosol, the
5 Sangamon Soil, and maybe a till unit. You can do
6 those classifications without doing engineering tests
7 in most cases.
8 But the question I think that -- I could map this
9 site just using boring logs without doing any tests,
10 this property right now, and tell you what the
11 thickness of the various -- and be reasonably
12 accurate. But that doesn't go to the Agency's concern
13 about which materials are most conducive and would
14 allow pathways to exist. That could be -- it's highly
15 variable within any given soil sample or any column of
16 soil that you see. I guess I don't know how many
17 tests should be done, if there should be any tests,
18 for that matter. We're not objecting to that. We
19 just think we would like to stick with the science on
20 the stratigraphic unit part, then we don't have more
21 stratigraphic units than we need to have.
22 MR. RAO: So are you saying that, you know,
23 the maps in that manual are -- let me see -- how
24 accurate are they? For example, the Berg Circular, it
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1 had a caveat in it which said it should not be used
2 for site-specific characterization. So are there any,
3 you know, conditions under which how these maps could
4 be applied for characterizing a LUST site?
5 MR. RAPPS: Well, that goes back to House
6 Bill 300 and whether the Berg Circular was ever a good
7 idea for these purposes.
8 MR. RAO: I know. I want to know -- I'm
9 sorry for interrupting.
10 MR. RAPPS: Maybe to get back to your
11 question. I think you could put a soil boring down
12 and tell if you have the soils that Berg mapped or not
13 have them. We do that all the time. I think that in
14 practice I've found it to be pretty accurate because
15 it's based on literally thousands of soil borings
16 throughout the State. But there are anomalies
17 certainly and I mean I've run into those before. The
18 only way you can verify is to put a hole down.
19 MR. RAO: That's where the professional
20 judgment comes?
21 MR. RAPPS: I think so.
22 MR. RAO: Okay. Would it be possible for you
23 to provide the Board with a copy of the manual that
24 you are talking about this, this --
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1 MR. RAPPS: Sure.
2 MR. RAO: I don't know what the title of that
3 manual is but --
4 MR. RAPPS: The Handbook of Illinois
5 Stratigraphy?
6 MR. RAO: Yeah.
7 MR. RAPPS: Sure, sure.
8 MS. ROBINSON: Would it be possible for you
9 also to provide the Agency with a copy? I don't
10 believe we have a copy of that, either.
11 MR. RAPPS: Yes. They're three seventy-five
12 from the Geological Survey.
13 HEARING OFFICER TIPSORD: Mr. King, did you
14 have something additional?
15 MR. KING: Yeah.
16 Mike, this is just a comment on -- follow-up on
17 your comment about the reopener of NFA sites where
18 relative to groundwater investigations, I think you
19 made a comment you thought that was a bad idea.
20 MR. RAPPS: Well, it scares us, Gary. If a
21 property is transferred, particularly if they're old
22 service stations, normally there's a Phase 1 or Phase
23 2 investigation performed. Typically, the Phase 1
24 reveals that, gee, it used to be a service station.
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1 If the consultant is paying attention, he goes out and
2 puts some soil borings down, he maybe puts some
3 monitoring wells in, and very often he's going to find
4 something out there, some evidence that that used to
5 be a service station. Now, in cases where he finds
6 that but we have an NFA letter, I guess the NFA should
7 certainly mean something, but if they can be reopened
8 all the time, there's never any closure on these
9 properties, and you're basically taking them out of
10 commerce. That's what scares the membership of IPMA.
11 MR. KING: Were you aware that the statute
12 was amended from the House Bill 300 version to specify
13 that the Board was to adopt rules setting forth
14 criteria under which the Agency may require
15 groundwater investigations where it was otherwise an
16 NFA geology?
17 MR. RAPPS: I guess I hadn't considered that,
18 Gary.
19 MR. KING: That was all the questions I had.
20 HEARING OFFICER TIPSORD: Okay. Mr. Rapps,
21 what I would like to do, if there is no objection, is
22 reserve Exhibit Number 9 for the Handbook of Illinois
23 Stratigraphy. And that way then if there is anyone
24 else who would like to see it, the Board will have it
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1 as an exhibit to the proceeding.
2 Is there any objection to that?
3 Seeing none, I'll reserve Exhibit Number 9, and
4 when you provide us with a copy, it will be so marked
5 and entered into the Board's record.
6 (Exhibit Number 9 admitted.)
7 MR. RAPPS: Okay, thank you.
8 HEARING OFFICER TIPSORD: Are there any other
9 questions for Mr. Rapps?
10 Thank you very --
11 DR. GIRARD: I have a question. I'm still
12 trying to understand the difference in the definition
13 of stratigraphic unit between Mr. Rapps and the
14 Agency. It seems to me -- let me see if I've got
15 this. Mr. Rapps, your main point is that a
16 stratigraphic unit is a regional area of geology which
17 includes a whole block descending down into the earth,
18 and if you come across a different kind of material
19 running through that stratigraphic unit, you would
20 call it an anomaly. Is that correct? So if you come
21 up -- if you're in the middle of one of these zones
22 and 20 feet down you come upon a one-foot thick seam
23 of sand that should not be there based on the
24 definition from your 1975 study, that would be an
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1 anomaly, is that correct?
2 MR. RAPPS: Well, I may have misused that
3 term. In many cases the one-foot thick sand seam that
4 might exist in the Vandalia Till, I keep using as an
5 example, is not necessarily an anomaly. The
6 description defines it as being a massive unit that
7 has certain sand seams and lenses. That's typical of
8 almost all the soils in the State. They are not
9 homogeneous materials, none of them. They're
10 heterogeneous materials. Just as we have sandy zones
11 along the river banks, they occasionally have clay
12 beds within them. So you can't just make the
13 statement that it's one material.
14 What the Handbook of Illinois Stratigraphy does
15 break down these materials as to their origins and
16 their typical properties, where they came from, and so
17 forth.
18 When we deal with the Unified System, which is a
19 set of engineering tests on grain size and so forth, a
20 material from the Banner Formation that came in
21 300,000 years ago could test as a silty clay just as
22 one from the Illinoisan system which came in 100,000
23 years ago. It would still be the same in terms of
24 engineering properties, but they have names because of
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1 how they got there and when they got there.
2 DR. GIRARD: Okay, thank you.
3 MR. RIESER: I'm sorry, I would just like to
4 follow up with one issue.
5 Back to Board Member Girard's question, if this
6 sand seam is identified, it would still be your
7 recommendation that it be evaluated as most likely the
8 most permeable strata identified in the zone. Isn't
9 that correct?
10 MR. RAPPS: Oh, absolutely. Sure.
11 MR. RIESER: So your issue is with the
12 definition of stratigraphic unit as proposed by the
13 Agency going beyond what's been mapped by professional
14 geologists through all of their efforts in the book
15 that you're presenting as Exhibit 9. Is that correct?
16 MR. RAPPS: That's correct.
17 MR. RIESER: And you don't want to get into
18 discussions with the Agency about what's a unit and
19 what's not a unit because that decision has already
20 been made by the geologists that have prepared that
21 document?
22 MR. RAPPS: Correct. I'm sure there will be
23 updates at some point in time, and I think they're
24 long overdue right now.
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1 MR. RIESER: But you're still acknowledging,
2 I think you said numerous times, that based on field
3 observation and professional judgment of the people
4 doing the work you should still identify those most
5 permeable -- I'm sorry, the units most conducive to
6 contaminant transport and that those should be sampled
7 to identify their properties?
8 MR. RAPPS: Yes.
9 MR. RIESER: Thank you.
10 HEARING OFFICER TIPSORD: Anything further?
11 DR. GIRARD: Well, I have a question about
12 professional judgment. Is there a standard reference
13 manual of methods that this professional would use for
14 making those kinds of judgments?
15 MR. RAPPS: There are some ASTM test methods.
16 I think some are already referenced in the rules.
17 There may be some others that are helpful which tell
18 you how do you make a judgment on color, how do you
19 make a judgment on texture. Those are helpful in
20 making classifications. But beyond that, I think
21 people who practice in the field understand when
22 they're out in the field what they're dealing with. I
23 don't know how else to put it. Some professionals,
24 I'm sure, are better than others, maybe don't
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1 necessarily make great professional judgments, but
2 they do make judgments.
3 DR. GIRARD: Thank you.
4 When the Board is reviewing an appeal of an Agency
5 decision, the Board will still need a list of the
6 objective evidence and the criteria that went into
7 making that professional judgment, and so it certainly
8 is helpful to refer specifically to those ASTM
9 documents if we can and what other elements go into
10 professional judgment.
11 MR. RAPPS: I think so. Perhaps I can take a
12 second look at this and maybe round up a few documents
13 that would be helpful to the Board and pass them along
14 in comment.
15 DR. GIRARD: Thank you. That would be very
16 helpful.
17 HEARING OFFICER TIPSORD: Thank you, Mr.
18 Rapps.
19 At this time were we going to proceed with Mr.
20 Fleischli or Mr. Gates?
21 MR. RIESER: I don't believe Mr. Fleischli is
22 testifying other than he submitted a letter which
23 included Mr. Rapps' testimony.
24 MR. RAPPS: He has no plans to testify.
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1 HEARING OFFICER TIPSORD: All right. We will
2 enter his letter then as a public comment rather than
3 prefiled testimony.
4 MR. RAPPS: Okay.
5 HEARING OFFICER TIPSORD: At this time then
6 we'll begin with Mr. Gates. Mr. Rieser and Mr. Gates.
7 (Peter D. Gates was duly sworn.)
8 MR. RIESER: The Illinois Petroleum Council
9 had prefiled presubmitted testimony which should
10 probably be taken as an exhibit, which I believe would
11 be Exhibit Number 10.
12 HEARING OFFICER TIPSORD: Is there any
13 objection to admitting Mr. Gates' testimony as Exhibit
14 Number 10?
15 Seeing none, we'll admit that as Exhibit Number
16 10.
17 (Exhibit Number 10 admitted.)
18 MR. RIESER: Mr. Gates has a modified version
19 of that which he will go through here today based on
20 the two hearings that have been held and the
21 information that's come to the Board to date.
22 MR. GATES: My name is Peter D. Gates and I'm
23 a field engineer for the Mobil Oil Corporation
24 responsible for UST remediation in Illinois. I am
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1 summarizing my prefiled testimony on behalf of the
2 Illinois Petroleum Council, or IPC.
3 The IPC is a trade association representing the
4 owners and operators of a large percentage of the
5 underground storage tanks in Illinois, including Amoco
6 Corporation, Marathon Oil, Mobil Oil Corporation, and
7 Shell Oil Products Company.
8 We have been closely involved in the development
9 of the UST rules in the State over the last three
10 years and presented extensive testimony in the R94-2
11 Docket B proceeding. We met with the Agency and
12 commented extensively on their proposal which became
13 the Tiered Assessment of Cleanup Objectives, or TACO,
14 guidance in January of this year.
15 Since then we have been very involved in the
16 development of the three proposed rulemakings which
17 are currently before the Board and which were part of
18 the peer review group which met with the Agency to
19 discuss drafts of these proposed revisions to 35
20 Illinois Administrative Code 732.
21 Although noted in our prefiled testimony, I would
22 like to again stress our appreciation to the Agency
23 for their efforts to reach out and discuss these
24 issues with the regulated community both in advance of
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1 and during the rulemaking. Our discussions with the
2 Agency have been cordial and productive. They have
3 also led to a better understanding of our respective
4 positions and a better exchange of ideas for improving
5 the UST program. As a result, these hearings have
6 been less contentious than the first two sets of
7 hearings involving these rules.
8 Since our prefiled testimony was filed before we
9 had an opportunity to review the Agency's testimony
10 and before the hearings, it was necessary to identify
11 certain issues which we felt would need further
12 discussion. These included the new time limits on
13 early action, the conditions for requiring groundwater
14 investigations for No Further Action sites, the extent
15 of required physical soil analysis for Methods One and
16 Two, procedures for classification by exposure
17 pathway, coordination between the proposed 35 Illinois
18 Administrative Code 742 and this proposal,
19 coordination between the new options for analysis and
20 the reimbursement program, and the new recording
21 requirements.
22 Based on the Agency response to our questions and
23 those of other participants, we proposed language
24 changes to the Agency. We are pleased that the Agency
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1 agreed to most of these changes here today. I would
2 like to underline two or three issues which are
3 probably most significant so the need for these
4 changes is clear.
5 The first deals with the use of the term
6 stratigraphic unit. Although we did not disagree with
7 the Agency's proposed definition, the implementation
8 of the term in a soil investigation pursuant to
9 732.307(d) would have required much unnecessary
10 sampling. The Agency acknowledged as much in the
11 first hearing and agreed to limit the sampling to
12 those units which are most conducive to contaminant
13 transport. Our understanding of this change is that
14 the Agency was agreeing to consider issues such as
15 visible particle size, geological classification,
16 continuity, and the size of the unit in determining
17 which unit must be included in the physical sampling
18 program.
19 The Agency, after considering these issues, has
20 today indicated that 732.307(d) will essentially stand
21 as proposed in this particular. We believe that this
22 does not allow for the judgment of a site
23 professional. If every case requires employment of
24 worst-case testing, then the professional judgment of
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1 a site professional is a moot point. I would be
2 better off spending my dollars for professional lab
3 work than to have a site geologist present.
4 Today I defer to Mike Rapps' testimony on this
5 issue but do reserve the right to file further
6 comments for the IPC on this issue.
7 Secondly, we remain unsatisfied regarding the
8 applicability of yield of a nonwater-bearing strata
9 under 732.307(d)(2)(B). Since dissolved contamination
10 travels with the water in situations where a saturated
11 formation is present, yield and conductivity have a
12 specific direct application. In an unsaturated strata
13 movement is controlled by more factors, such as
14 moisture content, type of soil, relative porosity,
15 amount of free product present, et cetera. We'll be
16 filing additional comments on this subject during the
17 hearing process.
18 The third important change is a basis for the
19 Agency to seek to void the NFR letter as included in
20 Section 732.704(a)(4). Based on the discussion at the
21 hearing, it was clear the Agency's initial
22 interpretation of this section was broader than
23 necessary given the context in which these letters
24 would be issued. Unlike the Site Remediation Program,
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1 Part 732 NFR letters are issued with regard to a known
2 release from a known source and may be approved based
3 on a statutory physical soil classification in which
4 the levels of contaminants are not evaluated. These
5 factors eliminate the need for a reopener based on
6 unknown site conditions.
7 The Agency has proposed alternative language
8 today which appears adequate on first look, but we
9 will review and get back to the Board during the
10 comment period. Based on these changes and others
11 which we have proposed and which the Agency has
12 accepted, we can state our support for these proposed
13 revisions.
14 Of utmost importance to us is the tie between the
15 risk-based corrective action provisions proposed under
16 Parts 742 proposed and the additional soil
17 classification methodology to allow those to be
18 addressed in the context of the tank program. This
19 alone will allow us to use private and public funds
20 more effectively.
21 As always, we appreciate the opportunity to offer
22 this testimony before the Board and are prepared to
23 answer any questions.
24 Thank you.
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1 HEARING OFFICER TIPSORD: There were no
2 prefiled questions filed regarding Mr. Rapps'
3 testimony. Does the Agency have any questions?
4 MR. RIESER: Mr. Gates.
5 HEARING OFFICER TIPSORD: I'm sorry, Mr.
6 Gates. I apologize.
7 MS. ROBINSON: We have no questions.
8 HEARING OFFICER TIPSORD: Any questions for
9 Mr. Gates?
10 Seeing none, thank you very much.
11 MR. GATES: Thank you.
12 MR. RIESER: Thank you.
13 HEARING OFFICER TIPSORD: That concludes our
14 prefiled testimony.
15 Was there anyone else here today who wishes to
16 testify at this proceeding?
17 Seeing none, we will proceed with the final
18 housekeeping matters then.
19 As I indicated at the beginning of the hearing,
20 and as we all are very aware, there's a March deadline
21 for final adoption of this rule. Given the time frame
22 necessary to allow for review by the Joint Committee
23 on Administrative Rules, that places the Board in the
24 position of having to go to second notice with this
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1 rule by January 9th, 1997.
2 That being the case, we have little choice as to
3 when final comments will be due. And basically those
4 choices come down to Christmas Eve or the day before.
5 We have requested an expedited transcript. And I am,
6 barring severe objection, going to ask all comments be
7 in the Board's office by December 23rd. Hopefully,
8 that will allow me the opportunity to collect the
9 comments and retire to Jerseyville for a few days to
10 write a draft order for the Board and give the Board
11 Members the opportunity to examine all final comments
12 and give them the full weight they deserve.
13 Seeing no objection, then I will verbally order
14 that all final comments be received by the Board by
15 December 23rd, 1996.
16 Okay. I think that does it. Is there anything
17 else? Are there any other motions or any other
18 questions from the parties at this time?
19 Okay. Then we will await the filing of Exhibit
20 Number 9 from Mr. Rapps and all of your final
21 comments.
22 I thank you all for your cooperativeness and your
23 preparedness. It's made these things go much faster.
24 Thank you very much. We're closed.
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1 STATE OF ILLINOIS )
)SS
2 COUNTY OF SANGAMON )
3
4 CERTIFICATE
5
6 I, Dorothy J. Hart, affiliated with Capitol
7 Reporting Service, Inc., do hereby certify that I
8 reported in shorthand the foregoing proceedings; that
9 the witness was duly sworn by me; and that the
10 foregoing is a true and correct transcript of the
11 shorthand notes so taken as aforesaid.
12 I further certify that I am in no way associated
13 with or related to any of the parties or attorneys
14 involved herein, nor am I financially interested in
15 the action.
16
17 _____________________________
CSR License No. 084-001390
18 Certified Shorthand Reporter
Registered Professional Reporter
19 and Notary Public
20
21 Dated this 11th day of
22 December, A.D., 1996, at
23 Springfield, Illinois.
24
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