R97012.PDF

BEFORE THE POLLUTION CONTROL BOARD

STATE OF ILLINOIS

IN THE MATTER OF:

TIERED APPROACH TO CORRECTIVE ACTION

OBJECTIVES (T.A.C.O.)

NO. R97-012

35 ILL. ADM. CODE 740

Hearing held, pursuant to Notice, on the 10th day

of December, 1996, at the hour of 10:00 a.m., at Room

A-1 Stratton Office Building, Springfield, Illinois,

before Kevin Desharnais, duly appointed Hearing

Officer.

TRANSCRIPT OF PROCEEDINGS

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PRESENT:

MS. MARILI McFAWN

Board Member

MR. JOSEPH YI

Board Member

MR. CHARLES FEINEN

Board Attorney

MR. KEVIN DESHARNAIS

Hearing Officer

MS. KIMBERLY ROBINSON

Attorney, IEPA

MR. H. MARK WIGHT

Attorney, IEPA

MR. GARY P. KING

IEPA

MR. JOHN SHERRILL

IEPA

MR. JAMES PATRICK O'BRIEN

IEPA

MR. DOUGLAS CLAY

IEPA

MR. THOMAS C. HORNSHAW

IEPA

MS. TRACEY E. VIRGIN

IEPA

MR. KENNETH L. PAGE

IEPA

MR. CHRISTOPHER NICKELL

IEPA

MR. KENNETH LISS

IEPA

MS. VICKY L. VonLANKEN

IEPA

MR. LAWRENCE EASTEP

IEPA

MR. DAVID RIESER

Attorney

MS. WHITNEY WAGNER ROSEN

Attorney

MR. JOHN W. WATSON, III

Attorney

MS. KAREN L. PRENA

Attorney

MR. RAYMOND T. REOTT

Attorney

MR. HARRY R. WALTON

Illinois Power

MS. ELIZABETH A. STEINHOUR

IERG

MS. KAREN A. LYONS

Shell Oil Products

MR. DEREK D. INGRAM

Black & Veatch

MR. MARK ELMER

Chemical Industry Council

MR. RANDY SCHICK

IDOT

INDEX

EXHIBITS: IDENTIFIED

ADMITTED

Agency Exhibit 9

Agency Exhibit 10

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HEARING OFFICER DESHARNAIS: Good morning.

My name is Kevin Desharnais, I'm the hearing officer

for this proceeding, which is entitled: In the Matter

of Tiered Approach to Corrective Action Objectives, 35

Illinois Administrative Code Part

742.

This is the third day of hearing for the first set

of scheduled hearings, which is the Agency's

presentation of its proposals, and questions for the

Agency's witnesses.

Because the Agency has finished its presentation

of its proposal, we'll be continuing with the

questions that have been prefiled. And there are

several sets of prefiled questions that were made to

be addressed.

We're going to actually begin with the questions

that the Agency agreed to respond to at the last set

of hearings -- at the last two hearings, and then

we'll move on to the remaining prefiled questions that

proceed by section number.

Then we'll address the remaining questions that

were prefiled by Ray Reott, and then the additional

prefiled questions that were filed by Mr. Rieser.

Is there anyone present today on behalf of Mayer,

Brown & Platt?

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MS. PRENA: I am, Karen Prena.

HEARING OFFICER DESHARNAIS: Are you going to

be asking the prefiled questions?

MS. PRENA: Yes, I am.

HEARING OFFICER DESHARNAIS: Great, thank

you. We'll start by introducing the other members

here from the Pollution Control Board.

To my right is Marili McFawn, Board member.

MS. McFAWN: Good morning.

HEARING OFFICER DESHARNAIS: To my left is

Joseph Yi.

MR. YI: Good morning.

HEARING OFFICER DESHARNAIS: To his left is

Chuck Feinen, Board Assistant. And Anand Rao from the

Technical Unit is here on the very right.

MS. McFAWN: I just want to welcome you all

back from last week's hearing. We're glad to have

Kevin with us, too. Thank you for coming on such

short notice, and I'm sure we can wrap up the prefiled

questions today.

HEARING OFFICER DESHARNAIS: Does the Agency

have any opening remarks at this time?

MS. ROBINSON: Would you like me to introduce

everybody again?

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HEARING OFFICER DESHARNAIS: That would be

great.

MS. ROBINSON: Way over to my far left is

Mark Wight, then Gary King, Tom Hornshaw, Tracey

Virgin, I'm Kim Robinson, to my right is John

Sherrill, Jim O'Brien, Ken Liss and Doug Clay.

And I think the way that we think that probably we

should proceed this morning is go ahead and answer

first the follow-up issues that we committed to bring

back today, and then if you'd like to proceed from

there.

HEARING OFFICER DESHARNAIS: Okay. Since

there's not that many people here in the audience, why

don't we also have people introduce themselves and

state who they represent if anyone on the record.

We'll begin with those seated at the table in front.

MS. PRENA: I'm Karen Prena from Mayer, Brown

& Platt.

MS. ROSEN: I'm Whitney Rosen with Illinois

Environmental Regulatory Group.

MR. RIESER: I'm David Rieser w

ith the law

firm of Ross & Hardies. I'm here representing the

Illinois Steel Group, the Illinois Petroleum Council,

and I'm also a member of the Site Remediation Council

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on behalf of the Chemical Industrial Council of

Illinois.

MR. WATSON: My name is John Watson. I'm

from the law firm of Gardner, Carton & Douglas, and I

am here on behalf of a number of corporations

representing them today.

MR. REOTT: Raymond Reott from Jenner &

Block.

MS. LYONS: Karen Lyons, Shell Oil Company.

MR. WALTON: Harry Walton, Illinois Power,

Illinois Environmental Regulatory Group, Correctional

Action Board Group, and I'm also chairman of the Site

Remediation Advisory Committee.

MS. STEINHOUR: Beth Steinhour, Illinois

Environmental Regulatory Group.

MR. EASTEP: I'm Larry Eastep with the

Illinois EPA Bureau of Land.

MR. INGRAM: Derek Ingram, Black & Veatch.

MR. PAGE: Ken Page, Illinois EPA Bureau of

Land.

MR. NICKELL: Chris Nickell, Illinois EPA

Bureau of Land.

MR. ELMER: Mark Elmer, Chemical Industry

Council of Illinois.

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HEARING OFFICER DESHARNAIS: Thank you.

MR. SCHICK: I'm Randy Schick from the

Illinois Department of Transportation.

MS. VonLanken: And I'm Vicky VonLanken with

the Illinois EPA.

HEARING OFFICER DESHARNAIS:

Thank you. I'd

also say that the acoustics in here are really bad, so

when you're speaking please try to keep your voice up.

These blowers on the side are making a lot of noise.

Kim, do you want to continue?

MS. ROBINSON: From the Agency's perspective

I believe that there were six issues that we committed

to answer at today's hearings, and the first one I

think we're going to let Gary King address regarding

the risk factor.

We've got for purposes of illustration, there may

be some extra copies over on the bench area over there

by Vicky and Randy, it says errata changes on risk

issue.

And this is not an actual errata sheet, this will

being gone through, an errata sheet number two, but

for purposes of illustration and following along

today, if you'd like to grab a copy of that. I

believe the Board members should all have one of

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those.

Mr. King, would you l

ike to proceed?

MR. KING: Before I start talking about that

issue, one of the things I guess I was kind of excited

to see a copy of a set of technical comments from

USEPA on the proposed T.A.C.O. rules, and we're going

to -- we'll be conferring with USEPA as to whether the

-- whether it's okay to introduce these into the

record. But I wanted to go ahead and read the last

comment that USEPA had with regards to the proposed

T.A.C.O. rules, and this is coming from their

technical sta ff.

It says, and I'll quote it. "Overall the proposed

T.A.C.O. rules represent an excellent risk based

approach. The equations and technical parameters are

scientifically sound and widely recognized by industry

experts as appropriate.

Individual IEPA staff members who worked on these

rules are to be commended for their efforts. Thank

you for the opportunity to review this document."

I guess we're pretty excited about this, because

the role that USEPA could play in this process

obviously was still kind of up in the air, and I think

this kind of tends to kind of solidify what their

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views are relative to the technical issues.

They do have a number of questions that they also

raise, but I think we will probably be responding to

those points as part of the January set of hearings

since we got there so late.

We've already taken,

started taking steps to

distribute copies of these comments to appropriate

people that we've been involved with.

Getting back to the issue on the risk issue --

MR. RIESER: I'm sorry, Gary, of course we're

going to get questions on everything, so I'll start

off. What part of the USEPA did the letter come from?

MR. KING: The letter was transmitted from

Ann Wentz, who is our liaison person with the

Underground Storage Tank Section. She was forwarding

what's described as Reg

ion V's technical comments.

The person who was actually doing the comments is part

of the UST Section, but he is really their -- their

central technical person as far as understanding the

RBCA concepts and looking at risk based approaches for

regional offices.

MR. RIESER: Thanks very much.

MR. KING: Okay, the --

MS. McFAWN: Wait, Gary, before you go on,

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have these comments been submitted to the Board?

MR. KING: I don't think so, I think they

were just transmitted to us and we were just going to

-- we just saw this late yesterday, I just saw it for

the first time this morning. We'll check back with

USEPA to see whether they intended for us to file

these of record. I assume it's okay with them since

it's a public document.

If it's not we probably should put it on the

record anyway, but I think it would be -- from a

courtesy standp oint we should at least make that

communication before taking the formal step.

MS. McFAWN: Okay, thank you.

MR. KING: Okay, talking about the issue of

how you vary the -- either the target hazard quotient

or the target cancer risk, when we were having our

discussions at the first two set of hearings, the

point was -- I think the point was being made and I

think it was correct, that there seemed to be some

inconsistency with the way that the Agency was

approaching this issue as far as how it was

procedurally handled.

And I think that that is kind of just a -- that

inconsistency is more of a leftover from trying to put

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together a complicated proposal. Our key notion is

still that we're looking at applying the risks at the

point of human exposure, and we've got a definition

which sets out what that point of human exposure is.

Where I think t he confusion was occurring was

relative to how that was handled within Tier 2. What

we've tried to do with this two page document is set

forth a strategy in which the issues about varying

target cancer risk or the target hazard quotient would

be dealt with exclusively under Tier 3. You'd have to

have a specific approval from the Agency before you

would vary that.

There was some -- I think there was some concern

on our part that the way we had it set up, somebody

using Tier 2 could simply go in and change the target

risk goals without really doing much other than saying

they wanted to change those risk goals.

So we thought it was more appropriate to raise

that kind of consideration to Tier 3 where we really

could look at things in a much more site-specific

basis.

That's not to say that you couldn't -- once you

had a Tier 3 approval, you couldn't go back and use

the Tier 2 equations. You could, and we're

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recognizing that. But you'd have to go through a Tier

3 process to get approval of that different risk goal.

Now, what we've suggested here is that the

appropriate mechanism under Tier 3 to do that kind of

risk assessment is the formal risk assessment process

that's envisioned in Section 742.915. There it's

really talking about our concept of a formal risk

assessment in which you're using nationally accepted

methodologies for

when you would vary risk -- vary

risk goals.

We have in fact over the years approved risk

ranges between -- greater than one in a million. We

think one in a million is the appropriate starting

point and should be the -- could be the risk goal if

you're under Tier 1 or Tier 2.

But under Tier 3, a Tier 3 approach we have

approved risk ranges greater than one in a million,

and a target hazard quotient of greater than 1.0 at

NPL type sites, sites that are on the Super Fund

National Priority List, and at those types of sites

there is a requirement that there be a formal risk

assessment, and methodology is well understood in

those contexts and that is the approach that if risk

is -- if the risk goals are going to be varied we

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think it needs to have that kind of close scrutiny.

And so you'll see what we have laid out here in

these various changes is really kind of --

is an

implementation of that approach. That's the extent of

my comments relative to those.

HEARING OFFICER DESHARNAIS: Follow-up

questions, Mr. Rieser?

MR. RIESER: Yeah, what would be the factors

for approving the changes in the target risk, what

issues would the Agency consider?

MR. HORNSHAW: Up front if somebody just came

in in Tier 3 and said I want a ten to the minus four

risk instead of ten to the minus six, and now do a

risk assessment based on that assumption, I can't

imagine how the Agency would ever approve that kind of

an approach.

I don't think we should be the ones that would be

okaying a greater cancer risk for somebody with no

justifying reason basically.

What I can envision is that people will go through

standard type of risk assessment that's done for Super

Fund sites or equivalent, and also whatever controls

are on the site, an estimation of short term risks, of

doing any kind of

remedial action, that kind of a risk

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balancing effort that's done at large sites like Super

Fund sites, and in cases where the estimated risk

either to current or future receptors is greater than

one in a million but less than one in ten thousand, we

would approve some of those things based on a very

site-specific development of facts pertaining to that

site.

In that case we could approve that and

we have

done that for sites both in and out of the Super Fund

site program.

MR. RIESER: And I'm trying to listen back

for that answer where there were specific factors that

you're looking for.

MR. HORNSHAW: Things like what kind of

controls are on the site, what would be the short term

risk to people as a result of doing remediation

efforts versus not doing them, and balancing those out

versus the risk, the long term risk versus the short

term risk, evaluations of the incremental cost to

achieve a lesser risk level, all the things that are

routinely done in feasibility studies for Super Fund

sites for instance.

MR. RIESER: And one could reference USEPA

guidance for this type of thing?

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MR. HORNSHAW: USEPA's many guidance

documents, correct.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-u p questions?

(No response.)

HEARING OFFICER DESHARNAIS: Thank you.

MS. ROBINSON: The second one that I think I

had on my list, and I believe this question came up by

Hiten Soni with the Board, was regarding why we didn't

use the left-hand side in all the equations but rather

used them in some, and John Sherrill's going to

address this issue.

MR. SHERRILL: Yeah, the question was raised

regarding the not putting an equal sign in the

equations, and we've gone through di

fferent iterations

of how we were going to present this material, and we

went through several iterations of how to present the

equations in the material.

And in one of our iterations we did have an

equation sign, and when you put an equation sign, the

equal sign on the -- you had to put a corresponding

left-hand side of the equation, and which meant we had

to come up with another symbol.

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As you've gone through these T.A.C.O. rules you'll

see all kinds of abbreviations and symbols and what

they all mean. And so for three reasons which I'm

going to discuss here we did not put an equal sign in

these -- the way we presented the equations.

HEARING OFFICER DESHARNAIS: Excuse me, Mr.

Sherrill, could you address for the record what

specific equations you're talking about or if it's

general?

MS. ROBINSON: I think it's just a general

comment that was made by Hiten Soni,

and there were

some where we did have them in and there were many

that where we didn't have them in, and he's going to

sort of address that generally in his answer. So we

didn't really pick out which ones didn't have them.

HEARING OFFICER DESHARNAIS: Okay.

MR. SHERRILL: The primary equations that

these were addressed to were Appendix C, Table A, SSL

equations, and Appendix C, Table C. As discussed in

previous testimony, a person must select the

applicable remediation objective equation which is

dependent upon the exposure route medium population

preceptor and whether the contaminant of concern is a

carcinogen and a noncarcinogen.

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For all these different equations that we've

presented, this written explanation, we did not want

to have to put this on the left-hand side of the

equation.

To include this written description of the

remedi ation objective and when it was applicable would

be redundant of all the work already provided in the

testimony and the work in the body of the rules

themselves.

So that's one issue.

The second issue is to differentiate between the

different remediation objective equations using

distinct symbols we think would confuse the user even

more, since these are not really parameters

themselves, they're just the answers to the equations.

And if these new symbols were to be added to the

tables, then the rule would have to be revised to

address these new symbols in the text.

And the third reason is building upon the second

one. If we were to add new symbols or acronyms, we do

not think that it would really help the regulated

community or the Board in differentiating between what

we're talking about.

In other words, we'd have to have a description of

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the remediation objective in the column to the left of

the equation, corresponding to the right, and then

we'd we just think it would add more confusion. And

like I said, we presented this over a year ago, and

the approach that we have now just from an operational

viewpoint, people have not been confused by it. And

when we did have it before there was confusion because

when we were -- I'll give you example.

When we had migration to groundwater, people would

say are you talking about th

e migration to groundwater

under a RBCA approach or migration of groundwater

under an SSL approach. And then we would have to have

two distinct symbols saying okay, that is migration to

groundwater value for SSL versus migration to

groundwater for RBCA.

And so we would have to end up having off the top

of my head upwards of 50 new symbols that we would

need to come up with.

And if you would turn to let's say Appendix C,

Table C, Appendix C, Table C, this equation that's

entitled R1, on R1 in this, do you see where it says

remediation objectives for carcinogenic contaminants,

milligrams per kilogram, and then in a sense on the

right-hand side we have the actual equation.

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And so what this issue is being raised is why

don't we have a symbol for that left-hand side there,

and in the short answer, after what I've just given,

it added more confusion when we added a symbol for

that instead of a short word description.

MR. RAO: So what you are saying is that the

description on the left-hand side in the second column

in Table C where it says remediation objectives for

carcinogenic contaminants, that's the left-hand side?

MR. SHERRILL: Yes.

MR. RAO: Okay, I don't think we have any

problems if you think this works. But the only thing

I think Hiten Soni was concerned about was for some of

them you ha ve and some you don't. If you go down the

equations R9 and R10, which is basically screening

levels for air, for carcinogenic contaminants and

noncarcinogenic contaminants.

MR. O'BRIEN: If you'll notice that the only

ones that aren't set up as an equation with both sides

are the remediation objective equations. Everything

else that goes into the remediation objective

equations are set up in the normal equation format.

MR. RAO: Yeah, that's the reason, and I

think he rai sed this question because he thought maybe

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you missed something, or now that Mr. Sherrill has

explained --

MR. O'BRIEN: No, the answer is we did it on

purpose in order to reduce confusion.

MR. RAO: Okay.

MS. ROBINSON: Is the Board comfortable now

with our answer on that?

MS. McFAWN: Can you just give us a minute?

MS. ROBINSON: Sure.

HEARING OFFICER DESHARNAIS: Are there any

additional follow-up questions?

(No response.)

HEARING OFFICER DESHARNAIS: Thank you.

MS. ROBINSON: The third issue I believe we

had committed to provide physical chemical constant

changes that we've made from the ASTM models, and Dr.

Hornshaw's going to address that issue.

MR. HORNSHAW: I've prepared a table which

lists the value for Henry's Law constant, diffusivity

in air, diffusivity in water, and organic carbon

partition coefficients, which was used by ASTM for

their six model chemicals and the corresponding values

which is proposed in the 742 rule, which came from

USEPA's database, and that's available I think on the

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front table and at the side as well, to answer that

question.

HEARING OFFICER DESHARNAIS: Does the Agency

wish to introduce this as an exhibit?

MS. ROBINSON: Yes, we can do that. I don't

know what Exhibit Number we're on. 9, okay.

HEARING OFFICER DESHARNAIS: Is there any

objection to this being admitted as an exhibit?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, the

Agency's table entitled Comparison of

Physical/Chemical Constants Used in ASTM's Risk Based

Corrective Action Example Look-Up Table (Table X2.1)

and Part 742 Tier 1 Tables (Appendix B, Tables A and

B) is admitted as Exhibit Number 9.

(Agency Exhibit 9 was admitted.)

HEARING OFFICE R DESHARNAIS: Follow-up

questions, Mr. Rieser?

MR. RIESER: The source for the 742 values

was the USEPA's SSL guidance document, is that

correct?

MR. HORNSHAW: That's correct.

MR. RIESER: Do you know what accounts for

the differences between these values?

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MR. HORNSHAW: I'm not sure how ASTM selected

the values that they used in their example table from

the many values which are available in the literature.

I know USEPA completed a fairly large review of

the database and compiled all that into the database

that is currently presented in the SALT screening

guidance document.

MR. RIESER: Would one be able to use the

ASTM values in a Tier 3 setting?

MR. HORNSHAW: Yes, they would have to - the

person would have to present some sort of

justification why the value they're proposing is

better than the values that appear last in thei

document.

MR. RIESER: Would they need more

justification than just that that was the value that

ASTM used and found acceptable?

MR. HORNSHAW: Yes, we decided even prior to

this hearing that it's in everybody's best interest to

use a standardized set of physical chemical constants.

We selected USEPA's database partly because of the

large review of the data that USEPA did.

We were very concerned right from the beginning of

this entire procedure because there's -- for

some of

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the physical chemical constants there's up to two to

three orders of magnitude difference for the same

parameter in various literature citations, which

obviously carry the potential for pretty large

disputes when these physical chemical constants were

substituted into the Tier 2 equations. So we wanted

one standardized set of values to be used, and

somebody will have to make a case that the value

they're proposing is in some way better than the value

that USEPA decided on.

MR. RIESER: So then we have what USEPA

looked at and make a case for why that decision was

wrong, as well as why the value that they were

selecting was appropriate?

MR. HORNSHAW: That's correct.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Just to check,

are people in the back able to hear the conversation

that's taking place?

MR. WALLACE: Mr. Rieser's very hard to

understand.

MR. RIESER: Hard to hear or hard to

understand?

MR. WALLACE: Oh, I'm sorry, hard to hear.

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MR. RIESER: I will speak up or use the

microphone.

HEARING OFFICER DESHARNAIS: Yeah, it might

be best if everyone used the microphones, they are

here to make it easier. Any additional follow-up

questions?

MR. RAO: I have just a minor clarification.

Dr. Hornshaw, you said that the parameter values from

the table were derived from the SSL document. Is that

the final guidance that came out in 1996 or the one

that's attached to your testimony? You had SSL

guidance attached to your testimony that is a graph

document.

MR. HORNSHAW: I thought I --

MR. SHERRILL: I can answer that. What Tom

Hornshaw had attached to his testimony was a user's

guide. The 1996 document had -- there

's two different

publications, the technical background document and

the user's guide. Both of those are dated 1996. And

that is the final, quote, version and that's what

we've referenced, incorporated by reference.

MR. RAO: Yeah, I just wanted to make sure.

Thank you.

HEARING OFFICER DESHARNAIS: Mr. Watson?

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MR. WATSON: For the record again my name is

John Watson from Gardner, Cart

on & Douglas. Mr.

Hornshaw, did you do a comparison of the ASTM physical

chemical constants and the USEPA physical chemical

constants and determine that the USEPA model is

superior?

MR. HORNSHAW: Model or constants?

MR. WATSON: I'm sorry, constants.

MR. HORNSHAW: We made a decision to use the

table that USEPA has in their final guidance as the

values to be used for the -- for all parameters, all

physical chemical parameters for both sets of

equations.

MR. WATSON: Have you done any in-depth

analysis of the ASTM constants?

MR. HORNSHAW: No, I haven't.

MR. KING: If I could just state, one thing

if I could just add something relative to that, one of

the reasons why we picked the SSL numbers is they're

covering the entire range of chemicals that we're

doing dealing with the ASTM is only what, six

chemicals, it's only six chemicals, and if we were to

pick the ASTM numbers we would have -- it's in essence

a bifurcated system

relative to the physical chemical

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constants.

HEARING OFFICER DESHARNAIS: Any additional

follow-up questions?

(No response.)

HEARING OFFICER DESHARNAIS: Thank you.

MS. ROBINSON: The next issue is regarding

SW-846 and Jim O'Brien's going to address this. I

believe the question came up from Mr. Reott regarding

if soils need to be left in their natural state during

testing.

MR. O'BRIEN: I looked at the applicable ASTM

methods, and the one for soil and waste pH is method

9045C, Revision 3 dated January, 1995. And the method

is very specific, and it states that the 20 grams of

the waste sample is to be added to 20 milliliters of

reagent water and stirred continuously for five

minutes and then the suspension is expected to settle.

So it doesn't specifically say you have to crush

the soil but it's -- you have to stir it in solution,

and they anticipate

that the suspension will occur and

that that needs to settle before the electrodes are

introduced to measure the pH.

MR. REOTT: Just as a follow-up, so you

should be able to do anything to it except stir it,

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stirred and not shaken in other words?

MR. O'BRIEN: Yes, that's correct. There's a

copy of the -- copies of the method I believe out

there for people to reference.

MR. REOTT: Thank

you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up questions?

(No response.)

HEARING OFFICER DESHARNAIS: Thank you.

MS. ROBINSON: Okay, the next issue John

Sherrill is going to provide some visual examples to

demonstrate how 742.600(e) through (g) work. I think

there was some confusion last time around as to how

these were all supposed to fit together. So John's

going to step over to the easel. If everybody can see

that, that's where he's going to be.

HEARING OFFICER DESHARNAIS: Before you

begin, is the Agency going to be introducing a copy of

this as an exhibit?

MS. ROBINSON: Yes, we are. This will be

Exhibit Number 10, and there are also extra copies

over there on that one, too.

MR. SHERRILL: There's a three-page handout

on the Title of Section 742.600(e) is what I'm

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referencing right now. The question was asked last

week if we could explain and provide an example of

742.600(e), 742.600(f) and 742.600(g), so I'm going to

briefly go through.

MS. McFAWN: Mr. Sherrill, before you begin

can I interrupt you one more time. I don't believe we

have a copy of this three-page handout up here, do we?

MS. ROBINSON: I'm sorry about that, we'll

get you one.

MS. McFAWN: Thanks a lot.

HEARING OFFICER DESHARNAIS: Okay, are there

any objections to this being introduced as an exhibit?

(No response.)

HEARING OFFICER DESHARNAIS: Then the Agency

handout, three-page handout that begins with Section

742.600(e) Tier 2, Example 1, Benzene is the

contaminant of concern, will be introduced as Agency

exhibit and it's numbered 10.

(Agency Exhibit 10 was admitted.)

MR. SHERRILL: I'm going to read in

742.600(e) just as it's stated in the proposed rule.

"If the calculated Tier 2 soil remediation objective

for an applicable exposure route is more stringent

than the corresponding T

ier 1 remediation objective,

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then the Tier 1 remediation objective applies."

So getting back to our handout, in this example

the groundwater classification at a residential site

is Class I. The benzene soil remediation objectives

from Appendix B, Table A, are as follows: For benzene

the soil, the ingestion in milligrams per kilogram is

22 milligrams per kilogram. For inhalation 0.8, and

migration to groundwater milligrams per kilogram 0.03.

So let's suppose someone went and did a -- as

discussed in previous testimony, we look at all three

of these exposures routes and the most stringent or

health protective route applies.

So we're looking at this migration to groundwater

route of 0.03. We won't be talking in this particular

example about excluding a route.

Let's suppose someone were to calculate a Tier 2

soil remediation objective that is more stringent than

the corresponding remediation objective presented in

the Tier 1 tables.

In other words, these three tables, these three

values I pulled directly from our Tier 1 tables, these

are precalculated Tier 1 remediation objectives.

Let's suppose someone were to calculate a Tier 2

migration to groundwater objective of 0.024. In other

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words, they went and did their calculations and they

came back under Tier 2 with a value, as you can see

this value is more stringent than the value of the

migration to groundwater number of 0.03.

So as the rule states, if the calculated Tier 2

value, which in this case is here, for an applicable

exposure route is more stringent than the Tier 1

value, these are all the Tier 1 values, then the Tier

1 remediation objective applies.

So in this example, this would be our soil

remediation objective. This would be our -- and in my

testimony I discuss this can happen in very few cases.

We believe that these as presented in Tom

Hornshaw's testimony and my own testimony we feel --

we have confidence in these Tier 1 objectives. And if

you were to calculate a Tier 2 objective that is more

stringent than the Tier 1, it would be of usually

insignificant difference.

Did you want to comment anything on that?

MR. HORNSHAW: No.

MR. SHERRILL: So that's 742.600(e). Are

there any questions on that?

(No response.)

MR. SHERRILL: 742.600(f) a new example, and

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I'm going to read this as it's proposed in the rules.

742.600(f), "If the calculated Tier 2 soil remediation

objective for an exposure route is more stringent than

the Tier 1 soil remediation objectives for the other

exposure routes, than the Tier 2 calculated soil

remediation objective applies and Tier 2 soil

remediation objectives for the o

ther exposure routes

are not required."

So in this example, new example, but I've left the

contaminant of concern is benzene, here again these

are our Tier 1 values, 22 milligrams per kilogram for

injection, 0.8 for inhalation, 0.03 for migration of

groundwater, these are our Tier 1 precalculated

values.

In this example assume that we have no routes

excluded from consideration pursuant to Subpart C. So

the first step of this what under Tier 1, let's say

what is the soil remediation objective? It's 0.03 is

our most restrictive, our most, quote, health

protective remediation objective.

Let's suppose someone then calculates a Tier 2 for

the migration to groundwater route and a calculated

value of 0.519 milligrams per kilograms is obtained.

So someone does a calculation using the equations that

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we've provided and they come up with a Tier 2

migrat ion to groundwater of 0.519 milligrams per

kilogram. And we approve of the number, this is a

site-specific number as we've discussed in our -- on

how to develop these remediation objectives.

In this particular -- we've said it's a Class I

groundwater site, so this is protective of Class I

groundwater based on the site-specific information

that was input into the equations.

The Tier 2 calculated value of 0.519 is more

stringent than the other Tier 1 objectives. Here's

the other obj ectives. 0.519 is more stringent than

0.8 and it's more stringent than 22.

And as the rule says then, the Tier 2 calculation

soil remediation objective applies and the Tier 2 soil

remediation objectives for the other exposure routes

are not required.

So what we're saying in this rule is there's no

need to go and calculate objectives for this because

we already know our Tier 2 calculated for migration to

groundwater is 0.519.

So under this Tier 2 example

the soil remediation objective is 0.519 milligrams per

kilogram. There would be no reason to calculate

these objectives for these two, for the ingestion and

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inhalation.

Any questions on this one?

(No response.)

MR. SHERRILL: And I'm focusing on soil in

this, in these equations, just for simplicity sake.

Okay, this is our page three of our handout,

742.600(g), and I'll read it as proposed

in the rule.

"If the calculated Tier 2 soil remediation objective

is less stringent than one or more of the soil

remediation objectives for the remaining exposure

routes, then the Tier 2 values are calculated for the

remaining exposure routes and the most stringent Tier

2 calculated value applies."

For ease of presentation I've there again selected

benzene as our contaminant of concern, it's a

residential site, and we will assume that it's got

Class I groundwater.

In this example it kind of makes it add a little

twist to it, and it adds for clarification on this

site three feet of clean soil covers the site and the

injection route is excluded from consideration under

Subpart C.

So we're looking at inhalation and migration to

groundwater in this particular example.

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The soil remediation objective from benzene from

Appendix B, Table A, for inhalation is 0.8,

for

migration groundwater 0.03 milligrams per kilogram.

So it's those same values that we saw before from --

these are precalculated values that are in the

proposed 742 rule.

So the soil remediation objective for benzene, you

know, before we've done any Tier 2 calculations, would

be the most restrictive, so we've we're back to this

0.03 which is the most restrictive or health

protected.

So now someone wants to do a Tier 2 calculation

and they come up with a Tier 2 calculation of

1.2,

I'll put Tier 2. Let's suppose someone does a Tier 2

calculation and they come with a value of 1.2

milligrams per kilogram.

There again this would be a site-specific, you

know. Let's say we approve it. So out of the rule

the value of 1.2 is less stringent, this value is less

stringent than one or more of the soil remediation

objectives for the remaining exposure routes.

Then the Tier 2 values are calculated for the

remaining exposure routes and the most stringent Tier

2 calculated value applies.

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So then someone says okay, I like this value, I'm

going to go ahead and calculate a Tier 2 for

inhalation. So let's say they calculate a Tier 2 for

inhalation and they come up with 11.0 milligrams per

kilogram.

So in this Tier 2 example the soil remediation

objective for benzene is 1.2 which is the most

restrictive Tier 2 value.

The purposes in one sense of (f) and (g) is one,

so people don't do unnecessary calculations, and then

also, you know, unless the calculations or the

development of the remediation objectives are

presented to us, we're going to assume the most

stringent remediation objective.

You know, so in this scenario, let's say somebody

was just looking at -- they had calculated in 1.2 and

they hadn't calculated the inhalation yet, we're going

to say okay, you can calculate it for migration to

groundwater of 1.2, but your most restrictive now is,

you know, if you did not calculate a Tier 2 for

inhalation, we're going to kick you back to this 0.8.

So then they'd say okay, well, I'm going to

calculate one for inhalation.

HEARING OFFICER DESHARNAIS: Any additional

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follow-up questions?

MR. RAO: I just have a comment under let me

see, 742.600 Subsection (g). Could you clarify the

language that you have proposed by saying if the

calculated Tier 2 soil remediation objective is less

stringent than one or more of the soil remediation

objectives under Tier 1?

MR. SHERRILL: I believe the reason we did

not do that, why we didn't say that under Tier 1 is

because you make -- Tier 1 isn't the only way to

calculate objectives. You can go under Tier 3 and you

can also do the background approach.

MR. RAO: But you

have said Tier 1 under

Subsection (f) about Subsection (g).

MR. SHERRILL: We'll look into that to see if

it's applicable that way.

MR. RAO: Because it is kind of confusing to

read it, you know. Of course with the example it's

very easy to understand what you are trying to say.

MR. SHERRILL: Okay. The only thing I'm

concerned about is to make sure that we would account

for being able to develop objectives under the

background approach and the Tier 3 that we -- I don't

want to exclude those processes. But we'll look into

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it and see if it works.

MR. RAO: Okay.

MR. WATSON: I've got one more follow-up

question. On (g), the second half of that you say

that if -- you say then the Tier 2 values are

calculated for the remaining exposure roots, and the

most stringent Tier 2 calculated value applies. You

don't really mean that you have to go through and

calcul ate all of the Tier 2 values for the remaining

exposure routes, right? I mean you sort of take them

one by one, right, and if you want to live with

whatever the calculated number is, then you'll live

with that?

MR. SHERRILL: That's correct.

MR. RIESER: With regard to Anand Rao's

suggestion including Tier 1, if you had a calculated

Tier 3 or area background value, that would control,

because you would have arrived at that value through

an Agency approved process which would support that

value, so that would be the value for that route. And

so I don't think this would apply in that context

because you've already made an Agency decision that

that's the appropriate value for the route.

So I mean you should think about it some more, but

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I would think that his recommendation is not

inconsistent with what is proposed.

MR. SHERRIL L: Okay.

MR. HORNSHAW: Except if you're using area

background, in some cases that can only be used to

exclude a chemical from further consideration. If

you're using a statewide background approach you could

drop the chemical out, but if it doesn't drop out

using that approach then you have to go into one of

the tiers to address it.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up questions?

(No response.)

HEARING OFFICER DESHARNAIS: T

hank you.

MS. ROBINSON: The last issue, and this was

also raised by Hiten Soni last time around, was the

question regarding safety factors and why we didn't

take those into account. So Dr. Hornshaw's going to

address this.

MR. HORNSHAW: As I started to say at the

hearing, there are safety factors inherent in both

ASTM's and USEPA's approach for Tier 1. We -- there

are safety factors in the toxicological data that's

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used to calculate the various remediation objectives.

There are safety factors built into the models and

based on the -- I guess the similarity of the two

approaches, versus what we didn't have in the R94-2B

approach, we're comfortable that there isn't a

necessity for an additional safety factor at this time

where we thought there was a necessity for that in the

original LUST Docket B.

HEARING OFFICER DESHARNAIS: Any follow-up

questi ons?

MR. RIESER: Dr. Hornshaw, just to illustrate

the point you just made, there is a great deal of

conservatism built into the assumptions that support

the models, isn't that correct?

MR. HORNSHAW: That's correct.

MR. RIESER: And what would some examples be

of that conservatism?

MR. HORNSHAW: For example in the USEPA's SSL

approach, the derivation of the dilution factor that

was used -- well, the dilution factor of ten that was

in the original proposal for public comments from

USEPA and the final value of 20 that's incorporated in

this proposal, that was backed by -- I've talked with

the people at USEPA who have done the modeling to

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derive that value, that was backed up by about 16,000

model runs of the computer model that they used to

predict migration to groundwater using data from real

soils from around the country to ge

nerate this Monte

Carlo type of analysis.

And then the dilution factor was chosen to be,

it's either 90th or 95th percentile dilution factor

that was derived from these many model runs, so we

have confidence that what they've said is an upper

limit on the dilution factor and it probably is truly

an upper limit.

MR. RIESER: And what you've said about the

dilution factor would be true of other variables and

points in the models as well, is that correct?

MR. HORNSHAW: That's

correct.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Additional

follow-up questions?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, does that

conclude the Agency's response to questions from the

hearing?

MS. ROBINSON: Yes, it does, and I would

request that we take maybe a five minute break before

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we get into the line of questioning so that we can

regroup here for a moment.

HEARING OFFICER DESHARNAIS: Okay, we'll take

a five minute break.

(A recess was taken.)

HEARING OFFICER DESHARNAIS: The Agency's

ready to proceed with the remaining prefiled

questions. My understanding is that on the prefiled

questions, we're now up to Subpart I Tier 3 evaluation

questions beginning with 742.900. So we will turn to

the first three prefiled questions on that section

beginning with the Site Remediation Advisory

Committee.

MS. ROSEN: Number 1, will the Agency confirm

that Tier 3 evaluations can be performed for some

pathways while other pathways can be excluded by

comparison to Tier 1 values?

MS. VIRGIN: Yes, Tier 1 evaluations can be

performed for some pathways while other pathways can

be excluded by comparison to Tier 1 objectives.

MS. ROSEN: Number 2, will the Agency confirm

that Tier 3 represents a level of Agency review above

its project managers and is used to resolve complex

issues or situations beyond those provided for under

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Tier 1 and 2.

MS. VIRGIN: Yes, Tier 3 represents a level

of Agency review above its project managers.

MS. ROSEN: Will the Agency also confirm that

Tier 3 may be used for any reason, even if not

expressed in Section 742.900(c) listed situations

considered for a Tier 3 evaluation.

MS. VIRGIN: Yes, Tier 3 can be used for any

reasonable purpo ses.

MR. WATSON: I've got a follow-up question

and it goes to the second question, and that is is

there a specific program that's been developed in

terms of a committee that will review Tier 3

submittals?

MS. VIRGIN: There's not a specific committee

or specific program.

MR. KING: We don't have -- it's not a

specific programmatic function like we have some of

our other line functions. But what we have done, and

we've been doing this for the last several years, is

we -- where there is a Tier 3 type issue we make sure

that we have a consistent determination across our

remediation programs.

The manager who is head of that remediation

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program is still responsible for making the final

decision relative to that project, but we make sure

that there's a cross program review with the senior

managers within the Bureau of Land and in the Office

of Chemical Safety to make sure that there's -- that

some issue is not being missed that should be

otherwise included as far as valuation.

MR. RIESER: Is that the same or -- same as

the CORE?

MR. KING: Right, that's our description of

it, we call it the Cleanup Objectives Review and

Evaluation Group or the CORE Group.

MR. RIESER: Are the decisions of the CORE

Group recorded in any fashion?

MR. KING: There's not a decision of CORE

Group. There ends up being a decisio

n by the senior

manager who is responsible for that program. But

there will be -- they will have gone through and he

will have consulted with the other people.

MR. RIESER: Is there any way that a --

someone from outside the Agency can be aware of how

the Agency has consistently made the determination in

a specific area through its CORE Group?

MR. KING: I don't think so, because unless

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somebody wanted to look at all the remedial decisions

that the Agency has made, it would be kind of a

fishing expedition to do that. We really -- I don't

know how somebody would know that actually.

MR. RIESER: You yourselves don't keep a

record of like section by section for example of if

742 is adopted and it was being implemented, you

wouldn't keep a record section by section of how

different issues were handled?

MR. KING: We may end up taking some more of

a generic kind of d

ata to look at the types of -- the

types of sites, just more of a management kind of

function so that we can see the kinds of decisions

that are being made. I don't think we've really

thought that through totally at this point, how to

handle that.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

(No response.)

HEARING OFFICER DESHARNAIS: Next question.

MS. ROSEN: Question number 4, will the

Agency confirm that remedial objectives de

veloped

pursuant to Tier 3 offer equivalent protection as

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values derived under Tiers 1 and 2.

MS. VIRGIN: Remedial objectives that have

been developed pursuant to Tier 3 offer equivalent

protection as values derived under Tiers 1 and 2,

provided that the applicable controls and conditions

under which the decision was made do not change.

MS. ROSEN: Thank you.

HEARING OFFICER DESHARNAIS: Just a point I'd

just ask the Site Remediation Advisory Committee when

you're asking a question when it's -- we're up to your

prefiled question, please read the question into the

record so that it will appear in the record -- and

then if there's follow-up questions after the Agency

response, please raise your hand, wait for me to

acknowledge you, and then we'll have follow-up

questions.

The next prefiled questions on 742.900 were filed

by Gardner, C arton & Douglas. Mr. Watson, I believe

you're question 15.

MR. WATSON: Subpart I of proposed Part 742

sets forth the framework for conducting a Tier 3

evaluation. Question number (a), how will the Agency

evaluate the appropriateness of proposed Tier 3

methodologies?

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MR. KING: When we're looking at Tier 3

that's going to be a site-specific determination, it's

going to depend upon the nature of the proposal.

MR. SHERRILL: We had gone through kind of a

litany of things we do look at. I can repeat those if

you want. It was under the last -- it was kind of the

general things we look at.

MR. WATSON: Why don't you do that for the

record.

MR. SHERRILL: We look at the concentration

of contaminants, the toxicity of the contaminants, the

amount of contaminants, the estimated migratory routes

and pathways, whether any free phase contamina

nt is

present, whether the soil attenuation capacity is

exceeded, whether the soil saturation capacity is

exceeded, whether a sheen is visible either in the

soil, groundwater or surface water, whether remaining

contamination will be disturbed by construction

workers or other human activities, whether remaining

contamination will be disturbed by natural or animal

forces, high infiltration rates, highly permeable

geological units, sand seams, burrowing animals,

whether the releas

e point or release points of the

contamination have been located, the intended post

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remedial use of the property, in other words, whether

it's going to be residential or industrial/commercial,

whether the contamination is going to be covered by

some structure such as a building. That's not all

inclusive, but that's what we look at.

MR. O'BRIEN:

And over all those

particularities we look to see if the methodology used

is consistent with national consensus methodologies

and also whether it represents conditions and factors

relative to the site.

MR. WATSON: In looking at methodologies for

example, the Agency would, however, be open to new and

innovative models for instance that are being

developed as the program is being implemented, is that

right?

MR. O'BRIEN:

It's the intention of the Tier

3 flexibility is to be open to innovation.

MR. WATSON: I think my question on sub (b),

who will conduct this valuation, has been answered.

It's the CORE Group, is that correct?

MR. KING: Well, I see that as being a little

bit different here, the nature of the question. Who

is going to review the proposal is going to depend on

specifically what's -- what the type of -- what the

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nature of the proposal is.

In the past we've really had a broad

interdisciplinary approach to evaluating these kind of

issues, and in any specific case we'd have a

toxicologist or an attorney or an engineer or a

geologist in addition to the project manager. And a

chemist as well, we'll include Jim O'Brien.

MR. WATSON: My question (c) is what factors

will be considered in determining whether further

remediation is not practical as referenced at Section

742.900(c)(5) when addressing constituents identified

in the vicinity of and under permanent structures at a

site?

MR. KING: This really is very much of a

site-specific decision, and where we've looked at the

permanence issue, I don't know that we've normally --

I'm trying to recall instances where we disputed

somebody who said it was a permanent structure.

Normally it's pretty obvious that it's a permanent

structure, and in any case if the building's going to

get torn down, it's a contamination issue, somebody's

going to have to deal with it at that point.

So we've been -- we've reacted pretty favorably

when people have said things were permanent.

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HEARING OFFICER DESHARNAIS: Follow-up

questions. Miss Prena?

MR. WATSON: Let me ask one question if I

may. What is the -- when you use the term assessment

indicates further remediation is not practical, in the

context of an existing structure, contamination in the

vicinity of a structure, what would be the

circumstances under which remediation would not be

practical.

I mean this is -- what I'm looking for is a little

more guidance on this issue as it relates to

contamination in and around structures. This is an

issue that many of our clients are interested in

determining, in developing some certainty as to what

circumstances would allow them to -- or not allow

them, but under which they could rely on problems

associated with remediation

to argue for a -- leaving

that in place.

MR. KING: I don't know how much real

certainty we can provide on that, but I'll give you a

couple of examples.

One that we encounter, we've seen this frequently

under the tank program where a person obviously has to

do underground remediation, and contamination may have

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moved under a structure, and we've gotten to the point

where further remediation is going to start

undermining the foundation and the footings of the

structure, and when it gets to that point, you know,

unless there's -- if you continue to monitor the

situation and it doesn't look like things are moving

anywhere, then that would be the kind of situation

that we'd say hey, well, remediation further is

impractical.

MR. WATSON: Would you consider cost as being

a basis for impracticality?

MR. KING: I mean I think that comes into it

in terms of, you know, if you've got a 50 story

structure sitting on top of some contamination, the

notion of tearing that down to get to the

contamination is certainly a cost issue. I don't

think we -- we don't do a cost balancing in that kind

of context.

MR. WATSON: Would you consider for instance

incremental costs associated with the technology which

would allow you to drill vertically for instance to

remediate soil but would cost, you know, significantly

more?

MR. SHERRILL: We've seen examples in the

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site remediation program just through under their --

under the umbrella of corporate responsibility where

people -- I mean where this is not a -- would not be

-- where this is not an enforcement issue where people

have gone to pretty exorbitant means to get

contamination out from under a building that we told

them that, you know, that we weren't requiring them to

do it, but I mean this is like operational concerns

and they would remove six, nine inches of concrete in

an operating building to get at it.

So it gets -- you know, it's a site-specific call

and that when we do this issue with permanence, when

we know a lot of buildings trade hands in the Chicago

area, other industrial areas, when we know that a

building is going to be torn down, that provides a

good opportunity to get at that contamination.

MR. RAO: I have a follow-up questio

n. In

the situation where you were talking about

contamination under a structure, if the Agency allows

that to be as a condition where it's not practical to

remediate the contamination, would the structure be

considered as an engineered barrier or, you know, like

if somebody tears it down maybe ten years from now?

MR. KING: Right, that will be considered an

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engineered barrier and there woul

d need to be an

institutional control accompanying that. If at some

point a future property owner decided to tear the

building down, well then they would in essence be

violating the conditions of the No Further Remediation

Letter, and that would necessitate them coming back in

and addressing the contamination that had previously

involved the building.

HEARING OFFICER DESHARNAIS: Additional

follow-up, Mr. Watson?

MR. WATSON: No, thank you.

HEARING OFFICER DESHARNAIS: Miss Prena.

MS. PRENA: Can you provide us with another

example of what might be considered a common sense

assessment that no further -- that further remediation

is not practical, other than the building situation?

MR. HORNSHAW: One other situation that's

come up in the past is where contamination is already

in the saturated zone and the engineered to extract

that is pretty novel or nonexistent, in those cases

that contamination is allowed to be m

anaged, or if

it's real minor it's just said enough is enough.

MS. PRENA: Are there any other examples?

MR. CLAY: There's one where we've had

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fiber-optic cables, so instead of disturbing those,

we've allowed a Tier 3 valuation there.

MR. O'BRIEN: We've allowed support under

other underground utilities like sewer lines and so on

that would be -- where the amount of contamination,

you know, has been removed on both sides, but actually

supporting the line under it has been allowed to be

left in place because essentially the mass of

contamination is so small that it wouldn't really

contribute to additional risk.

And we've also done the same thing with especially

in gas station situations where you have canopies over

the pump islands and where they -- those rest on

footings, it may just be a foot or two square, and

rather than have to tear down the entire canopy

something like that or put restrictions on them

removing the footing later, that contamination in a

small area is allowed to be left at existing levels.

MS. PRENA: Okay.

HEARING OFFICER DESHARNAIS: Any additional

follow-up, Mr. Watson?

MR. WATSON: Would that include also

underground structures that perhaps have been taken

out of service but not removed from the ground? I

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mean I guess one of the examples that I -- that we're

involved in is that at old gas plant sites where

you've got all kinds of underground piping that has

been left in place because there's a lot of it, and

the question is what would be obligations for

remediation based on the existence of those no longer

used piping, and I guess we're wondering whether or

not those would be circumstances under which

practicality or common sense assessments would allow

you to leave that kind of material in the ground.

MR. O'BRIEN: I don't remember that we've ever

addressed that particular situation. The references

to piping were things that were still in use and

therefore that the disruption would cause a -- you

know, other effects. I don't believe that we've ever

had the argument brought to us that things that were

abandoned, that that was a justifiable reason.

MR. WATSON: Are you saying that that's not

appropriate in your view?

MR. O'BRIEN: I don't think we've ever made

the decision on that.

MR. WATSON: So you certainly would allow

people to argue impracticality based on the existence

of abandoned underground structures?

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MR. O'BRIEN: Well, that's what the reason

for is to allow us to consider all the factors

relevant at a particular site.

HEARING OFFICER DESHARNAIS: Additional

follow-up on 742.900?

MR. RAO: Mr. King, you and Jim O'Brien were

giving examples of where this common sense assessment

-- examples of this common sense approach may apply.

Could roads and highways be an example if there's

any contamination under them? Okay, Gary.

MR. KING: I think the issue with roads and

highways is kind of a complex one. As Mr. Schick and

I have had many discussions about for the last several

months, and the fact that contamination is on property

that's owned by for instance Dep

artment of

Transportation, that shouldn't automatically mean that

you've got an impractical remediation, okay? I mean

because they've got lots of median areas and lots of

buffer zones around the actual highway itself.

So there may be -- it may be that it's not

impractical in those situations. And that really

again comes down to the nature of a case by case

situation looking at it. If it is actually under the

highway structure and it's an operating highway, you

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know, it would seem like that's the kind of -- from a

common sense standpoint to say well, let's not tear

that highway up, you know, if there's some other way

to deal with the situation and preserve the integrity

of the highway, preserve the integrity relative to any

future remediation efforts that might go forward.

MR. SCHICK: Could I follow up with that?

I'm Randy Schick from DOT. And we've also got a

specific section under institutional controls to deal

with highways.

MS. McFAWN: Yes, you have a -- excuse me,

you have a specific section?

MR. SCHICK: There's a specific section in

the proposed rules on highway authorities dealing with

contamination in the right-of-way.

MS. McFAWN: Where is that?

MR. SCHICK: 1020.

MS. McFAWN: The Agency's pointed out to us

that's it's Section 742.1020, is that the one you're

referring to?

MR. SCHICK: That's correct. An

d so I would

think that we'd like to enter into an agreement to

leave it under the highway under this section if a

highway authority didn't -- if you couldn't negotiate

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that kind of agreement, then that's going to -- when

it becomes impractical, I mean in that sense.

So that could be an example when it might become

impractical. That leaves open the question then if

the highway authority later com

es back to that area,

and that party's gotten no a further remediation

letter, how they would be foreclosed from recovering

that cost in that situation. But those are -- you

know, that's just an open issue I think.

But the highway authority, we should have the

opportunity first of all to negotiate leaving it under

the road and protecting the environment if the road is

later excavated at some point in the future. And that

could be addressed in the agreement.

MS. McFAWN: So you're basically saying that

you would see this as an example of it not being

practical and you'd have the institutional control?

MR. SCHICK: Yes, similar to what Gary is

talking about the building. As long as the building

is in place, I mean we'd be willing, we would be

willing to leave it under the road. But if the road

-- you know, if the building's removed or say the

highway's later reopened for utility work or highway

improvement, it's not impractical at

that point.

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And so we'd like to have an understanding with

those parties in that situation that it's okay to

leave it there except we -- except in the situation

where we excavate it, you know, we would like to have

an agreement that that cost would be covered by that

party that we've agreed to leave it there, to cover.

MS. McFAWN: Well, now you're into another

issue. The Board's question was just is that an

example of being it being practical or not practical.

I think you've helped us.

MR. SCHICK: Okay.

HEARING OFFICER DESHARNAIS: Miss Prena?

MS. PRENA: Would an example include

disturbing natural resources such as unique plant

species or important plants or animals?

MR. KING: It's never come up, so I don't

know what to think about that one. It might be

something worth considering.

HEARING OFFICER DESHARNAIS: Additi

onal

follow-up, Mr. Watson?

MR. WATSON: Yes. With respect to leaving

contamination under permanent structures, you may have

answered this question previously, but I'd like to

just confirm it.

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With respect to the existence of free product

underneath the building, is it true that a party would

be allowed to argue under Tier 3 that leaving free

product under a building based on practicality a

common sense approaches would be appropriate?

MR. O'BRIEN: I believe that they'd also have

to make a showing that it wasn't mobile.

MR. SHERRILL: But yes is your answer. I

mean they could propose it.

MR. WATSON: And the Agency would --

MR. SHERRILL: We'll review it, yes.

MR. WATSON: Review it and potentially accept

that proposal, and what you're saying there is the

primary issue is whether the free product is mobile

and migrating off site?

MR. SHERRILL: Th

at is one of the primary

issues, and then the other issues is what I've listed

before. The migratory, you know, you have off-site

and on-site concerns, and that's just one of the

issues.

MS. ROBINSON: Could I ask a follow-up?

HEARING OFFICER DESHARNAIS: Miss Robinson.

MS. ROBINSON: Would it necessarily have to

migrate off-site for it to be a concern to us? If it

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migrated to a prec

eptor that's on-site would it then

be a concern to us?

MR. SHERRILL: Yes, that's correct.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

MR. RAO: I have another question. Is this

common sense approach a very simple assessment?

MR. KING: Yeah, it has been. I mean

normally what we see as we're talking about this CORE

Group process in the past is the -- normally there's a

memo from the project manager that kind of outlines

the circumstances and it really is a fairly simple

submittal in most every case. It's one of the kind of

situations that we look at as being fairly easy to

make a decision about.

MR. RAO: But when reviewing the information

will the Agency consider all the other factors, you

know, the exposure of routes and pathways and things

like that, if somebody comes to you and says say we

have this contamination under a structure so we want

to leave it there, but they have to justify thei

remediation approach with all the other things that

are required under the rule?

MR. KING: Yeah, I think that's true. I mean

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it's like we were saying before, there's a series of

-- you know, you have to make a site-specific

evaluation. I mean one of the -- we were just talking

about the free product situation, you know. If you

had, you know, pure, a pure gasoline spill and it was

flowing underneath a building and it was going into

sewers and it was threatening to blow up the whole

building, well, you know, it wouldn't be very

practical to say let's leave that there.

I mean you have to look at that site-specific

situation and make sure that it was addressed.

MR. RAO: Yes, and the reason I ask is that

current common sense that it would turn around a lot

of different programs and some very loosely, so I just

wanted to make sure that.

MR. KING: Well, we've always used that term,

particularly when we've talked to people about making

decisions so that they can understand we're on Tier 3,

because the normal reaction was we said well, this was

a Tier 3 determination, the immediate reaction is that

people think oh, well, this means formalized risk

assessment, you've got to do a risk assessment that's

going to cost tens of thousands of dollars. And well,

we don't ever want to get into that situation.

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Well, that is a potential -- that is a potential

way of doing things under Tier 3, but we wanted to

kind of indicate that there's a different way of

looking at those kind of issues that's not to that far

of an extreme.

MR. RAO: Thank you.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, the next

prefiled questions are on Section 742.905 from the

Site Remediation Advisory Committee.

MR. RIESER: This is number one, on page two

of Tracey Virgin's testimony she states that "Section

742.900 begins by stating that Tier 3 has been

developed to be flexible and to address sites that are

not suitable for Tier 1 or Tier 2 analyses."

Is it correct that "suitability" is not a

requirement for utilizing Tier 3?

MS. VIRGIN: That is correct, suitability is

not a requirement.

MR. RIESER: It is also correct -- is it also

correct that it is the owner's decision as to the

mechanism (for example exposure route exclusion, use

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of background concentrations, Tier 1, 2 or 3) to be

used when developing a remedial action plan?

MS. VIRGIN: Yes, it is the owner's decision

as to the mechanisms to be used, exposure route

evaluation under Subpart C use of background or Tiers

1 or 2 or 3 when developing a remedial action plan.

MR. RIESER: May an owner go directly to Tier

3 when addressing a recognized environmental condition

and bypass Tier 1 or Tier 2 assessments?

MS. VIRGIN: Yes, an owner may bypass Tiers 1

or 2 and go directly to Tier 3.

MR. RIESER: Will the Agency confirm that

under Tier 3 a persons could vary any Tier 2 variable

for any valid site-specific reason?

MS. VIRGIN: Yes, the Agency will consider

that Tier 2 variables can be proposed for change under

Tier 3 for a valid site-specific reason.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any follow-up

questions on 742.905?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, the next

section is 742.910 from the Site Remediation Advisory

Committee again.

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MS. ROSEN: Question number one, are the

elements as to what the Agency will consider when

reviewing alternative model req

uests, as described in

Tracey Virgin's testimony, reflected in the proposal?

MS. VIRGIN: The elements that the Agency

will consider in reviewing alternative model requests

as discussed in my testimony are intended to give

additional information to justification. The elements

are not intended to be requirements but rather are

illustrations, and these elements are based on Agency

experience between 35 IAC and 811.

MS. ROSEN: I'm sorry, could you repeat the

end of your answer?

MS. VIRGIN: These elements are based on

Agency experience including 35 IAC 811.

MS. ROSEN: Okay. Do you believe that the

elements that you've reflected in your testimony are

appropriate given what is contained within the actual

proposal?

MS. VIRGIN: Yes, they are appropriate.

MS. ROSEN: Thank you.

HEARING OFFICER DESHARNAIS: Any follow-up

questions on 742.910?

(No response.)

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HEARING OFFICER DESHARNAIS: The next

questions concern 742.915, formal risk assessments,

from the Site Remediation Advisory Committee.

MR. RIESER: Are the elements as to what the

Agency will evaluate when reviewing formal risk

assessments, as described in Tracey Virgin's

testimony, reflected in the proposal?

MS. VIRGIN: The elements when reviewing risk

assessments that I described in my testimony are

informational and are not descriptive, and again they

were rather t o serve as illustrations. And again

these elements are based on Agency experience and also

including the USEPA's risk assessment guidance for

Super Fund document.

MR. RIESER: So they're examples of how

people would do what's required under 915.

MS. VIRGIN: Right, they're to serve as

illustrations and examples.

MR. RIESER: And it's your testimony that

they're appropriate to -- these are appropriate steps

in performing the steps under 915.

MS. VIRGIN: Yes, they are appropriate.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any follow-up on

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742.915?

(No response.)

HEARING OFFICER DESHARNAIS: Next section on

which there's prefiled questions is 742.920 entitled

impractical remediation, again from the Site

Remediation Advisory Committee.

MS. ROSEN: These have been touched on

briefly, but we would like to ask them

for the

purposes of the record.

Question number one, what standards or criteria

will be used for determining technical

impracticability under this section?

MR. KING: This is kind of a long answer, so

I'm going to just read these. These are kind of the

factors that we have ascribed in reviewing this

question.

The concentration of the contaminants, the

toxicity of the contaminants, the amount of the

contaminants, the estimated migratory pathways, the

presence of any free phase contaminants, whether soil

attenuation capacity is exceeded, whether soil

saturation limits have been exceeded, whether a sheen

is visible either in the soil, groundwater or surface

water, whether remaining contamination will be

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disturbed by construction workers or other human

activities, whether remaining contamination will be

disturbed by natural or animal forces, such a

infiltration, highly permeable units such as

geological units, sand seams and burrowing animals,

whether the release point of the contamination can be

located, for instance under -- the comparison is

between the LUST program, which we already have

identified a tank with a known release point versus

the -- a site in the -- under the Part 740 rules where

the release point is more unknown, and thus you have

to have a different characterization of contamination,

the intended post remed

ial use of the property, and

whether there's a permanent structure such as a

building over the contamination.

MR. RIESER: Is there an element of technical

impracticality that you've listed there? In other

words, the infeasibility of getting to or removing the

contamination?

MS. McFAWN: Mr. Rieser, can you use that

microphone?

MR. RIESER: I'm sorry, the infeasibility,

would you also consider the infeasibility or

impracticality of either getting to or removing the

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contamination?

MR. KING: That would be an included factor,

yes.

MR. RIESER: And the relative cost of dealing

with the contamination compared to the risk of leaving

it in place?

MR. KING: Yeah, in a -- again you always

come back to the issue of being practical. But yeah,

it would be a pragmatic kind of thing. I don't think

we are going to look at specific cost analysis things,

but it's going to be more of a pragmatic

consideration.

MR. RIESER: Is this different from the

factors you talked about with respect to the common

sense type issues?

MR. KING: No, these are -- this is an

amplified list where we got to that specific question.

MR. RIESER: Okay. Thanks. If I can go back

to something on Section 915(a), you talk about one of

the standards for looking at risk assessment is

whether the risk assessment procedures is nationally

recognized and accepted, and I think Mr. O'Brien

addressed this in response to another question on

another section, but would the Agency look at risk

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assessment procedures that are new and not nationally

recognized?

MR. O'BRIEN: Well, I think we'd consider in

-- this is the section on formal risk assessment, and

there I think we'd look at how much deviation there

was from national consensus approa

ch and whether that

made sense considering the factors at the site.

HEARING OFFICER DESHARNAIS: Miss Prena.

MS. PRENA: Well, for example if there were

new risk assessment procedures being used in

California, would those be -- and they were used in

California but not in the rest of the country because

they were new, would that still be something that

you'd look at?

MR. O'BRIEN: Well, we have to look at them in

the context of this, of the site and what it was. I

mean it' s -- the point of Tier 3 is to have an area of

flexibility so where we can look at some things that

aren't nailed down to let us look at innovative

approaches to things, but we've still got to kind of

consider whether that's relevant to the site and to

general principles underlying national consensus, the

approaches to this.

MS. VIRGIN: We'd also want to make sure that

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the new risk assessment procedures offered equivalent

of protection as the other nationally recognized

procedures.

MS. PRENA: Well, that is you'd be looking at

the quality of the approach rather than whether it was

nationally recognized?

MS. VIRGIN: Right, right.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up again on 915?

(No response.)

HEARING OFFICER DESHARNAIS: Did the Site

Remediation Advisory Committee wish to ask its second

question on 742.920?

MR. RIESER: Yes, this also has been touched

on in the context of the common sense approach, but I

think it makes sense to ask it under this section as

well.

Will the impractical remediation provision apply

for areas off-site, i.e. under roadways?

MR. KING: That's again as we were saying

before, that's really a site-specific kind of issue,

and I think I really don't have too much to add beyond

the colloquy that Randy Schick and I were having

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relative to that issue.

MR. RIESER: But let's take it out of the

roadway context, let's suggest that there is a

building right on the property line that's off-site

and the contamination is under that off-site

structure.

MR. KING: It's possible, again the issue

with off-site contamination, the key issue there is

relative to the acceptance of that remediation

strategy by the off-site landowner.

MR. RIESER: Which kind of begs the next

question, which is what happens then if a -- it says

roadway, but let me substitute it for this adjoining

property owner, will not agree to an institutional

control regarding remaining contamination under the

structure, even if it is technically impractical to

remove it?

MR. KING: Well, I think what happens then is

it changes the nature of the NFR determination. The

NFR determination is not going to cover that off-site

area.

MR. RIESER: Unless you got the approval of

the adjoining property owner to expand the remediation

site?

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MR. KING: That's correct.

MR. RIESER: Okay.

HEARING OFFICER DESHARNAIS: Additional

follow-up on 742.920?

MS. McFAWN: I have a question. You know

that list you read, Gary? And maybe you already

answered this, but is that in the rules anywhere?

Because that was the second time I

'd heard that list

of factors you would consider.

MR. SHERRILL: No.

MS. McFAWN: Thank you, Mr. Sherrill.

MS. ROBINSON: Is that list meant to be all

inclusive?

MR. SHERRILL: No.

HEARING OFFICER DESHARNAIS: Mr. Watson?

MR. WATSON: How was that list developed?

MR. KING: Well, it was kind of a -- as

follow-up to the questions that were presented

relative to this hearing process, and we kind of sat

down and reviewed our experience relative to these

issues and set forth what the different issues were

that people were considering when they went through

this process.

MR. WATSON: So it doesn't comes from a

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specific guidance document?

MR. KING: No, it does not.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

(No response.)

HEARING OFFICER DESHARNAIS: The next section

on which there are prefiled questions is 742.925

concerning exposure routes by the Site Remediation

Advisory Committee.

MS. ROSEN: Number one, on page 6 of Miss

Virgin's testimony she states that "Section 742.925

provides guidance for submittals made to the Agency

demonstrating that a particular exposure route is not

viable at a site."

When Miss Virgin uses the term viable, does she

mean that Section 742.925 is another mechanism to

exclude an exposure route that is not complete, for

example meaning a contaminant of concern

, an exposure

route, and a receptor activity at the point of

exposure that could result in contaminant of concern

intake?

MS. VIRGIN: Yes, Section 742.925 is another

mechanism to exclude a route.

MS. ROSEN: Okay. And when you use the word

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viable, that's what you intended?

MS. VIRGIN: Yes.

MS. ROSEN: Okay, thank you.

HEARING OFFICER DESHARNAIS: Any follow-up

questions? Mr. Reott.

MR. REOTT: If you exclude a route under that

section, do you need to also do the analysis under I

think it's 305 and the other sections that immediately

follow it? That's the pathway exclusion, Subpart C.

MR. SHERRILL: It's not specifically

required, but we would look at those issues.

MR. REOTT: When you say you would look at

those issues, the pathway exclusion, pathway exclusion

rules in Subpart C have some very specific

requirements that must be m

et in order to exclude

pathways. Do you have to meet those specific

requirements in order to exclude a pathway under the

Tier 3 provision?

MS. VIRGIN: No, you do not have to meet

those requirements.

HEARING OFFICER DESHARNAIS: Additional

follow-up on 925?

MS. McFAWN: I just want to make sure I

understand this. So if you go this route through the

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925 provisions you don't have to do anything

addressing Subpart C?

MS. VIRGIN: Well, we would look at some of

those factors if the site warrants it. The factors in

Subpart C are not required. Tier 3 is designed to be

more flexible than Tier 2.

MS. McFAWN: Okay, so you say you would look

at it, that being the Agency. What if the applicant

hasn't provided you any information under it, because

they're thinking well, I don't have to address that?

MR. SHERRILL: Well, under 742.2

25 -- I'm

sorry, under 742.925, we have this (a) through (f), we

have this (a) through (f) which kind of they need to

address those particular parameters, and by addressing

those you indirectly address some of those issues

under Subpart C. Because the --

MS. McFAWN: But it's probably not all

inclusive, it's probably not as detailed as Subpart C,

or is it?

MR. SHERRILL: It's not intended to be.

There again, you know, it's a site-specific call. And

like for example tha

t under (a) description of the

route evaluated, you're either going to be looking at

ingestion, inhalation, migration to groundwater,

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injection of groundwater, you know, which Subpart C

lays out in detail.

Well, so a description of the route, you're going

to have to provide an applicant or a respondent's

going to have to provide something describing that

particular route they're wanting to exclude.

MR. KING: I think part of the reason why

we're a little bit unclear perhaps in our answer here

is that we want to -- I think the answer really those

criteria in Subpart C are going to be looked at as

sort of a bench mark, even if they're not directly

applicable.

If somebody came in and they said well, I don't

meet this requirement for three feet of cover, but I

can show that it's going to be two feet nine inches, I

can't make it three but I can make it two feet nine

inches , and it's really going to be okay with that

kind of level, you know, I think that using that as

kind of a factor or bench mark makes the decision

process a little easier for us.

So I think it will be -- they'll be used not in a

mandatory sort of way, but as a way to kind of help

guide some of the process under 925. And there may be

-- there may be totally different approaches, you

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know.

For instance I think under the -- when we look at

some of the groundwater issues and the migration to

groundwater issues, we really -- we haven't --

Subpart C doesn't -- has an exclusion, a way of

excluding the groundwater pathway based on the -- when

the contamination is in the groundwater, but doesn't

talk about the migration to groundwater issue.

And I think we'll get into some situations under

925 where that will become a proposal as far as

excluding a pathway.

MR. RAO: So wou ld it make sense for somebody

who cannot meet all the criteria under Subpart C to

exclude a pathway to do it under Tier 3?

MR. KING: I think we will see proposals like

that, yes.

HEARING OFFICER DESHARNAIS: Mr. Rieser?

MR. RIESER: Yes, just two issues, but to

clarify on the last part. There's actually a

provision under Subpart C that references Subpart I so

that pathways can be excluded. It is clear from a

review of Subpart C that even if you don't meet the

Subpar t C factors you can still exclude a pathway

under this section, correct?

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MR. KING: I would agree with that.

MR. RIESER: And one other clarification, and

this is a follow-up on Mr. Reott's point. 742.305 has

some very, very specific factors in terms of

saturation, soil attenuations, soil saturation, those

levels which would exclude you from a demonstration

under Subpart C, and I want to clarify that an

exceedance of any of those would not automatically

exclude you from a demonstration under 925.

MR. KING: I think that's correct.

MR. RIESER: Thank you.

MR. HORNSHAW: Can I follow up just a little

bit? Going a little bit beyond that, if I understood

Mr. Reott's question correctly, I thought if you

excluded a pathway under 925, that you wouldn't have

to meet any of the things in Subpart C. And I can see

situations for instan

ce where as Gary pointed out if

somebody comes in with two feet nine inches of clay,

we would probably agree that the ingestion pathway is

excluded from further consideration.

But I can see where we'd still be concerned for

instance if the soils at the site in 305(d) where

you're talking about pH, if we had real acidic or real

basic soils, we'd still be concerned about that, even

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if the pathway of ingestion has been excluded.

MR. RIESER: But you could still make a

demonstration that the pathways, that all the pathways

are excluded based on site-specific factors, even if

that was the case.

MR. HORNSHAW: That's correct.

HEARING OFFICER DESHARNAIS: Mr. Feinen.

MR. FEINEN: The Agency doesn't intend to

exclude or make a determination that someone didn't

demonstrate exposure pathway exclusion based on 925

because it didn't meet the requirements of Subpart

That's not going to be done. You're not going to list

something in Subpart C and say you didn't do this and

therefore we're not going to give you a 925 exclusion.

MR. KING: That's correct.

MR. RAO: I have a question about this

exposure in a route exclusion. What's the difference

between a Subpart C exclusion and a Tier 3 exclusion

pathways? You know you have the Subpart C criteria

and then you say well, as an alternative you can go to

Tier 3.

MR. SHERRILL: Wh

en we were developing the

742 rules with the site -- with the committee, the

Agency's initial proposals we didn't even -- there was

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not a Subpart C, and the advisory committee provided

guidance on developing Subpart C, which would be a

prescriptive by rule approach to excluding pathways.

And through consultation with various Agency

people and people outside the Agency and working with

the committee, we came up with Subpart C. And then --

but Subpart C is a prescriptive by rule approach where

those certain guidelines had to be met, and the Agency

has experience where there are sites where other

routes, where routes cannot be excluded by meeting

those criteria, such as what Gary brought up on let's

just say if you just wanted to look at the migration

to groundwater route, and there's so many variables

that can go into that, we wanted to offer a flexible

procedure u nder Tier 3.

MR. KING: If you think about Subpart C as

really creating what I would call a safe harbor, if

you meet these criteria, then that's going to be an

acceptable proposal. One of the -- I think the

committee saw one of the problems, from their point of

view one of the problems with Tier 3 on this issue was

there was just not enough specificity.

And so this is a way that creates a specific way

of doing it that somebody can use as a safe harbor,

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and, you know, so we agreed that there should be that

kind of safe harbor. We just wanted to make sure that

there was flexibility to consider types of proposals.

MR. RAO: Thank you.

MS. McFAWN: Mr. Rieser or maybe Mr. Watson

can answer this. Is the committee going to testify

about this development of Subpart C? This is the

second time I've heard this come up that really

originated with the committee versus the Agency.

MR. RIESER: We can certainly, we can offer

testimony on this issue.

MS. McFAWN: That would be appreciated.

MR. RIESER: Okay.

HEARING OFFICER DESHARNAIS: Mr. Watson?

MR. RIESER: Then we will.

MR. WATSON: I'd just like to clarify in my

mind the discussion here and how it relates I think to

discussions we had at the initial hearing, and it

relates to 305 specifically (c) through (e), and again

we've talked today

about this is being a prescriptive

approach, and really what these are is there are

specific criteria, if you don't meet them under

Subpart C then you cannot exclude the exposure

pathway.

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And arguably they do not consider a formal risk

assessment approach as you would consider in 925, and

I guess what I would like is clarification that the

Agency will not use the values generated in the 305

analysis to automatically kick you out of exposure

route exclusion under Tier 3 925, is that correct?

MR. KING: Yeah, I think that's what I said

earlier. And I'll just -- but again we have to get

back to the point that Tom was saying, these criteria,

although they may not be specific denial points,

certainly are the kinds of issues that need to be

considered and evaluated in determining whether a

pathway is excluded.

I mean if we are -- if the contaminant levels are

such that they're above the soil saturation limits,

then that's indicative of -- for instance those Tier 2

models, they're just not going to work right. So we

are going to look at those as factors to consider

whether the proposal itself makes sense.

MR. WATSON: Right. And for instance again

if you have high pH levels, you've got to deal with

those in a 925 risk assessment analysis of course.

But the mere existence of those levels above what

would be -- what would allow you to get out o

f section

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-- a pathway under 305 would not -- could not be a

basis for the Agency to say that you can't exclude a

pathway under a risk assessment approach, correct?

MR. KING: That's correct.

HEARING OFFICER DESHARNAIS: Additional

follow-up on 925?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, the next

prefiled questions concern 742.935, which is entitled

agricultural uses and ecological receptors, and it's

listed as a reserved section.

I would just clarify at this point that the Joint

Committee on Administrative Rules does not allow us to

include reserve sections in a proposal, so therefore

this would not be present in the final adopted

proposals as it exists there as a reserve section.

It may be something that the Agency is considering

drafting a proposal for, and it's a good indication of

where they would put that. But it's n

ot something

that will be included in the final adopted proposal by

the Board.

So with that we'll turn to the prefiled question

from the Site Remediation Advisory Committee.

MR. RIESER: And the questions are still

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valid, even if this section is removed, because there

was a discussion earlier last week in terms of how the

issues were going to be handled, and that comes up

under some footnotes in the Tier 1 tables. And so

they still need to be addressed because there's an

underlying issue in agricultural issues back there.

So is it correct that unless there's evidence to

indicate the presence of an ecological issue at the

site, a detailed ecological assessment will not be

required?

MR. O'BRIEN: We anticipate that unless there

is evidence to indicate the actual presence of an

ecological issue, that we won't require detailed

ecological assessment,

but we haven't proposed any

specific wording in this section, and we don't really

have the specifics of an approach in mind. So I

wouldn't want to make statements at this time that

would lock us into something without having the

flexibility of developing an approach, being able to

articulate it in detail and having discussion and

consideration at some future point.

MR. RIESER: And the reason the Agency

doesn't have a proposal here at this time is that

nationally there's not

really recognized means for

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doing that, is that correct?

MR. O'BRIEN: Yes, well, nationally there's a

lot of talk and theory, but there's not the kind of

specifics regarding exposure factors, et cetera, that

-- and national consensus on how to go about doing

that to the degree that there is with respect to human

health.

MR. RIESER: What standards or factors will

be used to determine the presence of an ecological

issue?

MR. O'BRIEN: We anticipate that the presence

of wet lands, presence of threatened or endangered

species in the post remedial use was intended to be a

conservation area, or if commercial or sport fishing

is evident, those types of factors would be the types

of things we'd look forward to in determining whether

or not there was a significant ecological issue.

MR. RIESER: And those would be factors

associated with the

area where the contamination was

or where it might impact?

MR. O'BRIEN: Right, where the exposure to

the organisms, to the ecological organisms would

occur.

MR. RIESER: If the section -- well, this may

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be modified based on the Hearing Officer's discussion,

but if section for ecological assessment were to be

added in a rule making at a later date, is it correct

that the Agency does not in

tend to reopen all of the

sites where NFR determinations have been issued and

require an ecological assessment at those previously

closed sites?

MR. O'BRIEN: That's correct, the Agency does

not intend to reopen sites that have been dealt with.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up on 935?

(No response.)

HEARING OFFICER DESHARNAIS: Okay. The next

sections in the prefiled questions that specifically

address a particular section would go on to the

institutional control. Before we move on to that, Mr.

Reott, do you have any additional questions on --

MR. REOTT: They've all been dealt with.

HEARING OFFICER DESHARNAIS: Then what we're

going to do is after lunch we'll continue with the

institutional controls and the D questions. We'll

take an hour break for lunch, so we'll be back here at

approximately quarter after.

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(A recess was taken for lunch.)

HEARING OFFICER DESHARNAIS: If we could get

ready to go back on the record. Welcome back from

lunch everybody. We're going to continue with the

prefiled questions. Beginning with Subpart J,

institutional controls, Part 742.1000. Beginning with

the questions of the Site Remediation Advisory

Committee.

MR. RIESER: Our first question is on page 24

of Mr. Sherrill's testimony he discusses the fact that

remediation objectives based on an

industrial/commercial property must have an

institutional control in place. He also states in

conclusion that "it is anticipated some commercially

zoned property could be subject to residential use if

it is evident that children have the opportunity for

repeated exposure to contaminants through ingestion or

inhalation."

Is it the intent of his testimony to say that

zoning is insufficient as an institutional control?

MR. SHERRILL: Yes.

MR. RIESER: And why is that?

MR. SHERRILL: We've gone through and put in

definitions of what an institutional control is, and

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we do not think that zoning provides the proper intent

of our definition to restrict on how you would

restrict property use as far as an institutional

control.

MR. RIESER: It wouldn't be sufficiently

specific to an individual site, is that what you're

saying?

MR. SHERRILL: Potentially, yes. I think we

had gone over this somewhat, Gary King had, Mr. King

had in our previous testimony on what we wanted to

make clear was the distinction between commercially

zoned and our definition of residential under Part

742.

HEARING OFFICER DESHARNAIS: Mr. Watson?

MR. WATSON: I've got a follow-up question on

that. And I guess I don't understand the distinction

between an ordinance, which is a municipal action, and

a zoning, which seems to b

e a similar sort of

municipal action that would control and dictate land

uses, and I guess I just don't see how the distinction

that the Agency is drawing in terms of why one is

acceptable and one is not acceptable.

MR. KING: I think if you look at a typical

zoning ordinance for instance that a community adopts,

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where it designates what is industrial/commercial

property, it's not automaticall

y excluding all other

uses relative to that property. So you could clearly

have certain things that we would consider residential

for purposes of the Part 742 definitions could be a

legal use within a commercial zoning designation that

would be typically enacted by a local government.

MR. WATSON: What if there was a showing made

that there were no residential uses being placed on a

property that was zoned commercial or industrial? If

we could make that showing, would that allow you to

point to the zoning as being something that could be a

potential institutional control?

MR. SHERRILL: Well, the purpose --

MR. KING: No.

MR. WATSON: And why not? The reasons stated

previously?

MR. KING: Because we designated certain

things as institutional controls. This is not a Tier

3 issue. This is an issue of what our -- should be

the legally recognized mechanism.

Now if somebody were -- I mean if somebo

dy were to

come in and make a demonstration, I suppose that our

general understanding of the way these ordinances work

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is totally wrong, I suppose that would be something to

consider, but I don't think that's the case.

MR. RIESER: Let me finish up on the rest of

this question one. Would the Agency refuse to accept

a land use identification as commercial use if

children happen to be present, and

if so, what

criteria would be used to make such a determination?

MR. SHERRILL: I'll give the example where we

may have a property that may be zoned commercial but

is being used as a child day care center with open

playgrounds, potential soil exposures, we would

consider that per our definition of residential

property to be considered residential property.

MR. RIESER: But a children's activity spot

such as Discovery Zone for example in a strip mall

where there's no outside exposure, that wouldn't come

into that example, would it?

MR. KING: You know I hate to get too

specific in trying to figure out whether Discovery

Zone is -- should be qualified as a residential

property. My kids like to go there, too. But I don't

know if we want to make that kind of site-specific

exclusion.

MR. RIESER: Well, I'm using this as an

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example of so mething that's totally -- at least the

one I'm familiar with totally enclosed, has no outdoor

exposure, is not really different from being in any

type of other store, commercial establishment, and

establishing that the key factor is exposure to the

soil rather than the fact merely of children being

present.

MR. SHERRILL: I guess I, you know, just keep

going back to the definition under 742.200.

Residential property means any real property that is

used for habitation by individuals or properties where

children have the opportunity for exposure to

contaminants through ingestion or inhalation, and

educational facilities, health care facilities, child

care facilities or playgrounds, and then the

definition for industrial/commercial means any real

property that does not meet the definition of

residential property, conservation property or

agricultural property.

So, you know, I mean if children did not have the

opportunity under res

idential property for exposure to

contaminants through ingestion or inhalation, you

know, I mean that's something we can look at.

MR. RIESER: And that would be the

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determining factor?

MR. SHERRILL: I guess there again it's that

definition of residential property, yes.

HEARING OFFICER DESHARNAIS: Mr. Watson?

MR. WATSON: Could you provide some

amplification with respect to what you mean

by a

playground? I mean I think that that's an area where

I see as being a real problem area. Certainly we want

it -- to the extent that there are children that are

being exposed at a particular activity, that that, you

know, that's something that we certainly want to

protect against.

But, you know, you start getting into things like

Discovery Zone and a McDonald's that has an outdoor

slide or swing, and then you've got hotels that maybe

have a swing set or something, and I think the concern

is that we've got that broad term that brings in a lot

of historically commercial uses where there really

isn't a realistic exposure to children on a chronic

basis, and yet, you know, it just becomes a very

difficult issue to deal with, especially since so much

of this program is dependent upon how you classify

your site.

MR. KING: Well, you also have to remember

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when we started off developing these definitions, like

over a year ago, we had the catchall definition was

residential. And so everything fell to that. Okay,

and the argument was made to us that no, you really --

you should do it the other way.

Well, so we agreed that yeah, okay, let's change

it around and do it the other way. So I think there

has to be -- I mean one way to do things would be to

leave that residential as kind of open ended as kind

of the catchall thing, and then try to define other

uses specifically. But we really concluded that, you

know, for purposes of the program working properly, it

was better to do it this way.

Now, there's admittedly as we sit here today, we

can't make decisions on every potential exposure to

children. I think that's something that is going to

have to come up on specific cases, and I think most of

the time when the opportunity arises, you know, owners

tend to design their projects to minimize those kind

of exposures.

If somebody is designing a shopping center and

they know there's contamination in a specific

location, they intend to leave it there, well, I'm

sure they're going to try to not put it underneath

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something they know where children are going to be

exposed to, because it's just creating a potential

problem for themselves long term.

So I think again it's one of those kind of -- you

have to look at it and figure out what's the most

sensible practical application.

MR. WATSON: Okay, thank you.

HEARING OFFICER DESHARNAIS: Additional

follow-up questions?

(No response.)

MS. ROSEN: Number two. Assume that there is

a piece of property in an area that is both

residential and commercial and the background levels

on the piece of property equal the Tier 2 residential

levels. The owner demonstrates that the site is at or

below those levels.

Is it required that an institutional control

restricting land use be imposed, and will any other

conditions be imposed on the site?

MR. SHERRILL: We needed clarification -- at

the beginning of your question, assume that there's a

piece of property in an area that is both residential

and commercial. We're not clear what you mean by

that.

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MS. ROSEN: Well, I'm sure we've all seen

areas where there are both residences but there are

also commercial businesses. So you have a piece of

land that might have residences next to it, but at the

same time there might be a business being conducted, a

commercial business being conducted in a -- the other

direction.

MR. SHERRILL: Are you saying that you have a

site that's large enough that would incorporate, part

of the site is residential and part of t

he site is

commercial?

MS. ROSEN: No, not necessarily. I'm just

saying that the area where your site is located is

surrounded by a mix of residential and commercial

properties.

MR. SHERRILL: Well, which one is the site?

Is the site residential or is the site commercial?

MS. ROSEN: Let's assume that the site is

residential.

MR. SHERRILL: So then what's your question

then?

MS. ROSEN: Are you going to require that an

institutional control restricting land use be imposed

on that site, merely because I've utilized Tier 2 to

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show that I meet levels.

MR. SHERRILL: If you meet Tier 2 residential

levels and it's a residential site, are you saying do

you need an institutional control?

MS. ROSEN: Yes, that's my question. May I

change the question? Assume that it's a commercial

property.

MS. McFAWN: Can you j

ust answer the question

they did pose?

MR. SHERRILL: Well, no, because I'm

confused. Because they said the site is both

residential and commercial.

MS. McFAWN: But now the site's residential.

MR. SHERRILL: Okay, if you --

MS. McFAWN: It meets the Tier 2 residential

levels and they asked you if you need an institutional

control.

MR. SHERRILL: There could be the scenario --

Part 742 is not intended to make waste determination

decisions, and so I know Mr. King had brought up, you

know, we had talked about RCRA in our last hearing,

which touches on waste determination decisions, and in

the -- if this is touching on somewhat what you're

getting at is there controls, there may be controls on

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disturbing that waste that's in place and the

management of that potential waste.

MR. RIESER: I'm sorry, I thought that --

we're g etting a little far afield. I thought there

was testimony that that would not be one of the

restrictions imposed, because that's common to all

sites. That the types of restrictions would be land

use or use of drinking water, things of that nature.

And I think the first question Whitney asked was

given a residential property that achieves Tier 2

residential levels, are institutional controls

required.

MS. ROSEN: That's correct, that's what I

asked.

MS. McFAWN: So Mr. Ries

er, you're saying

that when this question was posed you assumed the

answer would be no?

MR. RIESER: It was my belief that the answer

would be no. But --

MS. McFAWN: So when it was written that's

what you assumed?

MS. ROSEN: Yes, correct.

MS. McFAWN: Does that make sense to the

Agency?

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MR. KING: Yes, I think the answer is no.

MS. McFAWN: Okay.

MR. KING: I mean if it's a residential use

and it meets -- well, if it's a commercial use and its

meets those Tier 2 residential numbers, then it would

not need an institutional control relative to use.

MS. McFAWN: Okay.

MS. ROBINSON: I think we were just confused

by the way the question was structured. It started to

make us wonder if there was more to the question.

MS. ROSEN: We aren't trying to trick you.

MR. RIESER: Would there be other -- you used

the phrase regardi

ng use. Would there be other

controls, will other conditions be imposed on this

site?

MS. ROBINSON: Do you mean as far as

institutional controls?

MR. RIESER: Yes. Thank you.

MR. KING: Offhand I can't think of any

institutional controls that would be required. There

obviously would be conditions on the NFR letter, I

mean there's all sorts of things that would be

included, but I don't know if those would be

necessarily in the NFR letter would be recorded as

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control relative to the site.

MR. RIESER: Right. So you'd have a recorded

NFR and it would have the standard conditions for NFR

letters as described in 740, but it wouldn't have any

specific land or use restrictions, land use or other

types of use restrictions on them?

MR. KING: I think that's correct, yes.

HEARING OFFICER DESHARNAIS: Miss Prena, did

you have some follow-up?

MS. PRENA: Just to clarify this, that means

that if you have a commercial property that cleans up

to residential standard, that no institutional

controls would be required?

MR. KING: That's basically correct.

MR. GOBELMAN: My name is Steve Gobelman, I'm

with the Department of Transportation. If you meet

residential numbers, does that mean that -- and

there's no institutional controls, can a person then

go back and excavate and haul that material off-site

without any problems with waste management? Can it be

excavated off, that's considered clean fill?

MR. SHERRILL: At this time we're not

intending to answer waste determination decisions

through Part 742 in that manner.

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100

MR. GOBELMAN: So it could be considered a

waste is what you're saying?

MR. CLAY: It would not automatically be

considered clean fill. It would have to be determined

whether or not that was waste or not.

MR. GOBELMAN: Through solid waste

determination process?

MR. CLAY: Well, through the -- I think it's

807 determining whether it's a waste, and that takes

into account the use of that material.

MR. GOBELMAN: Okay.

MR. RIESER: This brings up a question in my

mind about some other testimony that I think was

delivered, but I'm not sure, which was that I remember

some testimony to the extent that any soil which

exceeded the Tier 1 resid

ential would be deemed

special waste.

Is the Agency saying that that's not the case

anymore and that that determination is based on the

appropriate waste determination rules?

MR. SHERRILL: Is the question soils that

exceed Tier 1 numbers, is that a special waste?

MR. RIESER: Just by virtue of that fact.

HEARING OFFICER DESHARNAIS: Mr. Rieser, do

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you believe that testimony was given at this set of

hearings?

MR. RIESER: Yes.

MR. REOTT: I don't believe so.

MR. RIESER: I'm sorry, I've been informed

that that was in the 740 proceeding and it was

clarified at that time. 740 clarified at that time

that that was not the case.

MS. McFAWN: So do you withdraw your

question?

MR. RIESER: Yes.

MR. SHERRILL: Thank you.

Mr. RIESER: You're welcome.

HEARING OFFICER DESHARNAIS: Moving on to the

next question. We have questions on 742.1000 that

were filed by Mayer, Brown & Platt. Miss Prena.

MS. PRENA: This is question 14. Where

contamination extends onto neighboring property, can

institutional controls be proposed by an RA,

remediation applicant, who doesn't own the property?

MR. KING: They can be proposed. However, it

has to -- there certainly would have to be a

recognition that there has to be a way of legally

effectuating those restrictions for a proposal to be

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granted or to make sense.

MS. PRENA: I guess for example if you looked

at (c) sections 4 and 5 discussing ordinances that

might be adopted by a unit of local government or

agreements between the property owner and highway

authority, those would be institutional controls that

might be acceptable?

MR. SHERRILL: Are you citing 742.1000(c)?

MS. PRENA: Yes.

MR. KING: Yes, those are -- yeah,

those are

two identified institutional controls that can go

off-site.

MS. PRENA: So even though those might affect

a neighboring property, they could still be

considered?

MR. KING: Well, yeah, because with an

ordinance that's -- an ordinance, obviously it's been

adopted by -- a unit of local government under its

authorities as defined by the statute adopt ordinances

regulating its own behavior and the behavior of people

within it. And an agreement with a highway authority,

I mean that's something that the highway authority

would be accepting.

MS. PRENA: What about with respect to No

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Further Remediation Letters, restrictive covenants,

deeds, restrictions and negative easements?

MR. KING: For those items there would have

to be an acceptance by the off-site person relative to

those.

MS. PRENA: Okay. The

next question.

MS. ROBINSON: Could I just ask a question of

you? When you ask this question, you use the term

remediation applicant, which is a term specific to the

Part 740 regulations. I just want to clarify that if

it's in the term, if you're using it in the context of

740, that would be correct. But if you're using it in

the context of the 732 open regulations it may be an

owner/operator. So was your question directed

specifically to 740 or in general?

MS. PRENA: No , I think we should clarify in

the record that that would include an owner/operator

or any person that would be an applicant.

MS. ROBINSON: Okay.

MS. PRENA: Can I ask the next question?

HEARING OFFICER DESHARNAIS: Sure.

MS. PRENA: Why are acceptable institutional

controls limited to those "recognized" in Subsection

(c)?

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MR. KING: We thought that it was very

important to have a clear set of designated

institutional controls. When we started out with our

initial development of the proposal we only had the

first three NFR letters, restrictive covenants and

negative easements and it was -- we added four as a

result of discussions with the advisory committee, I'm

not sure when, but at some point we had those

discussions, and then the fifth one was added because

of discussions with Department of Transportation.

Now if there are other institutio

nal controls

which can take the kind of legal effect and

significance that these type of controls do, then

yeah, I think that is -- should be presented and

something to be considered.

MS. PRENA: Okay.

MR. WATSON: I'm sorry, I've got a follow-up.

HEARING OFFICER DESHARNAIS: Mr. Watson,

follow-up.

MR. WATSON: Were you following up on that?

MS. PRENA: Yeah.

MR. WATSON: I'm sorry.

MS. PRENA: Would that include under

Subpart (k) engineered barriers, 742.1100 Subpart (d)

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discusses maintenance requirements for engineered

barriers being considered an institutional control on

page 74.

MS. McFAWN: Could you give the section

number for that?

MS. PRENA: 742.1100, subparagraph (d).

MS. McFAWN: Thank you.

MR. KING: Well, that provision is saying

that those maintenance requirements are included in an

institutional control. So you'd go back to

Subpart (j) and it would be one of those institutional

controls, most likely one, two or five.

MS. PRENA: Okay. So you look at that as

being part of a No Further Remediation Letter or some

kind of deed restriction?

MR. KING: Right.

MS. PRENA: Okay.

HEARING OFFICER DESHARNAIS: Mr. Watson, did

you have some follow-up?

MR. WATSON: How would a party -- when you

said that additional institutional controls may be

considered, how would a party go about or how would

Illinois EPA consider that? Are you suggesting that

you could -- we could propose additional institutional

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controls, or would that necessitate amending the

regulations?

MR. KING: In my mind it would necessitate

amending the regulations.

HEARING OFFICER DESHARNAIS: Any additional

follow-up on that point?

(No response.)

HEARING OFFIC ER DESHARNAIS: Next question.

MS. PRENA: Why wouldn't an agreement with a

governmental body other than a highway authority be

acceptable?

MR. KING: It could be. The issue would

become how you effectuated that agreement. I would

think it could be done in terms of the NFR letter

extended and placed on that additional property or

restrictive covenant placed on that additional

property.

Number five is there because of the real

interesting problem that the Department of

Transportation has relative to allowing restrictive

covenants to be applied with regards to property they

own.

They have -- there's legal restrictions relative

to that. So they needed to have a special provision,

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because the other provisions relative restrictive

covenants wouldn't work for that.

MS. PRENA: So other institutional controls

could be developed under and fit within the No Further

Remediation Letter?

MR. KING: Right, if there was an agreement.

If for instance the local government property was the

off-site property, and they were willing to accept a

use restriction, the local government was willing to

accept a use restriction relative to that property

they owned, and was -- and could put that on a deed of

record, that would be acceptable.

MS. PRENA: I'm going to have another

question on -- a follow-u

p question on this, but I

just need a moment.

MR. RIESER: The question, the further

question being considered is the No Further

Remediation Letter specified here in (c)(1) is

specific to the site remediation program under part

sub 4, correct, or 732?

MR. KING: Yes, that's correct.

MR. RIESER: So for a RCRA site the

institutional control would be whatever the Agency

would issue, whatever closure document it would issue

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in that context, and we talked about that at the

beginning of the hearings, and the restrictive

covenants and deed restrictions would be the documents

that were reported to put the limitations on the

property that were required under this section, is

that correct?

MR. KING: That's correct.

MR. RIESER: So the restrictive covenants and

deed restrictions are to be used in circumstances

where you don't have a No Further Remediation L

etter

that's being recorded as part of the program?

MR. KING: That's the way I would see it,

yes.

MR. RIESER: Okay.

MS. McFAWN: They could be used for other

purposes though, too, couldn't they?

MR. KING: Yes, that's correct.

MS. PRENA: So that could include the

agreements with other -- with agencies other than the

highway authority and some of the other examples that

we talked about?

MR. KING: Yes, that's correct.

MS. ROBINSON: I'm not sure I know

what

you're getting at. Could you give an example of what

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you might have in mind as another --

MS. PRENA: Yes. Stepping back, we were

talking about the fact that under this definition the

only things that are considered recognized

institutional controls are listed as 1 through 5, but

that there are other types of institutional controls

that are not on this list, and that the Agency will

consider them as being acceptable institutional

controls.

However, it appears that they seem to fall under

like 1, 2 and 5.

MS. ROBINSON: I don't think that's what our

testimony was. I think what we said is there there

may be conditions that fall under one of these as part

of 1 through 5, but I don't think we had -- there are

other institutional controls that are necessarily

acceptable, and I think what we testified was that if

there were it would require an amendment to th

e rule

making.

MS. PRENA: So what are those -- how are

those factors considered? Are they not considered

institutional controls? What are those factors

called?

MS. ROBINSON: I don't want to get sworn in

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here so I'm trying to --

MS. PRENA: Yes.

MR. KING: I guess I'm confused by the

question. When you say factors, I guess I'm not quite

sure what you mean. You mean why would -- why did we

-- why would we not have an item number six, is that

what you're getting at?

MS. PRENA: Yeah, we're getting into the

issue that you've limited the number of institutional

controls to these five types of items.

MR. KING: Right.

MS. PRENA: And we've just spent the last few

minutes talking about other types of controls that can

be placed upon properties, and at the moment we're --

the discussion is that those can't be cons

idered,

quote, institutional controls, but that they are

conditions or factors that are evaluated by -- in the

application, and would have to be included under -- in

a No Further Remediation Letter or as a deed

restriction, et cetera.

And I was -- what I was get getting at is trying

to flesh out where -- or further describe those types

of conditions that might appear.

MS. ROBINSON: Would it help if we provided

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an example, just make a hypothetical type of site

where these conditions, which I think is what you're

getting at is conditions of for instance an NFR

letter, which the NFR letter is the institutional

control, I think you're trying to get at the

conditions that might go into something like that, is

that right?

MS. PRENA: Yeah.

MS. ROBINSON: If we provide an example,

would that help illustrate?

MS. PRENA: Yes.

MR. SHERRILL: A typical conditi

on that we'd

put in the NFR letters that have gone out, the ones

I've seen, a typical condition could be there would be

a brief sketch or map attached to the NFR letter, and

in this brief sketch or map there would be a

designated area on this map, and it would say in this

area no well is to be installed for groundwater

purposes for potable use. That's a typical condition

contained within an NFR letter.

And then that NFR letter gets recorded with the

local county or county rec

order. That's a typical

condition.

MS. PRENA: Okay. Is that a condition that

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would also -- could also be used under number 2,

restrictive covenant and deed restriction, or not?

MR. SHERRILL: I would think so.

MS. PRENA: Are there any other examples?

MR. SHERRILL: Another example on the NFR

letter could be that the property remain

industrial/commercial as per the definition -- in the

deciding question or the piece of property the

question remain industrial/commercial.

Or another condition would be that a -- someone

comes in and they say we have a paved barrier over the

contamination that we wish to leave remaining in

place, and so the condition in the NFR would be well,

as long as that paved barrier remained there, you

know, the contamination can remain in place.

Those are typical conditions within an NFR.

MS. PRENA: And would those be also of

severa l conditions under a restrictive covenant and

deed restriction?

MR. SHERRILL: Yeah, that would be something

typical. Another typical one is people leave

contamination in place and it would warrant a worker

caution if someone were to do excavation or some type

of future activity in that contaminated area. So the

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condition we'd put in the letter is that

owner/operator, whoever, is -- someone has a duty to

inform, notify, provide protective equipment for these

workers in this contaminated area.

MS. McFAWN: It would seem like that's a

fairly common condition if the contamination is

allowed to remain, wouldn't it be?

MR. SHERRILL: Yes.

MR. WATSON: I've got a question.

HEARING OFFICER DESHARNAIS: Follow-up, Mr.

Watson.

MR. WATSON: A follow-up question. Do No

Further Remediation Letters and deed restrictions,

restric tive covenants always work in concert with each

other? You're most -- and you going to have both of

them at a site, correct? You'll have the --

MR. SHERRILL: The ones I've been familiar

with is people have had No Further Remediation Letters

and conditions that I've just described but they --

the NFR I believe is the deed restriction. There's

not a duplicity of efforts here.

MR. WATSON: Under what circumstances would

you use a deed restriction then and not an NFR?

MR. KING: I think we went over that. You

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use that in the context of a program where you didn't

have the NFR letter.

MR. WATSON: All right, thanks.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

MS. McFAWN: I have one. At (c)(4) when the

Agency talks about ordinances, I assume you mean

excluding zoning ordinances, is that right?

MR. KING: Right. What we're referring to

there is the -- specifically the type of ordinance

that's set out in 1015.

MS. McFAWN: Set out in, pardon me?

MR. KING: Section 742.1015.

MS. McFAWN: Thank you.

HEARING OFFICER DESHARNAIS: Before we move

on to the next section, the Agency has included a work

note that says definitions in the Illinois Highway

Code for highway authority, highway and right-of-way

are applicable to this part.

Would the Agency have any objection to including

those definitions in the

section number rather than a

Board note?

MS. ROBINSON: I don't think we have any

problem with that. Do you mean you want them in the

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definitions section itself?

HEARING OFFICER DESHARNAIS: That would be

one way to handle it.

MS. ROBINSON: That's fine. I would request

then that Illinois Department of Transportation maybe

provide those as a piece of testimony. This was your

suggestion I believe.

MR. SCHICK: All right.

HEARING OFFICER DESHARNAIS: Thank you.

MR. SCHICK: And I've got a question for you.

I have a question on the boundary of the area that the

institutional control applies to, which I believe John

Sherrill said a sketch would do, you don't need a

meets and bounds or legal description of that area?

Maybe I should ask a lawyer.

MR. SHERRILL: I believe under 740, the site

remediation program, I believe we do require a legal

description of the property, if that's what you're

getting at.

MR. SCHICK: The boundary to which the

institutional control applies?

MR. SHERRILL: Correct. Is that -- was that

your question?

MR. SCHICK: Yeah. I guess also then that

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also can apply to the engineered barrier, I guess the

question is do you want a legal description of the

engineered barrier?

MR. KING: I don't think we need that,

because the engineered barrier is always coupled with

some institutional controls anyways. You know, I'm

sure there would be an engineered description of the

engineered barrier.

MR. SHERRILL: I want to make a distinction.

You know, this whole thing with conditions and NFR's

and the property boundaries, it's not uncommon that

people will ask for a condition only on one part of

the site or that the NFR covers only one piece of the

property.

So I don't want to -- I just want to make that

distinction, that we've tried to construct the NFR's

or utilize the NFR for that distinction is clear.

HEARING OFFICER DESHARNAIS: Mr. Rieser?

MR. RIESER: Yeah, with respect to the (c)(5)

issue on highway authority. When you use the term and

a highway authority, would those cover other highway

authorities than the Illinois Department of

Transportation?

MR. KING: That's correct.

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MR. RIESER: Okay. And the definitions in

the Illinois Highway Code, and maybe this will be

questions for Mr. Schick if he testifies regarding

this matter, would those apply to other highways and

highway authority other than those controlled by the

Illinois Department of Transportation?

MR. KING: I think the answer to that is

going to be yes.

MR. RIESER: Okay. But we'd have to review

those definitions to confirm that.

MR. KING: Right. Just to give you

background, our discussions with Department of

Transportation have been with regards to that kind of

issue, that they would -- they will be providing

guidance to local highway authorities as to the -- as

to what their views are the way this should be

handled.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up on Section 1000?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, the next

prefiled question

concerns Section 1005, and again

filed by Mayer, Brown & Platt. Miss Prena.

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MS. PRENA: Can a "focused" NFR letter be

used as an institutional control?

MR. KING: My assumption is you mean --

you're referring to a NFR letter resulting from a

focused investigation Part 740. And if that's true

then the answer is yes.

MS. PRENA: Okay.

HEARING OFFICER DESHARNAIS: Any follow-up?

(No response.)

HEARING OFFICER DESHARNAIS: The next

prefiled question concerns 742.1010, again filed by

Mayer, Brown & Platt.

MS. PRENA: If an NFR letter itself acts as

an institutional control, when would a restrictive

covenant, deed restriction or negative easement also

be necessary?

MR. KING: I think we've talked about that

already. I'm not sure if I have anything really to

add to what we were saying earlier.

You're really talking about programs where the NFR

letter is not going to be applicable, or you could

also be in a situation where for some reason the

off-site person is willing to accept a deed

restriction on the property but doesn't want the No

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Further Remediation Letter filed on the property.

MS. PRENA: Well, you've just described two

situations where you would use either an NFR letter or

a restrictive covenant. What is the situation where

you would be using both?

MR. KING: On a single piece of property, is

that what you're referring to?

MS. PRENA: Yes.

MR. KING: As John Sherrill said earlier,

we're really not anticipating that that would occur.

I suppose if somebody wanted to file an NFR letter and

file a separate document called a deed restriction, I

suppose somebody could do that. We're not requiring

that to occur.

MS. PRENA: All right.

MR. KING: From our perspective the NFR

letter works ef fectively like a deed restriction,

because it's running with the land, so there's no need

to have a separate document if the NFR letter is

there.

MS. ROBINSON: And isn't it true as properly

recorded it's attached to the chain of file, so

therefore if somebody does a proper title search on a

transfer of property it's going to show up as

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effectively a deed restriction?

MR. KING: That's c

orrect.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

(No response.)

HEARING OFFICER DESHARNAIS: Next question.

MS. PRENA: The next question, if remediation

objectives must be met before any of these mechanisms

can be considered "institutional controls", why do

subsections (b) (2), (3), and (4) refer to areas and

extent of contaminants which exceed objectives?

MR. SHERRILL: To clarify that question, when

you say if remediation objectives must be met, which

remediation objectives are you talking about?

MS. PRENA: General cleanup objectives.

MR. SHERRILL: I mean if you met a Tier 1,

for example if you met a Tier 1 remediation objective,

is that what you're talking about?

MS. PRENA: (2), (3) and (4) talk about

concentrations of contaminants and remediation

objectives. So to clarify I'm talking about if you

are required to meet those types of remediation

objectives.

MR. SHERRILL: What the intent there of this

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(b), (2), (3), and (4) then just to clarify, you're

talking about 742.1010 (b) (2), (3) and (4), is that

correct?

MS. PRENA: Yes, right.

MR. SHERRILL: What we're looking at there is

someone's proposing to leave behind contamination, and

it is important to know where that contamination is

left in place and the applicable concentrations. And

for example a construction worker may enter the

contamination area, and we want to know kind of on

public record recorded and so forth where these

respective environmental concerns are still located.

And the applicable way to do that is, you know, that

the NFR letter or as we've said, recorded with the

title of the property.

MS. PRENA: Under Section 742.1010(a) it says

the Agency has determined that a No Further

Remediation is required as to the property. And I

understand that to mean that this section means that

you wou ld have met remediation objectives. I just

need clarification on how this works.

MR. SHERRILL: The term No Further

Remediation kind of, correct me if I'm wrong, you

could kind of interpret that as no further corrective

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action in a sense. Because you've -- you know,

because you're proposing to use or you have instituted

these institutional controls.

MR. RIESER: I think the real -- the ques

tion

is did (2), (3), and (4) require a demonstration

showing the horizontal extent of contamination above

the applicable remediation objectives, and the

question is what are the applicable remediation

objectives that you're showing? You've already

decided that, you know, you've had your remediation

objectives at the boundary, so what does this map

demonstrate?

MR. KING: Part of the confusion is, because

you guys caused it on this, because when we originally

drafted this we had it as above the Tier 1 remediation

objectives, which made it very clear. Then you go in,

you go into the table, you look up your Tier 1 number,

there it is, and now you can show on a map what's

above the Tier 1 number.

The suggestion was made by the committee that that

might not be the -- you know, wouldn't be good if you

had -- if your remediation objectives were established

under Tier 2 or Tier 3. So we put it in terms of

applicable, so it was clear that i

t could be one of

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the other levels.

MR. RIESER: Or a construction worker

scenario, to go back to Mr. Sherrill's example, if the

issue is the construction worker, you want to show a

construction worker where they are and that's what

your map would demonstrate.

MR. KING: Right, I guess I was thinking of

as a -- for example you could have determined your

remediation objectives based on under Tier 2, okay?

And you might have an area that's above those Tier 2

remediation objectives. But the conclusion was that

could stay there because of an engineered barrier or

whatever.

So then your map would show where on the site the

contaminants were above the Tier 2 numbers.

HEARING OFFICER DESHARNAIS: Mr. Reott,

follow-up?

MR. REOTT: Can I just offer a suggestion?

Maybe the language would be clearer, and I think it

would meet wh at you're trying to get at, Gary, if it

said above the otherwise applicable remediation

objectives that would apply in the absence of the

institutional control or the engineered barrier or

whatever, you know.

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MR. KING: Well, that's something we can

certainly think about, whether that might make it

clearer. I'm not sure that it -- I think that the key

difficulty here that's been expressed with

the

questions is what does applicable mean in this

context, and saying otherwise applicable, I'm not sure

that resolves that question. But we can take a look

at it and think about it.

HEARING OFFICER DESHARNAIS: Any additional

follow-up on that question?

(No response.)

HEARING OFFICER DESHARNAIS: Mr. Rieser, did

you have anything further?

MR. RIESER: No, I did not, I'm sorry.

HEARING OFFICER DESHARNAIS: Additional

questions on 742.1010, Mr. Watson?

MR. WATSON: You know I'm going to ask my

question. When you talk about in 742.1010(b) (2), (3)

and (4), this does not impose upon a party an

obligation to identify the extent of contamination

above Tier 1 numbers, does it?

MR. KING: Well, it does if that's the

remediation objectives that were determined from the

site.

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MR. WATSON: But if not, if you're relying on

something other than

Tier 1 numbers, there isn't a

general obligation to define site conditions above

Tier 1 standards, is that right?

MR. KING: At this point?

MS. ROBINSON: Do you mean something other,

meaning Tier 2 or Tier 3?

MR. WATSON: Right.

MS. ROBINSON: I think he already answered

that, but go ahead, Gary.

MR. KING: Now you're not talking about the

whole site investigation and all that kind of stuff,

are you?

MR. WATSON: No.

MR. KING: Well, then to -- you -- no.

MR. WATSON: Okay.

HEARING OFFICER DESHARNAIS: Moving on to the

next prefiled question on 742.1010 filed by Gardner,

Carton & Douglas, Mr. Watson?

MR. WATSON: I think that all of my

questions, all of my remaining questions have been

answered. So I don't have anything further from my

prefiled questions.

MS. McFAWN: Your question number 10 has been

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answered?

MR. WATSON: I think

we went over this issue

in extensive detail in the 740 hearing, and I don't

see a need to go through that issue again. If you'd

like me to ask it again and get it on the record in

this proceeding, I'd be happy to.

MS. McFAWN: No, it's fine, if you're

satisfied.

HEARING OFFICER DESHARNAIS: Okay, the next

prefiled questions concern 742.1015. We'll start with

those filed by the Site Remediation Advisory

Committee.

MR. RIESER: Has the Agency confirmed whether

an ordinance really exists which prohibits the use of

groundwater within the Chicago city limits?

MR. KING: As far as we know there is no such

ordinance.

MR. RIESER: So the Agency cannot provide a

citation for that ordinance?

MR. KING: That's correct.

MR. RIESER: And that takes care of the next

questions as well. Does the Agency intend to enter

into a memorandum of understanding with the city of

Chicago?

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MR. KING: Once they -- it's our

understanding they are intending to adopt an ordinance

that will satisfy the criteria of 1015 and be acting

just -- it's our belief that they're going to be --

once that ordinance is in effect they'd be willing to

pursue the type of MOU that we've discussed.

MR. RIESER: Does the Agency intend to enter

into such memorandums of understanding with any other

local communities?

MR. KING: Right now we don't have any

requests to do so, but if we do get those we certainly

will consider them.

MR. RIESER: Does the Agency know of a city

which does have an ordinance?

MR. KING: At this point we've approved three

of them. Tazewell County, the city of LaGrange, and

the village of Orland Park.

MR. RIESER: Thank you. With respect to

Subsection (d) of the Section 1015, what is the

purpose of this requirement? This is the requirement

to monitor activities of the unit of local government

in the future.

MR. KING: The purpose there is to maintain

assurances in the event there's not a memorandum of

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understanding with a local government that the

institutional control is going to remain in effect.

MR. RIESER: Is the Agency aware of whether

these ordinances are typically modified in any

respect?

MR. KING: I think generally they are

modified, but I don't know that they're modif

ied in

ways that really undermine the total integrity of the

ordinance, no.

MR. RIESER: In other words, they might be

modified as to the extent of their coverage but they

wouldn't be -- I should say to expand the extent of

their coverage but not to reduce it?

MR. KING: I think that's typical. These

ordinances have been adopted for -- typically have

been adopted for reasons of maintaining the integrity

of the public water supply system, so it really --

there really is not an incentive for them to eliminate

them.

MR. RIESER: And they might also be adopted,

and I don't know if you've included this, maintaining

the integrity, but also in the context of insuring

that everyone within the municipality uses the water

supply so that they've all hooked on and paying their

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water fees.

MR. KING: Yeah, that's one of the purposes,

but they do have , you know, grandfather clauses and

those kinds of things.

MR. RIESER: Once a local ordinance is

present restricting the use of groundwater, would not

the State Water Well Code (415 ILCS 30/1 et seq. 77

Ill. Adm. Code 920) preclude drilling a potable well

in the area of contamination?

MR. KING: I don't have the greatest

familiarity with the Water Well Code, but it's one of

the problems that is the case relative to the Water

Well Code is it's not something that we're able to

directly enforce. And the Water Well Code I don't

think is really addressing the potential of

contamination to -- yeah, we were just talking about

there's also an issue of how the notification would

occur relative to that issue.

So it's just sort of a combination of factors. We

just -- we don't think that the Water Well Code fits

very well in the context of 742.

MR. RIESER: And that would answer our last

question on that issue, which is why is the Water Well

Code not avai lable as an institutional control.

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I have one question on notification. The

regulation requires notification of landowners to

properties that are affected by groundwater

contamination that the institutional control is being

-- ordinance is being used as an institutional

control, but when it has access to the property on

those properties. Would you have to notify an

adjacent property owner if that

property owner had

signed off on including that adjacent property within

the remediation site?

MR. KING: The way this is phrased the answer

would be -- the answer would be yes.

MR. RIESER: Would it be possible -- would

the Agency be interested in language that would allow

for an exception for those situations where the

adjacent property owner's permission had already been

obtained prior to the remediation site?

MR. KING: I think we could review that type

of language. We'd have to make sure that everything

obviously fits together properly, but we could review

that.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: The next

prefiled question's concerning 742.1015 filed by

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Mayer, Brown & Platt. Miss Prena.

MS. PRENA: Must an ordinance restrict

groundwater use county-wide to qualify as an

institutional control?

MR. KING: No.

MS. PRENA: Could you elaborate?

MR. KING: Well, you know, for instance if

you have a unit of local government that's a

municipality that's within a county, its jurisdiction

would not extend throughout the entire county. So it

couldn't be county-wide.

MS. PRENA: Well, could it be an ordinance

that would only restrict portions of groundwater use

within the municipality or jurisdictional boundary?

MS. ROBINSON: What do you mean by portions,

I'm sorry?

MS. PRENA: I guess I'm trying to understand

how narrow the ordinance can be in restricting

groundwater use. Narrow in terms of the area of

groundwater affected.

MR. SHERRILL: That would kind of be up to

the unit of local government on how they adopt their

ordinance. And under 742.1015(a) it's written in an

ordinance adopted by a unit of local government that

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effectively prohibits the use

of groundwater as a

potable supply of water.

I'm kind of paraphrasing, it's got a little bit

more, but that's our intent there.

MS. PRENA: So that could just cover a

specific portion of groundwater within that

locality --

MR. KING: Yeah, we hadn't really thought of

it in that context, but I don't know why that wouldn't

be a possible option. Normally what our experience

has been -- we've seen is that a community is going to

-- if a community is going to adopt one of these

ordinances it covers the entire local government. So

we hadn't really thought about it in the context of a

partial -- being partially applicable.

MR. O'BRIEN: What would be necessary though

is to satisfy 742.320(c) if you were using that type

of ordinance to restrict a water supply. The

groundwater ingestion route, exclusion if it was used

in that context, then it would have to cover the area

indicated there, 2500 feet from the source.

MS. PRENA: Can you give me that site again?

MR. O'BRIEN: 320(c).

MR. SHERRILL: Of 742.320(c).

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MR. O'BRIEN: It's at the end of Subpart C.

MS. PRENA: Okay.

HEARING OFFICER DESHARNAIS: Next question.

MS. PRENA: Can other property owners'

objections preclude the use of an ordinance as an

institutional control?

MR. KING: I think -- I'm not sure that

preclude is the right kind of

terminology. Obviously

if we received information as a result of -- as a

result of notification, that information could change

our conclusions as to the applicability of what was

being suggested.

For instance, if as a result of one of these

notifications somebody reported back that they were --

had an ongoing use of a water supply well, and that

was an illegal use, and that condition had not been

identified before, that would be the type of

information I think we would certainly have to factor

in as far as looking at the entire remediation

activities.

The other possibility is, you know, perhaps the

person objects to the ordinance and the local

government ends up changing their ordinance, so if

that happened then we would have to account for that

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as well.

MS. PRENA: Would you account for the fact

that the ordinance was passed

MR. KING: Right, or had been amended or

whatever as a result of the notification.

MR. RIESER: Just to follow-up, just for the

-- the objection would be sufficient, there would have

to be a demonstration that there was an actual use in

that instance?

MR. KING: Right, it's not the fact that the

objection is received that results in the different

decisions, it's what that -- what was the basis for

that objection.

HEARING OFFICER DESHARNAIS: Next question?

MS. PRENA : Are the duties in Subsection (d)

to monitor local government activities and notify the

Agency intended to be perpetual?

MR. KING: They are intended to remain in

effect as long as the NFR letter is in effect.

MS. PRENA: In the case where there's a deed

transfer, I would assume that the new owners would

then take on the responsibility by assignment?

MR. KING: They would certainly take on that

responsibility. I don't know if by assignment is the

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right term, but they would take on that

responsibility.

MS. PRENA: Okay.

MS. ROBINSON: Do they have the option of

coming back to the Agency and for instance getting new

remediation objectives if they decide they want to

clean up the site completely to Tier 1 levels?

MR. KING: Yes, that's an option.

MS. ROBINSON: Okay.

HEARING OFFICER DESHARNAIS: Next question?

MS. PRENA: Does a

memorandum of

understanding MOU between the Agency and the local

government relieve the applicant of the duty to

perpetually monitor the local government's activities?

MR. KING: Yes, that would be correct, as

long as the MOU remained in effect.

MS. ROBINSON: Same clarification here on the

term remedial applicant. It could be owner/operator

or other person, depending upon what program they're

coming in?

MS. PRENA: Yes.

HEARING OFFICER DESHARNAIS: Mr. Reott?

MR. REOTT: One of my prefiled questions

relates to this section. I thought I'd ask it now.

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And I'm going to phrase it slightly differently from

the way it was filed, it's number 30, just because in

this context I think it comes out a little

differently.

The requirement that you get an ordinance for

people within 2500 feet of your source of your

release, does that apply at all directions, in othe

words, including upgradient of the release?

MR. KING: I thought you asked that last

time. The answer is yes.

MR. REOTT: Okay. What's the basis for

making you get an ordinance or worry about the impact

to groundwater systems that are upgradient the

release?

MR. SHERRILL: You're making the assumption

that upgradient, downgradient are fixed physical

constraints. And it's been our experience, you know,

when you have pumping wells and so forth, depending

upon where your site is, or depending upon if you're

near a river, that groundwater flow can change

direction.

There are seasonal fluctuation changes, changes in

river levels, so forth.

MR. REOTT: If there was a site where those

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physical characteristics weren't present -- would the

Agency be willing to consider -- I guess this would

occur in Tier 3, excluding the groundwater pathway

where the ordinances that were available and that were

used to exclude that pathway were only the

downgradient 2500 feet communities?

MR. KING: I think that as I recall that also

applied to Tier 2. I mean the Tier 2 groundwater

equation allows for that type of approach.

HEARING OFFICER DESHARNAIS: Mr. Rieser?

MR. RIESER: The issue of the 2500 foot only

applies in the context of Subpart C, is that correct?

MR. KING: That's right.

MR. RIESER: So that's really sort of t

he --

sort of the instant pathway exclusion provision?

MR. KING: Right, that's correct.

HEARING OFFICER DESHARNAIS: Mr. Reott, did

you have any additional questions?

MR. REOTT: I think the others were covered.

HEARING OFFICER DESHARNAIS: Mr. Watson, did

you wish to ask a question on this section?

MR. WATSON: No.

HEARING OFFICER DESHARNAIS: Then move on to

742 Appendix D which we have questions filed by the

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Site Remediation Advisory Committee.

MR. RIESER: With respect to page one,

paragraph two, is there language missing in this first

sentence?

MR. KING: We looked at this and we didn't

see that there was language missing.

MR. SHERRILL: You're referring to Section

742 Appendix D, procedures for determination of Class

II groundwater?

MR. RIESER: That's correct. With respect to

page two, paragraph two, what is the basis for t

requirement that all potable wells located within one

mile of the site be identified if the maximum setback

zone for potable well is 2500 feet?

MR. KING: I think we changed that on errata

sheet one to change that from one mile to 2500 feet.

MR. RIESER: The appendix on -- referring

specifically to page three, this appendix discusses

the possibility of a perched zone. Will the Agency

consider a perched zone differently than a saturated

unit and not as a Class I groundwa

ter?

MR. SHERRILL: Regarding perched groundwater,

the Agency can consider a perched zone differently

than a Class I groundwater unit. This determination

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depends upon many site-specific and program-specific

factors, including the size of the perched zone, its

communication with other groundwater units, the amount

and concentration of contamination, sources and

availability of potable water supply wells, local

geology, whether the perched zone is covered or not,

the source of the contamination.

MR. RIESER: Why would the amount or source

of the contamination be a factor in a determination

whether something was a perched zone as opposed to a

Class I aquifer?

MR. SHERRILL: If you had a -- the size of

your -- and concentrations of your contaminants, it's

been the -- because that would factor into the

communication with the other groundw

ater units,

because it's been our experience that a lot of perched

zones are in communication with other groundwater

units. And when you have very highly contaminated

perched zones, those can communicate with other

groundwater units.

MR. RIESER: How are you defining perched

zone when you use it in this appendix?

MR. LISS: Basically standard textbook for

hydrogeology. It's a zone of saturation that really

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we don't consider an aquifer. It sits -- say you want

to call it a lens of water having some aerial extent

above a more impermeable geologic formation.

MR. RIESER: And it usually is perched

because it doesn't have any communication with other

water bearing units, isn't that correct?

MR. LISS: That's the concept in

understanding perched zone, but in Illinois in the

glacial environment these things could be localized

across a site, several perched zones

across a site,

not aerially extensive across an entire site. So it

would have vertical communication.

I guess if you want to consider it, they would

spill over eventually. There's this lens of water on

this impermeable geologic material, and as

infiltration recharges this eventually it would

migrate, you know, laterally and then go vertically

downward.

MR. RIESER: Migrate laterally until it found

an area of lesser or greater permeability and it would

infiltrate downwa

rds is what you're saying?

MR. LISS: Right, to migrate downwards.

MR. RIESER: Is it accurate to state that a

person only needs to consult the Illinois State Water

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Service or the Agency's Division of Public Water

Supplies regarding the existence of potable water

supply wells and that one does not have to consult

other sources?

MR. SHERRILL: To check for the existence of

potable water supply wells, local, state and federal

record, governmental records as appropriate should be

consulted. In addition to a visual inspection of the

area, I think we have within 200 feet of the area of

concern.

MR. RIESER: But don't you specify the use of

the Illinois State Water Service and the Division of

Public Water Supplies in this document?

MR. SHERRILL: In Appendix D, yes, the

Illinois State Water Survey and/or the Division of

Public Water Supply or the Ag

ency should be contacted

as I'm reading out of it, as well as other appropriate

state and federal entities to obtain this information.

And then we also have on there also a visual

inspection of the area within 200 feet of the units of

concern should be conducted when possible.

MR. RIESER: What other state and federal

agencies would have to be consulted?

MR. SHERRILL: Well, I know a lot of times --

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I mean USEPA's done a lot of work and they have a lot

of good information on investigation of sites and

investigation of where potable wells are in use and so

forth.

MR. RIESER: So for any Class II

determination you'd have to consult the USEPA?

MR. SHERRILL: No, the -- what we're getting

at is just when it's applicable.

MR. RIESER: And when is it applicable?

MR. LISS: I can provide you with a pretty

relevant example. This is in the East St. Louis area.

We looked for the usual sources, water survey, wells

that were dug in an area, found the ones on record.

There's a city water supply that was -- that was

supplied to the residents, and this is a creosoting

type operation, PNA's that were multiple across the

site. We were attempting to do the cleanup. The city

didn't have any real good records except who paid for

water and who did not.

And the company thought it was their

responsibility to diligently look for anyone that

might b e using that water, illegally or not, you know,

whether there was an ordinance in the city that said

that you have to hook up to the city's water. This

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example that we looked at the map of the city, they

plotted out those individuals who were paying for

water, and then went around the area to houses that

looked like they contained people, even though they

weren't paying for water.

We turned up I know about seven people that were

using a private well that that's the only record,

there were no records, that was the only way we could

find them.

MR. RIESER: Thank you. I guess I'm trying

to get to the question of when other governmental

sources need to be consulted and what those sources

are.

MS. McFAWN: Well, wasn't that an example of

when they contacted the city, another governmental

entity?

MR. RIESER: That was one example where the

Agency was doing the investigation. This is basically

putting into regulatory form some guidance on making a

Class II determination which is in addition to the

Board's, in a way in addition to the Board's Part 620

regulations. This is I think different answers about

what governmental entities you have to speak with to

verify that you've done a thorough enough

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investigation to document a water well. And I just --

additional existence of water wells.

So I'm trying to find out what the extent of that

investigation has to be with respect to contacting

other governmental agencies.

MR. SHERRILL: I guess it's a professional

opinion, but, you know, I mean when you're checking

for potential potable water supply uses, you want to

really be thorough in making sure, as Ken Liss has

said, you want to make sure nobody's drinking the

water there if y ou're planning on investigating the

groundwater of that area. I mean so if you thought

you needed to contact USEPA, you know, I would do

that.

MS. ROBINSON: Would it be clearer, Mr.

Rieser, if we changed the wording around a little bit

so that it read as well as other state and federal

entities where appropriate, rather than other than

appropriate state and federal agencies?

MR. RIESER: I just don't know when it's

appropriate.

MR. KING: The other option is we just

go --

we can go through them and list about three or four

other potential agencies that would have to be

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contacted in every situation. I mean we can do that.

I'm not sure that we want to do that. It's a little

over --

MR. RIESER: I guess my point is if there are

other agencies, and I'm aware of instances where it's

required that other agencies be contacted other than

those two that have been specified here, if it's the

Agency's practice to require those to be contacted all

the time, it strikes me that that should be in the

regulation.

If these are the only two agencies that have to be

contacted all the time, then you would -- and you

would only have to contact other agencies in certain

situations, then that should be specified, and there

should be some idea of what those situations are in

which those other agencies ought to be contacted.

I think when you're requiring people to do certain

things you have to give them some idea of when you do

those things, or if you're always going to require

that the people contact other agencies besides those

two, that should be documented.

If not, if those are the only two except in

special circumstances, and we can talk about what

those special circumstances are, then that's what you

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say.

MS. ROBINSON: I think we'll take another

look at that language and see if we can't tighten it

up a little bit, at least clarify when we think it

would be appropriate for them to look at these other

agencies.

MR. RIESER: Right, thanks.

MS. ROBINSON: All right.

MR. RIESER: Paragraphs (B) and (c), this is

again on page three, discuss providing documentation

as to formations beneath the site. How deeply does a

person need to go to identify the formations beneath

the site?

MR. SHERRILL: Documenting the formation and

depth at which to identify beneath the site can be

programmed is site-specific issues. Consideration is

given to local and regional geological information

that could be obtained let's say from public records

and ISGS documentation, state geological survey.

The concentration of contaminants, toxicity of the

contaminants, the amount of contaminants, the

estimated migratory pathways, whether any free phase

product or contaminants is

present, whether the soil

attenuation capacity is exceeded, whether the soil

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saturation is exceeded, whether remaining

contamination will be disturbed by natural forces,

highly permeable units, getting back to whether the

release points of the contamination could be

identified, and the availability of public water

supplies.

MR. RIESER: So those are all the factors

that go into the depth of the formation that you need

to examine, is that correct?

MR. SHERRILL: I don't know if I would

consider that all inclusive.

MR. RIESER: Okay. But use of geologic maps

such as the IGS stratigraphy map for example would be

acceptable?

MR. SHERRILL: We commonly reference those,

yes.

MR. RIESER: Thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up questions on that?

MR. LISS: It wouldn't be appropriate for all

programs . I mean say you're going to apply that to

the RCRA program, I don't think we accept just the

fact that you referenced a map. Because our programs

require that a certain amount of work, you know,

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physical work be done on-site.

MR. RIESER: By virtue of the RCRA

regulations?

MR. LISS: Yes.

MR. RIESER: Okay, thank you.

HEARING OFFICER DESHARNAIS: Any additional

follow-up on Appendix D?

MR. REOTT: I had a prefiled question on

Appendix D.

HEARING OFFICER DESHARNAIS: Mr. Reott.

MR. REOTT: This has to do with what I'll

call straddling units, units that straddle the ten

foot line in 620.

MS. ROBINSON: The question number?

MR. REOTT: It's question number 42. I'll

just give you a couple examples here. You know, there

is a straddling unit that straddles the ten foot line

in 620, in Part 620 the Board left --

MS. McFAWN: Mr. Reott, you need to explain

that for the record.

MR. REOTT: Okay. In Part 620 the Board

determined that water systems, aquifers that were

within the top ten feet were by definition not Class I

systems. And there's a lot of testimony about that in

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the 620 regulation as to why that occurred, having to

do with surfacial impact to them, that even if they

met all the hydraulic defin

itions they were simply not

going to be treated as Class I.

MS. McFAWN: Could I interrupt? You seem to

be paraphrasing your question that you presubmitted at

number 42. Could you just read that into the record?

MR. REOTT: Well, we could just read that

into the record, yes. In Part 620 the Board

established that groundwater within ten feet of the

surface cannot be Class I groundwater. In Section

742. Appendix D, the Agency proposes that the Board

adopt the Agency's internal

interpretation of Part 620

for how to classify groundwater systems that straddle

the upper ten foot prohibition on Class I groundwater.

In other words, you know, a groundwater system

that's partially above, partially below the ten foot

line.

Why should such a straddling unit be treated

generally as Class I rather than Class II when the

original Part 620 regulations prohibit a Class I

designation based on 1, the likelihood of surface

impacts for groundwater systems shallower t

han ten

feet, and 2, the inappropriateness of using such

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shallow water for Class I drinking water purposes.

MR. SHERRILL: If I could read in 742

Appendix D, I'm starting at the third line, and then

I'm going to jump to number two, because I think we

provide clarification in Appendix D.

Groundwater is classified in 35 Illinois

Administrative Code 620 as a Class II general resource

groundwater when it, and then I'm going to jump to

number 2 here, has been found by the Board to be a

Class II groundwater, pursuant to the petition

procedure set forth in 35 Illinois Administrative Code

620.260, if a continuous zone containing groundwater

begins within ten feet of the ground surface and

extends greater than ten feet below the ground surface

it will not be considered a Class II groundwater if an

additional criterion is met under 35 Illinois

Administrative Code 620.

210, in this case it would be

considered Class I groundwater.

Although, and this is the point I'm emphasizing,

it may be possible, it is unrealistic to try to

designate two distinct classes of groundwater within

the same saturated hydrogeological unit.

But, if the person conducting the remediation can

demonstrate that by cleaning the groundwater within

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ten feet of the surface to Class II spe

cifications

will not degrade the groundwater greater than ten feet

below the ground surface above Class I standards, the

Agency may approve both Class I and II standards in

accordance with the location of the groundwater.

MR. REOTT: Let me go back to my question,

John, because I'm not sure that answered it. What I

think what I understand you right is what you're

saying is for the portion of the groundwater system

that's above the ten foot line, if someone makes that

demonstration, you're willing to say that that's Class

II and that the portion below the line is Class I,

right?

MR. SHERRILL: Correct.

MR. REOTT: Now, the other alternative here

would be to classify a straddling unit either always

Class I or as Class II. I mean you could make it

another -- you could essentially agree with you that

it's unrealistic to try to designate two different

classes for a straddling unit, and I don't think

anyone would dispute that.

Why did th e Agency choose this pathway, which

tries to give different designations to different

portions of the same unit of groundwater, rather than

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just accept the single classification of it being

Class II? That's -- I'm trying to redo my question to

MR. KING: What's the depth of the bottom of

the Class I, the bottom of that?

MR. REOTT: This here?

MR. KING: Yes, how deep is that?

MR. REOTT: It could be anything,

theoretically, Gary. It could be an inch, it could be

two feet, it could be 50 feet.

MR. KING: What's at 50 feet?

MR. REOTT: It could be 50 feet.

MR. KING: What's at 200 feet?

MR. REOTT: It could be anything, it's a

site-specific question. But the Board has said

specifically that this part can't be Class I, and then

since I think everybody would agree that it's

unrealistic to really try to treat it as two separate

units, the que stion is what label do you put on it.

And what I'm trying to get at, John, is why you

choose to do it this way where you have two different

labels potentially for the same unit, rather than just

picking a label and having the Board make that

decision now?

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MR. SHERRILL: Are you saying why in your

example there the area of above the ten foot, why we

would consider that Class I? Is that what y

ou're

asking?

MR. REOTT: No, your Appendix D reference

that you just read creates the possibility that you'll

have two different classes in the same groundwater

unit, even though you agree that's unrealistic. And I

think everybody else would agree that's unrealistic.

It's really one body of water.

The other alternative choice for the Agency in the

rule making was to give this unit, a straddling unit,

one designation, either Class I or Class II, but only

one designation.

MR. LISS: It might help if you -- to

understand how this occurred first of all. That the

-- when the rule was written there was a concern that

this being an agricultural state that there might be

certain things subject from surface infiltration say

due to crops, pesticides, et cetera.

MR. REOTT: When you say the rule, you mean

the 620 rules?

MR. LISS: The 620 rules and that's how this

ten foot line came here. The only other time it comes

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into effect in this manner here is the Class II would

be considered ten feet below the bottom of a fill.

That's something else in 620.

So yes, and there is no guidance really in the

rule itself as to how to do that.

When you look at cleaning up a contamination, if

there is a -- this Class I down there, beneath your

Class II or this portion of the unit that is now

greater than ten feet below the surface, what if that

is potable?

MR. REOTT: This portion?

MR. LISS: Right, it is potable, it's Class

I. Now what if there's sufficient volume there to use

it? I think it's best to take a look at the

protection of that groundwater, and that's how we've

interpreted 620, and that's how that Appendix D,

that's why it was written that way.

There's instances I think through these new rules

here that we're discussing that you could make a

demonstration probably that the Class I is Class I,

but it's not going to be used maybe because there's

only four feet of Class I, ten feet of Class II.

And a different -- that might be done through a

different tier, but you might apply the Class II to

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the Class I instead of. Do you understand what I'm

saying? I think that's -- if you go into a different

tier, I would say that would be something we could

probably accept.

MR. REOTT: Let me follow

up with a reference

to what Gary said before. In other words, what you're

saying is that in the lower tiers if the -- let's say

if there's, you know, eight feet above the ten foot

line and only one foot below, that might be a reason

that you would classify it as Class II, you know,

lower tier, if it's eight feet above ten foot and 50

feet below, you know, that's a reason you might tend

to classify it as Class I, is that what you're saying,

Ken?

MR. LISS: The protection of that 50 feet of

Class I. And until these rules here, these 742 rules

came along, it's been difficult to figure out a way to

do that I'll admit.

MR. O'BRIEN: To clarify things, the reason

that ten foot, that ten was chosen, because the

Department of Public Health's Water Well Code requires

a sanitary seal ten foot below the surface, so you

can't have a screened interval above that ten feet and

install a new legal well.

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MR. RAO: I have a follow-up question. So

are you saying that, you know, if the depth of the

hydrogeologic unit below ten feet is, you know,

relatively less, then it would be considered Class II?

Because Appendix D doesn't seem to say that.

MR. SHERRILL: We're not -- by the 742 rules

we're not proposing -- in the 620 rules are the

classifications of groundwater with I and II being the

ones we primarily deal with most often. And through

the 742 rules we are not proposing on new definitions

for classification of groundwater.

MR. RAO: So what you have proposed under

Appendix D is consistent with the 620 rules?

MR. SHERRILL: We believe so. And whereas

620 identifies the four classes of groundwater, 742 is

addressing how do we, quote, clean up, remediate

groundwater, what kind of objectives we're trying to

achieve.

MR. RAO: Okay, under 742 Appendix D,

number

2, you talk about a scenario where you say which may

be highly unrealistic but could happen, where a person

conducting remediation can demonstrate the groundwater

above ten feet with Class II specifications can show

that it will meet the Class I standards below ten

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feet.

MR. SHERRILL: Correct.

MR. RAO: Okay, if we found this to be, you

know, really unrealistic, what would be the

classification for such a hydrogeologic unit?

MR. SHERRILL: What the -- from a practical

or technical viewpoint here, when you screen

groundwater and you're collecting groundwater samples,

and we're kind of cutting hairs here in the sense of

saying are you collecting a groundwater sample at

exactly nine feet eleven inches versus ten feet one

inches, in a practical viewpoint most screens that we

deal with are ten feet screens, and in our groundwater

collection m onitoring wells, and it becomes an

engineered difficulty to try and really cut hairs in

saying water is above ten feet and water is below ten

feet, and they're not in communication with each

other.

MR. RAO: So what would be the classification

of such unit?

MR. SHERRILL: Of which units?

MR. RAO: Would it be Class I as you say in

Appendix D?

MR. SHERRILL: The classification would be as

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what 620 is, as what 620 would dictate.

MR. RAO: So as Mr. Reott was saying, if you

assign a single designation to the example he has put

up on the --

MR. SHERRILL: In the example that I see over

here on the flip chart for practical -- it would

probably be argued that when you were collecting a

groundwater sample from this type of scenario, your

sample is actually being collected from the unit above

and below the -- this ten foot interval, therefore

you're looking at Class I groundwater. You would have

to do some kind of feat to be able to collect a sample

and prove or demonstrate that it was only being

collected and only being impacted above that ten foot

area.

MR. RAO: Thank you.

MS. McFAWN: Just for the record, the diagram

that Mr. Reott put up for us, it shows a ten foot line

and Class II above the ten foot line with eight foot

indication, below the ten foot line is a Class I

designation with a 50 foot increment

HEARING OFFICER DESHARNAIS: Mr. Reott, did

you have some follow-up?

MR. REOTT: Yeah, just a follow-up, John.

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Suppose your well screen is actually much smaller, you

know, a foot, and your well is screened well above a

ten foot line, you know, it's screened only six foot

below the surface and it's only a one foot screen, and

so you're pulling your water from the water that the

Board in Par t 620 has said is Class II water.

Should you look at the Class II standards then for

determining whether your groundwater meets cleanup

objectives, because that's where the well is screened?

MR. LISS: I think that's a program-specific

call on the site classification. If it's appropriate

to limit your screens to say this Class II zone in the

upper portion, then that would be borne out in your

site classification, because you would have

demonstrated that there is no contamination I would

assume in that lower part of the aquifer which would

be called Class I.

I mean that's the way we handle it right now.

When we get to this invisible line we look at it that

way. If there's no contamination down at -- in the

Class I based on your illustration, during the site

classification then we might concentrate our efforts

and the rest of the investigation on the Class II part

of the groundwater. And then you would try to a

chieve

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Class II objectives.

MR. SHERRILL: I do have -- I'm familiar with

a site in Chicago that I'm reviewing that the

hydraulic conductivity of the upper ten feet would

tend to make it Class I. It's like ten to the minus

three or ten to the minus four hydraulic conductivity,

and there is a clay layer starting at exactly within

an inch of ten feet. And it's like the perfect

scenario, and so th

at class has Class II groundwater.

Because the permeable water is all within the upper

ten feet. That's just a -- that just happens to be

specific to that site.

MS. McFAWN: Is that why there's this caveat

in paragraph 2 of Appendix D?

MR. SHERRILL: The caveat in number two is

because there's many, many places in Illinois where

the -- I'll think of like Henry County, Moline area,

many areas up in our agricultural belts up in

northwest Illinois where the groundwater starts three,

four, five feet below the surface, but it continues on

down to 40 or 50 feet below the ground surface, and we

have this -- and people are actively using that for

their water supply, their drinking water supply.

And so this zone of their water that they're

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drawing from is from four feet below the surface to 50

feet below the surface. And thei

r spills, releases

and so forth can occur on the surface.

MR. REOTT: John, as a follow-up, if the

Board wanted to have a more predictable system

for classifying a straddling unit where the regulated

community knew always how the Agency was going to

react to the situation, you could theoretically base

that kind of system, a more predictable system just on

the ratio of the portion of the unit that's below the

ten foot line to the portion of the unit that's above

the ten foot to the line. In other words, if you had

eight feet above and one foot below, eight-ninths of

it is above, therefore you shifted into the Class II

category. If it's eight feet above and 50 feet below

like the diagram on the chart, then the majority of

it's in the Class I, and then you shifted into Class

What would the Agency think about that sort of

system? Just so that you'd have more predictability

for people trying to figure out what classification

they're in.

MR. SHERRILL: I think we want to live with

620 the way it is, on classification of groundwater.

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MR. LISS: I mean if somebody were to make a

proposal and open a docket for 620, my personal

opinion and professional opinion would be to get rid

of the ten foot zone then and call it all Class I if

it's straddling Class I and Class II. Because I think

we've -- we're trying to approach it base

d on this

risk where assessment procedures where the 620 rule

says ten feet down and you have Class I below it, and

then looking at the risk assessment, and in 742, if

you can demonstrate that some other standard could be

applied to that Class I groundwater, and it fits into

these tiers, it's acceptable. I think right now

that's the best way we could do this.

Let me clarify for the record, too, that I'm not

suggesting we open 620.

MR. REOTT: Well, no.

MR. LISS: I was trying to explain to you

that we found a way to work through this and are

comfortable with it right here.

MR. REOTT: Wouldn't this effectively amend

620 by doing it, by putting this Appendix D here with

this language?

MR. LISS: I don't think so.

MR. SHERRILL: No, I don't think so.

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MS. McFAWN: Is that because of the statutory

exception? I mean why wouldn't you th

ink so? I kind

of understand where Mr. Reott's coming from, and I'm

wondering if the Agency -- I've heard two of you say

no, and I'm wondering if that's because of the

statutory exception which allows 620 to be bypassed by

this.

MS. ROBINSON: Is that question for Mr.

Reott?

MR. REOTT: I'll answer it, I think this

amends 620.

MS. McFAWN: I know you do by your question.

I'm wondering what the Agency thinks.

MR. SHERRILL: Our question, you know,

Appendix D is really just procedures for determination

of Class II groundwater. I really don't follow your

question.

MR. RAO: I think what Miss McFawn was

talking about was the statute allows the adoption of

groundwater objectives which may be higher than 620

numerical standards.

MR. SHERRILL: The Appendix D was not put --

MR. REOTT: I know.

MR. SHERRILL: -- does not talk about that.

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MR. RAO: I know. So Appendix D is the

Agency's interpretation of what, you know, how to

classify groundwater as Class II. There may be other

interpretations. Right?

MR. SHERRILL: Correct.

MR. RIESER: Are there other interpretations

which the Agency would accept other than what's in

Appendix D?

MR. SHERRILL: I guess I'd go back to, you

know, we look at 620.

MR. KING: I'm getting awfully confused by

all of this. I mean we had a very simple purpose in

putting Appendix D in here. The 742 discusses the

fact that you establish remediation objectives based

on whether it's a Class I or a Class II groundwater.

This was intended to provide a procedure for making

that determination, that distinction, and that's what

it's there for, it's not --

MR. REOTT: But Gary, doesn't Appendix D,

number 2 here, create a presumption that a straddling

unit is Class I? I mean it's not just procedural.

MR. KING: Well, tell me, does 620 answer

that question?

MR. REOTT: No, I don't think 620 answers

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that question. But I just want to make sure the Board

understands that question, that it's being asked, a

really important question, that's really a 620

question that was not resolved in 620.

MR. KING: It's a 742 question because the

issue comes up under 742 and will come up under 742.

So we wanted to try to answer that question in this

proceeding. I don't want to go back and reopen 620 to

answer it there. We want to try to answer questions

related to how you determine remediation objectives in

the context of this proceeding. And if there isn't --

you're right, there is a question about how do you

handle a straddling unit. We felt that the more

environmentally protective way to do that was to do it

the way we're doing it here.

HEARING OFFICER DESHARNAIS: Why don't we go

ahead and take a ten minute break and we can answer

any additional follow-up on this when we get back.

(A recess was taken.)

HEARING OFFICER DESHARNAIS: Let's go back on

the record, please. We've been addressing questions

concerning 742 Appendix D. Does the Agency have

anything further on that section at this time?

MS. ROBINSON: No, we do not.

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HEARING OFFICER DESHARNAIS: Are ther

e any

additional follow-up questions on that section at this

time?

(No response.)

HEARING OFFICER DESHARNAIS: Okay, that

brings us to the --

MS. McFAWN: Before we move on then can I ask

will the committee be testifying about this at all or

will there be any further testimony from the Agency or

the committee, any further consideration of our

discussion about Appendix D?

MR. RIESER: With respect to the committee,

there may be on this issue. That is something the

committee has to discuss. Harry Walton was involved

in the 620 proceedings significantly with all our

clients, so it may be something we'll look at.

MS. McFAWN: Is there any chance that

Appendix D and especially this language originated

with the committee, or is this from the Agency?

MR. KING: It's from the Agency.

HEARING OFFICER DESHARNAIS: Would the Agency

be intending to address this further?

MR. KING: I don't know. I was trying to

summarize our position as clearly as I could. If that

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was understood, then I don't think we have anything

else really to add.

MS. ROBINSON: We may address the issue

further in public comments, but at this point I think

the Agency needs to reconvene on its own and just make

sure that we're clear.

HEARING OFFICER DESHARNAIS: Okay, thank you.

Mr. Reott, you had indicated that you had two

additi onal questions remaining on --

MR. REOTT: Yeah, I had the only questions on

engineered barriers, Part 1100. There are questions

32 and 33.

HEARING OFFICER DESHARNAIS: Would you please

begin by reading the questions into the record,

please.

MR. REOTT: How will the Agency, number 32,

how will the Agency make certain that engineered

barriers such as paving remain intact and in place in

the future?

MR. KING: I think that's one of the

functions of an institutional control. That's why

we've always coupled the notion of an engineered

barrier with an institutional control. That's

primarily going to be the responsibility of owners,

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successive owners to make sure that that engineered

barrier remains in place.

I anticipate at some point we'll end up doing some

spot checking of these sites to see if things are

being maintained.

MS. McFAWN: What will you do if you find out

they're not being maintained?

MR. KING: Well, the rules provide a process

for voidance which would begin with a notification to

the owner that would identify our findings that a

barrier was not being maintained, and then it would be

given an opportunity to correct that. If they didn't

then the letter could be -- the NFR letter could be

voided.

HEARING OFFICER DESHARNAIS: Miss Rosen?

MS. ROSEN: How would that work in the

context where you don't have a No Further Remediation

Letter that's acting as your institutional control?

MR. KING: You still where you have a -- for

instance where you have a deed restriction, you still

have an NFR determination which would be voidable.

MR. FEINEN: My question was along those

lines. When you say voidance procedures, are you

talking about the voidance procedures in 742 if there

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are any, or 732 like we talked -- well, the hearing

that was held yesterday, or 740?

MR. KING: I believe they're all pretty

similar. We tried to keep them as consistent as

possible. As I was saying, I think we have to look at

the individual rules that are governing that. They

were intended to be consistent.

MS. ROBINSON: Could I ask a clarifying

question here? Gary, if we're looking at procedures

to void an NFR letter, say it's a LUST site, would we

then look to 732 f

or those procedures?

MR. KING: That's correct.

MS. ROBINSON: And likewise, if it were a

site remediation site, would we then look to the Part

740 procedures for voiding an NFR letter if that were

the issue?

MR. KING: That's correct.

HEARING OFFICER DESHARNAIS: Mr. Reott?

MR. REOTT: As a practical matter does the

Agency view any standards as to whether pavement's

being maintained, quote, unquote, how will someone

know whether they're doing what the Agency thinks they

ought to be doing?

MR. KING: Well, there will be a condition

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relative to an engineered barrier, that's one of the

conditions of the NFR determination. So I suppose if

somebody wants a specific set of maintenance criteria

in there, I suppose they could propose those.

MR. REOTT: Okay.

MS. ROBINSON: Is it possible that if they're

using a cement block, like a paved parking lot or

something as an engineered barrier, that it might be

in the NFR letter that they maintain that so that

there's not significant cracks where something could

migrate? Would that be a possible example?

MR. KING: Yes, I think so.

MR. REOTT: Number 33, if caps are recognized

engineered barriers for the migration to groundwater

pathway, and there's a cite here to the portion of

this subpart that recognizes that, 742.1105(c)(1)(A),

should 742.305 and 742.320 be amended to allow the use

of engineered barriers to exclude the migration to

groundwater pathway, you know, through a cap?

MR. KING: No, I don't think so. That's not

the way 320 is functioning. Really what 320 is

assuming is that you really have contamination in the

groundwater already, and in that context a barrier

isn't doing any good. I mean you're not looking at

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the migration of groundwater pathway under 320, you're

looking at the actual groundwater itself. So it's a

little bit -- you're comparing apples and oranges to

do that.

MR. REOTT: Well, let me just follow-up,

Gary. You know, there are various requirements in

Part 742.320 for excluding the ingestion of

groundwater pathway, 742.1105 the Agency recognizes

that a cap is a recognized and acceptable engineered

barrier for the groundwater ingestion route, and -- I

guess what I'm l ooking at is it sort of seems

inconsistent to recognize that a cap is an engineered

barrier back in Section 1100, but not in the Subpart C

determination for pathway exclusion.

MR. KING: Well, I don't -- they're

different, because if you look at 1105(c), we've

described the ones that are applicable for the

migration to groundwater portion of the groundwater

ingestion route, and then we've got other engineered

barriers, this is under (c)(4), which talk about the

actual ingesti on of groundwater exposure routes.

So we have really followed the logic of that

there's two portions to the overall groundwater

ingestion exposure route. There's the migration of

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contaminants through the soil to the groundwater, and

then movement of the groundwater -- contaminants in

the groundwater to the exposure point.

And I think what you're suggesting be done, you

can't do it , because as I said, like I said before,

you're mixing apples and oranges. Because 320 is not

looking at the migration to groundwater.

MR. REOTT: It's looking at both parts of the

groundwater ingestion route?

MR. KING: No, it's just looking at the

latter, it's only looking at the portion dealing with

how the contamination moves in the groundwater.

MR. SHERRILL: We have said under testimony

that under this 742.320 that when you exclude the

groundwater ingestion exposure ro

ute, you're excluding

both. But what we're doing in 1105 is we're breaking

down those two components as far as under engineered

barriers.

MR. REOTT: To make the two portions

consistent then, wouldn't it be appropriate

to amend 320 to say that with regard to that one

portion of the groundwater ingestion route, a cap is a

recognized means of controlling that exposure route?

MR. KING: You know, when we were first --

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when we were first discussing -- began discussing this

issue with the advisory committee back in the spring

of this year, we had internally put together something

that would have dealt with this migration to

groundwater exposure part, but it was really a long --

I mean it was -- you know, it would be another whole

section of material that you'd have to deal with.

I mean it would be its own kind of complicated

thing. And that was as we t

alked to the advisory

committee, I mean their preference was to go with the

procedure that's outlined in 320 as opposed to the

migration of groundwater aspect.

MR. REOTT: So other than that was their

preference, is there any reason you can think of that

you couldn't amend 320 to provide that a cap does

exclude that pathway, that portion of the groundwater

pathway?

MR. SHERRILL: An attempt was made to address

how you could exclude the migration to groundwater

route. Th ere is a literature review and so forth, and

there was not a consensus on how that particular -- if

you wanted to just look at only that particular route,

in a rule format with equations and so forth, how you

could exclude that route, and so what we envision is

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that most people if they're going to try to -- if

they're going to just try to exclude this migration to

groundwater route, just that portion of it, that

they're going to do it under 742.925.

MR. REOTT: In Tier 3 then.

MR. SHERRILL: Correct.

HEARING OFFICER DESHARNAIS: Follow-up

questions.

MR. NICKELL: In line with that then it would

seem that it would be the Agency's position then that

a cap by itself would not be sufficient to exclude the

pathway of migration to groundwater, which is what you

would be asking to be done by amending Subpart C to

include caps as a way to e

xclude migration to

groundwater pathway.

MR. SHERRILL: If I can -- you know, just a

cap in itself would not exclude the migration to

groundwater route.

HEARING OFFICER DESHARNAIS: Excuse me, could

you identify yourself for the record?

MR. NICKELL:

Chris Nickell, I'm with the

IEPA Bureau of Land.

HEARING OFFICER DESHARNAIS: Thank you. Any

additional follow-up questions?

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(No response.)

HEARING OFFICER DESHARNAIS: Moving on, then

that finishes up the original prefiled questions. We

do have a set of additional prefiled questions that

were filed.

MR. RIESER: Now that it's late in the

afternoon I ask my heavy technical questions here to

keep everybody awake, but I'll try to get through

these as quickly as I can. These are some questions

filed on behalf of the Illinois Petroleum Council in

particular.

In Tier 2 is it correct that chemical specif

default degradation rates, as listed in Appendix C,

Table E, can be used in Equation R26?

MR. HORNSHAW: Yes.

MR. RIESER: In Tier 2 is it correct as

stated in Section 742.810(a)(1)(H) that the first

order degradation constant to be used in Equation R26

can be obtained either from Appendix C, Table E, or

from "measured groundwater data"?

MR. KING: You know, it says that, and after

we saw that we realized we shouldn't say it that way.

That phrase shouldn't be there

at all. That really

should be a Tier 3 issue.

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So I mean we're planning on going back and taking

that phrase "or from measured groundwater data" out of

Tier 2.

MR. RIESER: Okay, but under Tier 3 the first

order of degradation constant could be a measured

value?

MR. HORNSHAW: That's correct. And actually

we looked further into that when we got this

additional set of prefiled questions. We don't

believe it's appropriate that measured groundwater

data referred to in the field type of measurements,

the degradation if it's measured in the field is most

likely going to be confounded in with loss of a

chemical due to dispersion in all three directions, so

we feel that the degradation rate should be measured

in the laboratory, and there are at least four ASTM

standard methods for doing that in the lab.

HEARING OFFICER DESHARNAIS

: Excuse me, could

the Agency clarify that the changes to the language

concerning measured groundwater data would be

addressed in the next errata sheet?

MR. KING: That's correct.

HEARING OFFICER DESHARNAIS: Thank you.

MR. RIESER: So are you saying you would not

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approve a Tier 3 demonstration the first order of

degradation constants based on field measurement?

MR. HORNSHAW: At this time we're not aware

of measures that can effectively ferret out the loss

of compound that's truly due to degradation of the

compound versus loss of the compound due to dispersion

on the X, Y and Z axis.

MR. RIESER: If you took the current model

and had the information about -- talked about velocity

along the centerline and actually measured that,

couldn't you use that same model and use that to

calculate the dispersion, I'm sorry, not the

dispersion but the

first order of degradation

constant?

MR. HORNSHAW: You would also need to have

estimates of the dispersion in the Y and Z direction,

too, as well as along the centerline of the boom.

MR. RIESER: So if you had that information

to control the dispersion, would that allow you to

calculate with field measurements the first order

degradation constant?

MR. HORNSHAW: I suspect it could be done. I

might add that would be done under Tier 3.

MR. RIESER: Understood, under

stood.

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Assuming source and free product removal, if

site-specific data taken over a period of time

demonstrates that a dissolved chemical groundwater

plume is stable or shrinking, is this a sufficient

demonstration pursuant to 742.805(a) (4) and (5)

respectively to demonstrate that groundwater within a

minimum setback zone of a well will meet Tier 1

groundwater remedial objectives and groundwater

discharged into surface water will meet the applicable

surface water standard for that chemical?

MR. SHERRILL: No.

MR. RIESER: Why not?

MR. SHERRILL: You could -- it's somewhat

common to have a -- you could have a stable or

shrinking plume but it is still migrating, and it can

be migrating to someone's potable supply well.

MR. RIESER: If it's stable --

MR. SHERRILL: I did not interpret -- when

you said stable, I did not interpret -- I interpreted

that it could still be moving.

MR. RIESER: I think stable here was meant in

the sense of static or not moving. And shrinking was

used in the sense of getting smaller.

MR. KING: I think John's point still holds,

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you still -- whether it's stable or shrinking, if you

have a well in that plume, it wouldn't meet those

criteria.

MR. RIESER: Okay. So if you would already

impact the well, then it wouldn't meet those criteria,

I understand that. But I guess the other assumption

that we needed to put here is assuming that that was

not the case, that having established the extent of

the contamination and establishing by virtue of field

measurements that it wasn't getting larger, either not

getting larger or in fact getting smaller, would that

be -- and assuming that it did not impact the minimum

maximum setback zone of well or surface water system,

would that be a sufficient demonstration?

MR. CLAY: I think there would need to be a

lot of data, because we see a difference in

concentrations on quarterly sampling all the time.

One time it's up, one time it's down. I mean they're

all over the place.

So I think there's a lot of different situations

that could indicate or could give you a false

indication that it is shrinking or stable.

So there would probably have to be a lot of data

collected over a long period of time for

us to make

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that demonstration. Ken, do you have anything?

MR. LISS: No, you're going to make the

decision basically on a limited amount of data over a

certain period of time, a snapshot. John's earlier

description when we talked about the setbacks, what if

somebody developed groundwater in the area, maybe due

just to construction, dewatering, that might cause

that to be mobile.

Now I mean in the future, also the chemical

dispersion itself is a slower process, and I guess we

would want to take that into account. Just because

you might show based on this time data, this snapshot

that things appear to be stable, there might be the

chemical dispersion itself that's occurring.

MR. RIESER: But if you had sampling over a

period of time, and had a mechanism such as an

institutional control where you could rule out other

influences on the groundwater syst

em such as the one

you described --

MR. LISS: You mean such as monitoring and

some responsive action?

MR. RIESER: Well, monitoring, yeah, I'm

talking monitoring movable free product.

MR. KING: Well, I think we probably can

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devise enough criteria as we sit here to finally get

to the kind of the conclusion we want to get. But,

you know, what it really comes down to is there would

be a lot of site-specific factors to consider before

you reach that kind of conclusion.

MR. RIESER: Site-specific factors having to

do with enough information to reach that conclusion

and enough information to demonstrate that stability,

that those conditions would maintain over time.

MR. KING: Right.

MR. WATSON: I've got a follow-up question.

HEARING OFFICER DESHARNAIS: Mr. Watson?

MR. WATSON: Once you've made the appropriate

demonstration during your -- as you refer

to as a

snapshot, is it true that your obligations with

respect to these establishment of these remediation

objectives has been satisfied?

MR. LISS: We're talking about source and

free product removal is what we're talking about. I

thought we were in the context of leaving free product

behind. I'd say that the snapshot in time is

appropriate to evaluate that these things can be left

there and your obligation based upon the current

snapshot, you know, is satisfied with the

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objectives.

MR. SHERRILL: When we make any of our

determinations we base it on the information we have

at hand, you know, whether it be long term or -- I

mean all historical data and up to that present. And

that's what the information is made on. If I think --

I think this is what you're getting at. If conditions

change upon which we made that NFR, I believe some of

the NFR's we've written, I mean we state in there we

made this decision based upon the information we have,

and so if those conditions change, there could be

steps taken to void an NFR.

MR. WATSON: To the extent there's any post

remediation obligations to do sampling or confirm site

conditions, that would be included in the NFR, is that

right?

MR. SHERRILL: Well, correct, but I can think

of a scenario. I mean if you had a site -- I guess

this relates back to criteria on

when an NFR is voided

or steps to take to void an NFR.

MR. WATSON: Okay.

HEARING OFFICER DESHARNAIS: Additional

follow-up?

(No response.)

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MR. RIESER: Going on to my question four.

Can a site-specific and compound-specific degradation

rate be determined by calibrating Equation R26 using

site-specific data obtained over time, and can

Equation R26 be used with this degradation rate in

742.805(a)(4) and (5)?

MR. KING: Is this the same question --

MR. RIESER: I think it's basically the same

question which is --

MR. KING: Okay. And it would be basically

the same answer.

MR. RIESER: And my understanding of the

answer was yes.

MR. HORNSHAW: With a lot of site-specific

data.

MR. RIESER: I guess the fundamental question

is, you know, the Tier 2 basically requires that

certain modeling be done, and the fundamental question

is if you have actual site data, instead of a model,

in other words, the model is there to predict the

results, and you've got the site data over time which

gives you a picture of what those -- of how this

system actually operates over a time period, is it

acceptable to use those results in a Tier 3 setting?

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MR. HORNSHAW: It's approved in Tier 3 and

then the results are plugged into the Tier 2 model.

Is that what you're asking?

MR. RIESER: I think even whether model is

used or not, that that actual site data will tell you

what the site -- how the site's going to behave

instead of the model, and is that acceptable for the

Agency to use the real time, real data, rather than

modeling information to determine how that site's

going to behave?

MR. SHERRILL: When I read calibrating

Equation R26, under 742.910 we have the provision

that, you know, alternative models can be proposed

MR. RIESER: And as I said, I think I'm

talking about using -- as opposed to modeling, using

real data to demonstrate how that system behaves,

assuming you had enough data to make that

demonstration.

MR. O'BRIEN: But I think the point he was

making is that in practicality you pick a point to put

your monitoring well in, and then you extrapolate from

the data you collect from your monitoring wells based

upon your original model of how things work to

describe it, and th

at's what he was getting to when he

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talked about calibrating the model using actual site

data.

MR. RIESER: Oh, I see. Okay.

HEARING OFFICER DESHARNAIS: Moving on to the

next question.

MR. RIESER: And I think number five is

really along those -- I believe number five's also

been answered in the affirmative, that this monitoring

over a specified period of time to acquire data to

demonstrate that a chemical plume is stable or

shrinking.

Just let me go on to six. Under Tier 3 can the

inhalation pathway be eliminated by measuring soil

vapor concentrations at the site?

MR. SHERRILL: I know under six, you know,

just a clarification, we don't use the word eliminate.

MR. RIESER: Thank you.

MR. SHERRILL: Please exclude.

MR. RIESER: Exclude it.

MR. SHERRILL: But this measuring soil vapor

concentrations, the concern there is, you know, you

can measure them one day, and then due to disturbances

at the site we may have a control that we would make

the NFR determination based upon the information that

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we had, so things that -- this thing of like vapor

concentrations, you have temperature changes, whether

there's been rain events before and after when you do

this measuring. So other things go into this, and I

guess under a simple answer would be yes, but there's

other things, other considerations that go into it.

MR. RIESER: But the other considerations

would be whether they're representative of site

conditions, and so it would evaluate how those

measurements were taken and make some determination

about whether they were representative of site

conditions, is that correct?

MR. SHERRILL: Correct.

MR. RIESER: Seven is taken care of by the

changes that we started the day talking ab

out.

Eight, with regard to the variable GWobg in

Appendix C, Table B --

MR. REOTT: obj.

MR. RIESER: Thank you, for people who know

the alphabet. If the Agency used USEPA Health Based

Levels from the SSL for deriving Tier 1 soil

remediation objectives for contaminants which do not

have an MCL, and identified those values in the newly

added Appendix C, Table F, should not those same

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values be used in this table, that being Table B?

MR. HORNSHAW: We chose the USEPA Health

Based Levels to try and maintain consistency as much

as possible in the Tier 1 approach. When we got to

the Tier 2 approach we felt it was probably more

appropriate to use state values, and that's why that

table was only intended to be used to calculate Tier 1

values.

As I stated in my testimony, we put that table in

because consultants were calling and saying how come I

can't recreate the Tier 1 numbers using the Tier 1

groundwater remediation objectives.

And the reason for that is there were some

significant differences in a few cases of

noncarcinogins, so we put that table in so people

could recreate the Tier 1 numbers.

MR. RIESER: If you used the SSL's for

creating the Tier 1, then why isn't it appropriate to

use them in -- and in doing so you ran them through

that same SSL model that at least forms the basis for

Tables A and B under Ap

pendix C, why isn't it

appropriate to use those same values for a Tier 2

demonstration?

MR. HORNSHAW: As I stated before, we thought

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in Tier 1 only we wanted to maintain consistency as

much as possible with USEPA's look-up table which was

intended to be applied nationwide. We feel it's more

appropriate in Tier 2 to use the state's groundwater

criteria as the values.

MR. RIESER: And the basis for that is what?

Why is it more appropriate?

MR. HORNSHAW: In Tier 1?

MR. RIESER: In Tier 2.

MR. HORNSHAW: In Tier 2 I guess it's just an

Agency decision.

MR. RIESER: And it's based on?

MR. KING: It comes down to really you have

to make a decision as to how things are going to be

put together, and perhaps it would have been more

logical for us to use the state derived numbers and

then develop other cleanup objectives under Tier 1.

That perhaps would have been a more consistent way of

doing things.

I think we didn't want to do that. I think you

would end up generating for those contaminants in at

least a number of occasions you'd be coming up with

remediation objectives which are more conservative

under Tier 1.

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We felt that the Tier 1 numbers were -- that the

SSL document had come up with were consistent enough.

So it really was not so much a question of using the

SSL process in Tier 2, but whether should we use those

state numbers in Tier 1. We concluded that those

would generate numbers that would be more conservative

than we needed.

MR. RIESER: But having decided to use the

SSL values in Tier 1, why not use them in Tier 2 as

well?

MR. KING: Well, I think we saw the Tier 2

process as being more of a -- more of a -- I don't

know if state oriented is the way to do things, but

there you're taking the remediation objectives in --

for groundwater and doing the calculations in Tier 2

based on those. So that otherwise you'd be using a

number, your input number for your groundwater

objective would not be consistent with what's in Tier

1 for those groundwater numbers.

MR. RIESER: But I thought the Tier 1 was the

SSL's. So we're talking about using the SSL's in Tier

1 and in Tier 2?

MR. KING: No, I don't think that's what

we're saying.

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MR. RIESER: It was my understanding that

Tier 1 is the SSL, but Tier 2 is the state values and

the question is why you use the --

MS. ROBINSON: Could we maybe have a five

minute break to caucus?

MS. McFAWN: Why don't we move on to

questions 9, 10 and 11. I think everyone's getting

rather tired, and the Agency has tried to answer this,

and why don't you take the next -- you know, take a

look at the transcript afterwards and see if you need

to readdress it or if you're satisfied with your

answer.

MR. RIESER: I'm fine with that.

MS. McFAWN: Okay. I just -- the reason I

interjected here is I would note that I think that

exhaustion is setting in. So I just mean these are

very complex questions.

MR. RIESER: And I understand that, so I

would like to have that question answered. I don't

believe it's answered, but I'm willing to just move

on.

MR. McFA WN: Okay, you can always

provide testimony on what you think would be the right

answer as well.

MR. RIESER: Right. Nine, in Appendix -- oh,

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I have a question about Appendix B, Table F. I note

that there are attributions for some but not all of

the values as either from equation -- that's 17 from

the health based limit or from the 620 standards. And

for those that aren't attributed, where are they from?

MR. HORNSHAW: Could you repeat that again?

MR. RIESER: In Appendix B, Table F, there

are notes on what I'm calling attributions to some but

not all of the values. And for those values without

footnotes, where are they from? This is not all of

them, but just generally.

MS. ROBINSON: Is this a new question?

MR. RIESER: It is a new question, I'm sorry.

There's so much to explore here.

HEARING OFFICER DESHARNAIS: W

e'll take a

five minute break now and then we'll continue.

MR. RIESER: I can move on to the --

MS. McFAWN: We'll take a break.

MR. RIESER: We'll take a break? Okay.

(A recess was taken.)

HEARING OFFICER DESHARNAIS: If we could get

ready to reconvene, please. We have three remaining

prefiled questions, and the additional prefiled

questioned are number 9, 10 and 11.

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What we're going to do is we'll have those

questions read into the record by the proponent, have

the Agency response, not allow any follow-up at this

time. If there's any follow-up, that will occur next

time.

MS. McFAWN: Is that acceptable to you, Mr.

Rieser?

MR. RIESER: Sure. Number 9. In Appendix C,

Table B, a value for both infiltration rate or "I" and

for infiltration rate for migration to groundwater

mass limit equation, Im-l, is provided. Functionally

are there any d ifferences between these infiltration

rates? If so what are the differences?

MR. SHERRILL: Yes, they are fundamentally

different. This is a good question that also relates

to question ten. In the Part 742 appendices the value

under the ASTM RBCA infiltration rate is .3 meters per

year. This "I" is the default rate in the ASTM

standard. I just want to note that .3 meters is

approximately 11.7 inches a year.

For the 742 SSL's the infiltration rate equals .3

meters per year, which we adopted from this ASTM and

RBCA standard. Under the USEPA SSL user's guidance

provides an infiltration for the mass limit the Im-l

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is .18 meters a year, and I'll explain how these two

infiltration rates are functionally different.

"I" is just one parameter that is used to

calculate a dilution factor. When developing a new

dilution factor all assumptions and inputs must be

reviewed and not just infiltration.

I would like to point out that a dilution factor

of ten was originally proposed by the USEPA during

1994, but after much national review was revised to

20. A dilution factor of 20 provides a less

restrictive remediation objective than a dilution

factor of ten.

So when we were discussing infiltration for the

SSL infinite source model, we need to review the

dilution factor in its entirety. The dilution factor

in the numerator is one plus the a

quifer hydraulic

conductivity times hydraulic gradient times the mixing

zone depth, and then the denominator is infiltration

rate times source length parallel to groundwater flow.

And this is a quote out of the USEPA Soil

Screening Guidance User's Guide, "Because of the

uncertainty resulting from the wide variability in

subsurface conditions that affect contaminant

migration in groundwater, defaults are not provided

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for the dilution model equation. Instead, a default

of 20 has been selected as protective for contaminant

sources up to half acres, a half acre in size. A

further discussion of the basis for this default is

provided and a description of the mass limit analysis

is provided in the USEPA technical background

document", and we provided earlier testimony on this

source size versus site size.

The dilution factor is demonstrating as

contaminant, as contamination of the soil leachate

moving through the soil and groundwater and

contaminant concentrations are attenuated by

absorption and degradation.

In the aquifer, dilution by clean groundwater

further reduces concentrations before the

contamination reaches a receptor point. This

reduction is expressed as a dilution attenuation

factor. The lowest possible DAF is one, meaning a

situation where there is no dilution or attenuation of

a contaminant. That is

where the concentration in a

receptor well is equal to the soil leachate

concentration.

Here's my second point. It gets shorter. The

USEPA SSL guidance addresses only one of the dilution

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attenuation processes, contaminate dilution in

groundwater, while Part 742 does allow for degradation

through this RBCA equation that we've been discussing

earlier. The mixing zone equation is derived from a

water balance relationship to calculate a

site-specific dilution factor.

Now in regards to this, that's in regards to the

big "I". Now, the Im-l, the mass limit soil level for

migration to groundwater approach represents the level

of contamination in the subsurface that is still

protective when the entire volume of contamination

leaches over the 30-year exposure duration and the

level of contamination at the receptor does not exceed

the health based limit.

More site-specific i

nformation is utilized in this

mass limit model. In other words, when you use the

mass limit model you know more about your site than

when you're using the other model.

And consequently a less restrictive infiltration

rate is used. So this big "I" is used for the

infinite source assumption model, while the Im-l is

used for when the source area and depth volume of the

source are known or can be reliably estimated. That

ends my quote.

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MR. RIESER: Thank you. And at the Hearing

Officer and Board members direction I'm not going to

follow up on this. I'll reserve the right to do so in

the future.

Going on to 10, in Appendix C, Table C, is it

accurate that the Domenico model does not include

constituent retardation?

MR. LISS: It's true.

MR. RIESER: Should not retardation be

included either in the definition of groundwater

velocity U = Ki/OtR where R is retard

ation

factor = 1 + Kdps/Ot, or included directly in R15 and

R26?

MR. LISS: First of all I can't find a

citation that references that configuration that you

put in here for that term. I found two that are

similar, but they're not the same by any means.

Should a retardation factor I guess it could be

applied, the author of the model itself Domenico says

in his paper, which is referenced in Exhibit F to John

Sherrill's testimony, that it can be applied to the

formula.

MR. RIESER: Okay. Thank you. And again I'm

waiving the follow-up until the following hearing.

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MS. McFAWN: Thank you, Mr. Rieser.

MR. RIESER: In 11, in Table C, Equation R11,

which identifies the subsurface soil volatilization

factor, does the Agency agree that ASTM overstates the

rate of vapor releases from subgrade soils?

MR. SHERRILL: We don't know that to be the

case. I guess that would be a question for ASTM, is

that correct?

MR. HORNSHAW: Well, or somebody to

demonstrate.

MR. SHERRILL: Or somebody to demonstrate.

MR. RIESER: Would the Agency consider

amending the definition column for R11 to note

"whichever is less between L11 and R4"?

MR. SHERRILL: I guess the answer would be no

at this time, unless we had this information presented

to us to make this demonstration.

MR. RIESER: Thank you. And based on the

direct ion of the Hearing Officer, that will conclude

my questioning. But I reserve the right to ask

further questions on these, and also there is one

other question that we were discussing and cut off

discussion right before the break, that I'm reserving

further questions on.

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MS. McFAWN: And that's correct. Did the

Agency find that answer during the break by any

chance? it had to do with footnotes.

MR. RIESER: I'm sorry, there were two other

questions right before the break where the Agency was

-- and I'm willing to wait for the next hearing to get

final answers on both of those.

MS. ROBINSON: We can answer the footnote

question.

MS. McFAWN: Please do.

MR. HORNSHAW: Going back to Appendix B,

Table F I think it is, the chemicals listed under

Class I that do not have footnotes were chemicals that

were derived using Subpart F of

620. Specifically

those are chemicals that are Class C carcinogens and

USEPA's Health Based Limit is one in a million risk

value. And since the legislation only identifies A

and B carcinogens as those which must be treated as

carcinogens, we recalculated the Class I groundwater

objective using the procedures of Subpart F and the

noncancer end point.

And for those chemicals listed under Class II that

do not have a footnote, those values were derived as I

discussed in my test

imony using Agency policy on the

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equivalent of a Class II health advisory using the

estimation of treatment or removal, removability from

Class II groundwater using methylene chloride and

ethyl benzene as cutoff chemicals as I discussed in my

testimony.

MR. RIESER: Thank you.

MS. ROBINSON: Could you just state for the

record what the other question is that we're going to

do in January? I don't know that I heard it.

MR. RIESER: It was number eight.

MS. ROBINSON: Just for follow-up purposes?

MR. RIESER: Yes.

MS. ROBINSON: Okay.

MS. McFAWN: We agreed earlier that the

Agency would look at that and see if it had anything

further to add.

MR. RIESER: Yes.

MS. McFAWN: If not you're free to offer

testimony.

MR. RIESER: Yes.

HEARING OFFICER DESHARNAIS: Thank you, Mr.

Rieser. That brings us to the initial ending of th

prefiled questions and the end of this hearing. I

would note that a second hearing is scheduled to begin

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January 15th. It will be held at 201 Municipal Center

West, Seventh and Monroe Street, Council Chambers,

third floor here in Springfield.

This will be to address testimony from other

interested parties and questions directed to those

witnesses. We will actually begin with any remaining

follow-up to these questions from the Agency that we

were discussing here today.

Prefiled testimony for the second set of hearings

must be filed with the Board on or before December

23rd, 1996. And prefiled questions for those

testifying must be filed on or before January 6th,

1997. When prefiling please contact the Board to

obtain the current copy of the service list.

MS. McFAWN: I would just note that when we

resume these hearings in January I would hope that the

question s that the Agency has would be fairly brief at

the outset because we will be anxious to have those

who have prefiled testimony be at the hearings and

avail -- allow us to have enough time for them to give

their testimony and have questions posed to them.

So for the most part we would then at the

conclusion of the prefiled testimony and the questions

to those participants, that's when we will return if

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we need to further questions of the Agency. That's

how I see January really shaping up.

Thank you for your time today. I know the

conditions here were rather warm, it was a rather long

day and hopefully at the Municipal Center it will be a

nicer atmosphere.

HEARING OFFICER DESHARNAIS: Does the Agency

have anything further at this time?

MS. ROBINSON: Not at this time.

HEARING OFFICER DESHARNAIS: This hearing is

adjourned. Thank you.

(Which were all the proceedings held on

the hearing of this cause on the date.) 14

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STATE OF ILLINOIS

)

) SS

COUNTY OF SANGAMON

)

CERTIFICATE

I, Susan Freeman, affiliated with Capitol

Reporting Service, Inc., do hereby certify that I

reported in shorthand the foregoing proceedings; that

the witness was duly sworn by me; and that the

foregoing is a true and correct transcript of my

shorthand notes so taken as aforesaid.

I further certify that I am in no way

associated with or related to any of the parties or

attorneys involved herein, nor am I financially

interested in the action.

_____________________________

Certified Shorthand Reporter

License No. 084-001342

Registered Professional Reporter

and Notary Public

Dated this 16th day of

December, A.D., 1996,

at Springfield , Illinois. 23

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217-525-6167