BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VOLUME I
IN THE MATTER OF: )
)
TIERED APPROACH TO CORRECTIVE ) R97-012
ACTION OBJECTIVES, ) (
Rulemaking)
35 ILL. ADM. CODE 742 )
(Pursuant to P.A. 89-431) )
The following is a transcript of a
rulemaking
hearing held in the above-entitled matter, taken
stenographically by LORI ANN ASAUSKAS, CSR, RPR, a
notary public within and for the County of Cook and
State of Illinois, before Kevin
Desharnais, Hearing
Officer, at 100 West Randolph Street, Room 9-040,
Chicago, Illinois, on the 2nd day of December,
1996,
A.D., commencing at the hour of 10:00 o'clock
a.m.
** ** ** ** **
2
1 A P
P E A R A N C E S :
2 HEARING TAKEN BEFORE:
3 ILLINOIS POLLUTION CONTROL BOARD,
100 West Randolph Street
4 Room 9-040
Chicago, Illinois 60601
5 (312) 814-4925
BY: MR. KEVIN DESHARNAIS
6 HEARING OFFICER.
7 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
Mr. Kevin
Desharnais
8 Mr. Chuck
Feinen
Mr. Tanner
Girard
9 Ms. Kathleen
Hennessey
Ms.
Marili McFawn
10 Ms. Jennifer Moore
Ms. Diane
O'Neil
11 Ms. K.C.
Poulos
Mr.
Anad Rao
12 Mr.
Hiten Soni
Ms. Marie
Tipsord
13 Mr. Joseph
Yi
14 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
PRESENT:
15 Ms. Shirley
Baer
Mr. Lawrence
Eastep
16 Mr. Gary P. King
Mr. Rick Lucas
17 Mr. Bob
O'Hara
Mr. Todd
Rettig
18 Ms. Vicky L.
VonLanken
Mr. Mark
Wight
19
OTHER AUDIENCE MEMBERS WERE PRESENT AT THE HEARING,
20 BUT NOT LISTED ON THIS APPEARANCE PAGE.
21
22
23
24
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1 I N D E X
2 PAGES
3 GREETING BY HEARING OFFICER................. 4 - 14
4 OPENING STATEMENT BY MS. ROBINSON........... 14 - 22
5 QUESTIONS AND ANSWERS BY IPCB AND IEPA...... 22 - 239
6 CLOSING COMMENTS BY HEARING OFFICER.........239 - 240
7
* * * * * * * *
8
9 E X H I B I T S
10 Marked for
Identification
11
Hearing Exhibit No. 1....................... 4
12
Hearing Exhibit No. 2....................... 4
13
Hearing Exhibit No. 3....................... 4
14
Hearing Exhibit No. 4....................... 4
15
Hearing Exhibit No. 5....................... 4
16
Hearing Exhibit No. 6....................... 4
17
Hearing Exhibit No. 7....................... 4
18
Hearing Exhibit No. 8....................... 4
19
20
21
22
23
24
L.A. REPORTING - (312) 419-9292
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1 (Documents marked as
2 Hearing Exhibit
3 Nos. 1 through 8 for
4 identification, 12/2/96.)
5 THE HEARING OFFICER: My name is
6 Kevin
Desharnais. I'm hearing officer for these
7 proceedings entitled, In The Matter of Tiered
8 Approach to Corrective Action Objectives, 35
9 Illinois Administrative Code, Part 742, docketed
10 before the Pollution Control Board as R97-12.
11 Present today on behalf of the
12 Illinois Pollution Control Board is board member
13 Marili McFawn, who is seated to my left.
14 MS.
McFAWN: Good morning.
15 THE HEARING OFFICER: Board member
16 Joseph
Yi is seated to the right.
17 MR. YI: Good morning.
18 THE HEARING OFFICER: Also present
19 is attorney assistant Chuck
Feinen and the board's
20 technical unit representative
Anad Rao.
21 In the back of the room, we also
22 have two other members of our technical unit. We
23 have
Hiten Soni and Elizabeth Ann.
24 To start out, what we are going
L.A. REPORTING - (312) 419-9292
5
1 to do is just ask everyone to introduce themselves
2 so that we have an idea who is present today and we
3 will start with the agency.
4 MS. ROBINSON: Good morning. My name
5 is Kimberly
Robinson and I'm assistant counsel for
6 the Bureau of Land and Division of Legal Counsel
7 with the Illinois Environmental Protection Agency.
8 Should I let them introduce
9 themselves?
10 THE HEARING OFFICER: Sure.
11 MS. VIRGIN: My name is
Tracey Virgin.
12 I'm an environmental toxicologist with the Office of
13 Chemical Safety at the IEPA.
14 MS. ROBINSON: Let me just stop you
15 here. This is a good time to practice projecting
16 your voice. Okay?
17 MS. VIRGIN: Okay.
18 DR. HORNSHAW: I'm Tom
Hornshaw, same
19 office.
20 MR. SHERRILL: I'm John
Sherrill. I'm
21 a project manager with the Bureau of Land at the
22 Illinois EPA.
23 MR. KING: I'm Gary King. I'm with the
24 Bureau of Land at the Illinois EPA.
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1 MR. O'BRIEN: Jim
O'Brien, manager,
2 Office of Chemical Safety at the Illinois EPA.
3 MR. WIGHT: Mark
Wight. I'm with the
4 Division of Legal Counsel at the Illinois EPA.
5 MR. CLAY: Doug Clay, manager of
6 Leaking Underground Storage Tank Section at the
7 Illinois EPA.
8 MR. LISS: I'm Ken
Liss, groundwater
9 unit manager, permit section.
10 THE HEARING OFFICER: We will continue
11 with those in the audience.
12 MS. VON LANKEN: I'm Vicky
VonLanken,
13 Division of Legal Counsel with the Illinois EPA.
14 MR. WALTON: I'm Harry Walton with
15 the Illinois Power Company, chairman of the site
16 remediation advisory committee, chairman of Illinois
17 Environmental Regulatory Group Corrective Action,
18 and member of underground tank advisory committee.
19 MS. STEINHOUR: Beth
Steinhour
20 of the Illinois Environmental Regulatory Group.
21 MR. RIESER: I'm David
Rieser. I'm
22 with the law firm of Ross &
Hardies. I'm here on
23 behalf of the Illinois Petroleum Council and the
24 Illinois Steel Group. I'm also a member of site
L.A. REPORTING - (312) 419-9292
7
1 remediation advisory committee on behalf of the
2 Chemistry Industrial Council of Illinois.
3 MS. ROSEN: Whitney
Rosen with Illinois
4 Environmental Regulatory Group.
5 MR. WATSON: John
Watson from Gardner,
6 Carton & Douglas.
7 MS. SHARKEY: Pat
Sharkey from Mayer,
8 Brown & Platt.
9 MS. JOSEPAIT: Linda
Josepait,
10 Northern Illinois Gas.
11 MS. HUFF: Linda Huff with Huff & Huff.
12 MR. SHEELY: Jerry
Sheely, Marathon Oil
13 Company.
14 MR. PRIMACK: Harold
Primack, Amoco
15 Corp.
16 MS. LYONS: Karen Lyons, Shell Oil
17 Company.
18 MR.
DeVAULL: George
DeVaull, Shell
19 Development Company.
20 MR. RETTIG: Todd
Rettig, Illinois
21 EPA.
22 MR. HOMER: Mark Homer with the
23 Chemical Industry Council of Illinois.
24 MR. INGRAM: I'm Derek
Ingram with
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1 Black &
Veatch, engineering consulting firm.
2 MS. TOMCZAK: Molly
Tomczak with
3 Northern Illinois Gas.
4 MR. PUTMAN: Lewis
Putman with Gardner,
5 Carton & Douglas.
6 MR. ORLINSKY: Peter
Orlinsky, Division
7 of Legal Counsel with the Illinois EPA.
8 MR. CHAMBERLAIN: Bill Chamberlain,
9 City of Chicago Law Department.
10 MR. JAMES: Kenny James,
Carlson
11 Environmental.
12 MR. MUELLER: David Mueller, senior
13 counsel for Case Corporation.
14 MS. WENTZ: Ann
Wentz, U.S.
15 Environmental Protection Agency.
16 MR. WENTZ: Jeffrey
Wentz, Acme Steel.
17 MR. ARMSTRONG: Steve Armstrong,
18 attorney for People's Gas.
19 MR. REOTT: Raymond
Reott from Jenner &
20 Block.
21 MS. BURKE: Jennifer Burke from
Jenner
22 & Block.
23 MR. PRAGER: Michael
Proger, Illinois
24 Environmental Protection Agency.
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9
1 MS. POULOS: K.C.
Poulos, Pollution
2 Control Board.
3 MR. DAVIS: Eric Davis, A-Plus
4 Environmental.
5 MR. SONI:
Hiten Soni, Pollution
6 Control Board.
7 MS. ANN: Elizabeth Ann, Pollution
8 Control Board.
9 THE HEARING OFFICER: I would also note
10 that another board member has joined us, Kathleen
11 Hennessey.
12 MS. HENNESSEY: Good morning.
13 THE HEARING OFFICER: Okay. Today's
14 hearing will be governed by the board's procedural
15 rules for regulatory proceedings pursuant to
16 35 Illinois Administrative Code 102.282.
17 All information which is relevant
18 and not repetitious or privileged will be admitted.
19 Additionally, all witnesses will be sworn and
20 subject to cross-questioning.
21 The
rulemaking proposal which
22 is the subject of today's proceeding was filed with
23 the board on September 16, 1996, by the Illinois
24 Environmental Protection Agency as required by
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1 Public Act 89-431, which was signed and became
2 effective December 15, 1995.
3 This act added a new Title 17
4 to the Environmental Protection Act entitled Site
5 Remediation Program. The proposed regulations today
6 are intended to achieve the following objectives set
7 forth in Public Act 89-431.
8 First, the establishment of a
9 risk-based system of
remediation based on protection
10 of human health and the environment relative to the
11 future use of the land; and second, the assurance
12 that the land use for a site at which remedial action
13 was taken will not be modified without consideration
14 of the adequacy of such remedial action for the new
15 land use.
16 The subject matter of the current
17 rulemaking is linked with two other
rulemakings
18 currently pending before the board.
19 The first separate
rulemaking
20 is also last, intended to meet the requirements of
21 89-431 entitled In The Matter of Site
Remediation
22 Program, 35 Illinois Administrative Code, Part 740;
23 and second, a
rulemaking entitled In The Matter of
24 Regulation of Petroleum Underground Storage Tanks,
L.A. REPORTING - (312) 419-9292
11
1 which is docketed as R97-10.
2 Section 58.11(c) of the
3 Environmental Protection Act, as added by 89-431,
4 requires the board to complete the
rulemaking or
5 before June 16, 1997.
6 Due to this stringent time frame
7 for adoption, the board sent today's proposal first
8 notice on November 7, 1996, without commenting on the
9 merits of the proposal.
10 Today's hearing is reserved to
11 the agency's presentation of its proposal and any
12 questions for agency's witnesses.
13
Prefiled testimony will be
14 entered into the record as if read and witnesses
15 will be available for questioning. We will begin
16 the questioning phase of today's proceeding with
17 those questions that have been
prefiled.
18 We have received four sets of
19 prefiled questions from the site
remediation advisory
20 committee filed by Whitney
Wagner Rosen and David
21 Rieser; from Mayer, Brown & Platt filed by Patricia
22 Sharkey; from Gardner, Carton & Douglas filed by John
23 Watson and Lewis
Putman; and from
Jenner & Block
24 filed by Ray
Riat.
L.A. REPORTING - (312) 419-9292
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1 We are going to proceed through
2 the
prefiled questions that relate to specific
3 sections in order of the proposal addressing all
4 questions related to a particular section.
5 This would include all of the
6 prefiled testimony with the exception of that of
7 Ray
Riat which is not proceeding section-by-section.
8 We will address that separately at the end of the
9 prefiled questions.
10 The agency has requested that it
11 be allowed to respond in panel format so that agency
12 witnesses will respond as they deem appropriate.
13 We would ask that when addressing
14 prefiled questions that the proponent of the question
15 first read the question. The agency will then have
16 an opportunity to respond and then there can be any
17 follow-up questions that you may have.
18 During the questioning period, if
19 you have a question, please raise your hand and wait
20 for me to acknowledge you. Then, stand and state in
21 a loud and clear voice the name and the organization
22 you represent, if any.
23 Please note that any questions
24 asked by board members or board staff are not
L.A. REPORTING - (312) 419-9292
13
1 intended to show any preconceived notions or bias,
2 but merely to build a complete record for those
3 board members who are not present today.
4 As set forth in my October 28,
5 1996, hearing officer order, the second hearing is
6 scheduled to begin on this matter on January 15,
7 1997. That hearing will be held in Springfield,
8 Illinois, at 201 Municipal Center West,
9 at 7th and Monroe Street, Counsel Chambers, third
10 floor.
11 That hearing will begin with
12 any remaining questions for agency witnesses and will
13 also allow for testimony from other interested
14 parties and questions addressed
15 to those witnesses.
16 MS.
McFAWN: I just want to welcome
17 you here on behalf of the board and staff. We have
18 seen a lot of you at our recently held hearings in
19 the underground storage tank docket as well as the
20 site
remediation program document.
21 As some of you may know, we have
22 delayed this series of hearings at the T.A.C.O. rules
23 at the request of a number of participants. Maybe it
24 is for the best that we are coming now after having
L.A. REPORTING - (312) 419-9292
14
1 our initial set of hearings in the
U.S.T. and site
2 remediation program dockets.
3 I certainly see how these dockets
4 are now linked and I have reviewed the questions that
5 you have
prefiled as I am sure as the other board
6 members and staff have done.
7 I find them most interesting. I
8 believe they also will allow us today to develop a
9 record useful to the board as well as the regulating
10 public.
11 I hope we can get through these
12 questions. We have quite a few and I look forward
13 to having them succinctly read into the record and
14 I'm sure the agency is looking forward to answering
15 them.
16 So welcome all.
17 THE HEARING OFFICER: Mr.
Yi, do you
18 have any questions at this time or comments?
19 MR. YI: No, I really don't.
20 THE HEARING OFFICER: We will then turn
21 to the agency for its presentation of the proposal.
22 Ms.
Robinson?
23 MS. ROBINSON: Good morning. Thank you
24 everybody for being here and thank you in advance for
L.A. REPORTING - (312) 419-9292
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1 all the hard work that everybody has put into this
2 proposal.
3 The way I anticipate proceeding
4 is by giving summaries of testimony and having all
5 witnesses sworn to do so. In lieu of doing an
6 opening statement, Mr. King will give an overview
7 of its program and its intent.
8 We have provided, with the help
9 of Mr.
Rieser of Ross &
Hardies, two flow charts
10 which are also inside your proposals that you have
11 received. If you have a board numbered version of
12 the proposal, those two flow charts fall on Pages 77
13 and 78 for your reference in case you can't see the
14 flow charts up there.
15 Would you like to swear in the
16 witnesses. We also have an errata sheet that was
17 mailed out November 27th. There are extra copies
18 on the table back there as well as appendices with
19 shaded areas that show any changes that have
20 occurred. We will be going through this before the
21 summaries and Mr. King will address them.
22 THE HEARING OFFICER: Would the court
23 reporter please swear in all the witnesses?
24 (Witnesses sworn.)
L.A. REPORTING - (312) 419-9292
16
1 WHEREUPON:
2 GARY KING, JOHN SHERRILL, THOMAS HORNSHAW,
3 TRACEY VIRGIN, KEN LISS, DOUG CLAY, MARK WIGHT,
4 JIM O'BRIEN,
5 the deponents herein, having been first duly sworn
6 under oath,
testifes as follows:
7 MS. ROBINSON: In advance, I have
8 had the court reporter mark all the exhibits
9 for identification. So we will just go ahead and
10 proceed that way.
11 Mr. King, I will show you what
12 has been marked for identification as Exhibit No. 1.
13 If you could, identify that for the record, please?
14 (Document tendered
15 to the witness.)
16 MR. KING: This is a copy of the
17 testimony that I have prepaid for this proceeding.
18 It discusses legislative background and some of
19 the history of the regulatory development.
20 MS. ROBINSON: And is this a true
21 and accurate copy of the testimony that we have
22 filed?
23 MR. KING: Yes, it is.
24 MS. ROBINSON: I'm also going to
L.A. REPORTING - (312) 419-9292
17
1 show you what has been mark as Exhibit 2 for
2 identification. If you could, identify that,
3 please.
4 (Document tendered
5 to the witness.)
6 MR. KING: This is a copy of a document
7 that I have prepared in support of this
rulemaking,
8 which discusses Subpart A and Subpart C of proposed
9 Part 742.
10 MS. ROBINSON: Is that also a true and
11 accurate copy of what we have filed?
12 MR. KING: Yes, it is.
13 MS. ROBINSON: This has been marked as
14 Exhibit 3 for identification. Would you please
15 identify that?
16 (Document tendered
17 to the witness.)
18 MR. KING: This is a copy of a document
19 that I prepared in support of the Part 742 regulatory
20 proposal discussing Subparts J and K.
21 MS. ROBINSON: Is that a true and
22 accurate copy?
23 MR. KING: Yes, it is.
24 MS. ROBINSON: The next has been marked
L.A. REPORTING - (312) 419-9292
18
1 as Exhibit No. 4 for identification. I will show
2 this to Mr.
Sherrill.
3 Could you identify that for the
4 record, please?
5 (Document tendered
6 to the witness.)
7 MR. SHERRILL: This is a copy of
8 my written testimony, which I prepared that
9 supports Subparts B, E, F, G, H, and the related
10 appendices.
11 MS. ROBINSON: Are there attachments
12 to that exhibit?
13 MR. SHERRILL: Yes.
14 MS. ROBINSON: Are they all true and
15 accurate copies of what we have prepared?
16 MR. SHERRILL: Yes.
17 MS. ROBINSON: The next one has been
18 marked as Exhibit 5 for identification. I will show
19 this to Dr.
Hornshaw. Could you identify that for
20 the record, please?
21 (Document tendered
22 to the witness.)
23 DR. HORNSHAW: This is a copy of the
24 testimony that I prepared in support of Subparts D,
L.A. REPORTING - (312) 419-9292
19
1 E, F and H, plus some attachments to that testimony.
2 MS. ROBINSON: Is all of this a true
3 and accurate copy of what you have prepared?
4 DR. HORNSHAW: Yes, it is.
5 MS. ROBINSON: The next one has been
6 marked as Exhibit 6 for identification. I will
7 hand this to Ms. Virgin to identify that for
8 identification, please.
9 (Document tendered
10 to the witness.)
11 MS. VIRGIN: This is a copy of the
12 testimony -- written testimony that I have prepared
13 on Subpart I for this
rulemaking.
14 MS. ROBINSON: Is it a true and
15 accurate copy of what you have prepared?
16 MS. VIRGIN: Yes, it is.
17 MS. ROBINSON: The next one is marked
18 as Exhibit 7 for identification. Mr. King, would you
19 please identify that for the record?
20 (Document tendered
21 to the witness.)
22 MR. KING: This is a document entitled
23 errata sheet number one which was filed -- has been
24 filed transmitted to the board for filing. It was
L.A. REPORTING - (312) 419-9292
20
1 transmitted on November 27, 1996.
2 MS. ROBINSON: Is that a true and
3 accurate copy of what the agency put together?
4 MR. KING: Yes, it is a true and
5 accurate copy.
6 MS. ROBINSON: The last one was marked
7 as Exhibit 8 for identification. Mr. King, would you
8 please identify that for the record?
9 (Document tendered
10 to the witness.)
11 MR. KING: This is a document. It
12 begins with Section 742, Appendix A, general, and
13 it contains various revisions to the appendix that
14 we put together. Those changes are basically
15 described in errata sheet number one.
16 MS. ROBINSON: And is that a true and
17 accurate copy?
18 MR. KING: Yes, it is.
19 MS. ROBINSON: At this time I would
20 move to have these all admitted into the record.
21 THE HEARING OFFICER: Are there any
22 objections.
23 The exhibits will be admitted as
24 Exhibits 1 through 8.
L.A. REPORTING - (312) 419-9292
21
1 (Whereupon, Hearing
2 Exhibits 1 through 8 were
3 admitted into evidence.)
4 MS. SHARKEY: Mr.
Desharnais, I'm
5 wondering if we could list the exhibits that are
6 attached to the exhibits or the attachments attached
7 to the exhibits just so we are all clear that we
8 have all of the attachments.
9 MS. ROBINSON: They are marked with
10 lettering. If you would like, we could read those
11 in.
12 MS. SHARKEY: I'm just thinking if you
13 could tell us for the record which exhibits have
14 attachments and if it's, for example, A through D
15 or whatever on each one.
16 THE HEARING OFFICER: Exhibits 4 and 5
17 have attachments. Do any others?
18 MS. ROBINSON: No. Those should be the
19 only ones.
20 THE HEARING OFFICER: All right.
21 Exhibit 4 has attachments Exhibit A through H.
22 Exhibit 5 has attachments A through D.
23 Is that accurate?
24 MS. ROBINSON: Yes. Are there any
L.A. REPORTING - (312) 419-9292
22
1 other questions at this time?
2 Shall I proceed?
3 THE HEARING OFFICER: Please.
4 MS. ROBINSON: Mr. King, at this time,
5 if you would, please give an overview of the T.A.C.O.
6 process and how it's intended to work.
7 MR. KING: Today's hearing really begins
8 what I hope will be a culminating phase of a long
9 process of rule development that really began back
10 two and a half years ago when we began the hearing
11 process as part of the proposed LUST rules that were
12 a follow-up to House Bill 300.
13 We had a lot of discussions
14 at that time about the whole notion of cleanup
15 objectives. We deferred that to a separate docket,
16 proceeded on that docket through the early part of
17 '95, and then a new law came into effect.
18 So we have been really engaged
19 in a process for a good two and a half years now
20 of developing a set of rules to be dealing with
21 what we are now calling
remediation objectives.
22 I will tell you just a little
23 story just -- I tell this story in terms of
24 describing how hard both people on the public and
L.A. REPORTING - (312) 419-9292
23
1 the private sector have worked together relative
2 to developing this proposal.
3 A couple months ago back in
4 September, Mr. Walton who has been described as
5 the chairman of the advisory committee and I were
6 attending a conference up here in Chicago. It
7 was a conference sponsored by the USEPA discussing
8 the issue of
Brownsfields and utilities. We were
9 both making presentations there.
10 During the afternoon of that
11 conference, there was a presentation by a Chicago
12 attorney, who will be nameless, and I checked the
13 audience, he wasn't here either. But he went through
14 a fairly cynical attack on what we had developed as
15 part of the T.A.C.O.
rulemaking.
16 That attack was kind of all over
17 the place, but, in essence, it was saying on the one
18 hand, this was too liberal and on the other hand, it
19 was too conservative. It had a lot of misinformation
20 in it. I kind of bided my time and bit my tongue a
21 little bit.
22 At the conclusion of his
23 statement, Mr. Walton reached over and said sit down
24 and I'll deal with this. He got up and proceeded
L.A. REPORTING - (312) 419-9292
24
1 to -- I'll use the term sternly refute the person who
2 was making these comments. In fact, he used quite a
3 bit stronger language than that.
4 For me, that was really a symbol.
5 Actually, when he did that, I felt pretty proud of
6 what we had accomplished in terms of public sector
7 and private sector cooperation on a very significant
8 issue because here was a person who was really
9 representing the private sector through a key person
10 representing them through the context of our
11 negotiations who is defending what, in essence,
12 had been put forth as an agency proposal.
13 I think it really showed how
14 much this is. It's not just an agency proposal, but
15 it's something that represents a lot of people who
16 have spent a lot of time from both the public sector
17 and private sector trying to develop a system of
18 remediation objectives which is protective and yet
19 makes the best sense that we can come up with.
20 It doesn't mean we aren't going
21 to have arguments or disputes, but I think there
22 is a core sense of cooperation on what we have put
23 together.
24 We are going to be going through
L.A. REPORTING - (312) 419-9292
25
1 this
rulemaking. One of the other people on the
2 advisory committee made the comment to me that he
3 was comparing to what we have done in Illinois to
4 what was going on in other states relative to
5 remediation objectives. He described what we have
6 done in Illinois as the
Cadillac approach.
7 If you look at it in terms of
8 the comprehensiveness, the flexibility that's
9 engaged, how we have sought to adapt issues to our
10 state programs, it's really something that no other
11 state at this point really compares to. We have
12 gone beyond virtually anything else going on in the
13 country.
14 Now, one of the results of that,
15 because of what we have done, is that we have a
16 proposal, although it's very comprehensive and
17 flexible, that's also made it -- admittedly made it
18 quite complex. It takes a lot of work to understand
19 all of the dimensions of what's going on.
20 Through that complexity, I think
21 there are certainly underlying principals that need
22 to be understood kind of from where we were coming
23 from. I will give you four of the kind of guiding
24 principals that at least for me that kind of molded
L.A. REPORTING - (312) 419-9292
26
1 our path through this process.
2 First, it was we weren't going
3 to have soil
remediation just for the sake of soil
4 remediation. It's kind of a problem we saw occurring
5 under past proposals. We felt a need to change that.
6 The second thing was that we
7 really needed to look at contamination as an issue
8 to be managed. So you end up protecting against
9 pathways of harm to human health. The key there
10 is we are looking at a management of contamination
11 that results in protection of human health.
12 The third principal was that
13 land use restrictions and how you handled the land
14 use was going to be an important function with how
15 a
remediation objective system would work.
16 The final principal was that we
17 wanted to have the same cleanup goals across all of
18 our
remediation programs.
19 In the last couple weeks, the
20 board has seen us presenting testimony first for
21 the LUST program, talking about the use of T.A.C.O.
22 there and the site
remediation program talking about
23 the use of T.A.C.O. there.
24 We just think it is important
L.A. REPORTING - (312) 419-9292
27
1 to have that kind of consistency as far as an overall
2 goal. Each program will continue to have its own
3 procedures as to how to function, but the goal --
4 the basic cleanup goal will be the same across all
5 programs or at least that's our intent.
6 Now, we have taken those
7 principals and we have used obviously the statute
8 that was adopted last year, which had a lot of say
9 about the direction we needed to take.
10 We have had ASTM procedures
11 adopted through the RBKA process, which has been
12 directed towards the petroleum program. We have
13 used those procedures as a methodology. We have
14 used USEPA guidance. We have used our own experience
15 and guidance across multiple disciplines. We have
16 had an extensive amount of peer review in this
17 process.
18 What we have ended up with Part
19 742 is a set of procedures where there are five
20 distinct methodologies for developing
remediation
21 objectives.
22 I know this may sound a little
23 bit corny, but if you can, just think about it
24 in the context of a symphony with five movements.
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1 Each movements has its own theme and its own
2 variations and each movement can be played
3 separately, but they are all connected.
4 All five of those movements
5 are connected into one symphony with some
6 overarching themes to it. So it really is --
7 it's really important to look at this. There
8 are five distinct things. It's important to
9 understand how it all fits together.
10 The five methods that are --
11 I'll just go through those real quickly. There
12 are five methodologies. There's the pathway
13 exclusion. That's in Subpart C. There's an
14 area background. That's in Subpart D. There's
15 Tier 1. That's in Subpart E. Tier 2 is described
16 in Subparts F through H. Tier 3 is described in
17 Subpart I.
18 There is really -- I think
19 there is -- in looking at these five methodologies,
20 there are three real important things to consider
21 as far as the fundamental starting points to using
22 742.
23 First, it simply doesn't
24 work unless you have a sound characterization
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1 and site contamination in accordance with accepted
2 scientific and engineering principals. That
3 means looking at the rate and extent of pathways.
4 Unless you have that, you
5 really can't move forward in any kind of meaningful
6 way relative to what these
remediation objectives
7 are all about.
8 The second important principal
9 is that whatever method you are using, whatever
10 these five methods you choose, whether you use one
11 or whether you use more than one, you have to address
12 three pathways.
13 Those three pathways are the soil
14 inhalation, which is a direct pathway of human health
15 impact. The second one is the soil ingestion, which
16 is also a direct impact. Then, there is the
17 groundwater ingestion.
18 Now, groundwater ingestion if
19 you are ingesting groundwater, that's direct impact,
20 but that has two components relative to it. The
21 first component is really how does the contamination
22 actually move in the groundwater towards a receptor
23 or potential receptor.
24 The second component is how does
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1 contamination move from a site -- from a point of
2 being on land,
inground, into the groundwater.
3 That second part, that migration of groundwater,
4 becomes critical because we are really not focused
5 very much on people directly ingesting contamination
6 of groundwater. Normally, it's a situation where
7 it's been dumped on land or disposed on land or
8 is just still there and has potential of movement.
9 The third thing that I think
10 is a critical starting point is this notion of
11 contaminants of concern. The contaminants of
12 concern is determined based on two or three
13 different major factors. First of all, it depends
14 a lot on the regulatory program that you are in.
15 For instance, if you have a
16 LUST site and it's a -- you're talking about a
17 non-lighted gasoline tank, the contaminants of
18 concern are real clear. It's the BTEX.
19 If you are like in the site
20 remediation program, what the contaminants of
21 concern are is something that can be optional
22 on the nature of the investigation that's being
23 performed. It also depends on what type of result
24 is being sought from the agency.
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1 Now, the heart of all of this,
2 I think, is really the Tier 1 numbers as a baseline.
3 Tier 1 kind of sits in the middle, the way we have
4 it. It's real critical because Tier 1 can be used
5 as a set of
remediation objectives in which case
6 you can meet those and be assured of adequate
7 protection of public health or you can use those
8 Tier 1 numbers as a screening tool to determine
9 what additional information needs to be gathered,
10 what other approach may be the best relative to
11 the methodologies.
12 I'm going to take a few minutes
13 and walk through the charts over here. First of
14 all, as Kim was noting earlier, we would like to
15 thank the advisory committee for doing a blowup of
16 these charts. It saved us having to do it and
17 saved us from having to carry if up from Springfield.
18 As Kim was saying, these are
19 on Page 77 and Page 78 of the board's copy. It's
20 going to be difficult for everybody to see this,
21 but I'm just going to kind of quickly walk through.
22 If you can't really see the chart, just follow
23 along as part of your appendix documents.
24 Again, as I was saying before,
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1 the whole process starts off with characterizing
2 the site and determining what are the potential
3 routes of exposure to human health. Once you
4 pass through that, then, you're going to be going --
5 this is on the soil
remediation objectives.
6 You determine what your
7 contaminants of concern are. You go into the
8 lookup tables and you see based on the contaminants
9 of concern that you have and based on the use
10 classification, what those Tier 1 objectives would
11 be.
12 If those objectives have been
13 met, then, you can -- then they would simply
14 be completed without any further
remediation.
15 However, there might be a requirement of an
16 institutional control if you have selected a
17 remediation objective based on a non-residential use.
18 If you argue that you haven't
19 met those levels, the choice could be to go ahead
20 and
remediate to those Tier 1 levels, in which
21 case the project could be completed at the Tier 1
22 numbers.
23 The next option would be if
24 you didn't meet Tier 1 numbers, then, you could
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1 drop down into Tier 2 and develop objectives
2 under Tier 2. Tier 2 is basically a set of
3 equations. We have used both the model that
4 comes out of the ASTM procedures and the models
5 that come out of the USEPA soil screen and
6 guidance document. Those can be used separately.
7 You go through and do a series
8 of calculations based on on-site specific
9 circumstances. You may find that the site meets
10 those requirements relative to Tier 2 and can
11 pass right through to the no further
remediation
12 stage and it could then do a cleanup of
13 the site to meet those Tier 2 numbers.
14 If Tier 2 doesn't quite work
15 out, then, the third option would be to go to
16 Tier 3 and then objectives are developed in a
17 similar sort of way. Tier 3 is much more wide
18 open as far as what factors can be considered,
19 whereas Tier 2 is looking at two models; one,
20 the ASTM one and the other is the USEPA one as
21 far as objectives. Tier 3 is wide open as far
22 as different models that can be proposed. We
23 listed a number of factors that can be considered.
24 The way we have tried to lay
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1 this out is that whatever tier you are cleaning
2 up to, it's an equivalent level of protection.
3 So the no further
remediation, from the legal
4 standpoint, should have the same legal effect.
5 Moving on to the groundwater
6 portion, when you are looking at the groundwater
7 remediation objectives, you are still looking
8 at site characterization, you are looking at
9 exposure route evaluation, but then you are
10 also looking at classification of the type of
11 groundwater, basically, whether you have class
12 one or class two.
13 Once you have determined
14 to a great extent the groundwater classification,
15 then, you can go in and go into the lookup tables
16 with your contaminants of concern and as we went
17 through with Tier 1 with the soil issue, and make
18 some decisions as to whether you want to
remediate
19 to the Tier 1 levels or go on to one of the other
20 tiers.
21 You could drop down to the
22 Tier 2, then. Tier 2 provides the methodology
23 for developing a Tier 2 groundwater
remediation
24 objective. That's spelled out directly in one
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1 of the rules, what factors had to be addressed
2 and you go through that approach.
3 Tier 3 for the groundwater is
4 similar for Tier 3 to the soil in the sense that
5 it's open and not confined to a single model.
6 It's a little bit confusing in terms of these
7 charts because there is an implication that you
8 automatically go from site characterization to
9 a Tier 1 process.
10 You can skip -- I don't know
11 why you would want to, why you would want to
12 skip past Tier 1 because you would always want
13 to look at the charts to see whether you were
14 meeting those numbers, but you could, in fact,
15 jump from site characterization down to Tier 2
16 or down to Tier 3 as well and that's either
17 groundwater or the soil side.
18 Thank you.
19 THE HEARING OFFICER: Thank you,
20 Mr. King.
21 MS. ROBINSON: At this time I would
22 like to have Mr. King go through the errata sheet
23 to give an overview of the changes.
24 MR. KING: I think this overview is
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1 going to be very brief.
2 In substance, what we have been
3 doing since we proposed the rules back in September
4 is we have been going through a process of making
5 sure that a lot of things were just -- particularly
6 with appendices, that we have numbers exactly right;
7 that we didn't have any errors; that we didn't have
8 any grounding problems.
9 So a lot of this is the result --
10 a lot of these changes are as a result of us going
11 back and continuing to refine things and make sure
12 they were accurate and getting all of the
13 typographical errors out.
14 Now, there is one typographical
15 error that I would like to note on errata sheet
16 number one. If you look at Page 10 under Appendix C,
17 Table D, the fourth one down, it says, for the symbol
18 TR, the parameter values column, all references
19 should be and then it says "ten to the minus six at
20 the point of human exposure." After the word
21 exposure, there should be a quotation mark.
22 We are going to be -- we have
23 not been able to get -- as I was saying, we are
24 continuing the process of making sure everything
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1 is correct and that is an ongoing thing. We are
2 anticipating that we will be filing a second
3 errata sheet for the next set of hearings.
4 That concludes my statement on
5 the errata sheet.
6 MS. ROBINSON: At this time we
7 can proceed on through the summaries of people's
8 testimonies and on to the questions.
9 Mr. King, would you like to
10 summarize your testimony first?
11 MR. KING: The first part of my
12 testimony is really just describing some of the
13 issues that arose out of the legislation that
14 was passed last year and just making some notes
15 relative to that.
16 The second part was talking
17 about the regulatory development. As identified
18 here, we ended up meeting with the site advisory
19 committee a full ten times between March and
20 August. There was a lot of effort on everybody's
21 part to accomplish that.
22 The second set of testimony
23 discusses Subparts A and C. A lot of what is
24 talked about in Subpart A I have already gone
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1 through. So I won't belabor that any further.
2 Subpart C gives discussion
3 as to some of the background as to how we really
4 came to the notion of Subpart C. I think we
5 will be talking about that in response to some
6 of the direct questions.
7 The third set of the discussion
8 that I had was talking about Subpart J dealing
9 with institutional controls. We have designated
10 five types of execution controls that we think are
11 appropriate for use under these rules. Some of
12 them are more obvious than others, but those are
13 what we really concluded was appropriate.
14 Then, there is just a short
15 discussion on engineered barriers and what that's
16 intended to reply to.
17 MS. ROBINSON: Mr.
Sherrill?
18 MR. SHERRILL: Thank you for the
19 opportunity to address this hearing.
20 My written testimony provides
21 details of these subparts, Subpart B, which is
22 general, which has the incorporation by reference,
23 the soil attenuation capacity, soil saturation
24 limit, determination of compliance with
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1 remediation objectives and agency review and
2 approval.
3 Subpart E is the Tier 1
4 evaluation. Subpart F is the Tier 2 general
5 evaluation. Subpart G is Tier 2 soil evaluation.
6 Subpart H is the Tier 2 groundwater evaluation.
7 Then, we have the related appendices A, B, C and
8 D.
9 I would just like to start to
10 briefly follow-up on what Gary King was talking
11 about. If we could turn to Exhibit C, which
12 follows my written testimony, that's Exhibit C.
13 Exhibit C is titled "Residential
14 Exposure." Following up with what Gary King had
15 said, these three pathways are very important and
16 we will be discussing them throughout the day.
17 In looking at this exhibit,
18 it demonstrates the fundamental exposure routes
19 upon which these
remediation objectives are
20 developed.
21 On the left-hand side of this
22 exhibit, we see a child who is potentially exposed
23 to ingestion of contamination. We see a man walking
24 in the middle of this diagram and he is exposed to
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1 inhalation of contaminants. To the far right is
2 someone potentially exposed to contaminants by
3 drinking the groundwater.
4 The contaminants are shown to
5 be what I have labeled waste pile and source. We
6 can see that it's -- I'm demonstrating that it's
7 leaving into the groundwater and the groundwater
8 transports it over for possible ingestion.
9 So those are the three
10 fundamental routes that will be discussed throughout
11 these hearings; soil ingestion, inhalation, and
12 ingestion of groundwater.
13 If we could turn to -- I think
14 it would be helpful just to briefly turn to the
15 actual proposed rule itself, Part 742, Appendix B,
16 Table A, Appendix B, Table A.
17 THE HEARING OFFICER: For those
18 following along, that's on Page 79.
19 MR. SHERRILL: This is titled "Table A,
20 Tier 1 Soil
Remediation Objectives for Residential
21 Property." To the far left of this is a column
22 chemical abstract number. The next column is
23 the chemical name. Then, we have a column labeled
24 ingestion. There is a column labeled inhalation.
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1 Then, we have two columns for the migration of
2 groundwater -- portion of the groundwater ingestion
3 exposure route with respect to class one and class
4 two.
5 What I'm trying to tie together
6 is those three exposure routes that we went over.
7 What Tier 1 provides, and as Gary King has called
8 screening or looked up values, Tier 1 provides
9 pre-calculated numbers.
10 For example, looking at benzene,
11 we see that we have soil ingestion value of 22
12 milligrams per kilogram. We have an inhalation
13 value of 0.8 milligrams per kilogram.
14 So Tier 1 provides pre-calculated
15 lookup values. We have provided these lookup values
16 for 117 different chemicals. Throughout my
17 testimony, I use the word chemicals and contaminants
18 somewhat interchangeably.
19 Generally, the Tier 1 soil --
20 unless we have other information demonstrating
21 otherwise, a Tier 1 soil objective is generally the
22 most restrictive soil objective problems from the
23 respective routes that we review.
24 Subparts F, G and H in my written
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1 testimony provides the framework and equations of the
2 Tier 2 evaluation by which site-specific
remediation
3 objectives are calculated. These are analytical
4 methods that you incorporate site data to calculate
5 the Tier 2
remediation objectives.
6 Subpart B of my testimony
7 provides what we are calling ceiling amounts by use
8 of a soil attenuation capacity and a soil saturation
9 limit. This prevents free product and potentially
10 unacceptable risk from either single or multiple
11 contaminants remaining in the soil as well as
12 violating the model assumptions themselves under
13 Tier 2.
14 Subpart B of my testimony also
15 has the criteria for determining if a site meets
16 the
remediation objectives. Basically, the chief
17 compliance of the analytical results are less
18 than the applicable
remediation objectives.
19 We have also provided some
20 flexibility in meeting these objectives by provided
21 what we call averaging and
compositing techniques
22 to achieve these objectives.
23 That is the end of my summary.
24 MS. ROBINSON: Thank you, John.
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1 Dr.
Hornshaw?
2 DR. HORNSHAW: Good morning. My
3 testimony concerns information presented in
4 Subpart D, determining area of background, and
5 portions of the information presented in Subparts
6 E, which is the Tier 1 evaluation; F, which is
7 the Tier 2 general evaluation; and H, which is
8 the Tier 2 groundwater evaluation.
9 In my testimony, I describe
10 the development of the proposed methodologies
11 for determining and using area background
12 concentrations for chemicals in the soil and
13 groundwater. I present an overview for the
14 derivation of the Tier 1 cleanup objectives
15 listed in Appendix B for groundwater and soil.
16 I explain why and how cumulative
17 effects of non-carcinogens must be addressed. I
18 have discussed the recommended values for physical
19 chemical parameters presented in Appendix C and I
20 have described the rationale and requirements for
21 allowing chemical concentrations in groundwater
22 in excess of the Tier 1 values.
23 For Subpart D, area of background,
24 my testimony goes into a discussion of why the
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1 general assembly included a place for area background
2 as one of the alternatives in House Bill 901. That
3 was at Section 58.5(b).
4 This is because it's possible
5 that native concentrations of chemicals may exceed
6 the calculated cleanup goal for a chemical. It's
7 also possible that an
upgradient source of a chemical
8 has resulted in concentrations of that chemical at
9 a
downgradient site, which exceeds its risk-based
10 cleanup goal even though that was never handled at
11 a
downgradient site.
12 It's also possible that area-wide
13 or even global human activities have resulted
14 in man-made chemicals being deposited in appreciable
15 concentrations around and sometimes even distant from
16 such activities.
17 Therefore, recognition of
18 background levels of chemicals is necessary in a
19 risk-based
remediation program in order to address
20 the situations that I have just discussed.
21 For the soil background
22 determination, we decided that specific procedures
23 for determining background concentrations were
24 needed and what we tried to do was identify at
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1 least one procedure for soil and one for groundwater,
2 which if performed correctly by the person doing
3 remediation, it would routinely generate results
4 which could be accepted by the agency without
5 question.
6 Thus, we originally selected
7 two no questions approaches for determining soil
8 background in the draft Part 742, which was
9 sent to the advisory committee in April.
10 Our first approach at that
11 time, which we called the prescriptive approach,
12 was adapted from a pretty much routine approach
13 the USEPA uses for determining groundwater background
14 concentrations at RCRA sites.
15 In this adaptation, we specified
16 a minimum of ten samples, which would also have to
17 be demonstrated to be normally distributed as shown
18 by a coefficient of variation tests. If the
19 background data set met these requirements, then,
20 the 95 percent upper tolerance limit of that data
21 set would be the upper limit for the area of
22 background concentration for that site.
23 We also developed a second
24 approach, which we called the statewide background
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1 approach, and that relied on our publication entitled
2 "A Summary of Selected Background Conditions for
3 Inorganics in Soil." We use that -- our publication
4 to determine if an inorganic chemical could be
5 considered to be present at a site at background
6 levels.
7 My office, the Office of Chemical
8 Safety, had previously compiled into a data base
9 all samples which had been reported to the agency
10 as "Background Data for a Site," and we decided
11 to take advantage of this relatively large data
12 base to help in determining area background at sites.
13 If the concentration a chemical
14 at a site fell within the range reported for that
15 chemical in our survey, then, the chemical was
16 likely present at background levels and need not
17 be included among the chemicals of concern at a
18 site.
19 In addition to these "no
20 questions" approaches, we also included pretty
21 much standard language allowing another approach
22 acceptable to the agency as a third option, which
23 was intended to address situations in which the
24 minimum requirements of the prescriptive approach
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1 were not met.
2 However, there are some
3 complications that developed during the course
4 of our discussions with the advisory committee
5 as a deadline for submitting our proposal approach
6 where certain problems with the prescriptive
7 approach for soil surfaced.
8 An update to the RCRA guidance,
9 which I discussed earlier, was obtained by the
10 agency and we reviewed it for some additional
11 guidance in establishing soil cleanup or soil
12 backgrounds.
13 In contrast to the earlier
14 guidance, the update said that most naturally
15 occurring chemicals will have a long normal
16 distribution rather than a normal distribution
17 and this distribution should be shown to be the
18 case rather than assuming normality.
19 The update also specified a
20 number of tests for normality and distribution
21 and actually quite a few of them were preferred
22 to the coefficient of variation tests, which was
23 specified in the original draft.
24 Beyond these apparent problems
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1 from
USEPA's update, we became aware that due
2 to the inherent variability in the naturally
3 occurring levels of chemicals and soils,
4 statistical methods, which are appropriate for
5 background groundwater data, may not necessarily
6 be appropriate for background soil data.
7 USEPA personnel were contacted
8 for advice and they relayed to us that since there
9 are multiple distributions possible in naturally
10 occurring chemicals and specific methodologies and
11 tests are available for these various distributions,
12 the statistical methodology should be appropriate
13 for both the nature and distribution of the data set.
14 As a result of all of this, we
15 removed the prescriptive approach from the original
16 proposal and now the statewide background approach
17 is the only no questions approach for soil.
18 For determination of the
19 groundwater background, much of what I described
20 for soil also applies to groundwater since the
21 soil approach was originally adapted from
22 groundwater methodologies.
23 Thus, the prescriptive approach,
24 which I described above, and which we subsequently
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1 dropped from the final proposal to the board, for
2 soils is still proposed for groundwater.
3 Since the agency has not
4 developed a data base for groundwater background
5 samples similar to what we did for soil, there
6 is no statewide background approach for groundwater.
7 If the minimum conditions of
8 ten samples having a normal distribution are met,
9 the agency will accept the ninety-five percent
10 upper tolerance limit of the data set as the upper
11 limit of background concentrations for groundwater
12 without question.
13 As with the soil background
14 determination, the standard language of another
15 statistical method appropriate for the data set
16 may be approved by the agency to address those
17 sites which don't meet the minimum requirements
18 or for which the prescriptive approach isn't
19 really appropriate.
20 As far as use of background,
21 any of the procedures prescribed may be used
22 to demonstrate that a chemical is present at
23 a site as a result of background conditions
24 and should therefore be eliminated as a chemical
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1 of concern for that site.
2 With the exception of the
3 statewide background approach for soil, any
4 of the procedures may also be used to determine
5 a
remediation objective for that chemical in
6 lieu of the other procedures of Part 742.
7 Since the statewide background
8 approach has certain shortfalls, the agency
9 believes that this approach is inappropriate
10 for establishing remedial objectives for soil
11 at a site.
12 Finally, we included two
13 specific restrictions on the use of background
14 concentrations which come from the language of
15 House Bill 901. Section 58.5(b)(2) of the act
16 specified that background concentrations of
17 chemical of concern at a site exceed residential
18 use
remediation objectives. A site may not be
19 converted to residential use unless the residential
20 use or
remediation objective for that chemical
21 is first achieved.
22 Therefore, we are requiring
23 the use of institutional controls at sites where
24 background concentrations exceed the residential
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1 use
remediation objectives prohibiting future
2 residential development unless the residential
3 use
remediation objectives are first achieved.
4 Second, Section 58.5(b)(3)
5 of the act prohibits its use of area background
6 concentrations if the agency determines in
7 writing that the background level poses an acute
8 threat to human health or the environment when
9 considered post-remedial action use at the site.
10 The language for both of
11 these sections have been incorporated directly
12 into Part 742.
13 Subpart E, I need to talk a
14 little bit about how we came to the Tier 1
15 tables. In 1994, ASTM and USEPA separately
16 published procedures to develop cleanup objectives
17 for protection of human health and the environment
18 which take into account site-specific conditions
19 and risks.
20 All of these approaches are
21 slightly different. They have a lot in common
22 and tend to compliment each other. Both approaches
23 accelerate and increase the consistency of regulatory
24 decisions concerning soil and groundwater cleanup
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1 objectives.
2 At this point, I'm going to
3 present a brief overview of how USEPA soil
4 screening guidance came into being before I go
5 into the development of the Tier 1 tables.
6 USEPA began their process
7 of developing soil screening guidance levels
8 in 1991 as part of an accelerated review of
9 the Super Fund process, with the aim of identifying
10 trigger concentrations for commonly detected
11 chemicals at Super Fund sites.
12 As a result of that activity,
13 an initial list of thirty trigger levels, which
14 USEPA called the dirty thirty, were developed
15 and has since been expanded to the current list
16 of 110 soil screening levels and fourteen
17 alternative calculations, which are contained
18 in the final guidance from USEPA.
19 This evolution came from a
20 series of four meetings with fifteen states,
21 which were invited to participate with USEPA,
22 and also the Association of State and Territorial
23 of Solid Waste Management Officials in the
24 development process plus continuing research
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1 by USEPA into how chemicals behave in the
2 environment, et cetera, outreach efforts with
3 the various state holders and several rounds
4 formal of and informal public comment and peer
5 review.
6 Soil screening guidance is
7 intended to be used by USEPA as a mechanism to
8 screen out areas or sites within a Super Fund
9 site that don't require further action or study
10 provided that the area does not differ significantly
11 from the assumptions which underlie the soil
12 screening levels.
13 In other words, the screening
14 level is a soil concentration below which there
15 is no concern that the Super Fund Program and
16 above which some type of further action is required.
17 The soil screening levels are neither cleanup goals
18 for a Super Fund unit nor an automatic trigger for
19 remedial action.
20 The area or site under
21 consideration shouldn't differ significantly from
22 the underlying assumptions which went into the
23 development of the soil screening levels. These
24 underlying assumptions in the final guidance
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1 was on a one-half acre site with contamination
2 extending to the water table upon which a future
3 residence with a private well would be built.
4 In both conceptual models,
5 USEPA used a series of standard exposure
6 assumptions and equations which were derived
7 for and used in baseline risk assessments for
8 Super Fund sites, which were readily available
9 health-based standards and toxicity data from
10 their data bases and sources, conservative
11 transport and fate models, and an extensive
12 data base of computer runs of the transport
13 and fate models using input parameters from
14 sites around the nation to develop a matrix
15 of soil screening levels which appear in the
16 soil screening guidance.
17 These matrices contain soil
18 concentrations for protection against direct
19 ingestion, inhalation of soil contamination,
20 and indirect exposure due to movement of chemicals
21 from soil into the water supply well.
22 If the soil -- if the screening
23 levels are not exceeded, as I said, before then the
24 site should be acceptable for even residential
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1 future use in the future, which is usually the most
2 risky anticipating future use because we are assuming
3 a child is eating soil at this site, and that should
4 be eliminated from further action at the site.
5 Only when slight conditions
6 deviate from this conceptual exposure scenario
7 would further consideration of the area or site
8 be indicated regardless of comparison of
9 concentrations at the site with the soil screening
10 levels.
11 Some examples of sites, which
12 would require further evaluation automatically,
13 are where surface water is adjacent to the site,
14 when there are environmental concerns at the site,
15 where there is the potential for significant human
16 exposure other than ingestion and inhalation of
17 soil, and drinking contaminated water such as
18 extensive skin exposure or eating locally grown
19 food crops or animals or where other future uses
20 of the property is very likely to be other than
21 residential.
22 Finally, USEPA
invisions using
23 the soil screening guidance in a tiered manner.
24 It is anticipated that relatively few large areas
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1 within most of our fund sites will initially be
2 below all of the soil screening levels. However,
3 by using a series of equations which allow Super
4 Fund personnel to calculate site-specific soil
5 screen levels, which will still be protective of
6 a residential future use, the USEPA anticipates
7 that a number of smaller parcels may be eliminated
8 from further review at these sites.
9 As a result, USEPA prefers the
10 calculation-based levels for use by their project
11 managers since with the relatively small increase
12 in effort and analytical costs, it may be possible
13 to calculate an alternative set of screening levels,
14 which would allow the site to be eliminated from
15 further consideration without
jeapordizing public
16 health.
17 The baseline of generic soil
18 screening levels were derived using conservative
19 dafault assumptions for each of the three pathways
20 as I described previously. Therefore, there are
21 screening level concentrations for protection of
22 residents living on a site for thirty years.
23 One value is for ingestion of contaminated soil;
24 one is for inhalation of vapors and
particulates
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1 coming from the contaminated soil, and one is
2 for ingestion of water from a drinking well on
3 the site.
4 If all three pathways are or
5 could be relevant at a site, then, the lowest of
6 the three values is the screening level. If a
7 pathway can reasonably be excluded, then, the
8 lowest value is used.
9 I would like to list a few of
10 the other key features -- cut it short?
11 MS. ROBINSON: Yes.
12 DR. HORNSHAW: Okay.
13 We adopted quite a bit of
14 USEPA's key features and I guess what I will
15 go through next are parts that we have added
16 or changed from
USEPA's approach in order to
17 make this an Illinois-specific procedure.
18 The first thing we did was concern
19 Class C carcinogens or Category C carcinogens, which
20 are defined by USEPA as
21 possible carcinogens.
22 There are several chemicals
23 in the generic soil screening levels classified
24 as Category C, and whose soil screening levels
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1 have been calculated with a cancer risk no greater
2 than one in one million.
3 House Bill 901 limits the
4 definition of carcinogen to Categories A or B(1)
5 or B(2). Therefore, in order to be consistent
6 with the legislation's intended and definition
7 of carcinogen, we had to recalculate the Tier 1
8 tables for Category C carcinogens.
9 Now, the way we did this
10 was -- okay. All right. We recalculated
11 Chlorodibromomethan, 1,1-Dichlorethylene,
12 Isophorone, 1,1,2-Trichloroethane, and deleted
13 Hexachloro-1,3-Butadiene,
Hexachloroethane and
14 1,1,2,2-Tetrachloroethane because there wasn't
15 a non-carcinogen toxicology criteria to recalculate
16 the Class C's.
17 I probably should mention that
18 1,4-Dichlorobenzene was listed as a B2 carcinogen.
19 If the board would remember back to the air toxic
20 rulemaking where we had quite a discussion about the
21 cancer classification of this chemical, we had
22 contacted USEPA who had identified this as a B2
23 carcinogen in the rule and asked them if it wasn't
24 actually a Category C carcinogen. They said it was
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1 so we recalculated that chemical also.
2 We had to tinker with the way
3 the migration to groundwater pathway or the
4 inorganic chemicals was derived. USEPA put
5 together an alternative table for pH of 4.9 and
6 pH of an eighth of the soil. We realized that
7 this was insufficient for
remediation objectives
8 for Illinois so we expanded that table greatly
9 giving cleanup objectives for chemicals that can
10 ionize in half of pH increments for all the
11 chemicals that are in the proposal.
12 We have added twenty-two chemicals
13 that have current groundwater standards in Subpart
14 620 and had to go through the same process as USEPA
15 used in calculating the chemicals that were in the
16 soil screening guidance. So what we have in the
17 rule is entirely consistent with the procedures the
18 USEPA used to calculate the chemicals that were in
19 their rule or their procedure.
20 We have added these twenty-two
21 chemicals using that exact same procedure. We had
22 to add a whole new section on migration to class
23 two groundwater because the soil screening guidance
24 contains tables -- their tables are based on
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1 protection of drinking water and class two is not a
2 drinking water aquifer.
3 Finally, the big one, we had to
4 include tables for industrial
remediation objectives
5 because the soil screening guidance anticipates
6 residential as the only future use at a site. The
7 things that we had to add into the
USEPA's equations
8 to develop the industrial cleanup numbers are
9 detailed in my testimony.
10 In support of Subpart F, my
11 testimony discusses why cumulative effects of
12 non-carcinogens need to be evaluated in Tier 2.
13 We don't do this in Tier 1 because we feel that
14 the conservative nature of the calculations for
15 Tier 1 should be acceptable to protect against
16 cumulative effects of carcinogens where this may
17 not necessarily be the case in Tier 2 and Tier 3.
18 Those have to be specifically included in a Tier 2
19 approach.
20 We note that the USEPA did a
21 large research project in QA/QC on physical chemical
22 parameters which are necessary to use the Tier 2
23 equations. We have adopted those into the proposal.
24 The primary reason we needed
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1 kind of a standardization of the physical chemical
2 parameters is because in some cases they may vary
3 by two or three orders of magnitude. When you
4 look at all the values that are available from the
5 literature, which could lead to two or three orders
6 of magnitude difference in cleanup objectives
7 calculated using the Tier 2 equations, so we
8 wanted to standardize this.
9 Finally, we put in Tier 2
10 for the groundwater
remediation objectives a
11 site-specific procedure to deviate from the 620
12 standards on health advisories if the person
13 doing the cleanup meets the listed requirements.
14 Finally, I need to mention a
15 couple of errata items that we have added since
16 the filing of the board. We had to add a table
17 of organic carbon partition coefficients for
18 various pH's for use in Tier 2 because when we
19 reread that, we found that there was nothing
20 in the proposal that was sent to the board directing
21 a person how to calculate a site-specific value.
22 We had to add a table listing
23 all the different groundwater values that were
24 used to calculate the Tier 1 migration to groundwater
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1 numbers. There was a lot of confusion.
2 I'm sorry for taking long.
3 MS. ROBINSON: Thank you, Dr.
Hornshaw.
4 The last one on the summaries will
5 be Ms. Virgin.
6 MS. VIRGIN: Thank you, Ms.
Robinson.
7 My testimony is on Subpart I and
8 Supart I provides guidance for requesting a Tier 3
9 evaluation and the criteria that the agency will use
10 in reviewing these Tier 3 submittals.
11 The first section is Section
12 742.900, which states that Tier 3 has been developed
13 to be flexible and to address sites that are not
14 suitable for Tier 1 or Tier 2 analysis.
15 Tier 3 analysis may be performed
16 without first doing a Tier 1 or Tier 2 analysis, as
17 Mr. King mentioned earlier.
18 The remaining sections of
19 Subpart I discuss what scenarios can be considered
20 for a Tier 3 evaluation and the criteria the agency
21 will use in evaluating Tier 3 requests.
22 In general, the agency will
23 be evaluating the appropriateness of sampling
24 the analysis at the site, whether the relevant
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1 chemicals of concern were analyzed, whether the
2 detection limits were appropriately low, whether
3 the sampling was performed correctly, if any
4 modeling was performed, whether the model has
5 been peer reviewed, that the parameter values
6 are within the model ranges, and whether the
7 calculations were done correctly.
8 The agency considered making
9 the requirements of Tier 3 more specific, but we
10 decided that this would have precluded many sites
11 from a Tier 3 evaluation and would have made the
12 size of 742
unwieldily.
13 Briefly, Section 742.905 provides
14 guidance for modification of parameters that are
15 not allowed under Tier 2. Section 742.910 discusses
16 how the agency will evaluate requests to substitute
17 analytical models different from those in Tier 2.
18 Section 742.915 provides
19 guidance for submittal and review of formal risk
20 assessments. At some sites, it may be prudent to
21 perform a full scale risk assessment to demonstrate
22 that the contaminants of concern do not pose a
23 significant risk to any human receptor.
24 Section 742.920 contains
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1 guidance for submitting requests to the agency
2 for site-specific
remediation objectives due
3 to impractical situations such as when the
4 remaining contamination is located under a
5 building.
6 Section 742.925 provides
7 guidance for submittals made to the agency
8 demonstrating that a particular exposure route
9 is not viable at a site because of natural or
10 man-made barriers.
11 Section 742.930 allows for
12 derivation of toxicological bench marks in
13 those instances where a contaminant of concern
14 does not have toxicological information available
15 from the sources which are incorporated by
16 reference for the relevant exposure groups.
17 Finally, Section 742.935 has
18 been reserved to address sites which will be
19 used for agricultural or wildlife habitat.
20 Nationally peer reviewed and
21 accepted ecological based risk assessment guidance
22 is not available at this time. Therefore, this
23 section has been reserved until such guidance becomes
24 available.
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1 That concludes my summary.
2 MS. ROBINSON: Thank you.
3 That would include all of the
4 agency's summaries of summary at this time.
5 THE HEARING OFFICER: At this time,
6 we will take a ten-minute break. Then, come back
7 to continue with the
prefiled questions.
8 (Whereupon, after a short
9 break was had, the
10 following proceedings
11 were held accordingly.)
12 THE HEARING OFFICER: We can go back
13 on the record.
14 Does the agency have anything
15 further at this time?
16 MS. ROBINSON: No, we do not.
17 THE HEARING OFFICER: Okay. We will
18 then proceed to the questioning phase of today's
19 proceeding.
20 As I mentioned, we are going
21 to begin with the questions that have been
prefiled
22 and particularly those that have been
prefiled
23 referencing particular sections.
24 That's the testimony filed
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1 by the site
remediation advisory committee;
2 Mayer, Brown & Platt; and Gardner, Carton &
3 Douglas.
4 After that, we will have the
5 prefiled questions from Ray
Reott which will
6 address general questions and any general questions
7 after that if we get that far.
8 The first
prefiled question
9 that we have is from the site
remediation advisory
10 committee on Section 742.100.
11 MS. ROSEN: Good morning. I'm
12 Whitney
Rosen. I'm legal counsel for the Illinois
13 Environmental Regulatory Group. We participated
14 with numerous other individuals and organizations
15 in filing these questions on behalf of the site
16 remediation advisory committee.
17 Question number one, is it
18 correct that Part 742 regulatory proposal replaces
19 the agency's tiered approach to cleanup objectives
20 guidance document?
21 MR. KING: Yes. That is correct.
22 MS. ROSEN: Does the agency intend to
23 perform any formal outreach or make some sort of a
24 statement to the regulating community to publicize
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1 this act?
2 MR. KING: I think we have already --
3 when we have gone out and done or -- opportunities
4 to speak at conferences and that sort of thing,
5 we have already been telling people that they
6 should have been using the proposal as opposed
7 to the guidance document.
8 MS. ROSEN: Okay. So you are
9 encouraging the use of the proposal and at such
10 time it's finalized, you will encourage that use,
11 but you are no longer encouraging the use of the
12 guidance document?
13 MR. KING: That's correct.
14 MS. ROSEN: Okay. Question number
15 two, if remedial action plans are being or have
16 been developed in accordance with tiered approach
17 to cleanup objectives guidance document, yet final
18 remedial action has not been completed, will the
19 agency allow additional plans to be resubmitted based
20 on proposed Part 742?
21 MR. KING: That's correct. I
22 should note that still would have the follow of
23 the procedures of the specific program under
24 which that is being resubmitted.
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1 MS. ROSEN: Thank you.
2 THE HEARING OFFICER: Okay. The next
3 question concerns Section 742.105. There are several
4 questions.
5 We will begin with the questions
6 again from the site
remediation advisory committee.
7 MS. ROSEN: Question number one,
8 is it correct that Title 17 of the Illinois
9 Environmental Protection Act and Part 742
10 regulatory proposal authorizes the use of
11 groundwater
remediation objectives for contaminants
12 of concern that are greater than the groundwater
13 quality standards established pursuant to the
14 Illinois Groundwater Protection Act and rules
15 promulgated thereunder at 35 Part 620 Part 620?
16 MR. KING: Yes, that is correct.
17 MS. ROSEN: Moving on to question
18 two, is it also correct that the site-specific
19 groundwater
remediation objectives approved under
20 Part 742 are equally protective of and may exceed
21 the 35 Illinois Administrative Code, Part 620
22 groundwater quality standards?
23 MR. KING: Generally, that's correct.
24 It assumes, of course, that the decision that's
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1 being made is consistent with Part 742, but with
2 that assumption in mind, I would say that's a
3 correct statement.
4 MS.
McFAWN: Could you define what
5 you mean by "may exceed," Mr. King, when you answer
6 that question?
7 MR. KING: What the words "may exceed"
8 mean.
9 Is that what you are looking for?
10 MS.
McFAWN: Yes.
11 MR. KING: May exceed, in that context,
12 is looking at, really, the numbers that are in
13 Part 620. For instance, for a class one, there is
14 a -- for class one groundwater, they are already
15 given contaminant that's elicit in 620. There is a
16 numeric number. I mean, there is a number associated
17 with what that class of groundwater is supposed to
18 achieve. We would be talking about the number that's
19 greater.
20 MS.
McFAWN: Thank you.
21 THE HEARING OFFICER: Okay.
22 MS. ROSEN: Could I ask that the
23 beginning of Mr. King's answer be read back, the
24 answer to question number two?
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1 (Whereupon, the requested
2 portion of the record was
3 read accordingly.)
4 MS. ROSEN: Thank you.
5 All right. Number three, based
6 on Section 742.105(g), it is correct that the
7 agency's issuance of a no further
remediation
8 determination provides prima facie evidence that
9 the contaminants of concern addressed under the
10 remedial action plan do not, relative to groundwater,
11 cause water pollution under Section 12(a) or create
12 a water pollution hazard under Section 12(d) of
13 the act?
14 MR. KING: I would agree that that's
15 a good characterization of what 742.105(g) says
16 except with one small caveat and that is the rule
17 discusses the fact that the -- that this principal
18 is in effect while the no further
remediation
19 determination is in effect.
20 For instance, if the NFR
21 determination was voided at some point in the future
22 and it was no longer in effect, then, this principal
23 would not apply at that point.
24 MS. ROSEN: Question number four,
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1 please clarify what will constitute no further
2 remediation determination for each of the various
3 remedial programs which may utilize Part 742.
4 MR. KING: Okay. Let me provide four
5 and perhaps five examples. The first example is
6 the site
remediation program. The NFR determination
7 there is going to appear as part of the remedial
8 action completion report and no further
remediation
9 letter.
10 Under the RCRA program, that
11 occurred in two different ways. First of all, if
12 there is a Part B permit, the permit itself would
13 represent the determination, which would be included
14 within that determination, or if you had an interim
15 status situation, then, it would be an acceptance
16 of the certificate of closure.
17 For the LUST program, there
18 is a corrective action completion report and
19 that's followed by a no further
remediation letter.
20 Finally, for the Super Fund
21 Program, the NFR determination there would be
22 incorporated within the record of decision.
23 MR. RIESER: If I could just follow-up
24 on the part -- the RCRA context, is it your testimony
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1 that a Part B permit itself would be an NFR
2 determination?
3 MR. KING: Well, the Part B permit
4 would -- could be including that determination
5 as part of it.
6 MR. RIESER: What if the Part B permit
7 set out corrective action requirements for units
8 identified at the site?
9 MR. KING: In that situation, then, you
10 would have a follow-up document that demonstrated
11 that those items had been completed.
12 MR. RIESER: Is there a common term
13 or a term under the RCRA regulations for that
14 follow-up document?
15 MR. KING: I don't think there is really
16 a specified defined regulatory term. We just call it
17 a closure letter.
18 MR. RIESER: Okay. Thank you.
19 MS. SHARKEY: If I could follow-up --
20 THE HEARING OFFICER: Could you,
21 please, stand up and identify yourself for the
22 record.
23 MS. SHARKEY: I am Pat
Sharkey with
24 Mayer, Brown & Platt.
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1 Mr. King, are you saying, then,
2 that a RCRA Part B closure letter would have the
3 effect of a no further
remediation letter under
4 Subsection G here?
5 MR. KING: No, I'm not saying that.
6 MS. SHARKEY: If, in fact, the
7 procedures here were followed in the Part B
8 consistent with the Part B program culminating
9 in a closure letter, would the issuance of that
10 closure letter provide that prima facie evidence
11 that contaminants of concern do not tend to
12 cause water pollution under 12(a) or create a
13 water pollution hazard under 12(d)?
14 MR. KING: I'll try to explain that
15 as best as I can respond to it.
16 With the RCRA program, it's a
17 little bit different than the site
remediation
18 program or the LUST program in terms of there is
19 not a specific thing called a no further
remediation
20 letter.
21 So in essence, to effectuate
22 any kind of determination that was relative to
23 the RCRA program if you are using something beyond
24 Tier 1 residential, you would have to use a different
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1 institutional control to effectuate that.
2 MS. SHARKEY: Could you give me an
3 example of what you mean by a different institutional
4 control?
5 MR. KING: We provided for, for
6 instance, deed restrictions. That would be an
7 example.
8 MS. SHARKEY: I'm sorry. Are you
9 saying in the context of something other than a
10 no further
remediation, for example, the Part B
11 closure letter that we just talked about, that
12 you would need some sort of institutional control,
13 that you would not need in, for example, the site
14 remediation program?
15 MR. KING: In either program, if
16 you are talking about
remediation objectives
17 which are, for instance, based objectively on
18 industrial/commercial use, you would need to
19 have some type of institutional control relative
20 to that piece of property.
21 For instance, the no further
22 remediation letter is a concept that's been put --
23 it appears in the proposed rules for the site
24 remediation program and for the LUST program, but
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1 it does not appear in any of the RCRA rules.
2 So there would not be that direct
3 equivalent document in the RCRA program. So if we
4 saw a need to -- you know, in order to
5 make that option available for cleanups under the
6 RCRA program, that would be an institutional control
7 document, which would be -- we would call a deed
8 restriction.
9 MS. SHARKEY: Would it be possible
10 to get a no further
remediation letter as well
11 as a RCRA closure letter at a RCRA site?
12 MR. KING: Could you say that again?
13 MS. SHARKEY: I'm wondering if a
14 remediation applicant or a Part B owner/operator
15 who is cleaning up or performing corrective action
16 goes through and uses standards, uses the procedures
17 under Part B program under Part B permit, at the
18 end of that period of time, if they get a closure
19 letter that has one set of requirements and does
20 some things, can they also get a no further
21 remediation that gives them the protection that
22 is described here in Subsection G?
23 MR. KING: Well, I think that closure
24 letter -- if the closure letter is incorporating
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1 that through further
remediation determination,
2 which is what we anticipate to be the way to proceed,
3 then, 105(g) would apply.
4 MS. SHARKEY: Thank you.
5 THE HEARING OFFICER: Are there any
6 additional follow-up questions?
7 MS. SHARKEY: If I could just ask you
8 this, in other words, then, you would not necessarily
9 need another letter? It could be incorporated into
10 that closure letter?
11 MR. KING: That's correct. Again, just
12 so it's clear, of course, you have to comply with all
13 of the RCRA requirements relative to securing that
14 letter.
15 MS. SHARKEY: Right. Thank you.
16 THE HEARING OFFICER: Ms.
Rosen?
17 MS. ROSEN: Okay. Question number
18 five, will these rules apply to
remediations required
19 as a result of enforcement actions under the Illinois
20 Environmental Act?
21 MR. KING: They certainly -- they
22 could apply. I think that's going to be dependent
23 on what the result of the enforcement action is.
24 There certainly is the option the way the statue
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1 rules are set up that that could be a result.
2 MS. ROSEN: How will the rules be
3 implemented in the context of enforcement actions?
4 MR. KING: As I have envisioned it,
5 typically, what will happen is, for instance, if
6 the agency was pursuing an enforcement case,
7 typically, those end up with some kind of settlement
8 document. I would anticipate that the settlement
9 document would end up referencing the use of 742
10 as a methodology for developing
remediation
11 objectives.
12 MS. ROSEN: How do you envision
13 that the rules will apply in a pre-enforcement
14 scenario where the agency may have become aware
15 of an alleged violation, yet it has not been
16 referred to the attorney general's office?
17 MR. KING: That's going -- to some
18 extent, that's going to depend on how that would
19 fit together from a
programatic standpoint.
20 For instance, that's if you
21 are talking about a site under the LUST program
22 and we are provided as a methodology that 742
23 could be used. So I think it would just kind
24 of flow as kind of a natural result of that
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1 situation.
2 MS. ROSEN: It would remain an
3 option, though, for an alleged violator to
4 utilize these provisions?
5 MR. KING: Yes.
6 MS. ROSEN: Do you envision that
7 the agency might demand that these provisions
8 be used to address potential groundwater or soil
9 contamination?
10 MR. KING: Well, again, if we go
11 back to the LUST program example, that is the
12 option. The LUST rules reference the
remediation
13 objectives process of Part 742 and we expect that
14 process to be used.
15 MS. ROSEN: It would also be an
16 option in situations where petroleum isn't an
17 issue, but there is some other contaminants of
18 concern?
19 MR. KING: Yes, that's correct.
20 THE HEARING OFFICER: Mr.
Rieser?
21 MR. RIESER: You have indicated it
22 would be dependent on some things. Under what
23 circumstances would a person either in enforcement
24 or some pre-enforcement mode not be able to utilize
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1 742 for developing
remediation objectives?
2 MR. KING: For example, there could
3 be a court order already in effect which mandates
4 certain activities as applying.
5 Absent a modification of that
6 court order, those would be the procedures the
7 court order would be following.
8 MR. RIESER: Are there other
9 circumstances?
10 MR. KING: One of the things we
11 identified in the rules, we have had several
12 exception areas. One of them, for instance,
13 is emergency response type things. If you have
14 an emergency type situation, certainly, following
15 the procedures of a tiered approach is not the
16 thing to be doing. You need to address the
17 emergency right away.
18 MR. RIESER: Anything else?
19 MR. KING: Again, this is also in
20 is Section 105. We discussed issues where you
21 have releases to surface waters. You really
22 have to look at what other programs are requiring.
23 Ecological concerns would be another issue where
24 742 doesn't really directly address that.
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1 MS. ROSEN: Do you envision requiring
2 the use of these procedures in all instances aside
3 from emergency responses where there might be a
4 release or where the agency has become aware of a
5 release of a contaminant of groundwater or to the
6 soil?
7 MR. KING: Well, I hesitate to
8 speculate as to all other circumstances. We
9 have outlined in the rules a series of things
10 where they really shouldn't be used of various
11 circumstances. There may be others.
12 Certainly, our intent is that
13 742 have as wide an application as possible. I
14 think it's a good way of doing things. We want
15 to see it widely used. There may, of course,
16 be specific situations where it certainly doesn't
17 make sense to use it.
18 THE HEARING OFFICER: We have a
19 follow-up question from Chuck
Feinen.
20 MR. FEINEN: Do you envision a problem
21 with parties of an enforcement action coming to the
22 agency and trying to use this program as a way of
23 cleaning up the site versus the already established
24 process and how would the agency work with those
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1 parties?
2 MR. KING: The way this is set up is
3 really the interaction with the agency. The direct
4 interaction with the agency is,
vis-a-vis, whoever
5 is owning or controlling the use of a piece of
6 property.
7 If there were a third party
8 enforcement case, again, one of the results there
9 could be that the site owner/operator was directed
10 to enter the state site
remediation program and
11 then we would use the Part 742 procedures in that
12 context.
13 Our involvement with a citizen
14 group is it's probably going to be more of an
15 indirect option as opposed to the direct kind of
16 interaction that I was analogizing to earlier.
17 MR. FEINEN: Thank you.
18 THE HEARING OFFICER: Ms.
Sharkey?
19 MS. SHARKEY: Following up on the
20 idea of pre-enforcement use or enforcement use
21 of the rules, does the agency intend to utilize
22 the tables and the other Tier 2, Tier 3, even,
23 objectives as a basis for determining when to
24 pursue enforcement?
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1 MR. KING: That's an option.
2 MS. SHARKEY: I noted that said you
3 thought it was the agency's intent and hope that
4 these would be used broadly and there would be
5 sort of a uniform set of standards in all programs.
6 So is the intent that over
7 time, at least, these same rules will be looked
8 to in making enforcement decisions at the agency?
9 MR. KING: I think that's generally
10 correct. I guess I would view, for instance,
11 if we were dealing with a site which was in our
12 state Super Fund cleanup program where we had the
13 lead relative to those activities as far as
14 expenditure of state funds, we would initially --
15 our initial screening would be done as would a
16 private owner relative to this property.
17 We would look to whether the
18 Tier 1 numbers are being exceeded and then once
19 we have screened through that process, we would
20 have to look at what other ultimately
remediation
21 objectives could be applied relative to that property
22 considering long-term use, long-term control, and
23 those kinds of things.
24 MS. SHARKEY: Thank you.
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1 THE HEARING OFFICER: Are there any
2 additional follow-up questions?
3 MR. RIESER: I think we are on to
4 742.115.
5 THE HEARING OFFICER: Was question six
6 asked?
7 MR. RIESER: I believe it was.
8 MS. ROSEN: Yes, it was.
9 THE HEARING OFFICER: Actually, then,
10 we will be moving on to the
prefiled questions of
11 Mayer, Brown & Platt concerning 742.105.
12 MS. SHARKEY: Thank you. May a person
13 use this part if he or she can demonstrate that this
14 part is not in conflict with a program requirement?
15 MR. KING: I think that's correct.
16 We had initially used the term in conflict. As we
17 discussed it with the advisory committee, we ended
18 up using a positive statement of that same principal.
19 You will see that in 742.105(a) in the second
20 sentence.
21 MS. SHARKEY: What I'm trying to
22 figure out is if consistent with is actually the
23 same as not in conflict with.
24 Is it your understanding that
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1 the intent is really the same?
2 MR. KING: Yes.
3 MS. SHARKEY: May Part 742 be used in
4 a Section 4(q) site?
5 MR. KING: That's correct.
6 MS. SHARKEY: Would it make any
7 difference if the Section 4(q) site were also a
8 landfill?
9 MR. KING: Yes, it could, yes.
10 MS. SHARKEY: Is it possible for
11 these procedures to be used in the context of
12 landfill closure?
13 MR. KING: I think I discussed that
14 in my testimony. Let me get a copy of that out.
15 MS. SHARKEY: I apologize. This
16 question is a little bit off of my
prefiled
17 questions, but I'm concerned about the extension
18 of the 4(q) at a landfill site specifically.
19 MR. KING: In the testimony, we
20 submitted, if you look at this, it's in my discussion
21 relative to Subpart A, there is a paragraph that
22 talks about how we see Part 742 interrelating with
23 sites that are managed under Part 807 and Parts
24 710 to 817.
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1 MS. SHARKEY: I appreciate it that
2 it's in there, but could you help me by explaining
3 it, though, on the record?
4 MR. KING: Let me ask you this. It's
5 a little difficult for me to do that. I'm not sure
6 what point you are finding confusing looking at
7 this.
8 MS. SHARKEY: What I'm trying to
9 determine is I have a client who has a landfill
10 that is a 4(q) site and we are in the process of
11 doing some remedial work at that 4(q) site and
12 would like to potentially use this approach.
13 If this is of any help, we
14 are looking at a plume that goes beyond the
15 actual landfill, but that is associated with
16 it. So there is not only, for example, class
17 four groundwater, but there is a broader plume.
18 The concrete question is, as
19 I understand it, we can use these procedures at
20 a 4(q) site, but does the fact that this is also
21 a landfill which is also in a landfill program,
22 create a different scenario and somehow make
23 these procedures and these objectives unusable
24 for purposes of both closing the 4(q) and
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1 achieving closure at the landfill?
2 MR. KING: I really hesitate to make
3 a commitment on that because it really is dependent
4 on where that landfill would sit in the regulatory
5 process. It might be a situation or could apply
6 or it might be a situation where it simply is not
7 going to apply.
8 I guess really without
9 evaluating a substantially more complete set of
10 facts, I don't think we really could make a
11 site-specific determination.
12 MS. SHARKEY: I understand that.
13 I'm really not trying to get you to say anything
14 site-specific as much as whether or not within --
15 these rules could be used or there is nothing in
16 here prohibiting use of these rules in a landfill
17 closure. I understand there may be site-specific
18 considerations in each one.
19 MR. KING: As was discussed in the
20 testimony, there are certain situations where it
21 could. There are certain situations where it can't
22 because of the regulatory structure.
23 MS. SHARKEY: Because it would be
24 in conflict with the regulatory structure?
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1 MR. KING: Right.
2 MS. SHARKEY: So if it's not in
3 conflict with the regulatory structure, there is
4 nothing -- in other words, if it isn't in conflict
5 with that structure, there is nothing in these
6 rules that would prohibit the use of these objectives
7 and these procedures in a landfill closure, nothing
8 in these rules?
9 MR. KING: You have to bear in mind
10 that in a landfill situation, even if you could
11 apply the rules, they might not make any sense.
12 So if they don't make any sense, whether it's
13 legally applicable, but it makes no sense at all,
14 and it may not because of the various criteria
15 that we have relative to sites.
16 For instance, we have these
17 various criteria relative to attenuation capacity
18 and saturation limits, which landfill may simply
19 not be able to meet these criteria.
20 MS. SHARKEY: I understand. I think
21 what you're saying -- I think what I'm looking at
22 is that closure often requires one to do clean up
23 in order to achieve the closure and make
24 demonstrations off the site -- off the waste site
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1 itself in order to obtain final closure. It's in
2 that context that I'm wondering if these rules may
3 be useful or may be used.
4 MR. KING: Like I said before, that's
5 kind of a hypothetical question. There might be
6 some situations where we could and there might be
7 some situations where we can't. I don't think we
8 could make a universal rule.
9 MS. SHARKEY: Okay. That's good
10 enough.
11 MS.
McFAWN: Gary, could I just
12 interject a question here?
13 In your testimony, you said
14 that you concluded that the restrictions of 742,
15 Parts 810 and 817, may be feasible in context
16 of the rule that is to apply 742 to some landfills.
17 Can you just maybe tell us
18 what some of those concerns were that made you
19 reach that conclusion?
20 MR. KING: I don't think I'm going
21 to be able to cite you to a specific rule within
22 the landfill rules, but as I recall, as an example,
23 there is a specific provision which describes
24 how groundwater is to be handled within the
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1 context of a landfill.
2 We would anticipate that
3 that's the rule as followed because it's a
4 specific management requirement relative to
5 landfills. That would apply as opposed to
6 742.
7 MS.
McFAWN: Okay. Thank you.
8 So it's things like that?
9 MR. KING: Right, right.
10 MS.
McFAWN: Thank you.
11 MS. SHARKEY: I just want to, if I
12 can, clarify something in here. Section 742.105(a)
13 allows a party to elect to proceed under this part,
14 but then 742.105(b) states this part is intended to
15 be used in the following procedures and requirements
16 applicable to the following programs and they are
17 under -- the UFT program is mentioned, the site
18 remediation program, and the RCRA permits and
19 closure plans.
20 It's my understanding or it
21 had been my understanding that A, the election
22 would allow use of this part where not inconsistent
23 with or not in conflict with a program in a broader
24 set of programs than those that are listed under B
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1 potentially.
2 Am I correct in that assumption
3 that one may elect in a broader question a number of
4 situations to use these procedures?
5 MR. KING: That's correct.
6 THE HEARING OFFICER: Are there any
7 additional follow-up questions?
8 MR. WATSON: For the record, my name
9 is John
Watson from Gardner, Carton & Douglas. I
10 have one follow-up with respect to 742.105(b) and
11 that is why isn't the Illinois Super Fund Program
12 expressly set forth as one of the programs under
13 which the 742 rules are intended to be used?
14 MR. KING: Well, in a sense -- in one
15 sense, the site
remediation program envelops that
16 as well. We just didn't think it would be a very
17 good way to just add on the state Super Fund Program
18 because then we would try to identify what set of
19 rules would be governing that and there aren't any
20 set of rules other than this new 740.
21 MR. WATSON: But you did say earlier
22 with respect to enforcement actions involving
23 Illinois Super Fund sites that the agency does
24 intend on using 742 to develop its cleanup standards,
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1 is that correct?
2 MR. KING: Yes. I think that's
3 generally correct.
4 MR. WATSON: Thank you.
5 THE HEARING OFFICER: Ms.
Sharkey, your
6 next question?
7 MS. SHARKEY: My next question was
8 asking if you could give an example of how this
9 part might be used in a RCRA Part B context.
10 We have just previously talked
11 a little bit about the RCRA context, but I'm
12 wondering if you could give some examples. I
13 am really thinking of two things; one of them
14 is corrective action that at a RCRA unit or at
15 a SWMU, and the other would be beyond corrective
16 action just getting to closure of the overall --
17 and getting to that closure letter.
18 MR. KING: In the Part B context,
19 Part B permits specific procedures for corrective
20 action. If corrective action is triggered -- if
21 there is some circumstance which triggers the
22 need for corrective action under that Part B
23 permit, then, 742 would be the vehicle that could
24 be used to develop the
remediation objectives.
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1 Under the interim status
2 context, if the person subject to the RCRA
3 requirements was developing a closure plan,
4 then, they would develop the closure plan using
5 the 742 procedures as far as determining the
6 remediation objectives and then present that
7 approach and analysis as part of that closure.
8 MS. SHARKEY: Okay. Is there
9 anything in these rules that would prohibit a
10 party who is performing a closure under interim
11 status from also using these rules to establish
12 objectives for and
remediate other sites on that
13 facility, on that property?
14 I'm talking about non-interim
15 status -- sites that were not identified as interim
16 status sites. What I'm trying to figure out is if
17 this program can coexist at an interim status
18 facility apart from being under the interim status
19 or apart from being under a Part B permit, for
20 example, can one do cleanups using this program.
21 I am assuming it might be within
22 the site
remediation program. Is there anything
23 inconsistent with doing both at the same time?
24 MR. KING: I guess under the situation
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1 you're talking about, you're talking about a site
2 where part of it is subject to the RCRA program
3 and another part of the site is not subject to
4 the RCRA program.
5 The part that's not subject
6 to the RCRA program, I would say the vehicle for
7 interaction probably should be the site
remediation
8 program, and then through the site
remediation
9 program, we would use 742.
10 MS. SHARKEY: So they could coexist?
11 MR. KING: Yes.
12 MS. SHARKEY: My next question is --
13 THE HEARING OFFICER: Excuse me.
14 Before we proceed with the next question, I would
15 just like to ask, if possible, that you could read
16 the
prefiled so that the board members who were
17 not present follow along by following the
18 transcript.
19 MS. SHARKEY: Thank you.
20 My fourth question on this
21 point was regarding the interim status question.
22 So we have answered that. We can skip that.
23 My fifth one is, is a focused
24 as opposed to comprehensive no further
remediation
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1 letter issued under Part 740 prima facie evidence
2 with regard to Sections 12(a) and 12(d)?
3 MR. KING: We have kind of a shift
4 of terminology here. I assume by the term focused,
5 you are talking about a focused investigation under
6 Part 740?
7 MS. SHARKEY: Yes.
8 MR. KING: The issue with a focused
9 investigation relates to eliminating the contaminants
10 of concern. It would be possible for a focused NFR
11 letter for this prima facie evidence issue to apply
12 to it relative to those contaminants of concern.
13 That's what we -- we say that in 105(g), that it's
14 the contaminants of concern of the site. It doesn't
15 necessarily mean all of the contaminants of concern
16 or all of the contaminants at a site.
17 MS. SHARKEY: Thank you. My next
18 question is would that be true even if groundwater
19 was not sampled in the focused investigation?
20 MR. KING: No.
21 MS. SHARKEY: Okay. In other words,
22 the context I'm thinking of is one where there is
23 a spill, for example, in a soil
remediation that
24 it satisfies the agency that groundwater need not
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1 be addressed, need not be sampled and need not be
2 addressed, in that context, would it be possible
3 to get a no further
remediation letter that had
4 the effect under Subsection G of prima facie evidence
5 of no groundwater contamination?
6 MR. KING: Well, our presumption
7 here with this section is that you are dealing
8 with a context which you already had contaminants
9 in the groundwater. I'm not sure if that's what
10 you are envisioning here.
11 MS. SHARKEY: Okay. No, I was not.
12 I was assuming a scenario where a
remediation
13 applicant under Part 740 has done a cleanup and
14 has not sampled groundwater, has satisfied the
15 agency based on depth of clay and other factors
16 that there was no risk in the groundwater and
17 eliminated basically the groundwater pathway,
18 and I'm wondering if in that instance, one could
19 still get a no further
remediation letter, which
20 will constitute this evidence?
21 MR. KING: I would like to defer
22 answering that question. We were understanding
23 this question as being directed at a different
24 issue. I think before I answer that, I think
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1 I would like to come back to that question maybe
2 some time later today when I get a chance to
3 discuss it a little further.
4 MS. SHARKEY: Okay. Thank you
5 very much.
6 THE HEARING OFFICER: Okay. We
7 will proceed on to the next section, which
8 has questions at Section 742.115. We will
9 begin questions with the site
remediation
10 advisory committee.
11 MR. RIESER: Thank you very much.
12 I believe the agency said this in its testimony,
13 but just to underline it, will the agency
14 clarify that with regard to the groundwater,
15 the exposure route of concern is the actual
16 ingestion of groundwater and not just impact
17 on groundwater?
18 MR. KING: We will agree it's not
19 just impact on groundwater. I will insert that
20 it could be an actual or potential investigation.
21 With the notion it could be actual or potential
22 ingestion of groundwater, then, I would say that's
23 correct.
24 MR. RIESER: By potential ingestion,
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1 what do you mean?
2 MR. KING: There could be a future
3 scenario where there is a potential for groundwater
4 to be used which is not otherwise controlled by an
5 institution control.
6 MR. RIESER: Thank you.
7 THE HEARING OFFICER: Okay. The
8 next question on 742.115 was filed by
Mayer,
9 Brown & Platt.
10 You may proceed, Ms.
Sharkey.
11 MS. SHARKEY: Must zoning
12 classifications be considered under Subsection C?
13 For example, if a property is zoned for residential
14 use, but is currently vacant, and used primarily
15 for wildlife, is it currently residential or
16 conservation property?
17 If the property is anticipated
18 to remain in conservation use, must the zoning be
19 considered for post-
remediation use classification?
20 MR. KING: Under the proposal we
21 have put together, zoning would not be a basis
22 for making a determination relative to the use
23 classification.
24 MS. SHARKEY: It is correct, then,
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1 that what one would look to is the current use
2 of the property, the actual use and, then, the
3 anticipated post-
remediation use?
4 MR. KING: That's correct.
5 MS. SHARKEY: Thank you.
6 THE HEARING OFFICER: The next question
7 is --
8 MR. WATSON: Excuse me. If I could, I
9 would like to ask a follow-up.
10 THE HEARING OFFICER: Okay.
11 MR. WATSON: Why has the agency made
12 that determination that zoning is not an appropriate
13 consideration in determining use?
14 MR. KING: Zoning restrictions are --
15 have been adopted by local governments for all
16 sorts of reasons, many which have nothing to do
17 with the issues relative to public health protection.
18 To rely on those as far as making
19 these determinations, we just don't think would be
20 appropriate. For instance, a zoning ordinance could
21 designate a piece of property as a commercial use,
22 but allow within that commercial use designation
23 residential uses as well.
24 So if you are simply to rely
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1 on the zoning designation, we would not be achieving
2 the kind of public health protection that we
3 intended.
4 MR. WATSON: So you are saying it's
5 not relevant at all to the determination of
6 post-
remediation uses?
7 MR. KING: It may be a relevant fact,
8 but the zoning classification in and of itself, we
9 don't see it as being a sufficient control relative
10 to the use of the property to make it a basis for
11 our determination.
12 MR. WATSON: Okay. But it would be
13 somewhat relevant in determining the appropriateness
14 of an industrial/commercial classification to
15 understand the existing zoning of a parcel of
16 property, correct?
17 MR. KING: As I said, I think it
18 could be important in terms of understanding
19 the factual context in which a site is being
20 presented relative to
remediation objectives.
21 For instance, if it's in
22 Chicago, and it's part of their industrial corridor
23 program, that's something we would be -- a fact
24 that we would be interested in knowing about because
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1 that's indicative of what long-term may be happening
2 relative to that piece of property. We would still
3 require that there be the appropriate institutional
4 controls put into place.
5 As I was saying, it's an
6 element of fact in understanding the nature
7 of the site.
8 THE HEARING OFFICER: Are there
9 any additional follow-up questions?
10 Okay. The next
prefiled question
11 is on Section 742.120. Again, this has been filed
12 by
Mayer, Brown & Platt.
13 You may proceed, Ms.
Sharkey.
14 MS. SHARKEY: This section states
15 that site characterization is to be performed
16 pursuant to other programs.
17 How is site characterization
18 different from site investigation required to
19 confirm compliance with the Part 742 regulations?
20 Aren't the concrete steps and methods one must
21 use to characterize a site actually contained
22 in this part, for example, number of samples
23 and methods of sampling can't the characterization
24 and investigation be combined?
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1 MR. SHERRILL: Let me answer the first
2 part of that, how a site characterization is
3 different from the site investigation required
4 to perform in compliance with Part 742 regulations.
5 For example, LUST has statutory
6 requirements for site classification and the BOL
7 programs do not? Generally, when you term -- when
8 the agency uses the term investigation or remedial
9 investigation and characterization, we are referring
10 to a generic use of determining types concentrations
11 and the extent of contamination.
12 Regarding are the concrete steps
13 and methods one must use to characterize a site
14 actually contained in this part, the answer is no,
15 they are not. The concrete steps to characterize
16 a site is not contained in this part. Part 742
17 is to develop
remediation objectives.
18 MS. SHARKEY: I guess I am having
19 some trouble distinguishing the two and I am
20 still having it if you will bear with me.
21 If I have a spill site, let's
22 say, and I am wanting to move forward and
remediate
23 it and move forward toward a no further
remediation
24 letter, and I enroll the site in a site
remediation
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1 program, don't I look to 742 to determine how many
2 samples I'm going to take in order to actually
3 figure out what objectives might apply?
4 MR. SHERRILL: No. A site investigation
5 would be based on historical use of the site, what
6 was spilled, many factors go into that. We tried
7 to make it clear that 742 was to be used only after
8 a site investigation has been performed.
9 MS. SHARKEY: All right. Now, only
10 after a site investigation has been performed or
11 only after a site characterization has been
12 performed or are you using those terms synonymously?
13 MR. SHERRILL: How are you using those
14 terms?
15 MS. SHARKEY: My assumption is that
16 one might want to collapse this process and
17 characterize the site and establish objectives
18 in one swoop and not have to go out and do some
19 level of characterization by a sampling under
20 one program and then come in and use the procedures
21 under 742 and have to go through another round of
22 sampling to establish objectives and be able to
23 confirm compliance with those objectives.
24 MR. SHERRILL: Well, 742 only
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1 shows how to do the compliance with
remediation
2 objectives. It doesn't prescribe or show how
3 to do an investigation.
4 I keep coming back to LUST.
5 LUST has a prescribed method for doing that.
6 RCRA has their own guidance. The site
remediation
7 program says there is a wide variety of sites
8 that we see in that program to investigate.
9 Different program requirements would need to be
10 followed.
11 MS. SHARKEY: I understand, I think,
12 what you are saying in terms of the RCRA and
13 LUST programs. With regard to the site
remediation
14 program, are you saying that Section 740 actually
15 tells me how many samples to go out and take in
16 order to characterize that site?
17 MR. SHERRILL: No.
18 MS. SHARKEY: Would it be possible
19 for me to characterize that site under 740 and
20 also use the procedures under 742 for the number
21 of samples and the methodology and the depth of
22 sampling, for example, do that in one set of
23 sampling and bring that into the agency and be
24 able to demonstrate compliance with Tier 1, for
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1 example?
2 MR. SHERRILL: It may be possible to
3 combine those two steps. There is such a wide
4 variety of sites out there. A prescriptive approach
5 would not be practical to sit and define how many
6 samples need to be taken, the depth and location
7 of samples, and what to be sampled for.
8 MS. SHARKEY: If I want, though,
9 ultimately to get this spill site to the point
10 of a no further
remediation letter, and I'm in
11 the site
remediation program and I'm going to
12 need to use these ultimately to comply with the
13 procedures for sampling, et cetera, in 742, am
14 I not?
15 MR. SHERRILL: Correct. 742 has a
16 section on how to comply with
remediation objectives.
17 MS. SHARKEY: So ultimately, I'm going
18 to have to come back to specific procedures in 742,
19 those concrete steps for demonstrating compliance
20 objectives?
21 MR. SHERRILL: Yes.
22 MS. SHARKEY: Okay.
23 THE HEARING OFFICER: Are there
24 any additional follow-up questions?
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1 Okay. The next section --
2 MS. ROBINSON: Can we hold on for
3 one second? May I have a clarification here?
4 THE HEARING OFFICER: Sure.
5 MR. SHERRILL: We were just discussing
6 that it may be possible and we have had many
7 instances where this is true that it may be possible
8 to combine the site investigation and your compliance
9 under 742 through one sampling event if you want to
10 call it that.
11 MS. SHARKEY: Okay. Thank you.
12 THE HEARING OFFICER: Are there any
13 further follow-up questions or clarification?
14 DR. HORNSHAW: I'll just add if you
15 are lucky.
16 THE HEARING OFFICER: All right.
17 Then, the next section to which there are
prefiled
18 questions is Section 742.200. We will begin with
19 questions filed by the site
remediation advisory
20 committee.
21 MS. ROSEN: Question number one
22 under Section 742.200 is with regard to the
23 definition of conservation property, what is
24 the purpose of including the definition in
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1 the proposal?
2 Is it the agency's intent
3 to have this decision made by the property owner
4 when identifying the post-
remediation land use
5 of the site?
6 MR. KING: As to the first question,
7 we had two real purposes including conservation
8 property. First, it was to establish a place
9 holder for future rules once it's more solidified
10 from a scientific standpoint as to what factors
11 should be considered with regards to ecological
12 risks.
13 The second reason was to establish
14 a context for sites where the non-human impacts are
15 the primary focus.
16 As to the second question about
17 the agency's intent relative to decisions by the
18 property owner when identifying post-
remediation
19 land use of the site, it's our intent that that
20 would be the decision of the property owner.
21 We would expect perhaps
22 some consultation with the agency or some other
23 governmental entity like the Department of Natural
24 Resources where that's appropriate.
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1 MS. ROSEN: Okay. Also, on that
2 point, question number two, is it correct to conclude
3 that conservation property was not defined so as to
4 require post-remedial sites to enter into further
5 remediation should they plant prairie grass on the
6 site after remedial action is completed or an NFR
7 determination is issued?
8 MR. KING: Yes, that's correct.
9 MS. ROSEN: I believe Ms.
Sharkey
10 has questions on the conservation property issue.
11 So if we want to jump to those and then revisit
12 question three, that would be fine.
13 THE HEARING OFFICER: That's fine.
14 MS. SHARKEY: Okay. Would a former
15 landfill at which only post-closure activity such
16 as gas extraction and groundwater monitoring are
17 taking place and which at the surface at least is
18 used primarily for wildlife be considered
19 conservation property?
20 MR. KING: We were reviewing this
21 question. It looked fairly similar to an existing
22 site we are dealing with. I guess we really don't
23 want to get into trying to figure out what the
24 answer should be in the context of this proceeding
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1 without looking at all of the factors relative to
2 that site or the other site.
3 MS. SHARKEY: I guess I would like,
4 then, to ask, if I can, what is intended by the
5 notion of primarily for wildlife habitat in the
6 definition?
7 MR. KING: We talked about some of
8 the reasons why we included that or at least we
9 talked about the two reasons why we included
10 that in response to an earlier question. We
11 really don't have any additional factors in mind
12 at this point.
13 MS. SHARKEY: Well, I guess I'm
14 wondering if a property is, for example, also
15 used by human beings if it's -- for example, I
16 used the example in my third question here is
17 a Cook County forest preserve conservation property.
18 MR. KING: Yes. We saw that. Again,
19 I think that just kind of typifies the issue. I
20 mean, a Cook County forest preserve, they operate a
21 lot of -- they manage a lot of property up in Cook
22 County. There are all sorts of different uses
23 depending on where you are at on the forest preserve
24 property.
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1 So to say yes or no, it is
2 a conservation property, it just wouldn't be
3 appropriate. You would have to look at the specific
4 piece of property you are looking at and what are
5 the current uses, what are the planned uses and so
6 forth.
7 MS. SHARKEY: Would wildlife include
8 plants in your definition here? For example, a
9 prairie or conservation area?
10 MR. O'BRIEN: That's correct.
11 MS. SHARKEY: It would?
12 MR. O'BRIEN: Yes.
13 MS. SHARKEY: In other words, I
14 guess the thing I was trying to get at with
15 the forest preserve concept, and particularly Cook
16 County, is this is an area where we know people
17 are also using the area for recreation in addition
18 to it being a conservation area for plants and
19 animals. Does the fact that people are using it
20 change its nature so it's no longer primarily for
21 wildlife or would it depend on the individual case?
22 MR. KING: I think it really depends
23 on the facts. Again, if you are in a situation
24 where that property has been used for baseball
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1 diamonds, that would be primarily a recreational
2 use. If it's trails going through a forest used
3 by humans, that might be a different context there.
4 I think it really is a site-specific decision.
5 MS. SHARKEY: All right, the latter
6 being more likely to be conservation property than
7 the former recreational use like a baseball diamond
8 being something else.
9 What else would that baseball
10 diamond be? That goes to my second question, which
11 is if, for example, a former landfill was going to
12 become a golf course, how would that be classified
13 as a golf course or a baseball diamond.
14 What would that fall under the
15 class as defined in this section?
16 MR. KING: I don't think we made any
17 kind of site-specific determination about golf
18 courses at this point.
19 Now, we do have a definition
20 that talks about, for instance, what constitutes
21 residential property and we really haven't made
22 a decision in the context of a site-specific
23 instance.
24 MS. SHARKEY: Is there a different
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1 remediation objective established for conservation
2 property than for residential or for industrial?
3 MR. KING: That's potentially the
4 case, yes.
5 MS. SHARKEY: Do these rules
6 define -- prescribe doing something different,
7 coming to different conclusions for conservation
8 property?
9 I'm trying to figure out how
10 this concept of conservation property actually
11 works in these rules.
12 MR. KING: Well, as I was saying
13 early on, the use of this was intended to be
14 to deal with sites where the primary focus was
15 a wildlife issue and to be a place holder. So
16 it's clear that this is something where there
17 might be situations where you really have to
18 think about this as the primary issue. That's
19 why we put it there.
20 MS. SHARKEY: Okay. Meaning that
21 there might be other pathways that are involved
22 because it's conservation property?
23 MR. KING: I think this is a question
24 that's talked a little bit further on in the rules
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1 as far as what are some of the factors that are
2 considered.
3 MS. SHARKEY: Okay. We can save it
4 until then if that's more appropriate.
5 MR. KING: I think that it would be
6 more appropriate.
7 MS. SHARKEY: That takes care of my
8 questions.
9 THE HEARING OFFICER: We will return to
10 the questions filed by the site
remediation advisory
11 committee.
12 MR. RIESER: Before we begin on our
13 next question, I would just like to follow-up on
14 Ms.
Sharkey's questions.
15 Would there be a situation
16 where a landowner would identify a site as not
17 being a conservation property and the agency
18 would in the context of viewing remedial objectives,
19 for example, overrule that decision or deny that
20 decision?
21 MR. KING: I would suppose that could
22 be the situation. I wouldn't -- normally, we would
23 anticipate that remedial objectives are going to be
24 more conservative in most cases for a residential
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1 use than they would be for conservation property.
2 So perhaps it would tend to go
3 the other way where it was designated conservation
4 property and we would say no, really, it should be
5 considered residential because the cleanup objectives
6 would be more stringent.
7 MR. RIESER: What about for
8 industrial/commercial?
9 DR. HORNSHAW: I can think of one area
10 where we might make that kind of determination and
11 that is if a threatened or endangered species is
12 known to be on the property, we may overrule.
13 The reason is especially if
14 pesticides are involved. In a lot of cases,
15 pesticides are designed specifically to kill
16 certain target organs. In some of these cases,
17 in fact,
probabaly a lot of them, humans aren't
18 the target species. So they are hopefully less
19 affected by the pesticides. So we may have occasion
20 to overrule in these cases where the primary threat
21 would be an endangered species.
22 MR. RIESER: Would these issues
23 entirely come up during the ecological risk
24 discussion and is reserved as a place holder?
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1 DR. HORNSHAW: Yes.
2 MR. RIESER: The answer is yes?
3 DR. HORNSHAW: Yes.
4 MR. RIESER: Okay. We've got some
5 questions there that might address this further.
6 DR. HORNSHAW: Okay.
7 MR. RIESER: The conservation issue,
8 to the extent that it involves different remedial
9 objectives, is going to be an issue only with
10 respect to ecological risk factors, is that
11 correct?
12 DR. HORNSHAW: Correct.
13 MR. RIESER: Thank you.
14 THE HEARING OFFICER: Are there any
15 additional follow-up questions?
16 Okay. We will move on to
17 the question, then. It's from the site
remediation
18 advisory committee.
19 MR. RIESER: This is our number three
20 under Section 742.200. What factors will be used
21 to evaluate how a source is identified in defining
22 a point of human exposure?
23 MR. SHERRILL: Factors used to evaluate
24 a source in the context of point of human exposure
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1 include the concentration of whether any free
2 phased contaminant is present; whether the soil
3 attenuation capacity is exceeded; whether a sheen
4 is visible either in the soil, groundwater, or
5 surface water; whether remaining contamination
6 will be disturbed by construction workers or other
7 human activities; whether remaining contamination
8 will be disturbed by natural or animal forces such
9 as burrowing animals, high infiltration rates,
10 highly permeable units such as
karst geology, sand
11 seams; whether the release point of the contamination
12 can be located such as in the LUST program, we know
13 we have identified tanks with known release points
14 versus the site
remediation program where we have
15 contamination and we do not know the origin of the
16 contamination and it becomes problematic identifying
17 the horizontal and vertical extent of contamination;
18 and intended post-remedial use of the property;
19 residential, industrial, commercial, and so forth.
20 MR. RIESER: So it's correct that
21 sources something other than a unit -- a physical
22 containing unit from which contaminants are released?
23 MR. SHERRILL: Correct.
24 MR. RIESER: And it's also more than
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1 the presence of free product as determined by the
2 soil attenuation capacity and the existence of a
3 sheen on groundwater or something of that nature?
4 MR. SHERRILL: Correct.
5 MR. RIESER: Thank you.
6 THE HEARING OFFICER: Are there any
7 additional follow-up questions?
8 Okay. The next question will
9 go to the question filed by Gardner, Carton &
10 Douglas.
11 Mr.
Watson, you may proceed.
12 MR. WATSON: My question goes to
13 the inclusion in the definition of regulated
14 substances of natural gas, which historically
15 has been excluded from the regulation under the
16 hazardous waste rules.
17 The specific question is what
18 characteristics or constituents of natural gas need
19 to be considered when evaluating whether it is a
20 regulated substance?
21 MR. KING: Why don't we answer both
22 parts of that question together.
23 MR. WATSON: Okay. For the record,
24 Question B is does the agency propose that natural
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1 gas be addressed during a site investigation?
2 MR. KING: The issue relative to
3 natural gas is it doesn't need to be addressed
4 during a site investigation unless it's considered
5 to be a contaminant of concern.
6 MR. WATSON: Can you give me an
7 example of an instance where natural gas would
8 be identified as a contaminant of concern at a
9 site?
10 MR. KING: In a situation where, for
11 instance, the property owner identifies it as
12 such as being one of the contaminants of concern
13 to be addressed.
14 MR. WATSON: How would you go about
15 assessing a risk for natural gas? I'm not sure
16 that's -- I think we are kind of jumping far afield
17 relative to that.
18 As I sit here, I don't know.
19 I suppose that I didn't really see that as being
20 part of this question here.
21 MR. O'BRIEN: Natural gas will
22 primarily consist of methane, but it also has
23 other components. That varies somewhat depending
24 on the source of the natural gas. So it would
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1 depend what those specific components were and
2 if they were identified as contaminants of
3 concern.
4 MR. WATSON: There is nothing in
5 the Tier 1 risk criteria, however, that
6 addresses natural gas issues, is that correct?
7 MR. O'BRIEN: Not natural gas as
8 listed as natural gas, per se.
9 MR. WATSON: Are there any other
10 constituents of natural gas that are reflected
11 in the risk guidance or materials?
12 MR. O'BRIEN: I don't recall.
13 Typically, there are other
alkanes involved
14 in natural gas, which would include propane,
15 butane and smaller amounts of propylene and
16 butalene.
17 Then, they are also either
18 added to natural gas
mercaptans and then sometimes
19 naturally
mercaptans. I don't believe that any of
20 those are listed in the tables that we have provided
21 for Tier 1.
22 MR. WATSON: In dealing with natural
23 gas under this program, then, it would be an issue
24 of looking at a Tier 3 risk assessment, is that
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1 correct?
2 MR. O'BRIEN: If any of the
3 constituents were constituents of concern, then,
4 you would probably deal with the Tier 3 process.
5 THE HEARING OFFICER: Are there
6 any additional follow-up questions?
7 MS. ROBINSON: I have one. Is that
8 okay?
9 THE HEARING OFFICER: Sure.
10 MS. ROBINSON: Mr.
O'Brien, is it
11 going to be rare that we see natural gas as a
12 contaminant of concern at various sites?
13 MR. O'BRIEN: I would think so. I
14 have never seen it at any sites. The hazard of
15 natural gas is more of an emergency hazard, which
16 is pointed out as a proposed rule which is not
17 appropriate for T.A.C.O. evaluation primarily
18 because I gather this is an explosion hazard.
19 MR. WATSON: So you would be surprised
20 to see natural gas identified as a contaminant
21 of concern at a site?
22 MR. O'BRIEN: Yes, I would.
23 MR. WATSON: Thank you.
24 THE HEARING OFFICER: Are there any
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1 additional follow-up questions?
2 MR. JAMES: I have a question.
3 THE HEARING OFFICER: Yes, sir, in
4 the back?
5 MR. JAMES: I am Ken James from
6 Carlson Environmental. I was just wondering
7 if we ever addressed
Mayer, Brown & Platt's question
8 on Section 742.200 regarding the definition for area
9 of background?
10 THE HEARING OFFICER: We are just
11 getting to that.
12 MR. JAMES: Thank you.
13 THE HEARING OFFICER: Are there any
14 additional follow-up questions?
15 Okay. It is getting close to
16 the lunch hour, but we will attempt to finish up
17 these definitions before we break for lunch.
18 The next
prefiled question is
19 from
Mayer, Brown & Platt.
20 MS. SHARKEY: This is a question
21 regarding the definition of area background.
22 Does the agency interpret this language as meaning
23 historical site contamination such as the
PNA's found
24 to be ubiquitous in the soil at old coal
gasification
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1 sites around the state, can this be considered area
2 background?
3 DR. HORNSHAW: We don't interpret
4 it that way. If it is something as related to
5 activities at the site, then, that should be
6 considered area background.
7 MS. SHARKEY: I think what this
8 is going to impart is a problem in the definition.
9 The definition of area background as is noted in
10 the rule comes out of Section 58.2 of the act.
11 I would like to read it into
12 the record if you don't mind this definition:
13 Concentrations of regulated substances that are
14 consistently present in the environment in the
15 vicinity of a site that either results in natural
16 conditions or human activities and not the result
17 solely of releases at the site.
18 If I understand you correctly,
19 you are saying that activities at the site cannot
20 be considered area background?
21 DR. HORNSHAW: That's correct.
22 MS. SHARKEY: What, then, is meant
23 by the language of human activities?
24 DR. HORNSHAW: We interpreted that
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1 to mean activities of a general nature such as
2 in operation of motor vehicles, which could
3 result in the deposition of highly clear aromatic
4 hydrocarbons widely in an environment.
5 MS. SHARKEY: So the agency has
6 interpreted it as a subset of human activities,
7 then?
8 DR. HORNSHAW: Yes.
9 MS. SHARKEY: Okay. Is the term
10 releases as used in this definition intended to
11 mean known and quantifiable releases?
12 Is it based on the definition
13 of release in CERCLA?
14 DR. HORNSHAW: It's based on the
15 definition of release in the act.
16 MS. SHARKEY: Is it intended to be
17 known and quantifiable releases?
18 DR. HORNSHAW: No.
19 MS. SHARKEY: Okay. To sort of
20 tie this up, then, you are saying that the
21 concept of area background would not include
22 historic contamination on a site where the
23 contamination is clearly related to some
24 industrial activity, for example, but nobody
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1 has any knowledge of a specific release?
2 DR. HORNSHAW: Correct.
3 MS. SHARKEY: And that determination
4 that the contamination is, in fact, related to the
5 activities on that site, that industrial site,
6 would be based upon what?
7 How would one determine that
8 this is not area background, but is indeed related
9 to those industrial activities?
10 DR. HORNSHAW: Well, one example
11 I could probably give is activities that would
12 come about as a result of a Phase 1 or a Phase 2
13 investigation.
14 MS. SHARKEY: Okay. For example,
15 if one has knowledge that certain types of raw
16 materials are used on a site by a certain type
17 of industry, is that in and of itself enough to
18 be an indication that the contaminants of the
19 ground are associated with that activity and
20 therefore, not an area of background?
21 DR. HORNSHAW: It could be.
22 MS. SHARKEY: In other words, area
23 of background -- I guess I'm trying to figure out --
24 in other words, the concept of human activity here
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1 is completely separate from the concept of a
2 release.
3 In other words, we need not
4 have a release on the site and we need not have --
5 as long as we have an activity on the site
6 other than what the agency has defined as human
7 activities on the site, that could be related
8 to the contaminants found in the soil in the
9 agency's view, the concept of area background
10 is not available of using area background?
11 DR. HORNSHAW: Yes.
12 MS. SHARKEY: The answer is yes?
13 DR. HORNSHAW: Yes.
14 MS. SHARKEY: All right. Thank you.
15 MS. ROBINSON: I have one follow-up
16 question.
17 Ms.
Sharkey, I think, referred
18 to the definition of release under CERCLA and then
19 Dr.
Hornshaw answered as the release definition in
20 the act. Did you mean the Environmental Protection
21 Act?
22 DR. HORNSHAW: Yes, I did.
23 THE HEARING OFFICER: Is there any
24 additional follow-up, Mr.
Rieser?
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1 MR. RIESER: To follow-up on this
2 concept and use the example of the
PNA's which
3 Ms.
Sharkey started with, that there were
PNA's
4 on a site as a result of this typical -- in
5 Chicago as a result of deposition of Chicago fire
6 materials that weren't the result -- and not
7 the result of any industrial activities on the
8 site and they were widespread, not just on that
9 site, but other sites in the area, would that
10 not be considered an area of background?
11 DR. HORNSHAW: Yes.
12 MR. RIESER: It would be considered
13 an area of background, correct?
14 DR. HORNSHAW: Yes. If the fill --
15 if it was documented this was, indeed, areas
16 where Chicago fire material was filled, yes.
17 MR. RIESER: Similarly, if there
18 are contaminants that are the result of sort
19 of a widespread industrial activity that are
20 common to all the properties around the subject
21 property such as lead in some communities, that,
22 too, would be considered area of background
23 with respect to the subject property?
24 DR. HORNSHAW: That's kind of a
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1 difficult question to answer because at least
2 in some of the sites where we know that lead
3 is a problem, it's complicated by the fact
4 that lead is in the surrounding area and not
5 part of an actual identified site, sometimes
6 that lead got there because slag was used as
7 fill material as an example. So it's hard to
8 separate out what is there because of widespread
9 activity and what was there intentionally as
10 waste.
11 MR. RIESER: Wouldn't the use of
12 slag fill over a broad area also be considered
13 an area of background?
14 DR. HORNSHAW: It could be.
15 MR. RIESER: Why would it not be?
16 DR. HORNSHAW: If it was used, I
17 guess, to fill in a known geographical area like
18 a swamp or a wet land. I'm not sure we would
19 consider that as background.
20 MR. RIESER: Well, wouldn't that
21 be common to most industrial areas where
22 slag was fill -- was used exactly for that
23 purpose?
24 DR. HORNSHAW: I guess it would
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1 depend on the site on what was the known history
2 of the site.
3 MR. RIESER: If slag was used as
4 an area-wide fill substance, would not that be
5 considered area background with respect to the
6 materials in the slag?
7 DR. HORNSHAW: Again, that's a
8 difficult question to answer. One of the sites
9 I personally am working with is out of an
10 existing steel mill in which the slag from
11 that operation was used to fill on the site.
12 So how would you say that would be area
13 background?
14 MR. RIESER: What I'm asking is
15 if the historical -- if slag is a historical
16 use from, say, the beginning of the century
17 and what was the component of all of fill in
18 a given area, then, that would be -- that ought
19 to be considered area of background since it
20 was not the release -- not the result of the
21 release solely, which is what the statue says,
22 from the subject site.
23 MR. KING: I think you are jumping
24 around as far as the context in which this would
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1 come up. If, for instance, you had a site that
2 had -- there was slag material on it, okay,
3 and that slag material had come from off-site
4 and was placed on the property you are concerned
5 with and that was coming from somewhere else,
6 that might be a situation where that could be
7 considered an area of background.
8 If you are dealing with --
9 if you are talking about the site where that
10 material came from, okay, if you are talking
11 about the site where that contamination came
12 from, now that was moved off-site, I mean, he
13 can't -- that guy can't go and say, well, that
14 stuff is off-site and now that's area of background
15 because it was brought off-site.
16 To give you an example --
17 another example would be, for instance, if you
18 had a smelter, which we have some that have
19 contaminated fairly major portions of a community,
20 for that smelter to then claim that the
21 contamination that they have spread around the
22 community is area of background, that would be
23 not be appropriate.
24 MR. RIESER: Okay. With respect
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1 to that individual site, because it would be
2 viewed that those releases are as a result of
3 activities solely from that site --
4 MR. KING: Right.
5 MR. RIESER: As a result of releases
6 solely from that site?
7 MR. KING: Right.
8 MR. RIESER: I understand.
9 MS. SHARKEY: Now, I have a problem
10 about why my example on the coal
gasification
11 site doesn't work. Maybe I wasn't clear enough
12 with the example, but I don't see the distinction
13 anymore.
14 Coal
gasification sites, as
15 I know the agency is well aware of, sometimes
16 encompasses very large areas and those areas
17 have since been developed into other properties
18 and where you have a property that's no longer
19 a coal gas site, has not been a coal gas site
20 since the turn of the century, and it and all
21 of its neighbors are now sitting on an old coal
22 gas site, aren't the
PNA's from the soil from
23 that oil coal gas site, in fact, area background
24 under the same principals just expressed in
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1 response to Mr.
Rieser's questions?
2 MR. KING: I think the issue that
3 we were faced with when we were developing this
4 statutory language in '95 was that we did not
5 want to see somebody bootstrapping the fact that
6 they had released contamination beyond their
7 own property as a basis for claiming that the
8 contamination on their own property was
9 representative of a background.
10 That was the issue that --
11 that was one of the reasons why we phrased the
12 language the way we did. So to the extent -- I
13 guess I was interpreting your example as really
14 that kind of situation.
15 MS. SHARKEY: If one could demonstrate
16 that surrounding properties had the same level of
17 contamination, which is what I think you are required
18 to do as a whole formula and approach for
19 demonstrating area of background, isn't it,
20 under these rules?
21 DR. HORNSHAW: Correct.
22 MS. SHARKEY: Now, if one can
23 demonstrate that, the fact that you have an
24 industrial contaminant that may have been released
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1 by somebody at some point, that does not take it
2 out of the definition of area of background, does
3 it?
4 DR. HORNSHAW: I guess in the case
5 of coal gas sites, it's similar to the analogy
6 Gary used about the lead smelter. That coal tar
7 is there solely as a result of activities even
8 way back in time, but it's still there at that
9 site. It shouldn't be considered background.
10 MS. SHARKEY: Well, at a very broad
11 site -- I think that maybe part of the problem
12 with the coal gas definition is that you have
13 what was at the turn of the century a huge coal
14 gasification property that has now been subdivided
15 and has all kinds of other usually industrial uses
16 on it. Those other activities have nothing to
17 do with coal
gasification.
18 The party who has a strip of
19 property in the middle of that old coal gas site,
20 if they attempt to clean up the
PNA's in the soil,
21 will be the only clean postage stamp on that dirty
22 envelope.
23 The analogy I have heard the
24 agency use before that strikes me as being counter
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1 to the whole
Brownsfields concept is to say one
2 must clean up those
PNA's although that entire old
3 coal gas site is not being cleaned up.
4 MR. KING: Well, there is the other
5 countervailing policy argument which is what the
6 statute really addresses and that is the fact that
7 you shouldn't be able to bootstrap reduced levels
8 of cleanup based on the fact that you sent them
9 off-site.
10 That's a different policy
11 issue and I think that's the policy statement
12 that this provision provides. It doesn't mean --
13 because something doesn't qualify as an area
14 background, that doesn't mean that the other
15 methodologies are unavailable. They are still
16 available and can be used as a way of proceeding.
17 MS. SHARKEY: Well, the fact that
18 the -- Mr. King, your remark was limited to stuff
19 that has been transported off-site rather than
20 a site that was broader and historically used as
21 a single facility by another party, a larger
22 facility.
23 In other words, it was never
24 transported off-site. It was on-site at the time
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1 that the coal gas plant operated. It's simply
2 that the property has been now sold and subdivided.
3 Its historical context probably
4 are not unique to coal gas. It would seem to me
5 anyone who has a large old industrial facility,
6 there are many of them certainly in the Chicago
7 area that have since been redeveloped into other
8 types of property where the activity going on
9 there today has nothing to do with the activity
10 that went on historically.
11 MR. KING: That's true, but one of
12 the goals of this is not to just say that because
13 it's there, it's okay that it continue to be
14 there. If that contamination was there and
15 public health continuing to be protected
16 even if that contamination is there, that's a
17 different issue.
18 If it's an issue of long-term
19 public health is not being protected, then, the
20 fact that somebody put it out there and now it's
21 underneath some other piece of property, if there
22 is a potential that it's going to cause a hazard
23 to people, it should be addressed.
24 THE HEARING OFFICER: Since it's
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1 now about a quarter after 1:00 and lunch hour is
2 almost over, we'll take a break and we will continue
3 after lunch. We will take a one hour break. Please
4 be back here at a quarter after 2:00.
5 (Whereupon, after a short
6 lunch break was had, the
7 following proceedings were
8 held accordingly.)
9 THE HEARING OFFICER: Okay. We were
10 proceeding through the
prefiled questions. Again,
11 we were doing this, in case there is anyone new
12 here, we were going through the questions that
13 were
prefiled regarding all questions relating to a
14 particular section.
15 Then, after the
prefiled
16 questions have been addressed by the agency, if you
17 have a follow-up question, please raise your hand
18 and wait for me to acknowledge you, and we will
19 take a follow-up question.
20 We had been addressing Section
21 742.200, the definition of area background. Is
22 there any further discussion on that matter from
23 the agency?
24 MS. ROBINSON: No.
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1 MS. SHARKEY: I was wondering if we
2 could have the last response read back to us before
3 we broke.
4 (Whereupon, the requested
5 portion of the record was
6 read accordingly.)
7 MS. SHARKEY: Okay. Am I the one
8 who is asking questions at this point? I can't
9 remember.
10 THE HEARING OFFICER: Yes, if you
11 have any remaining follow-up.
12 MS. SHARKEY: Yes. I would like to
13 get a little more closure on this question. It's
14 linked to my next question on contaminants of
15 concern as well. I don't know if I'm the next
16 one to go to on this.
17 My next question was whether
18 or not contaminants of concern as defined herein
19 are intended to include contaminants associated
20 with historical contamination, for example, where
21 contaminants are discovered in the soil, but
22 cannot be linked to a specific release.
23 In this context, I think
24 it would be useful to read the definition of
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1 contaminants of concern, which is any contaminant
2 that is expected to be present at the site based
3 on past and current land uses and associated
4 releases that are known to the person conducting
5 a
remediation based upon reasonable inquiry.
6 I guess I go back to my
7 question is this intended to include historical
8 contamination?
9 MR. KING: Contaminants of concern
10 can include historical contamination.
11 MS. SHARKEY: Would that be the case
12 if there are no releases known to the person
13 conducting the
remediation?
14 MR. KING: We are just looking here
15 at Section 742.115(b). There are three factors
16 to be considered when talking about
remediation
17 of contaminants of concern.
18 MS. SHARKEY: And how do you link
19 those?
20 MR. KING: Maybe you could go back
21 to your question.
22 MS. SHARKEY: The question is, is
23 the definition of contaminants of concern, which
24 would appear to have both a release component
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1 as well as what's expected based on past and
2 current land use, whether or not that's intended
3 to include historical contamination in the
4 context where you don't know of a release.
5 MR. KING: We are struggling with
6 this because it appears that you are linking
7 two concepts here. I guess I'm not understanding
8 why you are linking them that way.
9 MS. SHARKEY: Well, the two concepts
10 being the release and the past and current land
11 uses?
12 MR. KING: Here, the definition says
13 it's a contaminant that is expected to be present
14 at the site based on past and current land uses.
15 MS. SHARKEY: And associated releases.
16 MR. KING: Right, and associated
17 releases that are known. So you have two different
18 things there.
19 MS. SHARKEY: So you're reading of
20 that is that those are independent requirements
21 that the term used here doesn't mean that one
22 has to find an associated release, not simply
23 past land use?
24 MR. KING: Right, because otherwise,
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1 you would be presuming -- for historical
2 contamination, you would be presuming a level
3 of knowledge that just may not be there.
4 MS. SHARKEY: That's precisely
5 my point. We talked about this last week in
6 the hearings on --
7 MR. KING: Let me just interrupt you.
8 Otherwise, you would be in a position if a person
9 came in and said, well, I have this contaminant
10 of concern that I want to
remediate and I want
11 to work with the agency to
remediate.
12 I think under the interpretation
13 you are raising, we have to say, oh, you have to
14 tell us what specific release that's identified
15 with. Well, we don't want to get to that level
16 of detail.
17 If there is a contaminant
18 present there, you know, let's address that
19 contaminant regardless
fo whether you found
20 exactly the form of release that it originally
21 had.
22 MS. SHARKEY: I hear what you are
23 saying, and I guess what I'm trying to do is
24 understand this language that came out of the
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1 statute, which used an and. I had taken a
2 different reading of that and that is it meant
3 that one needed to be able to say that it was
4 associated with a known release and not simply --
5 this goes back to what I was saying before.
6 It goes back to the concept
7 and the conversation that we had on the record
8 for the R97-11
rulemaking that we had last week
9 where we talked about whether or not it was
10 enough to simply know that a party had used a
11 raw material on the property to then be able
12 to say, well, now you must treat that as a
13 contaminant of concern, any constituent
14 potentially in that material and go out
15 and sample for it and that in defining contaminants
16 of concern I thought the conclusion was no -- the
17 mere presence of this material on the site, the
18 fact that the material was used on the site
19 was not enough to mean that one had to look for
20 it as a contaminant of concern under Section 740 --
21 under Part 740.
22 We are using the same term here
23 and the same definition and I'm trying to figure
24 out here if in defining the contaminants of concern
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1 for this
remediation, is it enough simply to say
2 we have a past or current land use and I guess that
3 again in itself is a little vague, but if the land
4 use, for example, were simply the use of a certain
5 material on the property, is that enough to make
6 that material become the precondition of a
7 contaminant of concern?
8 I didn't say that very well.
9 When I say this, I'm meaning the existence of
10 that material means that one must look for
11 contaminants of concern associated with that
12 material, that past land use.
13 MR. SHERRILL: Generally, under
14 742.120, we talk about site characterization
15 and we note in here the actual steps and methods
16 taken to characterize a site are determined by
17 the requirements applicable to this program
18 under which site
remediation is being addressed.
19 Speaking for the site
remediation
20 program, usually if a raw material has been handled
21 on a site, many sites that come onto the site
22 remediation program, they want to address those.
23 They want to include them as a contaminant of
24 concern. I mean, that's the specific way they
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1 are in the program.
2 MS. SHARKEY: Is it the answer, then,
3 that the contaminants of concern is going to be
4 defined in the program and not separately under
5 Section 742?
6 MR. SHERRILL: Generally, that's true.
7 What comes to mind is, like, the LUST program
8 where you have BTEX indicator contaminants.
9 MR. CLAY: If there is a record
10 that shows that you had an unleaded gasoline tank,
11 for example, all we are going to ask you to do
12 is look for BTEX, but that's all your NFR letter
13 is going to say, too, that this site or this
14 release has been addressed for BTEX. It's not
15 going to address any other constituents and those
16 are going to be your contaminants of concern and
17 those were identified by the party seeking no
18 further
remediation.
19 MS. SHARKEY: That's assuming that
20 I'm going for a no further
remediation letter
21 solely on the basis of a tank. What if, in fact,
22 I was going for a broader no further
remediation
23 letter? Maybe there is a tank on the property,
24 but in addition, I want to get a clean letter,
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1 basically, for my whole property.
2 MR. CLAY: The comprehensive --
3 MS. SHARKEY: The comprehensive --
4 MR. CLAY: -- under the site
5 remediation program.
6 MS. SHARKEY: What I'm trying
7 to get at is how far does one have to go? I'm
8 understanding that answer to be that it would
9 be defined by the site
remediation program if
10 it had a tank, the LUST program might define that
11 piece of it, is that correct?
12 MR. CLAY: Right, but I think if
13 there was a container storage area where you
14 stored solvents, then, it would mostly be asked
15 to sample for those solvents that you showed
16 records of having on your site even though
17 there may not be a confirmed release of those
18 solvents in that container storage area.
19 I think we would ask for
20 some sampling for that type of solvent or
21 whatever that was stored and managed at that
22 site.
23 MS. SHARKEY: Okay. So you're
24 saying that under Part 740 that one would be
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1 required to sample for every material that
2 was maintained on the site, contaminants associated
3 with those materials, even though there is no
4 record of any release from some or all of these?
5 MR. SHERRILL: I don't know if I
6 want to use the word required.
7 MS. SHARKEY: In order to get a
8 comprehensive letter.
9 MR. SHERRILL: Generally, that's
10 the case.
11 MS. SHARKEY: So in other words,
12 somebody would have to have a record of every
13 material that was ever used on a piece of
14 property in order to obtain a comprehensive
15 letter?
16 MR. SHERRILL: No.
17 MS. SHARKEY: But it would be
18 anything that was turned up in a Phase 1 that
19 showed the material was used?
20 MR. KING: I thought we talked about
21 this in the context of the 740 rules. Didn't we
22 answer those questions already?
23 MS. SHARKEY: I guess that I'm
24 thrown back to it because we have the definition
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1 in here again. I'm wondering is one going to
2 encounter the question of second time in this
3 program and get a different answer?
4 MR. KING: If I recall right, it's
5 the same definition. It's based on the same
6 statutory language.
7 MS. SHARKEY: It is, right. So it
8 will be interpreted the same way, is that what
9 you are telling me?
10 MR. KING: If you are under 740, yes,
11 it would be interpreted the same way. Again, each
12 program has a little bit different way that
13 identifies a contaminant of concern. Obviously,
14 under LUST, there is a specific set of indicator
15 contaminants that you use. The other programs
16 aren't as specific.
17 MS. SHARKEY: In the site
remediation
18 program under 740, it's going to be defined there
19 and it's not going to be defined differently under
20 742?
21 MR. KING: That's correct.
22 MS. SHARKEY: Okay. Both to this
23 definition, which I believe has some ambiguities
24 in it in terms of the use and in the discussion
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1 of known releases and the prior definition that
2 we were looking at for area background, would the
3 agency agree that there is ambiguity in the
4 statutory definitions? For example, what is
5 a human activity under the definition of area
6 background?
7 MR. KING: Well, I suppose one could
8 read ambiguity into any set of words, but to us,
9 it's fairly clear.
10 MS. SHARKEY: Would the agency
11 consider a definition of the term human activities
12 to attempt to avoid future litigation over what this
13 term means?
14 MR. KING: I guess I don't know what
15 you are suggesting. Are you suggesting that we
16 have a litany of every potential human activity
17 that was a human activity?
18 MS. SHARKEY: Well, we could go
19 through, I suppose, trying to get on the record
20 examples of human activity that the agency interprets
21 this as meaning.
22 MR. KING: If somebody wants to propose
23 a definition of human activity, I suppose that's
24 something we could consider. We didn't feel it
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1 was either necessary or appropriate in the context
2 of this proceeding?
3 MS. SHARKEY: But you have made it
4 clear today by your answers that there was some
5 human activities that you don't consider to be --
6 to fall within that statutory term as it's used
7 in that definition and others that you do feel
8 fall within there.
9 MR. KING: Well, if that's the
10 conclusion you've reached, I think you have
11 misinterpreted our answers.
12 THE HEARING OFFICER: I think we
13 have thoroughly covered this ground. If it
14 needs to be addressed further in comment, we
15 can do that at the next hearing. I think we
16 should move on in the interest of making some
17 progress today.
18 MS. SHARKEY: Fine. Thank you.
19 THE HEARING OFFICER: The next
20 definition, I believe, is the definition of
21 site, Ms.
Sharkey.
22 MS. SHARKEY: Can non-contiguous
23 property be a single site?
24 MR. KING: No.
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1 MS. SHARKEY: Is common ownership
2 required of a single site?
3 MR. KING: No.
4 MS. SHARKEY: Thank you.
5 THE HEARING OFFICER: Are there any
6 follow-up questions at this time?
7 MR. WATSON: Yes. Before we leave
8 the definition section, I would like to ask a couple
9 of follow-up questions on the definition
10 of residential property just because it's an issue
11 that I think we talked about in the 740 hearings
12 and I think there is some potential ambiguities
13 associated with it.
14 Given that it's such a fundamental
15 part of determining how 742 works, I was wondering
16 if whether I could ask just a couple of follow-up
17 questions in an attempt to clarify that definition.
18 THE HEARING OFFICER: Well, we are
19 generally sticking to the
prefiled questions. We
20 haven't made much progress today. I really think
21 that we should move along. We will have some time
22 at the end of all of the
prefiled questions to
23 address the other questions that people have that
24 were not
prefiled. I think we need to move on.
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1 MR. WATSON: Okay. If you like,
2 that's fine, I will hold that question until the
3 end.
4 THE HEARING OFFICER: Thank you.
5 The next
prefiled question
6 concerns 742.210 that was filed by the site
7 remediation advisory committee.
8 MR. RIESER: Are all of these
9 references the most current?
10 MR. KING: Yes.
11 MR. RIESER: Thank you.
12 THE HEARING OFFICER: The next
13 question concerning Section 742.210 was filed
14 by
Mayer, Brown & Platt.
15 Ms.
Sharkey?
16 MS. SHARKEY: What is the function
17 of these
incorporations by reference?
18 MR. KING: This was also an issue
19 that we talked about under R97-11. The incorporation
20 by reference procedure, as I understand it, allows
21 a reference to documents without placing the entire
22 document in the record.
23 Considering the number of
24 ancillary procedures that are involved here, it
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1 would obviously make the
rulemaking record much
2 more voluminous than what it is.
3 MS. SHARKEY: Can updated versions or
4 alternative methods be used under this part?
5 MR. KING: By rule, that's not
6 allowed. However, we have tried to interject
7 some flexibility with regards to that issue.
8 There are specific points where in the proposal
9 where it talks about alternatives being proposed.
10 I guess we would see one
11 potential is that if there is a new version of
12 one of these methodologies that that could be
13 proposed as an equivalency determination. I
14 think that would be a window to use different
15 options.
16 MS. SHARKEY: That would be without
17 a
rulemaking?
18 MR. KING: Well, the
rulemaking
19 provides for that option. It wouldn't be a separate
20 rulemaking itself.
21 MS. SHARKEY: Do these documents
22 contain solely methods and procedures?
23 MR. KING: No.
24 MS. SHARKEY: What else do they
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1 contain?
2 MR. KING: Well, your next question
3 intimates -- for instance, some of them, from our
4 perspective, do contain standards. ASTM has a
5 broad range of standard test methods for various
6 types of activities. I guess we would consider
7 those standards.
8 MS. SHARKEY: Has the agency reviewed
9 these documents and the procedures, standards,
10 everything else in them for consistency with each
11 other and with the procedures, methods, and standards
12 in these
13 proposed rules?
14 MR. KING: As a whole, yes, we have
15 done that. We haven't gone through, as part of
16 this proceeding, every single line of every single
17 document and cross-referenced the entire proposal,
18 but we do think that it all fits together.
19 We have had experience with
20 working with all of these documents in the context
21 of other programs. As a whole, yes, we think
22 it all fits together.
23 MS. SHARKEY: If there is a conflict,
24 do the procedures specified in Part 742 control?
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1 MR. KING: Yes, that's correct.
2 MS. SHARKEY: If there is a conflict
3 between two documents in here, how would one resolve
4 that?
5 MR. KING: I think we would have to
6 look at the context in which it is coming up.
7 We would have to look at which is the more applicable
8 procedure or methodology given the issue at hand.
9 I don't think there is really a uniform procedure
10 to follow with regards to that issue.
11 MS. SHARKEY: Okay. Thank you.
12 THE HEARING OFFICER: Are there any
13 follow-up questions?
14 Okay. The next
prefiled
15 question concerns 742.215 filed by the site
16 remediation advisory committee.
17 MR. RIESER: Is the purpose of the
18 soil attenuation capacity to represent an objective
19 analogue to a free product determination?
20 MR. SHERRILL: The purpose of the soil
21 attenuation capacity is to provide mechanisms to --
22 there are parts here. One is to make sure there
23 is no migration of mobile free products; two,
24 ensure that no potentially unacceptable health
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1 risk remains where there is a violation to an
2 engineered barrier or institutional control by
3 unintentional or accidental exposure to the
4 contamination left in place; and three, provide
5 a ceiling control to limit the level of exposure from
6 high contaminant concentrations from multiple
7 organics.
8 MR. RIESER: Does this apply only
9 to
organics?
10 MR. SHERRILL: Yes.
11 MR. RIESER: On page four of your
12 testimony, this is directed to Mr.
Sherrill, you
13 indicate that the soil attenuation section applies
14 only to native soils and not to fill. How does
15 one address these issues to sites which are mostly
16 fill and non-native soils?
17 MR. SHERRILL: The attenuation capacity
18 of the soil is not to be measured out or from
19 fill soil. Fill soil may not retard or attenuate
20 contaminant flow. It's a site-specific call.
21 Fill could have -- when we
22 think of fill, it could have wood chips, metal,
23 brick, demolition, construction debris, organic
24 branches, leaves. When we talk about taking an
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1 organic content of native soils, these other
2 organics, such as leaves, branches and this
3 disturbed material and fill would not be
4 indicative of that.
5 MR. RIESER: For those sections of
6 the rule, for example, 742.305 as part of the
7 pathway exclusion where you are required to verify
8 whether you have compliance with this specific
9 section or not, how would that be handled with
10 that context?
11 MR. SHERRILL: In many instances,
12 regarding fill, you may have fill that is a
13 native fill soil and we would just want to know
14 what the organic content of that is.
15 If it's fill in the context
16 of containing this miscellaneous debris that I
17 mentioned earlier, it would become a Tier 3 issue
18 and it would need to be reviewed whether you
19 were in compliance with this soil attenuation
20 or not.
21 MR. RIESER: So if you had, say, a
22 site which had -- let's go back to slag as an
23 example. You had a slag site. You couldn't use
24 pathway exclusion, the Subpart C pathway exclusion,
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1 because the soil attenuation issue is going to
2 apply to that material.
3 MR. SHERRILL: You may or may not
4 depending on your contaminant. You may not --
5 the soil attenuation may not even be a ceiling
6 factor for a particular site. It may or may not.
7 As we mentioned before, it
8 applies for
organics. So if you are looking
9 at
inorganics, it would be inapplicable such
10 as slag if that was your contaminant.
11 MR. RIESER: Well, the organic or
12 inorganic refers to the contaminant and not to
13 the material?
14 MR. SHERRILL: Correct.
15 MR. RIESER: I guess I was thinking
16 of an organic contaminant would be of the slag
17 type.
18 MR. SHERRILL: If you have an organic
19 contaminant in a slag fill, you could not measure
20 what we term as the soil attenuation capacity.
21 MR. RIESER: So in that circumstance,
22 that would automatically be something where you
23 could not use the Subpart C pathway exclusion and
24 you would have to go to some Tier 3 evaluation?
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1 MR. SHERRILL: You may be able to go
2 below the slag and measure the native soil below
3 the slag.
4 MR. RIESER: If the contamination
5 reached that far? I mean, what if the contamination
6 was just limited to the slag, the fill area?
7 MR. O'BRIEN: It really wouldn't matter.
8 We are looking at the capacity of the soil to
9 attenuate. It's a capacity of the soil, not the
10 contaminant in it.
11 We would have to look and see
12 what the contamination was, but the underlying
13 soil could still have that capacity to attenuate.
14 As long as that capacity wasn't exceeded, then,
15 that pathway wouldn't be --
16 MR. RIESER: So if there was
17 underlying soil between the contamination of a
18 water table, that is what you would look at to
19 fulfill this requirement?
20 MR. O'BRIEN: That could be one
21 option.
22 MR. RIESER: Excuse me. If you
23 measure your FOC, can you use that instead of
24 this value?
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1 MR. O'BRIEN: Correct.
2 MR. RIESER: This is just a default
3 value that selected as being useful for the purposes
4 that you have here?
5 MR. SHERRILL: Yes.
6 MR. WATSON: Excuse me. What does
7 FOC mean?
8 MR. SHERRILL: The traction of organic
9 carbon in the soil.
10 MR. RIESER: Okay. Thank you.
11 I'll proceed with the next group
12 of questions.
13 Is it correct that this rule
14 requires a person to sum only those organic
15 constituents which are required to be analyzed by
16 the particular program under which
remediation
17 is being conducted?
18 MR. SHERRILL: The sum of all organic
19 chemicals are to be
totalled. At a LUST site, for
20 example, if it is thought that only BTEX constituents
21 are at a site, then, only BTEX need be summed.
22 Additional analytical sampling,
23 for example, from a target list of compounds would
24 not be required and then the agency also approves
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1 of the use of a total petroleum hydrocarbon test
2 to derive the sum of all organic chemicals.
3 MR. RIESER: So it's also correct
4 that it would not require any additional sampling
5 of constituents on a targeted list of compounds
6 other than those that you have identified either
7 at a LUST site or in a focused investigation?
8 MR. SHERRILL: Not necessarily. If
9 you have a focused investigation only for benzene
10 and there were other organic contaminants at the
11 site to fulfill this requirement, you would need
12 to measure those other
organics.
13 MR. RIESER: So even in the focused
14 site investigation where you evaluate one targeted
15 compound of concern, you have to evaluate other
16 constituents even though they weren't identified
17 as compounds of concern?
18 MR. SHERRILL: Yes, if it's thought
19 that those are present.
20 MR. RIESER: Even if you don't
21 have that information at hand performing the
22 investigation, you would be required to go out
23 and obtain it?
24 MR. SHERRILL: There again, that's
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1 site-specific or program-specific. I'll go back
2 to LUST. We generally know at a LUST site what
3 the release is. You would not need to analyze
4 for all of those other organic contaminants. We
5 usually know at a LUST site it's BTEX, for example.
6 MR. RIESER: Okay.
7 MR. SHERRILL: So you would only be
8 sampling for BTEX.
9 MR. RIESER: So by the same token,
10 if you were evaluating one group of compounds at
11 a focused site investigation, that's all you would
12 have to evaluate for under this?
13 MR. SHERRILL: Let me give you an
14 example from the site
remediation program. A
15 site comes in and they want to focus their
16 investigation for benzene, but it is also known
17 that
trichlorethylene is also present. Both
18 benzene and
trichlorethylene concentrations
19 would need to be summed.
20 MR. RIESER: In looking at 215(b)(1),
21 it says the sum of the organic contaminate residual
22 concentrations analyzed for the purposes of the
23 remediation program for which the analysis is
24 performed, that's what the focus is. Then, it
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1 follows in the next sentence by saying if the
2 information relative to the concentration of other
3 organic contaminants is available, such information
4 shall be included in the sum.
5 I was wondering by the inclusion
6 of that language, wasn't it the agency's intent when
7 there was a focused site investigation as opposed
8 to a tank site, to rely only on the -- to evaluate
9 only those organic constituents which are the subject
10 of the focus and to only require the inclusion of
11 those other
organics if that information was already
12 available, that information being the sampling
13 information?
14 MR. SHERRILL: I think that's correct.
15 MR. RAO: Can I ask a follow-up
16 question?
17 If you don't have all the
18 information that is available like they are doing
19 a focused investigation and they have certain
20 information based on their investigation that
21 they have access to and they are going to use
22 only the sum of those constituents for which
23 they have information for, if there are other
24 organic
contaminations in the area, and if they
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1 don't use it, how protective will this exclusion
2 be?
3 MR. SHERRILL: Well, if there were
4 other contaminants and you are saying that
5 information is available and then going back to
6 the rule if the information relative to the
7 concentration of other organic contaminants
8 is available, such information shall be included
9 in the sum.
10 MR. RAO: By available, are you
11 saying it should be included in the sum? If it's
12 not, are you asked to go and investigate to make
13 sure there are no other
organics in the site other
14 than what they are focusing on?
15 MR. KING: What we were trying to do
16 is a balancing here because one way to approach this
17 is to say even though you are coming in on a focused
18 investigation, go out and look for everything. Well,
19 that seems to be too far to one side.
20 On the other hand, if we just
21 said let's just look at the single contaminant
22 or contaminants that you brought into the focused
23 investigation, but ignore all of the other
24 information that might be out there, well, that
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1 seems to be too far on the other side.
2 We tried to strike a balance
3 where if the information was available as part
4 of whatever characterization you had done or
5 some kind of historical information as far as
6 sampling data, that that would be included as
7 part of the calculation that would be made.
8 We didn't necessarily want
9 somebody, if they were doing a focused
10 investigation, to necessarily go out and look
11 for everything.
12 The situation, then, obviously
13 is different if you have a comprehensive
14 investigation where you are looking at all of
15 the contaminants of the site.
16 We tried to do a balancing and
17 one could say, well, it's not protective enough,
18 but on the other hand, we didn't want to go too
19 far and open up the entire range of chemicals when
20 we have this focused investigation.
21 MR. RAO: So would there be any
22 judgment calls on the part of the agency when
23 they come up with a focused investigation where
24 they are pretty close to the limit and you want
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1 to investigate further to make sure that there
2 was --
3 MR. SHERRILL: I would think in that
4 situation, we would go under 742.215 to one of
5 the methods is this total petroleum hydrocarbon
6 where instead of going and running what we call
7 the total compound list and priority pollutant
8 list, that they would run this one test in lieu
9 of sampling for all of these other constituents.
10 MR. RAO: To get an idea what the
11 level would be?
12 MR. SHERRILL: Exactly. That test
13 actually may be probably a better test than analyzing
14 for all of the target compound lists.
15 MR. RAO: Okay.
16 THE HEARING OFFICER: Are there any
17 additional follow-up questions?
18 Mr.
Rieser?
19 MR. RIESER: Go ahead.
20 MS. SHARKEY: No. I'll defer to
21 Mr.
Rieser.
22 MR. RIESER: I was going to go on to my
23 next question.
24 MS. SHARKEY: Well, I'm not sure what
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1 I -- did I -- I just want to make sure what I heard
2 Mr.
Sherrill say in response to Mr.
Rao's question.
3 Are you saying that the agency
4 could require a party to go and use (b)(2), the
5 total petroleum hydrocarbon concentration rather
6 than (b)(1), the sum of the organic residuals?
7 MR. SHERRILL: You can use either
8 method. The demonstration would be left up to
9 the responsible party on how to make that
10 demonstration -- even if you were pressing the
11 limit, as Mr.
Rao said, I'm sure we would ask
12 for that to demonstrate that you are not exceeding
13 the soil attenuation.
14 MS. SHARKEY: Is the impact of that
15 that the agency could basically ask a
remediation
16 applicant in a focused assessment context to include
17 concentrations of materials that were not the subject
18 of the focused investigation?
19 MR. SHERRILL: That would be -- we
20 would not require it. What I'm saying is that is
21 an option that the applicant could do. The other
22 option would be this total petroleum hydrocarbon
23 procedural test.
24 MS. SHARKEY: Doesn't that have the
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1 effect, though, of including materials beyond --
2 MR. SHERRILL: It gives you a sum
3 total. It doesn't tell you what those contaminants
4 are.
5 MS. SHARKEY: But that's an option,
6 it's not a requirement? You're not saying the
7 agency would require that in some situations, are
8 you?
9 MR. SHERRILL: We would not require --
10 I mean, this (b)(2), 742.215(b)(2), is an option.
11 MS. SHARKEY: Okay. Thank you.
12 MR. SHERRILL: Yes.
13 THE HEARING OFFICER: Is there any
14 additional follow-up?
15 MR. RAO: Would it be more appropriate
16 to use the total petroleum hydrocarbon option instead
17 of going through your individual contaminants
18 analysis just to get an idea in terms of what the
19 total organic contamination is?
20 MR. SHERRILL: Regarding the TPH test,
21 we did not prescribe -- this will partially address
22 your question -- we did not prescribe what type of
23 TPH test there is because there is more than one
24 method.
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1 Depending on the type of
2 contaminants that you have, whether you had higher
3 end carbons or lower end carbons, that may influence
4 what TPH test you have.
5 Since many sites come into the
6 program -- into the site
remediation program and
7 they have already analyzed for what we call the
8 target compound list up front, then, that data
9 is already available and there would be no purpose
10 to duplicate it and have them go out and run TPH
11 tests.
12 THE HEARING OFFICER: Mr.
Sherrill,
13 maybe you could clarify for the record that TPH means
14 total petroleum hydrocarbon?
15 MR. SHERRILL: That's correct.
16 THE HEARING OFFICER: Any additional
17 follow-up?
18 MR. WATSON: I have a couple of
19 questions.
20 THE HEARING OFFICER: Mr.
Watson?
21 MR. WATSON: Just so that I'm clear,
22 with respect to (b)(1), if you are doing a focused
23 site investigation, the only time that you would
24 be obligated to include organic concentration of
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1 other organic contaminants in your calculation
2 would be where you have existing sampling data
3 with respect to those other contaminants, is that
4 correct?
5 MR. SHERRILL: It may not be actual
6 data. I mean, when I say data, it may not -- we
7 use the term information. If you go out there
8 with a PID meter and you are getting indications
9 that there are high organic contaminants in the
10 soil and you go out and just run a benzene sample
11 and there is no benzene, well, there is information
12 provided there that indicates that there are organic
13 contaminants in the soil.
14 That's just one method to know
15 if you are smelling high volatile
organics in the
16 soil, that's an indication there are contaminants
17 there. I use the term information.
18 MR. WATSON: So some level of observed
19 site conditions with respect to the presence of
20 organics, is that correct?
21 MR. SHERRILL: Using the word observe --
22 there again, if we have historical information
23 that there were many spills at the site and it's
24 documented in previous Phase 1 reports, that would
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1 lead me to believe there are other organic
2 contaminants there whether I observed it or not.
3 MR. WATSON: So then you would have to
4 go out and do the sampling? If you have information
5 regarding spills, you would have to go out and do
6 the sampling to determine the presence of those
7 compounds, is that right?
8 MR. SHERRILL: Yes, or the TPH method
9 that we discussed.
10 MR. WATSON: The TPH, does that applies
11 to sites other than purely petroleum sites?
12 MR. SHERRILL: It would apply to sites
13 that have organic contaminants.
14 MR. WATSON: So it would extend beyond
15 petroleum constituents.
16 What's the basis for that TPH
17 test?
18 MR. O'BRIEN: There are several
19 different methodologies. Some of the most
20 common ones depend upon infrared spectroscopy and
21 it looks for particular absorption band of
22 carbonhydrogen. So it would be indicative of
23 organics.
24 The test also does a certain
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1 extraction procedure that's intended to separate
2 organics which normally would be present in natural
3 soils from petroleum type synthetic
organics.
4 MR. WATSON: Is there a risk
5 justification behind the test?
6 MR. O'BRIEN: Again, the reason that
7 we are using it here is to look at what is the
8 attenuation capacity of the soil. The soil has --
9 soils have varying amounts of natural organic
10 matter. That attenuates when it's present in
11 sufficient quantity. It attenuates organic materials
12 that travel through it.
13 When all of those attenuation
14 sites, when they are filled up by something, whether
15 that something is toxic or non-toxic, then, those
16 sites are no longer available to attenuate the
17 things and the models don't accurately predict any
18 additional material that comes through because it's
19 not attenuated.
20 It just passes through the soil.
21 Therefore, the models we've relied on in Tier 1 or
22 Tier 2 are no longer accurately predictive. So we
23 put this in the rule to make sure that when the
24 models are applied, they are applied within the
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1 boundaries upon which they were developed.
2 MR. WATSON: So really the issue
3 here is it's a safety factor to make sure your
4 model works correctly as opposed to you do this
5 because the results of this indicate that there
6 is a risk to human health and the environment,
7 is that right?
8 MR. O'BRIEN: That's correct.
9 MR. SHERRILL: And that was answered
10 before. Like I said, there are three reasons why
11 they want this soil attenuation checked.
12 THE HEARING OFFICER: Are there
13 additional follow-up questions?
14 Mr.
Rieser, are you ready to
15 move on to the next question?
16 MR. RIESER: Sure. I think with
17 respect to two and three under (b)(1), those
18 have been answered already.
19 Under Subsection (b)(2), I
20 think we have answered it already. It is correct
21 that Subsection (b)(2) is an alternative to (b)(1)
22 and the person does not have to meet both conditions,
23 is that correct?
24 MR. SHERRILL: That's correct.
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1 MR. RIESER: Of the numerous types
2 of total petroleum hydrocarbon, which should be
3 sampled and analyzed, how do you make that decision?
4 MR. SHERRILL: Feel free to answer that.
5 MR. RIESER: Let the record show that
6 was directed to Mr.
O'Brien and not himself.
7 MR. SHERRILL: It's generally a
8 site-specific TPH test depending on the type of
9 organic contaminants at the site.
10 MR. O'BRIEN: The difference there
11 is there are maybe forty different methodologies
12 for running total petroleum hydrocarbon and the
13 agency would consider a proposal, but some of
14 them are more suited towards hydrocarbon with
15 lower molecular weight and some of them are more
16 suited towards hydrocarbons with higher molecular
17 weight.
18 Some of the tests are less
19 expensive, but don't work well with clay soils.
20 So we haven't specified specifically one method
21 because there is no absolutely perfect method
22 suitable for every site.
23 MR. RIESER: Are references regarding
24 TPH included in the documents appropriated by
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1 reference or is there a document one can refer to
2 or a central place one can refer to
to identify
3 types of TPH methodologies?
4 MR. SHERRILL: I don't believe we did.
5 MS. ROBINSON: Could we check on that
6 at a break just to be certain, though?
7 MS.
McFAWN: That's a good idea.
8 THE HEARING OFFICER: Sure.
9 MR. RIESER: Thank you. I'll move on
10 to (b)(3) unless there is follow-up to that.
11 THE HEARING OFFICER: Are there any
12 additional follow-up questions?
13 MR. RIESER: I'm going to withdraw
14 my first question under (b)(3) and go to number two.
15 What are examples of other methods
16 for demonstrating that the soil attenuation capacity
17 is not exceeded?
18 MR. SHERRILL: I do not know of any
19 other methods to demonstrate the soil attention
20 capacity is not exceeded.
21 MR. RIESER: Are there factors that
22 the agency would consider in evaluating other methods
23 which are proposed?
24 MS. ROBINSON: Court reporter, could
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1 you read back?
2 (Whereupon, the requested
3 portion of the record was
4 read accordingly.)
5 MR. O'BRIEN: Well, I think we
6 would look to see if it fulfilled the purpose of
7 measuring what the capacity of the soil was. I
8 guess potentially we would look for some type of
9 leachate test that would load up that particular soil
10 with
organics so we could see at what leading rate it
11 actually came out the bottom. We look for
12 essentially a scientifically credible approach.
13 MR. RIESER: Okay. Thank you.
14 Even if the levels of contaminants
15 at a site exceeds the default values of Subsection
16 (b)(1)(A), would the agency still allow Tier 3
17 demonstration that the site does not present a risk
18 to human health through the use of other models or
19 technical impracticality demonstrations?
20 MR. SHERRILL: Yes.
21 MR. RIESER: Are there fate and
22 transport models which can take free product into
23 account and will the agency accept these in a Tier 3
24 demonstration?
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1 MR. SHERRILL: The agency is not aware
2 of any models to model the fate transport of free
3 product, but we are willing to revise peer reviewed
4 in scientific literature or USEPA reviewed.
5 MR. RIESER: Thank you.
6 THE HEARING OFFICER: If there are no
7 additional follow-up questions, the next
prefiled
8 question concerns Section 742.220 filed by the site
9 remediation advisory committee.
10 MR. RIESER: It is not clear from
11 Mr.
Sherrill's testimony whether soil saturation
12 is the same as solubility. How are these different?
13 MR. SHERRILL: The soil saturation
14 limit is provided by the methods listed in 742.220(c)
15 and refers to the contaminant primarily in
16 unsaturated soil. Solubility refers to a contaminant
17 primarily in a saturated zone, that is, groundwater,
18 and we have a chemical-specific solubility table in
19 Appendix C, Table E.
20 MR. RIESER: Looking at number two, can
21 Section 742.220 be summarized by stating that
22 the agency will not accept the calculated
remediation
23 objective which exceeds the
Csat either for
24 inhalation pathway for organic contaminants where
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1 melting point is 30 degrees C or for migration to
2 groundwater portion of the groundwater ingestion
3 pathway for all organic contaminants?
4 MR. SHERRILL: Yes. Yes, the agency
5 will not accept calculated
remediation objectives
6 which exceeds
Csat either for the inhalation pathway
7 for organic contaminants or for the migration of
8 groundwater portion of the groundwater ingestion
9 pathway.
10 MR. RIESER: Is it accurate that this
11 is not an issue for the ingestion pathway?
12 MR. SHERRILL: That's correct.
Csat is
13 not an issue for the ingestion route.
14 MR. RIESER: Why is that?
15 DR. HORNSHAW: A child could eat soil
16 that is super saturated with chemical and the
17 physical amount of the chemical is not important.
18 It's not a migration issue. It's a direct ingestion
19 issue.
20 MR. RIESER: Are the
organics with
21 melting point less than 30 degrees C only those
22 listed in Appendix A, Table A?
23 MR. SHERRILL: Of those
organics listed
24 in the Tier 1
remediation objective tables, those
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1 with a melting point less than 30 degrees C are
2 listed in Appendix A, table A. For those
3 contaminants not listed in the Tier 1
remediation
4 objective tables, a chemical-specific determination
5 will need to be made of its melting point, which
6 could be referenced in a common chemical handbook.
7 MR. RIESER: Can the agency clarify
8 that this only applies through remedial objectives
9 for soils?
10 MR. SHERRILL: Yes.
Csat only applies
11 to soil
remediation objectives.
12 MR. RIESER: Even if the contaminants
13 at the site exceeds these values, can a person use
14 Tier 3 to arrive at risk-based objectives for the
15 site?
16 MR. SHERRILL: Well, even if the
17 contaminants at a site exceed their respective
18 Csat values, one can propose a Tier 3 demonstration
19 to show that a site does not pose a risk to human
20 health and the environment.
21 MR. RIESER: Can the agency clarify
22 that the options for determining soil saturation
23 limit as set out in Subsection C are alternate
24 options?
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1 MR. SHERRILL: Either 742.220(c)(1) or
2 742.220(c)(2) may be used. They are alternatives.
3 MR. RIESER: Okay. Subsection (c)(3)
4 allows the derivation of the value to another method
5 approved by the agency. What other methods are
6 available?
7 MR. SHERRILL: Under 742.220(c), two
8 methods are provided to develop a soil saturation
9 limit; one, which is the lookup of the tables in
10 the Appendix A, Table A. Then, we have a -- you
11 can use what is called Equation S29 in Appendix C,
12 Table A, to derive soil saturation limit and I do
13 not know of any other methods to make this
14 demonstration.
15 MR. RIESER: Would a proposal of such
16 method -- would the standards for approving the
17 proposal of such a method be the same standards
18 as you answered with regard to the last section?
19 MR. SHERRILL: Yes.
20 MR. RIESER: Can the agency clarify
21 that the soil saturation values were taken into
22 account in setting values in the Tier 1 tables?
23 DR. HORNSHAW: Yes.
24 MR. RIESER: Those were the soil
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1 saturation values included in Appendix A, Table A?
2 DR. HORNSHAW: Yes. Those were
3 the values in the lookup tables marked with
4 Footnote D.
5 MR. RIESER: Thank you.
6 THE HEARING OFFICER: Are there any
7 follow-up questions concerning 742.220?
8 MR. WATSON: I have one.
9 THE HEARING OFFICER: Mr.
Watson?
10 MR. WATSON: How would you determine
11 the melting point of a compound such as naphtha
12 that has a bunch of constituent contaminants of
13 concern?
14 MR. O'BRIEN: We would look at the
15 constituents and not the mix.
16 MR. WATSON: So when we are looking
17 at compounds in determining free productive
18 definitions, for instance, that have a melting
19 point criteria, then, you would look at the
20 constituents of that compound and determine the
21 application of the definition?
22 MR. O'BRIEN: That's correct.
23 MR. WATSON: Okay.
24 THE HEARING OFFICER: Are there any
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1 additional follow-up questions?
2 Okay. The next questions concern
3 742.225. We will begin with questions filed by the
4 site
remediation advisory committee.
5 MS. ROSEN: Number one, is it correct
6 that determination of
remediation objectives in the
7 form of a numeric concentration of contaminants is
8 not required by Part 742 nor warranted in all cases?
9 MR. KING: That's correct. Recognizing
10 that there are certain provisos relative to soil
11 attenuation capacity and the soil saturation limit,
12 et cetera, that we were just talking about.
13 MS. ROSEN: Okay. Number two --
14 MR. WATSON: I have a follow-up
15 question on that.
16 Do you think the language in
17 the regulations needs to be amended? It really
18 isn't clear anywhere here that there can be
19 non-numerical
remediation objectives.
20 If you read the language,
21 for instance, in 225(b), where it says compliance
22 is achieved if each sample result does not exceed
23 that respective
remediation objective.
24 The conclusion that you could
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1 draw from that is it necessarily numerical and
2 I guess the question is whether or not there needs
3 to be some clarification in the regulations
4 themselves to reflect that that, in fact, could
5 occur.
6 MR. KING: You need to recognize that
7 when you are using 742, it's in the context of one
8 of the other programs. For instance, when we were
9 going through Part 740 last week, to just kind of
10 flip through there, where it talks about the
11 remedial objectives process, this is in 740.440,
12 it clearly references that you are not always in
13 a numeric situation.
14 The same is true under the
15 tank program where you can achieve under certain
16 circumstances getting a no further
remediation
17 letter without going through the numeric process
18 here.
19 MR. WATSON: Thank you.
20 THE HEARING OFFICER: Are there any
21 additional follow-up questions?
22 Ms.
Rosen?
23 MS. ROSEN: Just one minute.
24 Continuing on with that Section
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1 742.225, our question number two, says if a sample
2 point is different than the compliance point, is it
3 accurate to say that the compliance point values
4 which are applied at the sample point are back
5 calculated from the remedial objectives derived for
6 the compliance point?
7 MR. KING: I was wondering, could
8 we kind of talk about two, three, four and five
9 together? They are really talking about the same
10 kind of issue. Perhaps if we discussed that all
11 together, I could try and point out the differences
12 between the three.
13 You can have a point of human
14 exposure that's different than the compliance
15 point. One of the ways that the point of human
16 exposure gets moved out is based on where the
17 applicable institutional control is.
18 For instance, if your point
19 of human exposure was moved to the edge of an
20 institutional control, you could then, in essence,
21 back calculate to determine what your compliance
22 level needed to be at a specific point.
23 The sampling point that we
24 were talking about that earlier today, the sampling
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1 point could be at various places on the site in
2 terms of determining what the levels of contamination
3 are in various areas, but those -- each of those
4 sampling points does not have to be a compliance
5 point.
6 MS. ROSEN: To interject, the sampling
7 points would be determined by the program under which
8 you are operating?
9 MR. KING: That's correct.
10 MS. ROSEN: Okay. Please explain the
11 compliance point more specifically.
12 MR. KING: Okay. The compliance point
13 is a program-specific determination. It's really --
14 that varies from program-to-program.
15 The LUST program is the most rigid
16 relative to that where it's restricted. It says it's
17 either 200 feet or the property line and each program
18 has a different point where the compliance levels
19 must be achieved.
20 MS. ROSEN: Question number five,
21 if you could provide some examples of where the
22 compliance point and the point of human exposure
23 would be different.
24 THE HEARING OFFICER: Excuse me.
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1 Before you respond, could you just read it into
2 the transcript for the board members who are not
3 present?
4 MS. ROSEN: Yes, I could.
5 Is it correct that the compliance
6 point is at the point of human exposure? If not,
7 can you provide some examples of when the compliance
8 point and point of human exposure would be
9 different?
10 MR. KING: The compliance point can
11 be at a different place other than the point of
12 human exposure. An example of that would be if
13 you had an institutional control applied off-site.
14 That, in essence, would move the point of human
15 exposure to the edge of that institutional control.
16 In that case, you might still
17 very well end up placing your point of compliance
18 at the edge of the on-site property.
19 MS. ROSEN: Okay. Thank you.
20 MS. SHARKEY: Could I follow-up on
21 that?
22 THE HEARING OFFICER: Sure.
23 MS. SHARKEY: I just want to make sure
24 I've heard this correctly.
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1 In that case, the point of human
2 exposure and the compliance point are one in the
3 same, is that correct, Mr. King, from the example
4 you just gave?
5 MR. KING: No. I think I said the
6 opposite. In the example that I gave, the compliance
7 point was closer to the source than what the point
8 of human exposure was.
9 MS. SHARKEY: Okay. Because the
10 institutional control has controlled human exposure
11 within a designated site so if human exposure will
12 be at the edge of the site or immediately outside
13 the site, in other words, outside the boundary
14 where the institutional control is in effect, but
15 the compliance point is not the site boundary, then,
16 the compliance point may be some other site within --
17 some other sampling point within the site?
18 MR. KING: That's correct.
19 MS. SHARKEY: Thank you.
20 THE HEARING OFFICER: Are there any
21 additional follow-up questions?
22 Ms.
Rosen?
23 MS. ROSEN: Okay.
24 MR. RIESER: All right. On page
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1 eight of Mr.
Sherrill's testimony, he appears
2 to reference differences in the application of
3 these rules to inhalation routes within enclosed
4 structure. Is the agency proposing different
5 approaches or objectives based on inhalation
6 pathways within an enclosed structure?
7 MR. SHERRILL: 742 does not model
8 the fate and transport of contaminants that
9 make their way into an enclosed structure. The
10 agency is not proposing any approach or objective
11 for the inhalation pathway within an enclosed
12 structure other than whether that exposure route
13 can be excluded from further consideration.
14 MR. RIESER: Is that a separate
15 consideration than that which is provided for
16 inhalation pathway under Subpart C?
17 MR. SHERRILL: Could you clarify that?
18 MR. RIESER: In the last part of
19 your testimony, you talked about excluding a certain
20 pathway.
21 MR. SHERRILL:
Uh-huh.
22 MR. RIESER: I just want to clarify
23 that's a separate demonstration than the methodology
24 for excluding inhalation pathway under Subpart C.
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1 MR. SHERRILL: I guess under Subpart C,
2 we do have that method for excluding a pathway.
3 MR. RIESER: That's correct.
4 MR. SHERRILL: And you are asking
5 whether there is another method to exclude?
6 MR. RIESER: My question is that
7 the regulations at no point appear to reference
8 a specific inhalation pathway within an enclosed
9 structure as being separate from any other
10 inhalation pathway.
11 I want to confirm that there
12 is no demonstration that has to be made with
13 respect to that specific pathway.
14 MR. SHERRILL: That's generally true.
15 You do not need to make some demonstration.
16 MR. RIESER: Okay. Thank you.
17 Can the point of human exposure
18 for construction workers be moved away from the
19 source by using an institutional control which
20 identifies the area of contamination and requires
21 compliance with OSHA standards?
22 MR. SHERRILL: Yes.
23 MR. RIESER: Going on, what is an
24 aliquot? What does the word mean in the context
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1 of this regulation?
2 MR. SHERRILL: An aliquot is only one
3 part of a
composited sample submitted for laboratory
4 analysis. For example, if there are six aliquots
5 taken from six different locations at a site, these
6 six aliquots may be physically mixed together and
7 submitted as only one sample for laboratory
8 analysis.
9 MR. RIESER: Why is there a limit
10 of six aliquots per sample for the inhalation or
11 ingestion route, but not for the migration to
12 groundwater route?
13 MR. SHERRILL: There is a limit of
14 six aliquots per sample because USEPA believes
15 that the physical mixing of soil samples beyond
16 six aliquots is not valid. You would not get a
17 representation of those six aliquots.
18 MR. RIESER: So why wouldn't that
19 apply to the migration of groundwater route?
20 DR. HORNSHAW: Actually, the number
21 of aliquots in a sample is a variable number. It
22 depends on the zone of contamination. We are
23 specifying samples being collected every two feet
24 within the zone of contamination. So it depends
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1 on how much contamination is there and how many
2 sub-samples go into the sample.
3 MR. RIESER: You can have more than
4 six in that circumstance?
5 DR. HORNSHAW: Or less. It depends
6 on how much contamination is there.
7 MR. RIESER: All right. Thank you.
8 MS. ROSEN: Is it correct that Part
9 742 does not allow a target cancer risk to exceed
10 one in one million at the point of human exposure?
11 MR. KING: That's correct.
12 MS. ROSEN: Is it correct that the
13 point of human exposure at which the target cancer
14 risk of one in one million must be achieved can be
15 moved from the source without the inhalation of an
16 engineered barrier so long as applicable exposure
17 routes have been managed through the use of an
18 institutional control?
19 MR. KING: Yes, that's correct.
20 MS. ROSEN: Question eleven, the
21 Part 742 proposal sets out numerous mechanisms
22 for developing remedial objectives -- exposure
23 route exclusion, use of area background
24 concentrations, development of Tiers 1, 2 and 3
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1 remedial objectives. Assuming the same land use
2 scenarios, is it correct that development of a
3 remedial objective under any of the above-listed
4 mechanisms offer equivalent protection of human
5 health in the environment?
6 MR. KING: Yes. That is our intent
7 as to the way it's supposed to operate.
8 MS. ROSEN: Thank you.
9 THE HEARING OFFICER: The next
prefiled
10 questions on 742.225 were filed by
Mayer, Brown &
11 Platt.
12 Ms.
Sharkey?
13 MS. SHARKEY: My first question is
14 whether groundwater sampling is always required.
15 MR. SHERRILL: Groundwater sampling is
16 not always required. To kind of tie that into 742,
17 it is not a program, but works in conjunction with
18 the other Bureau of Land programs. For example, I
19 know under LUST you can have -- under your site
20 classification, you may not be sampling groundwater.
21 The same thing with the site
remediation program.
22 MS. SHARKEY: Are there instances in
23 which compliance with a ground water
remediation
24 objective can be demonstrated without groundwater
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1 sampling?
2 MR. SHERRILL: I cannot think of how
3 one can determine compliance with the groundwater
4 remediation objective without sampling.
5 MS. SHARKEY: We talked last week
6 in the hearings on Part 740 about factors which
7 might give the agency confidence that a spill was
8 not impacting groundwater.
9 I guess I was wondering whether
10 there is, in fact, in the notion of migration to
11 groundwater pathway, if, in fact, by excluding
12 that pathway with a demonstration, in effect, one
13 demonstrates one is achieving, for example, a
14 Tier 1 type of groundwater objective?
15 MR. KING: I think this is kind of the
16 situation we were talking about this morning when I
17 deferred answering the question. I think we would
18 still like to defer this a little further and make
19 sure we are on the same wavelength.
20 MS. SHARKEY: Okay.
21 MR. RAO: I have a follow-up question.
22 MS.
McFAWN: I know you are deferring
23 it.
24 MR. RAO: As Ms.
Sharkey is saying,
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1 if a groundwater pathway is excluded, then, in terms
2 of
remediation, do they have to do anything more with
3 relation to groundwater or at that point, they don't
4 have to concern themselves anymore with groundwater
5 issues?
6 MR. SHERRILL: Let me answer that
7 in two ways. Under Subpart C, if you go under
8 Subpart C of Part 742 to exclude the groundwater,
9 our guidelines and requirements that need to be
10 met, one of those -- you would need to be sampling
11 the groundwater to know what you concentration is,
12 you need to be modeling it to know what those
13 estimated concentrations are
downgradient. You
14 can't have free product there. You would be needing
15 an institutional control to limit people from
16 potentially putting in a well.
17 Then, the other issue that
18 Pat
Sharkey brought up, we get many sites where
19 the instance -- where it can be demonstrated
20 through the sampling -- the soil sampling that the
21 groundwater has not been impacted.
22 In other words, they sample
23 how deep a surface spill has occurred. Let's
24 say, the depth of the contamination has only
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1 migrated down to three feet or four feet and
2 there was no saturated water conditions --
3 groundwater conditions. So the agency could
4 concur that the groundwater was not impacted
5 without even investigating groundwater.
6 MR. RAO: So some of these things
7 that you mentioned now are the procedures by
8 which you exclude the pathway. Once you do that,
9 when it comes to compliance with the
remediation
10 objectives, then, is groundwater still an issue?
11 MR. SHERRILL: No. Under the site
12 remediation program, really, under any program, the
13 groundwater may not even be an issue. In other
14 words, we may not even be issuing or developing
15 groundwater
remediation objectives because it
16 wasn't an area of concern.
17 MR. RAO: So what you are saying is
18 in order to exclude the pathway, you may have to
19 do some sampling? You cannot exclude a pathway
20 without doing any sampling, is that what you are
21 saying?
22 MR. SHERRILL: If you use the
23 strict definition of excluding a pathway under
24 Subpart C, what I'm saying also is since
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1 a site investigation is a prerequisite before
2 you even started using 742, during that site
3 investigation, the agency may concur that groundwater
4 is not even an issue.
5 MS.
McFAWN: So you wouldn't even have
6 to develop a
remediation objective?
7 MR. SHERRILL: Correct.
8 MS.
McFAWN: So you would never get
9 that question?
10 MR. SHERRILL: Correct.
11 MR. RAO: And that's based on whatever
12 program you are in before you get into these T.A.C.O.
13 rules?
14 MR. SHERRILL: Okay.
15 MS. SHARKEY: I would just like to
16 still come back to it in the context of what that
17 means in terms of your no further
remediation
18 letter and the ability to get that protection. If
19 you wanted to defer that answer until later, that's
20 fine.
21 My question number three was
22 if consistent with applicable program requirements,
23 can a
remediation applicant use the provisions of
24 this part to develop soil objectives only?
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1 MR. SHERRILL: Yes.
2 MS. SHARKEY: Under 742.225(a)
3 and (b)(4), if a
remediation applicant is electing
4 to sample groundwater apart from any program
5 requirements, how would the sample points be
6 determined?
7 MR. KING: We struggled with this
8 one because we just don't know. I mean, if you
9 weren't doing it in one of the context of the
10 programs you were involved in, I just don't know
11 how you would do that.
12 MS. SHARKEY: I guess I'm assuming
13 that it's either a part of the site
remediation
14 program or potentially in the context of getting
15 a 4(y) letter, which is another alternative we
16 had talked about last week that is outside the
17 site
remediation program.
18 For the site
remediation program
19 itself, is there something in Section 740 that would
20 tell the applicant how many samples they should take
21 for groundwater and where to sample?
22 MR. KING: There is not an express
23 number. I mean, we didn't want to be prescriptive
24 as to that issue because of the wide variety of
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1 sites that are encountered.
2 It's not like the LUST program
3 where you can say you have a tank, take two on
4 the bottom and one on each wall. You can't do
5 that in context with the site
remediation program.
6 We didn't want to try and prescribe that kind of
7 regimen.
8 MS. SHARKEY: Is there some sort
9 of standard one could -- that could be developed
10 to incorporate the kinds that the agency might
11 have -- the factors the agency might want to look
12 at to establish the sampling points and number of
13 samples for that kind of situation?
14 MR. SHERRILL: Again, that's
15 program-specific. I know under 740, we referenced
16 ASTM documentation for site investigation. We see
17 such a wide variety of sites. I addressed in my
18 testimony -- I provided two or three pages of
19 testimony on the very issue of trying to come
20 up with sampling points to investigate a site.
21 It's such a broad subject that wasn't applicable
22 for the 742 development of
remediation objectives.
23 MS. SHARKEY: Okay. So it's under
24 740 if I'm dealing with a site
remediation program.
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1 Under 742.225(c), if no
2 contaminants of concern are detected six inches
3 below ground surface, is it necessary to go further?
4 The question goes on to say
5 if no contaminants of concern are detected two
6 feet below the six-inch level, is it necessary
7 to go further.
8 Does it make a difference in
9 where or how far one must sample if an immediate
10 soil removal action was performed at a site?
11 MR. SHERRILL: To answer the first
12 part, if no contaminants of concern are detected
13 at six inches below ground surface, is it necessary
14 to go further, I mean, our LUST sites -- in our
15 LUST tanks, their release occurs at ten feet below
16 the surface. So to say six inches below the ground
17 surface wouldn't really have any relevance at a
18 LUST site. We have many site
remediation program
19 sites where the release points are several feet
20 below the surface.
21 MS. SHARKEY: I was taking that
22 from (c)(1), discussing a minimum of two sampling
23 locations for every half acre of contaminated areas
24 required with a screen sample at each sample location
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1 obtained at every two feet of depth beginning at six
2 inches below the ground surface
3 and continuing through the zone of contamination.
4 MR. SHERRILL: The key word there
5 is on 742.225(c)(1) is that it is necessary to
6 continue through -- meaning sampling -- through
7 the zone of contamination.
8 MS. SHARKEY: That's really my
9 question. If you sampled six inches down and
10 you have gotten to it being clean, are you
11 through the zone of contamination?
12 MR. SHERRILL: Well, no. Like I said,
13 in a LUST site, the zone doesn't start until ten or
14 twelve feet below the surface.
15 MS. SHARKEY: How is the zone of
16 contamination defined?
17 MR. SHERRILL: The zone of contamination
18 would be defined through the site of investigation
19 prior to getting to the 742.
20 MS. SHARKEY: Okay. So if I have a
21 spill site and I know -- I visually know the area
22 of impact horizontally. I don't know the vertical
23 area of impact in my sampling. I assume this was
24 designed to tell me the zone of contamination
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1 vertically.
2 What I'm trying to figure out
3 is when can one stop sampling? How far does one
4 have to go down before one can determine they are
5 no longer within the zone of contamination?
6 MR. SHERRILL: In the context of 742,
7 we do not address -- that would be considered a
8 site investigation question. We are really not
9 trying to be prescriptive here on how deep one
10 needs to sample.
11 MS. SHARKEY: Do you know if there
12 is anything in Section 740 that would give a
13 remediation applicant direction on this point
14 of how far they needed to go?
15 MR. KING: Again, there is nothing
16 that's prescriptive that gives an express number,
17 no.
18 MS. SHARKEY: So is it your intention
19 in using these two programs together, 740 and 742,
20 that in each instance, it's going to be on a
21 case-by-case basis, the determination of how far
22 an applicant must sample, how far vertically one
23 must go down?
24 MR. KING: Well, now, don't confuse
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1 this. This section is the section that is dealing
2 with determination of compliance. This is not a
3 section that's dealing with determining the extent
4 of contamination as far as gradient extent and
5 characterizing the site.
6 You could be going out and
7 sampling to determine how far out your contamination
8 has gone and then going back and using this
9 methodology to determine whether you have compliance
10 at those specific points.
11 MS. SHARKEY: Okay.
12 DR. HORNSHAW: Can I add a note of
13 clarification?
14 The whole intent of this section
15 is for determination of compliance for the migration
16 of groundwater route. The intent is to determine
17 the total mass of contaminant within a soil column
18 that's available to move to groundwater.
19 What you need to do is sample
20 through that area of contamination to get an idea
21 of what that mass is and then you can average
22 that out on all of the samples collected within
23 that bore hole to determine that the total mass
24 there is okay or if it's going to leave you
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1 problems in the groundwater. That's the basic
2 intent of the whole section.
3 MS. SHARKEY: The intent is to allow
4 you to composite with aliquots from different levels
5 vertically?
6 DR. HORNSHAW: Right, to represent the
7 total amount of contamination in that soil column,
8 which is available to move down to groundwater.
9 MS. SHARKEY: All right.
10 MR. SHERRILL: Historically, we
11 would collect a sample and the most contaminated
12 sample from the soil column, we would say this
13 is representative of the whole column. Well,
14 that's not realistic. Now, we're saying you can,
15 within the guidelines, average a composite within
16 this column and that gives a more accurate
17 representation of that contaminant loading
18 into the groundwater.
19 DR. HORNSHAW: And to go even further,
20 its sort of at the discretion of the owner/operator
21 as far as how far they want to sample. They can
22 sample all the way down to the water table if they
23 want in order to get a better estimate of the total
24 mass contamination within the bore hole or they can
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1 just sample down to the first non-detect. I mean,
2 that's up to the person doing the work.
3 MS. SHARKEY: That goes, I think,
4 directly to my question. One can sample to the
5 first non-detect area?
6 MR. KING: No, the first non-detect
7 beyond the zone of contamination.
8 MR. SHERRILL: And provided you have
9 gone through the zone of contamination.
10 MS. SHARKEY: Okay. For your
11 compliance demonstration, then, one must have
12 previously defined the zone of contamination
13 and then go either to -- go through that zone
14 of contamination or to the first non-detect
15 or through the zone of contamination and to
16 the first non-detect thereafter?
17 MR. KING: It's the latter.
18 DR. HORNSHAW: The latter.
19 MS. SHARKEY: So one could simply
20 go through the zone of contamination composite
21 and not have to ever get to a non-detect situation
22 or below the objective situation because the
23 objective is going to be based on the composite
24 rather than any individual sample point?
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1 DR. HORNSHAW: As long as you
2 characterize the depth of the contamination,
3 you could go to the last sample point that is
4 still within the zone of contamination.
5 When you get right down to it,
6 it's to the owner/operator's benefit to include
7 non-detects in the calculation of the average.
8 MR. SHERRILL: I want to clarify this.
9 It's got to be done within the guidelines provided
10 because
compositing and averaging are two different
11 techniques that you just -- that there are
12 restrictions on those particular uses.
13 MS. SHARKEY: Earlier, I had some
14 questions about using the characterization sampling
15 as the compliance sampling also in that a party
16 may want to telescope the process and if they are
17 lucky, they may be able to demonstrate right off
18 the bat that they have met objectives, Tier 1
19 objectives, for example.
20 DR. HORNSHAW: Or that they have
21 characterized the site completely.
22 MS. SHARKEY: Right, but that is
23 another component of it. In that instance, some
24 of the problem that I'm picking up on now the
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1 question is zone of attenuation -- excuse me --
2 the zone of contamination.
3 Has it been fully defined as
4 part of that problem, then? In other words, if
5 I really have no -- I haven't gone down ten feet
6 or I haven't gone down to groundwater in an area
7 of the spill. I have simply gone down until I
8 come up clean, maybe two feet below clean.
9 At that point, I want to
10 say I'm done. Is there a problem with using
11 that, too, as a demonstration of compliance under
12 this part?
13 MR. SHERRILL: The way you phrase
14 that question, we would need to know the site.
15 I mean, are we looking at the site that had a
16 surface spill or --
17 MS. SHARKEY: Yes, a surface spill.
18 I'm talking about a surface spill.
19 MR. SHERRILL: Well, there again,
20 I know of sites that have had surface spills in
21 sandy environments and you can go there a week
22 later and it's migrated down several feet below
23 the surface very quickly. You may not be done.
24 We have railroad cars that
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1 turn over and they have heavy contaminants and
2 they just migrate right down through the soils
3 at a very quick pace.
4 MS. SHARKEY: So you're saying that
5 that needs to be developed on a site-specific basis,
6 then, how --
7 MR. SHERRILL: Yes.
8 MS. SHARKEY: -- far down one would
9 have to go?
10 MR. SHERRILL: Yes.
11 THE HEARING OFFICER: Okay. Before we
12 continue with the next questions and any follow-up,
13 we will take a 15-minute break.
14 (Whereupon, after a short
15 break was had, the
16 following proceedings
17 were held accordingly.)
18 THE HEARING OFFICER: Okay. We
19 have had some questions concerning how long we
20 are going to continue tonight. It seems to be
21 a topic of grave concern.
22 We are looking to see if we
23 can make it up to the Subpart E, Tier 1 evaluations
24 section. That gives us about twenty-one more
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1 questions.
2 MS.
McFAWN: That covers about eight
3 sections. I don't know if we can make it or not.
4 That can be our goal. That would leave us about
5 half of our
prefiled questions not including
6 Mr.
Reott's questions that we need to do tomorrow.
7 THE HEARING OFFICER: That's our goal.
8 We'll have to see how it goes.
9 MS.
McFAWN: If not, we should
10 also give you a time. We are looking to conclude
11 about 5:00 o'clock. It is a rather ambitious goal.
12 THE HEARING OFFICER: We were
13 addressing the questions of Ms.
Sharkey of Mayer,
14 Brown & Platt on Section 742.225. I think we are
15 up to the fourth question.
16 MS. SHARKEY: Does Mr.
Watson have any
17 follow-up on that?
18 MR. WATSON: No, I'm satisfied.
19 MS. ROBINSON: Could I just jump in?
20 THE HEARING OFFICER: Yes.
21 MS. ROBINSON: We committed over the
22 break to look at the TPH -- I think it was you who
23 asked -- if there were any
incorporations by
24 reference that addressed TPH. There are not any
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1 that we can see that are incorporated by reference.
2 I just wanted to follow-up with that.
3 MR. RIESER: Thank you.
4 MS. SHARKEY: I'm actually on -- I
5 believe it's my sixth question under item six.
6 It's my sixth bullet under item six.
7 Please provide an example of an
8 appropriately designed site-specific evaluation
9 under 742.225(c)(1). What are the key factors the
10 agency would look to
to determine the appropriateness
11 of an alternative sampling method, for example,
12 representativeness?
13 MR. SHERRILL: An example of an
14 appropriately designed site-specific evaluation
15 under 742.225(c)(1), we could collect a soil
16 sample at every three feet instead of every two
17 feet within a bore hole to determine compliance
18 relative to the migration of groundwater route.
19 MS. SHARKEY: Okay. In other words,
20 there just might be some variation in the distances.
21 Are there any other kind of factors one might be
22 able to specify as to the kind of things you would
23 be looking at for as an alternative?
24 MR. SHERRILL: What we are looking at
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1 is equivalency of protection.
2 MS. SHARKEY: Is
representativeness
3 a fair term to use as a factor when you are looking
4 for sampling that can be determined to be
5 representative?
6 MR. SHERRILL: Yes. That's partially
7 included.
8 MS. SHARKEY: How many samples are
9 required for volatile organic contaminants which
10 cannot be
composited for the migration to groundwater
11 route, for the inhalation exposure route or soil
12 ingestion route?
13 MR. SHERRILL: There is no specified
14 number of volatile organic samples required to be
15 collected. What we have done here is provide a
16 methodology to average their analytical results.
17 MS. SHARKEY: So is it fair to say
18 what 742 does is it provides what you have to
19 do if you are going to composite or if you are going
20 to average?
21 It specifically says you can't
22 composite volatile
organics, but it does not in any
23 way lay out the number of samples that one must take
24 under any given program because you look to the
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1 individual program for a number and --
2 MR. SHERRILL: That would be correct.
3 MS. SHARKEY: And would that be true
4 for depth of sampling, if you are not
compositing
5 depth of program that, again, that is defined by
6 the program?
7 MR. SHERRILL: That would be correct.
8 MS. SHARKEY: Okay. Now, turning to
9 742.225(f), could you provide some examples that
10 that again is a provision that allows alternative
11 methods, provide an example of alternative methods
12 for determining compliance of
remediation objectives,
13 what might be an alternative -- what might an
14 alternative -- sorry for this question -- what might
15 an appropriate be, what key factors would the agency
16 look to
to determine approveability?
17 MR. SHERRILL: For example, if a minimal
18 impact occurred from a small UST and the source area
19 was thought to be only a few square feet and
20 twenty-four aliquots
composited into four samples
21 may not be appropriate. That may be too many samples
22 to characterize that. Subsequently, a fewer number
23 of aliquots and samples may be appropriate.
24 MS. SHARKEY: Okay.
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1 MR. SHERRILL: What we are looking for
2 is equivalency of protection.
3 MS. SHARKEY: And
representativeness?
4 MR. SHERRILL: Yes.
5 MS. SHARKEY: I'm using that term, I
6 think, because -- what I understand we are trying
7 to do is get comfortable that the area has been
8 adequately sampled so that you are getting a clear
9 reflection of the contamination in that area?
10 MR. SHERRILL: That's true.
11 MS. SHARKEY: Okay. Thank you. I have
12 no more on that section.
13 THE HEARING OFFICER: Okay. The next
14 prefiled question concerns 742.225 filed by Gardner,
15 Carton & Douglas, Mr.
Watson?
16 MR. WATSON: This is question two.
17 I will read A. How does the agency explain
18 the inconsistency between the availability of
19 discrete sample averaging and
compositing in the
20 top foot in Section 742.225(d) with the requirements
21 for demonstrating Tier 1 compliance in Section
22 742.310 for the inhalation exposure route in the
23 upper ten feet and for ingestion exposure route
24 in the top three feet?
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1 MR. SHERRILL: We do not believe they
2 are inconsistent?
3 MR. WATSON: Why not?
4 MR. SHERRILL: The purpose of the
5 742.225(d) is compliance with
remediation objectives
6 for that contaminated soil located within the top
7 foot of the surface. For contamination below one
8 foot of the surface, ingestion inhalation compliance
9 still needs to be achieved.
10 Averaging and
compositing is an
11 alternative method to discrete sample collection,
12 which is what we have historically done, in analysis
13 to obtain compliance. The 742.225 rules provide just
14 one approach to averaging and
compositing.
15 The purpose of 742.310 is a
16 separate issue, which is the issue of determining
17 that the inhalation route is to be excluded from
18 further consideration.
19 MR. WATSON: You're going to have to
20 explain that to me. As I read Section 742.225(d),
21 in looking at inhalation and soil ingestion, the
22 appropriate criteria is the soils in the top foot,
23 is that right?
24 MR. SHERRILL: If that's where your
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1 contamination is located within that top foot.
2 MR. WATSON: Do you have an obligation
3 to sample below that?
4 MR. SHERRILL: To achieve compliance
5 and if there is contamination below a foot, yes.
6 MR. WATSON: Where is that requirement
7 set out in here?
8 MR. SHERRILL: Well, 742.225(d) is --
9 it states if a person chooses to composite or
10 average to determine compliance, then, we provide
11 the guidelines. Under 742.225(a) and (b), the
12 example for under (b), we say, unless the person
13 elects to composite samples or average sampling
14 results as provided. Then, it goes on to say
15 shall be determined by comparing the contaminant
16 concentrations of discreet samples to the
17 applicable soil
remediation objective.
18 That's like historically, we
19 have always compared discreet sample results,
20 for the most part, to your
remediation objectives.
21 What we have done here is provide a little
22 flexibility there.
23 MR. WATSON: Right. And you have
24 given people a break in terms of looking at the
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1 soil ingestion and inhalation exposure pathways.
2 What you have said is that all you need to sample
3 for when you are
compositing is the top foot of
4 the soil. I'm assuming that's where the risk
5 from that kind of exposure comes from, is that
6 right?
7 MR. SHERRILL: I don't follow your
8 question.
9 MR. WATSON: To determine compliance
10 with the inhalation and soil ingestion exposure
11 route, all I need to do is -- is it not true that
12 all I need to do is sample -- if I decide to
13 composite an average, all I need to do is sample
14 the top foot of the soil?
15 MR. SHERRILL: For those contaminants
16 located within the top foot. If you have
17 contamination below a foot, you still need to
18 achieve compliance for those contaminated soils.
19 742.225(d) is just an option to use.
20 MR. WATSON: I know it allows you
21 to limit your sampling to the top foot of the
22 soil, does it not?
23 MR. SHERRILL: Maybe this will
24 clarify this. We have several sites, let's say,
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1 with metal contamination and the metals are within
2 the top two or three inches of the soil and they
3 don't go below those top two or three inches in
4 achieving compliance in those top two or three
5 inches because the site investigation has told
6 us that contamination doesn't really go any deeper
7 than that, you would achieve compliance with the
8 site.
9 We have other sites where the
10 contamination goes from the surface down ten or
11 twenty feet below the surface and this -- just
12 sampling within the top foot would not grant you
13 compliance.
14 MR. WATSON: For inhalation and
15 soil injection, is that what you are saying?
16 MR. SHERRILL: Well, (d) is confined
17 to inhalation and ingestion, correct.
18 MR. WATSON: Right. Under what
19 circumstances would I be obligated to sample
20 below the top foot of the soil to develop a
21 remediation objective for inhalation and soil
22 ingestion exposure routes?
23 MR. SHERRILL: If your site
24 investigation shows that your contamination is
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1 below a foot, you would be needing to sample
2 below that to achieve compliance.
3 MR. WATSON: Can you tell me where
4 in 225 it says that or it imposes that obligation
5 on that?
6 MR. SHERRILL: Under 742.225(b),
7 unless the person elects to composite samples or
8 average sampling results as provided in Subsections
9 C and D of this section, compliance with soil
10 remediation objectives developed under Subparts D
11 through G and I shall be determined by comparing
12 the contaminant concentrations of discreet samples
13 to the applicable
soid remediation objective.
14 MR. WATSON: Right. So I have elected
15 to composite an average so I go to D and it says all
16 I am obligated to do with respect to inhalation and
17 soil ingestion is sampling the top soil, is that
18 correct?
19 MR. SHERRILL: I guess I don't interpret
20 it that way, no.
21 MR. WATSON: Well, how would you
22 interpret it, then?
23 MR. SHERRILL: The method of D, unless
24 we have provided an alternative method, is for those
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1 contaminants located primarily within the top foot.
2 I laid that out in my -- I explained this in my
3 testimony pretty thoroughly also, the very question
4 you raised about does sampling need to occur below
5 a foot.
6 MR. WATSON: Then, how far would I
7 have to go to determine the
remediation compliance
8 with
remediation objectives for inhalation and soil
9 ingestion exposure routes?
10 I mean, I understand that you
11 have to go through the zone of contamination when
12 you are talking about migration to groundwater.
13 But with respect to inhalation and soil ingestion,
14 I still don't understand.
15 MR. SHERRILL: Subpart C, which is
16 the pathway exclusion criteria, the exposure
17 route evaluation, we have those -- that three-foot
18 ingestion and ten-foot, those are in there to
19 provide exclusion routes or exposure routes.
20 Determining compliance, which
21 is under 742.225, is a different issue. So if
22 you are asking how far do you need to go to
23 achieve compliance, it would be as deep as your
24 contamination. It can be any applicable
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1 contamination however deep it may go.
2 I mean, just because contamination
3 is located five feet below the surface, compliance
4 still needs to be achieved for that contamination
5 unless that has been managed, which we will get into
6 later, doing institutional controls.
7 MS.
McFAWN: I'm not sure that I'm
8 following this question and answer. Let me ask
9 a couple of questions.
10 Under 225(b), you can either
11 choose to sample using composites or you can
12 choose to sample using discreet samples, is
13 that right?
14 MR. SHERRILL: Averaging,
compositing,
15 and discreet.
16 MS.
McFAWN: You can choose between
17 those?
18 MR. SHERRILL: If it's applicable.
19 MS.
McFAWN: What's applicable?
20 MR. SHERRILL: Okay.
Compositing
21 is an applicable mix of those.
22 MS.
McFAWN: You mean if you are
23 able to do or if it's an appropriate thing to do?
24 MR. SHERRILL: Correct.
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1 MS.
McFAWN: Now, does B address
2 soil
remediation objective only?
3 MR. SHERRILL: Yes.
4 MS.
McFAWN: Okay. Now, you turned
5 to C and D. I'm sorry. D. Here, it says you
6 can use a composite sample or an average sample,
7 correct?
8 MR. SHERRILL: It states if a person
9 chooses to composite average soil samples or average
10 soil sample results.
11 MS.
McFAWN: Okay. So you may do
12 that if you choose. This subparagraph or Subsection
13 D is intended to determine compliance only with an
14 inhalation exposure route or the soil ingestion
15 exposure route, right?
16 MR. SHERRILL: Generally, for that
17 contamination located within the top foot.
18 MS.
McFAWN: Well, no. I mean D
19 is only addressing inhalation exposure.
20 MR. SHERRILL: Yes.
21 MS.
McFAWN: That's why you are
22 concerned about the top foot?
23 MR. SHERRILL: Correct.
24 MS.
McFAWN: Because inhalation or
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1 ingestion is going to occur primarily in the top
2 foot unless you are talking about residential?
3 MR. O'BRIEN: No.
4 MS.
McFAWN: Okay. Now, I'm getting
5 tangled up in this.
6 MR. KING: Can I just say something?
7 MS.
McFAWN: Yes.
8 MR. KING: I think this series of
9 questions and answers has indicated there may be
10 some ambiguity as to how these are relating to
11 each other.
12 MS.
McFAWN: Yes.
13 MR. KING: Why don't we -- if the
14 board would give us an opportunity, we can go
15 back and rethink how these two provisions
16 are interrelating to see if there is a way to
17 kind of clarify what is going on here.
18 MS.
McFAWN: That would be good.
19 MR. KING: Rather than spending
20 more time on it now, I would suggest we do that.
21 MS.
McFAWN: That's a good suggestion.
22 MS. ROBINSON: What we can do is since
23 we are going to have errata sheet number two done
24 before the second set of hearings also, we will
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1 just incorporate a clarification to try to tie
2 these together better with a further explanation
3 so that it's clear. We go through those line of
4 questions maybe the first day at the second set
5 of hearings.
6 MR. WATSON: That would work for me.
7 MS.
McFAWN: I think there is yet
8 another question that has to be addressed and that's
9 your original question.
10 MR. WATSON: Right. Okay. Thank you.
11 THE HEARING OFFICER: Mr.
Watson, do
12 you have additional questions on this?
13 MR. WATSON: I'll reserve all of my
14 questions with respect to this.
15 THE HEARING OFFICER: Okay. The
16 next
prefiled question concerns 742.300. That
17 was filed by the site
remediation advisory
18 committee. There are additional questions
19 from
Mayer, Brown & Platt and Gardner, Carton &
20 Douglas. We will take those after.
21 MR. RIESER: With the understanding
22 that the requirements of Section 742.305, contaminant
23 source and free product determination, have been met,
24 will the agency clarify that if a pathway is excluded
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1 under this section, no numeric objective need to be
2 developed for that pathway and this is true even if
3 all the pathways are excluded?
4 MR. KING: Yes, that's correct. We
5 had a similar question to that earlier just
6 with the caveat that we were still meeting soil
7 attenuation capacity and evaluation soil
8 saturation limits.
9 MR. RIESER: That's a matter of taking
10 your site characterization values and applying those
11 values to those sections, Sections 215 and 220, but
12 not a question of establishing a numeric objective
13 for that site?
14 MR. KING: That's correct.
15 MR. RIESER: If a pathway cannot be
16 excluded under Subpart C, can it still be excluded
17 under Tier 3?
18 MR. KING: Yes. That's a possibility.
19 MR. RIESER: Can this step also
20 be taken at a preliminary stage, for example,
21 without performing a Tier 2 analysis?
22 MR. KING: That's correct.
23 MR. RIESER: And it could be taken with
24 regard to one of the three pathways, but not as to
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1 the other two?
2 MR. KING: Yes, that's correct.
3 MR. RAO: I have a follow-up question.
4 You said you can exclude a pathway
5 under Tier 3. Could exclusion under Tier 3 also
6 meet all the requirements that are set up under
7 Subpart C for pathway exclusion or would that be
8 considered a
remediation objective under Tier 3?
9 MR. KING: A Tier 3 evaluation would
10 not be -- would not have all of those restrictions
11 under 305 applied.
12 MR. RAO: Essentially, you are
13 developing
remediation objectives within a tier,
14 is that right?
15 MR. KING: Right.
16 MR. RAO: It's not like a pathway
17 exclusion under Subpart C?
18 MR. KING: One of the examples is
19 something that we encounter frequently, our
20 situation where you have permanent structure.
21 If you have contamination under permanent structure,
22 the levels may be such that you would be above the
23 305 criteria, but we wouldn't say that you have
24 to tear the building down to deal with that
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1 contamination.
2 So you are really developing a
3 completely new set of criteria under Tier 3. You
4 wouldn't necessarily, even under
5 that situation, come up with a numeric objective.
6 It still would be looking at the context of the
7 engineered barrier whatever the situation is.
8 MR. RAO: Okay. Thank you.
9 THE HEARING OFFICER: Okay. The
10 next
prefiled question on 742.300 is
Mayer, Brown &
11 Platt.
12 MS. SHARKEY: I'm not sure this is
13 the same question we have been asking under different
14 sections. I think it is slightly different here.
15 Can the groundwater ingestion
16 route -- exposure route be eliminated from
17 consideration if a
remediation applicant elects
18 to do a focused investigation and
remediation
19 under Part 740?
20 MR. KING: That's generally true.
21 I would quibble with the use of one terminology
22 there and with the use of the word eliminates
23 and the proper word would be exclusion there.
24 MS. SHARKEY: Okay. Thank you.
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1 THE HEARING OFFICER: The next
2 prefiled question on 742.300 is from Gardner,
3 Carton & Douglas.
4 Mr.
Watson?
5 MR. WATSON: This was answered last
6 week. There is no need for me to ask it here.
7 THE HEARING OFFICER: All right.
8 The next question from the site
remediation advisory
9 committee is concerning 742.305.
10 MR. RIESER: What is the intent
11 of Subsections A and B of Section 742.305?
12 MR. SHERRILL: The intent of 742.305(a)
13 and (b) is a three-part answer. The first part is
14 to ensure there is no migration of mobile free
15 products. The second part is to ensure that no
16 potential unacceptable health risk remains where
17 there is a violation to either an engineered
18 barrier or institutional control by unintentional
19 or accidental exposure to the contamination left
20 in place.
21 This assumption could be
22 violated if one is exposed to high concentrations
23 from contaminant either dermal, inhalation,
24 ingestion, reactivity, pH, many different ways.
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1 The third is to provide a ceiling
2 control to limit the level of exposure from high
3 contaminant concentrations from multiple
organics.
4 MR. RIESER: At least one of the
5 purposes of A and B is to address the potential
6 of free product on the site?
7 MR. SHERRILL: Yes.
8 MR. RIESER: Is it correct that there
9 is language within the referenced Sections 742.215
10 and 742.220, which would allow the owner to utilize
11 the methods prescribed in those sections or an
12 alternate method if such is approved by the agency?
13 MR. SHERRILL: Yes. All such methods
14 could be proposed and used.
15 MR. RIESER: And they could be included
16 under Section 305 as far as pathway exclusion?
17 MR. SHERRILL: Yes.
18 MR. RIESER: What is the basis for
19 excluding soils which meet certain hazardous waste
20 characteristics if the risk pathways from this soil
21 to receptors are not complete?
22 MR. SHERRILL: The basis of excluding
23 soils which meets hazardous waste characteristics
24 includes two parts; one, ensure that no potential
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1 unacceptable health risk remain where there is a
2 violation to either an engineered barrier
3 institutional control by unintentional or accidental
4 exposure to the contamination left in place.
5 There again, this could be violated through high
6 concentrations.
7 The second part is the agency
8 did not intend 742 to be used so as to create new
9 and many, m-a-n-y, hazardous waste landfills all
10 over the state. Regulations already exist on the
11 management of land disposal of hazardous waste.
12 MR. RIESER: The contaminated media,
13 if you will, that you are evaluating would not be
14 a hazardous waste if left in place, isn't that
15 correct?
16 MR. SHERRILL: Generally, true.
17 MR. RIESER: So the real purpose here
18 is just to -- it's just to provide a cutoff for
19 certain soils that are deemed to be of higher risk
20 than others and in that case, you would still have
21 available to you other methodologies including
22 Tier 3 to not eliminate, but to exclude the pathway?
23 MR. SHERRILL: True.
24 MR. WATSON: I have a follow-up
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1 question.
2 Does the focus here on hazardous
3 waste characteristics find any technical support or
4 basis in the ASTM or the soil screening guidance?
5 MR. SHERRILL: No.
6 MR. KING: Let me add some
7 amplification to that. No, there isn't anything
8 in the ASTM in there, but there is not anything
9 equivalent to Subpart C in the ASTM process either.
10 That's something we have added
11 in and really found that adding that in, we needed
12 to have some additional safeguards.
13 MR. WATSON: Subpart C is not a
14 risk-based alternative, is that correct?
15 MR. SHERRILL: We believe it's an
16 Illinois-specific risk-based alternative or
17 procedure, yes.
18 MR. WATSON: But it is not consistent
19 with the methodologies contained in the USEPA and
20 ASTM methodologies?
21 MR. KING: We would disagree with that.
22 Just because it's not listed in there doesn't mean
23 it's not consistent with what's set forth here.
24 MS. SHARKEY: Could I ask which ASTM
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1 are you referring to -- everyone is throwing around
2 ASTM methodologies here? Are we going back to the
3 incorporated ASTM methods here?
4 MR. KING: The reference was from
5 the question and I believe he was referring to
6 the ASTM RBCA procedure?
7 MR. WATSON: That's correct.
8 MS. SHARKEY: Which is not incorporated
9 in here?
10 MR. KING: It is incorporated.
11 THE HEARING OFFICER: Is there any
12 additional follow-up?
13 MS. SHARKEY: Yes.
14 THE HEARING OFFICER: Ms.
Sharkey?
15 MS. SHARKEY: I guess this goes to
16 my question. I don't know if I'm next on this or
17 not, but I'm trying to understand are we saying
18 that the characteristics of reactivity on
19 Subsection C here for hazardous waste is one
20 of the requirements that -- I guess I'm wording
21 this kind of backwards.
22 If you've got reactivity hazardous
23 waste by characteristic, you basically cannot exclude
24 a route?
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1 MR. SHERRILL: That's correct, not
2 under 742(c).
3 MS. SHARKEY: All right. Does that
4 have anything to do with free product? Mr.
Rieser
5 talked about (a) and (b) having to do with free
6 product at least in part.
7 MR. SHERRILL: Does reactivity have
8 anything to do with free product?
9 MS. SHARKEY: Yes.
10 MR. SHERRILL: No.
11 MS. SHARKEY: I'm just looking at the
12 heading here being a contaminant source of free
13 product determination.
14 All right. Now, does the
15 characteristic of reactivity somehow affect a
16 pathway? I'm lost in terms of how this hazardous
17 waste characteristic affects a pathway.
18 MR. KING: Mr.
Washburn asked a
19 question later on, which we won't get to today,
20 but really the basis of this question is where
21 did this come from? Where did this Subpart C
22 come from?
23 Let me explain where it came
24 from. When we initially put together a proposal
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1 back in March of this year, we did not include a
2 Subpart C dealing with exposure route evaluations.
3 When we went out and began speaking to people and
4 they asked us about -- they talked to us about
5 how do you exclude a pathway? Our answer was,
6 well, use Tier 3.
7 Well, it didn't seem like
8 that was the most satisfactory answer because if
9 we just said Tier 3, it really didn't give any
10 specific guidance as to what approach to use.
11 We felt that it was important to really look at
12 coming up with some kind of methodology for excluding
13 exposure routes.
14 Well, when we met with the
15 advisory committee, I believe, it was at the May
16 meeting, they very strongly recommended that a
17 provision be included for -- a specific set of
18 criteria be included relative to exposure route
19 exclusions.
20 They had put together a
21 methodology which really focused on making sure
22 that the source material was gone and then certain
23 criteria to make sure that the pathway wasn't
24 complete. We thought that was a good methodology.
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1 That made sense. Get rid of the source. Make sure
2 that there are sufficient barriers so that there
3 is no completion of the pathway.
4 The problem became one of how
5 do you define the term source? Well, when you say
6 the term source, what do you mean? Well, what we
7 tried to do here is in an analytical fashion, come
8 up with the factors that would really have relevance
9 in saying contamination in the ground is at a
10 sufficient level to constitute a source type
11 material.
12 So we have used these various
13 criteria as an analogue relative to describing a
14 source. That's why we have done it the way we
15 have done it there. I don't know if that
16 provides any help for your evaluation, but that's
17 the context.
18 MS. SHARKEY: My question under my
19 first bullet there is both related to C and then
20 D, which talks about pH, which may be different,
21 and E, which talks about inorganic chemicals as
22 to whether or not we are actually creating a new
23 contaminant of concern and when you use the term
24 sources, I'm assuming the contaminants of concern
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1 are the source, at least in many of these cleanups.
2 Aren't we saying that I could
3 be out there doing a focused investigation that
4 relates to a specific known spill and I'm now
5 required to look for hazardous reactivity for pH?
6 My assumption had been what the agency was saying
7 is that these have something to do with the pathway,
8 that these were going to affect the migration of
9 whatever my contaminants of concern was, but now
10 it's sounding like we are just -- we have basically
11 added new contaminants of concern. I'm wondering
12 if the basis of adding the reactivity --
13 MR. SHERRILL: There is a question
14 that we haven't gotten to that says are these
15 required to be tested for.
16 The answer to that is generally
17 not. In most sites, we don't have to test for
18 reactivity. It's usually not a problem. These
19 are not requirements unless it's thought to be
20 a problem.
21 You're not going to have to test
22 TCLP for metals unless you think metals are going
23 to be there. There again, this gets back to a site
24 investigation.
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1 That information -- you know, if
2 there is no reason to believe that your pH is going
3 to be less than two or greater than 12.5, you don't
4 need to run that analysis. That question gets asked,
5 I think, a couple times.
6 MS. SHARKEY: Could I say I think it
7 gets asked because of the way this is worded because
8 it indicates any contaminants of concern shall not
9 exhibit any of the characteristics -- any soil which
10 contains contaminants of concern shall not exhibit
11 as though it's an additional requirement. That's
12 true, then, for D as well, any soil which contains
13 contaminants of concern shall not exhibit pH, and
14 again in E?
15 MR. SHERRILL: Well, the reports that
16 we have been getting in from environmental
17 consultants that we have been approving, they have
18 said they will list this 742.305, let's say, these
19 criteria, A through E.
20 Sometimes, they will put a word
21 or two -- a sentence or two after each criteria and
22 say we do not believe this needs to be sampled due
23 to the following reasons.
24 MS. SHARKEY: That's acceptable to the
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1 agency?
2 MR. SHERRILL: That's been acceptable.
3 MS. SHARKEY: I guess what we have at
4 this point is the opportunity to clarify this so in
5 the future, people understand that they don't need
6 to address it if it's not a contaminant of concern.
7 Would that be acceptable to the
8 agency?
9 MR. SHERRILL: I guess the way they
10 have addressed it in the reports is they will give
11 a reason on why they believe that requirement has
12 been met.
13 Sometimes it's a narrative and
14 sometimes it's been my testing, but more than not,
15 they haven't -- I haven't had a site yet that has
16 had to test for every one of these.
17 THE HEARING OFFICER: Mr.
Reott, do
18 you have a follow-up question?
19 MR. REOTT: Yes. I think to follow-up
20 on what you're saying, the problem is that the
21 subject of the sentence -- in all three sentences --
22 is really the soil.
23 I think from what you are
24 saying, the subject to the sentence being a
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1 contaminant of concern, and it simply is a way
2 of rewording the sentence. Maybe I'm wrong
3 about that, in which case we have a more serious
4 issue to discuss.
5 MS. SHARKEY: Thank you. That was
6 exactly what I was getting at.
7 MR. KING: Then you have a much
8 different proposal. Then, you would simply be
9 saying that you have a contaminant of concern
10 if you have it there and it could exhibit the
11 characteristics of reactivity, you have a whole
12 different sampling. It would change the nature
13 of the sampling. I don't think you want to do
14 that at all.
15 THE HEARING OFFICER: Mr.
Rieser?
16 MR. RIESER: Wasn't the purpose of
17 using soil rather than contaminants of concern
18 so that you weren't sampling a lot of additional
19 contaminants of concern, that you weren't
20 evaluating -- that additional contaminants of
21 concern concerns reactivity or TCLP characteristics
22 or anything of that nature, that you were looking
23 at the soil, the contaminant media itself without
24 identifying the specified contaminants of concern
L.A. REPORTING - (312) 419-9292
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1 in performing that investigation?
2 MR. KING: Yes, that's correct.
3 MR. RIESER: One could say, as one
4 has at this hearing, as with my proposed language,
5 that says that these issues may be addressed in a
6 narrative format by using site characteristics
7 identified in your investigation without performing
8 actual sampling for these particular characteristics,
9 which I think is what Mr.
Sherrill has testified.
10 MS. ROBINSON: Can we maybe take a
11 five-minute break to confer on this a little bit?
12 MS.
McFAWN: You know, we're very close
13 to 5:00 o'clock. How about if we leave you overnight
14 to talk about this?
15 MS. ROBINSON: Great.
16 MS.
McFAWN: Why don't we leave the
17 participants in the audience -- why don't we go on
18 to the questions that we have for Section 742.320.
19 THE HEARING OFFICER: Okay. Moving
20 on to 742.320, then, the question is from Gardner,
21 Carton & Douglas.
22 Mr.
Watson?
23 MR. WATSON: Question number four
24 says proposed Section 742.320 contains the standards
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1 for excluding the groundwater ingestion exposure
2 route from consideration. Nowhere in this proposed
3 section is a
remediation applicant allowed to use
4 geology to demonstrate that the groundwater pathway
5 should not be a concern. Does the agency believe
6 that geology is relevant to the groundwater exposure
7 route evaluation at a site?
8 MR. SHERRILL: I can answer that two
9 different ways. Under 742.320, geology is considered
10 under 742.320(d) where you use the equation R26 and
11 it requires the use of a groundwater model equation
12 that takes into account site-specific geological
13 conditions.
14 Also, under Tier 3, it's very
15 common that people base this route exclusion almost
16 strictly on geology. So yes, we do believe that it's
17 relevant.
18 MR. WATSON: Are you saying, then, that
19 it's absent from the application of equation R26 and
20 how that takes into account geology?
21 You are saying that an evaluation
22 of geology would be complete as part of a Tier 3
23 analysis?
24 MR. SHERRILL: Under 742.320, that
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1 is a Subpart C, which you can do outside of any tier.
2 What I'm saying also is you can
3 go to Tier 3 as an option and based on the exposure
4 route exclusion, strictly on -- just about where
5 geology is one of the main components.
6 MR. WATSON: Okay.
7 THE HEARING OFFICER: There is an
8 additional question on 742.320 by Gardner, Carton &
9 Douglas.
10 Mr.
Watson, you have your question
11 fourteen.
12 MR. WATSON: Subpart C of proposed
13 Part 742 sets forth the specific requirements for
14 the exclusion of contaminant exposure routes. How
15 were these exposure routes developed including the
16 2,500-foot boundary for the potable water supplies
17 in Section 742.320?
18 MR. KING: That was the discussion
19 I was having earlier as far as the background for
20 developing Subpart C.
21 The only thing I would really
22 care to add to that discussion is relative to the
23 2,500-foot boundary issue. That was really picked
24 to coincide because that coincides with the larger
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1 setback zone that is available for water supply
2 wells under the act.
3 MR. WATSON: What was the basis
4 for the 10-foot limitation in 742.310(c) and
5 the three-foot limitation in 742.315(c)?
6 MR. KING: As I described in the
7 testimony that was presented, the three-foot and
8 the 10-foot figures, that was part of the proposal
9 that came from the advisory committee.
10 We didn't do any specific
11 modeling relative to those two numbers, but when
12 they were presented to us, we felt that those would
13 be sufficiently protective relative to the pathways
14 that we were dealing with.
15 MR. WATSON: So you don't have an
16 understanding as to how those numbers were derived?
17 MR. KING: To some extent, it's
18 speculative for us. I mean, obviously, there are
19 some kind of obvious practical factors with regard
20 to those.
21 Like, the three-foot distance
22 is really -- that's if you are talking about a
23 gardening situation, for instance, that would be
24 typical limits that you would have an intrusion
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1 below the surface. I believe they are probably
2 more practical in nature than anything.
3 MR. WATSON: Okay.
4 THE HEARING OFFICER: Mr.
Rieser?
5 MR. RIESER: I just have a follow-up
6 on one of the errata issues that were added to
7 320(b). My question is what was the purpose of
8 adding this additional language?
9 MR. SHERRILL: On 742.320(b), I believe
10 what you are referencing is it says to the maximum
11 extent practical, corrective action has been taken
12 to remove any free product.
13 That was addressed because when
14 we looked under this 742.305 contaminant source of
15 free product determination, those criteria primarily
16 deal with soil contamination and under 742.320, we
17 are back to dealing with groundwater.
18 We didn't want to leave out
19 removing free product in groundwater, which I know
20 is consistent with LUST, federal LUST regulations.
21 MR. RIESER: But wasn't the whole
22 point of (b) and (b) under 305 to provide some
23 type of objective methodology for evaluating free
24 product?
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1 MR. SHERRILL: It is in soil. If you
2 follow the logic of it, it did not really address
3 free product in groundwater. You could have a
4 five-foot LNAPL layer on top of the groundwater and
5 it may not be addressed in 742.305.
6 MR. RIESER: All right. Thank you.
7 THE HEARING OFFICER: Is there any
8 additional follow-up on that?
9 Okay. We are getting very close
10 to 5:00 o'clock. So we're going to wrap it up for
11 today. We are at a pretty good breaking point. The
12 next question concerns Subpart D, area of background.
13 We will begin with those questions tomorrow.
14 Tomorrow's hearing will be held
15 in this same location beginning at 10:00 a.m. I am
16 not going to be here tomorrow. Chuck
Feinen will
17 be acting as the hearing officer.
18 MS. ROBINSON: Is there any chance we
19 might start at 9:00 o'clock just in case things move
20 slowly tomorrow?
21 THE HEARING OFFICER: Does anyone have
22 any objections to starting at 9:00 o'clock?
23 Is there any response to that?
24 Does anyone have any problems?
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1 MR. WALTON: Earlier if we could.
2 MS. SHARKEY: 8:30?
3 THE HEARING OFFICER: The hearing will
4 reconvene tomorrow at 9:00 o'clock.
5 All right. Does the agency have
6 any additional matters that need to be addressed?
7 MS. ROBINSON: Not at this time.
8 THE HEARING OFFICER: The hearing is
9 adjourned until 9:00 o'clock tomorrow. Thank you.
10 (Whereupon, the proceedings
11 in the above-entitled
12 cause were adjourned until
13 December 3, 1996, at 9:00
14 o'clock a.m.)
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L.A. REPORTING - (312) 419-9292
241
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF C O
O K )
3 I, LORI ANN ASAUSKAS, CSR, RPR, notary
4 public within and for the County of Cook and State
5 of Illinois, do hereby certify that the testimony
6 then given by all participants of the
rulemaking
7 hearing was by me reduced to writing by means of
8 machine shorthand and afterwards transcribed upon
9 a computer, and the foregoing is a true and correct
10 transcript.
11 I further certify that I am not counsel
12 for nor in any way related to any of the parties to
13 this procedure, nor am I in any way interested in the
14 outcome thereof.
15 In testimony whereof I have hereunto set
16 my hand and affixed my
notarial seal this 10th day of
17 December,
A.D., 1996.
18 _______________________________
Lori Ann
Asauskas, CSR, RPR
19 Notary Public, Cook County, IL
Illinois License No. 084-002890
20
21 SUBSCRIBED AND SWORN
before me this 11th
22 day of December, 1996.
23
_____________________
24 Notary Public
L.A. REPORTING - (312) 419-9292