NOTICE OF FILING
(PERSONS ON ATTACHED SERVICE LIST)
CERTIFICATE OF SERVICE
SERVICE LIST
PRE-FILED TESTIMONY OF HARRY R. WALTON
Testimony of Harry R. Walton

BEFORE THE IL

OL BOARD

IN THE MATTER OF:

RE Clii

VE U

CLFRK’S

OFF

MAR

2001

STATE OF ILL NO~s

Pollutior, Control Board

)

SITE REMEDIATION PROGRAM:

AMENDMENTS TO

ILL. ADM. CODE

740

)

ROl-27

)

(Rulemaking

Land)

)

IN THE MATTER OF:

SITE REMEDIATION PROGRAM:

PROPOSED

ILL. ADM. CODE

740.SUBPART H (SCHOOLS, PUBLIC

PARKS, AND PLAYGROUNDS)

)

1-29

)

(Rulemaking

Land)

)

(Consolidated)

)

NOTICE OF FILING

TO:

Ms.

Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(VIA FIRST CLASS MAIL)

Bobb A. Beauchamp, Esq.

Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

(VIA FIRST CLASS MAIL)

(PERSONS

ON ATTACHED SERVICE LIST)

PLEASE TAKE NOTICE that I have filed today with the Clerk ofthe Illinois

Pollution Control Board an original and nine copies of the

PRE-FILED TESTIMONY

)

THIS FILING

SUBMITTED ON RECYCLED PAPER

OF HARRY R. WALTON,

copies of which are herewith served upon you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:

ne ofIt

Dated: March 26, 2001

Katherine D. Hodge

HODGE & DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois

62705-5776

(217) 523-4900

Karen L.

Bernoteit

Illinois Environmental

Regulatory Group

215 East Adams Street

Springfield, Illinois 62701

(217) 522-5512

THIS FILING SUBMITTED ON RECYCLED PAPER

CERTIFICATE OF SERVICE

I, Karen L. Bernoteit, the undersigned,

certify that I have served a copy ofthe

attached PRE-FILED TESTIMONY OF HARRY

WALTON upon:

Ms.

Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Bobb A. Beauchamp, Esq

Hearing Officer

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

SEE ATTACHED SERVICE LIST.

by depositing said documents

in the United States Mail in

Springfield, Illinois on

March 26, 2001.

Karen L Bernoteit

THIS FILING SUBMITTED ON RECYCLED PAPER

SERVICE LIST

Erin

Curley

Midwest Engineering

Services,

Inc.

4243 W

166th

Oak

Forest,

IL 60452

William

Dickett

Sidiey & Austin

Dearborn

Ste 5200

Chicago,

IL 60603

William

G. Dixon, Jr.

Practical Environmental Consultants

919

Plum Grove

Ste

Schaumburg,

IL 60173

Matthew

Dunn

Chief

Office of the Attorney General

Center, 100W. Randolph,

12th Floor

Chicago,

IL 60601

Steve

Gobelman

DOT

Bureau of Design

& Env.

2300 Dirksen

Parkway Rm 330

Springfield,

62764

Daniel

J. Goodwin

Goodwin Environmental Consultants

400 Bruns

Lane

Springfield,

62702

Holly D.

Harley

Esq

Chicago Legal

Clinic

205 W Monroe St 4th

Chicago, IL

60606

Katherine

Hodge

& Dwyer

P 0

Box 5776

Springfield,

IL 62705-5776

Stephen Kirschner

Advanced GeoServices

Corp.

Route 202 &

Brandywine One Ste 202

Chadds

Ford,

19317

Robert T. Lawley

Chief Legal

Counsel

Department of Natural

Resources

524 5. Second Street

Springfield,

IL 62701-1 787

Brent

Manning

Director

Department of Natural

Resources

524 5 Second St

Springfield,

IL 62701

John

Mital

Rapps Engineering

& Applied Science

821

5 Durkin Dr

Springfield,

62704

Monte

Nienkerk

Clayton

Environmental Consultants

3140

Finley

Downers Grove,

IL 60515

Stefan A.

Noe

Citizens for

a Better Environment

205 W Monroe St 4th FL

Chicago,

60606

Jeryl

Olson

Seyfarth, Shaw,

Fairweather

& Geraldson

E. Monroe

Ste 4300

Chicago, IL

60603

Karen

Prena

Mayer, Brown &

Platt

290 5 LaSalle

St Ste

3900

Chicago,

60603

Michael W.

Rapps

PE.

Rapps Engineering & Applied

Science

821

Durkin Dr.

Springfield,

IL 62704

John

Reimann

IN DECK

600

N Buffalo

Grove

Rd Ste

300

Buffalo

Grove, IL 60089

Jim

Ryan

Office

of the Attorney

General

100 W Randolph

Chicago,

IL 60601

Ala

E. Sassila

Carnow,

Conibear & Associated,

Ltd.

333 WWacker Dr Ste

1400

Chicago,

IL 60606

SERVICE LIST

Thomas V.

Skinner

Director

IL Environmental Protection Agency

1021

Grand Ave.

East P 0

Box

19276

Springfield,

IL 62794-9276

Wayne

Smith

PG.

Pioneer Environmental,

Inc.

1000

Halsted Ste Ste 202

Chicago,

IL 60622

Mark

Wight

Assistant Counsel

Environmental Protection Agency

1021

N. Grand Ave.

East P 0 Box

19276

Springfield,

IL 62794-9276

CLERI=’~

~WP~

M/i~~

2001

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE OF ILLINOIS

IN THE MATTER

OF:

)

~~llUtiOn

Control Board

)

SITE REMEDIATION PROGRAM:

)

ROl-27

AMENDMENTS TO

ILL. ADM. CODE

)

(Rulemaking

Land)

740

)

TN THE MATTER OF:

)

SITE REMEDIATION PROGRAM:

)

ROl-29

PROPOSED

ILL. ADM. CODE

)

(Rulemaking

Land)

740.SUBPART H (SCHOOLS, PUBLIC

)

(Consolidated)

PARKS, AND PLAYGROUNDS)

)

PRE-FILED TESTIMONY OF HARRY R. WALTON

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”),by

one if its attorneys, Karen L. Bernoteit, and

submits the following Pre-filed

Testimony of Harry R.

Walton for presentation at the April 4, 2001 hearing scheduled in

the above-referenced matter.

Testimony of Harry R. Walton

My name is Harry R.

Walton and I am testifying today on behalfof IERG and the

Site Remediation Advisory Con-imittee (SRAC) regarding the Illinois EPA’sand the

Citizens for a Better Environment’s(CBE) proposed amendments to the SRP program at

35111.

Admin. Code Part 740.

SRAC is a 10 member committee that was established

under

Section

58.11(a)

of the Illinois Environmental Protection Act (Act) for the purpose

ofreviewing, evaluating and making recommendations regarding state laws, rules and

procedures relating to site remediations.

SRAC is also charged with making

recommendations relating to the state’s implementation of Title XVII ofthe Act that

consists ofthe Site Remediation Program.

I have had more than 26 years of experience in assessment and remedial

management of industrial/commercial property, former industrial property and waste

disposal sites.

I am a technical consultant to the IERG, I have represented the Illinois

Manufacturer’sAssociation on the Leaking Underground Storage Tanks (LUST)

Advisory Committee, and

represent the Illinois State Chamber of Commerce as Chairman

ofthe SRAC.

I represent IERG on regulatory issues concerning

surface water, solid

waste,

groundwater, and remedial programs.

I was active in the development and

passage of the Illinois

Site Remediation Program (Brownfields).

On behalfofSRAC and

IERG, I offered testimony to the Illinois Pollution Control Board to facilitate its

understanding and acceptance ofthe Illinois EPA and SRAC consensus regulatory

proposals for implementation of Illinois’ Site Remediation Program.

Introduction to Testimony

My testimony today focuses on several aspects of the Illinois EPA’sand CBE’s

proposed amendments to the site remediation program (SRP) at

Ill. Admin.

Code Part

740.

My testimony will address the following:

• The additionof a definition of“soil”to Part 740.

This is necessary to ensure

maximum utility ofthe

Soil Management Zone (SMZ) for its

intended purpose of

providing an exemption from the solid waste disposal

regulations.

So doing will

reduce the costs and time associated with the remediation;

• The need for the regulationtoprovide for a community relations plan for sites that

are intended to be used for the construction ofa school;

• The elective useof a community relations plan by a remediation applicant to

negate the need for the Illinois EPA’sproposed prohibition on shifting a SMZ

closer to contiguous residential property; and

• The useofdata, generated by a non-certified laboratory as part of the response

action to a release, used for site characterization within the SRP

program under

the Illinois

EPA’s proposedamendments.

The Addition ofa Definition of“Soil

The addition of the SMZ under the Illinois EPA’sproposed

Ill.

Adm. Code

740.535

is strongly supported by both JERO and SRAC.

Both of these organizations

have held nnmerous discussions with the Illinois EPA about SMZs and have urged that

SMZs become an

explicit element ofthe SRP.

In order to assure the maximum use ofthe

SMZ for its

intended purpose, IERG and SRAC

urge that a definition of“soil”be added

Ill. Adm.

Code 740.120, otherwise, the utility of the SMZ could be

severely

restricted.

Absent a definition of soil, the Illinois EPA could consider materials such as slag,

ash or bits of concrete, that may be part ofa proposed SMZ, to

be a component of a

landfill that

is being developed without a permit and, thus, not eligible for consideration

as a SMZ.

This would run contrary to

the Illinois EPA’s statedpurposeofthe SMZ:

facilitatethe managing of contaminated soils and to

lower the associated time and costs

without creating additional risks to human health and the environment.

See Illinois

EPA’s Statement of Reasons, filed January

12,

2001

at 8.

While SRAC agrees with

Illinois EPA that the SMZ should not be

used to

avoid the Board’slandfill regulations, it

should apply to manufacturing or commercial sites built

on a subsurface matrix that

consists primarily ofhistoric fill.

In order to remedy this problem, a definition of soil

must be added to Part 740, and is critical to ensure that SMZs can be

used to

the

maximum extent possible,

thus, fulfilling their intended purpose.

IERG and SRAC propose the following language to amend

Ill.

Admin.

Code

740.120:

Soil means, for the purpose ofa soil management zone, contaminated media

which meets the requirements of

Ill.

Adm. Code

742.305,

managed pursuant to

an Agency approved remedial action plan.

The addition ofthe above definition of soil will ensure that the establishment ofa

SMZ will not be considered the development ofan unpermitted landfill which runs

contrary to the proposed regulatory purpose ofthe SMZ which is”..

.to

allow the

consideration and approval ofon-site solutions to on-site contamination without violating

the solid waste disposal regulations at

Ill. Adm.

Code 807 or 811

—815”.

See Illinois

EPA’sproposed

Ill. Admin.

Code

740.535(a)(l).

I urge the Board to adopt the above

proposed definition of“soil” as acritical element ofthe amendments to the SRP

necessary to maximize the utility of the SMZ.

Addition of a Community Relations Plan Requirement

IERG and SRAC

both support the concept ofa community relations plan (CRP)

requirement that was proposed by CBE as a new Subpart H to

Ill. Adm.

Code Part

740; however, IERG and SRAC believe this

requirement should be limited to sites that

are intended for future construction ofa school.

This CRY requirement would be an

important component ofthe

SRP that would serve the function of informing the

community ofintended action by the remediation applicant (RA),

and providing for

community input regarding issues related to the remediation of a site intended for the

construction of a school.

The assessment ofthe need for and implementation of a CRY

should be the responsibility of the remedial applicant.

The Addition of SMZ Conditions

The Illinois EPA’s proposal contains a prohibition against treating or placingany

soil or contaminants ofconcern above the Tier I TACO objectives for residential

properties closer to any residential property contiguous to the remediation site.

See

Illinois EPA’s proposed

Ill.

Admin. Code

740.535(b)(8)(B).

From testimony and

responses to questions provided by Illinois EPA witnesses during the February 28, 2001

public hearing on the proposed amendments, it is clear that the above prohibition against

moving a SMZ closer to a residential property is not based upon risk created by shifting a

SMZ.

During the February 28~ public hearing, hearing participant, David Rieser,

provided an example to Larry Eastep, Illinois EPA, in which he described a situation

consisting ofa large site within which

a SMZ is moved closer to a residential area that

would not present an increased risk to the residential area because ofthe size ofthe site.

See Transcript of February 28, 2001

hearing at 31.

Mr. Eastep responded in the

following manner: “I am not sure it is a matter of risk that

is being addressed here.

This

is as much a matter of public acceptance ofthis more than the risk.

So we have not done

any risk analysis of this.”

See Transcript at 31.

an initial matter, IERG and SRAC believe that the best way to

address public

perception is for the Board and the Illinois EPA to apply TACO and

its risk based

approach consistently and not to carve exceptions for certain procedures.

Even given

this, IERG and SRAC believe the Illinois EPA’sabove articulated concern about public

perception and acceptance ofa SMZ would be remedied by the election ofa remediation

applicant to use a CRY incorporated into a new Subpart H at 35 Ill.

Admin. Code

Part

740.

The Illinois EPA’s determinationto allow a SMZ could be based on numerous

factors including proximity to adjoining residential properties or use of a CRY to address

adjoining residential properties.

Ifconditions

and adjacent to the remedial site indicate

that a CRY is appropriate, and the RA chooses to use a SMZ which results in soil being

moved closer to a residential property, the RA should implement a CRY.

This will ensure

that the community surrounding the remediation site has notice that a RA is proposing to

move a SMZ closer to

a residential property.

It will further provide an opportunity to

provide input and, as a result, impact the decision making process. It is apparent from a

statement made during the February 28, 2001

public hearing that the Illinois EPA

believes community input in the

SRY would at least, in part, alleviate the need for the

prohibition against moving a SMZ closer to a residential property.

Ms. Liu ofthe Board

asked Larry Eastep, Illinois

EPA, if public perception is the main factor for not placing

soil closer to a residential property, whether including a public notice and hearing process

in the rule, to

allow people to

express their beliefs regarding the project’spotential for

community betterment,

could serve as a solution.

See Transcript at 40.

Mr. Eastep stated

that this would address part ofthe problem because the SRY does not contain any real

public notice or participation elements.

See Transcript at 40.

Mr. Eastep further

explained that if someone wanted to propose public participation procedures the Illinois

EPA would

consider it.

See Transcript at 40.

IERG and SRAC recommend the following revision to the Illinois EPA’s

proposed 35 Ill.

Admin.

Code

740.535(b)(8)(B):

b) Upon approval by the Agency of a Remedial Action Plan under Subpart E of this

Part, soil that

is the subject ofa request for a soil management zone shall be

classified as a soil management zone if the Remedial Action Plan demonstrates

that the following requirements will be satisfied:

Soil containing contaminants of concern above the concentrations in

Ill.

Adm. Code 742.Appendix

B: Table

A (Tier

objectives for residential

properties) or approved by the Agency pursuant to

35 Ill. Adm. Code

742.5

10(c)

may not be Ttreated or placed in any area where all contaminants of concern

within the remediation site are at or below the concentrations in 35

Ill. Adm. Code

742.Appendix B: Table A (Tier

objectives for residential properties) or

approved by the Agency pursuant to

35 Ill. Adm.

Code

742.510(c)

Treated or place in

any area where all contaminants ofconcern

within the remediation site are at or below the concentrations in 35

Ill.

Adm. Code

712.Appendix B:

Table A (Tier

objectives for

residential properties) or approved by the Agency pursuant to

Ill.

Adm.

Code

712.510(c);

Treated or placed closer to any residential property contiguous to

the remediation site

This

suggested revision retains the Illinois EPA’sproposed provision that soil

containing contaminants of concern above designated regulatory concentrations not be

treated or placed in an area where all contaminants ofconcern within the remediation site

are at or below the designated regulatory concentrations.

The above suggested revision

removes the Illinois EPA’sproposed provision that soil containing contaminants of

concern above

designated regulatory concentrations not be treated or placed closer to

any

residential property contiguous to the remediation site.

IERG and SRAC urge the Board

to adopt the above proposed revision in

conjunction with the earlier described

recommendation to adopt a CRY for inclusion as a new Subpart H to

35 Ill.

Adm. Code

Part 740 that

is required for sites that are intended as locations for future

school

construction.

Because the Illinois EPA’s rationale forincluding this prohibition is based

entirely on avoiding a public perception issue, the addition ofa CRY component to the

SRP,

and the ability ofa remediation applicant to

electto use the CRY, will negate the

need for a prohibition against moving a SMZ closer to a residential property.

The

addition ofa CRY provision will allow the community to have an opportunity to

impact

the ultimate placement ofthe SMZ, and to evaluate any potential positive or negative

aspects of this placement as part ofa public participation process.

Use of Data Generated By a Non-Certified Laboratory

The Illinois EPA’sproposed 35

Ill. Admin.

Code 740.415(d)(6) contains a

requirement that an

accredited laboratory perform all quantitative analyses, ofsamples

collected on or after July

1, 2002, and utilizing any of the approved test methods

identified in 35

Ill. Admin.

Code

186.180.

IERG and SRAC would like

to clarify the

understanding that, under the Illinois EPA’s proposed regulation, the use ofdata

generated by a non-certified laboratory as part of the response action to a release could

used for site characterization under the SRY program.

At the February

28th

public

hearing I asked Illinois EPA witness, Mr. Gregory Dunn, whether a team that utilized an

in-house laboratory as part of a release response could make a demonstration to

use that

data, generated from a non-certified laboratory, to mitigate the release.

See Transcript at

46.

Mr. Dunn responded that if the data were used prior to entering the SRY and if it was

reasonable and the Illinois EPA determined it was collected appropriately, it could be

used.

See Transcript at 46 and 47.

IERG and SRAC would like

to clarify that our

understanding ofthe use ofdata generated by a non-certified laboratory under the Illinois

EPA’sproposal

is allowable as I havejust described.

Conclusion

IERG and SRAC urge the Board to consider the revisions to the Illinois EPA’s

and CBE’sproposal that we have proposed today and the other issues identified in my

testimony.

Thank you for the opportunity to testify today and I will be pleased to answer any

questions regarding the matters presented in my testimony at this time.

IERG reserves the right to

supplement or modify this pre-filed testimony.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

Karen L. Bernoteit

Dated: March 26, 2001

Karen L. Bernoteit

Illinois

Environmental Regulatory Group

215 East Adams Street

Springfield,

Illinois 62701

(217)522-5512