1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    2
    3
    4
    5 IN THE MATTER OF:
    6
    7 TIERED APPROACH TO CORRECTIVE No. R97-12(B)
    8 ACTION OBJECTIVES: AMENDMENTS
    9 TO 35 ILL. ADM. CODE 742.505 and
    10 742.900
    11
    12
    13
    14 Proceedings held on May 29th, 1997, at
    15 10:00 a.m., at the
    Howlett Building, The Lincoln
    16 Room, Third Floor, Springfield, Illinois, before
    17 the Honorable Amy
    Muran Felton, Hearing Officer.
    18
    19
    20
    21 Reported by: Darlene M.
    Niemeyer, CSR, RPR
    CSR License No.: 084-003677
    22
    23 KEEFE REPORTING COMPANY
    11 North 44th Street
    24 Belleville, IL 62226
    (618) 277-0190
    1
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 A P
    P E A R A N C E S
    2
    3 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
    BY: Kimberly A.
    Robinson, Esq.
    4 H. Mark
    Wight, Esq.
    Assistant Counsel, Bureau of Land
    5 Division of Legal Counsel
    2200 Churchill Road
    6 Springfield, Illinois 62794-9276
    On behalf of the Illinois EPA.
    7
    8 ROSS & HARDIES
    BY: David L.
    Rieser, Esq.
    9 150 North Michigan Avenue
    Chicago, Illinois 60601
    10 On behalf of the Illinois Petroleum
    Council.
    11
    12
    13
    14
    15
    16
    17
    18
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    1 I N D E X
    2 WITNESS PAGE NUMBER
    3
    4 Thomas C.
    Hornshaw 9
    5
    6 James Patrick
    O'Brien 24
    7
    8 Gary King 36
    9
    10 Harry R. Walton 42
    11
    12
    13
    14
    15
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    1 P R O C E
    E D I N G S
    2 (May 29, 1997; 10:00 a.m.)
    3 HEARING OFFICER FELTON: Good morning.
    4 My name is Amy
    Muran Felton. I am the named
    5 Hearing Officer in this proceeding entitled, In The
    6 Matter of: Tiered Approach to Corrective Action
    7 Objectives, 35 Illinois Administrative Code 742,
    8 Docket B.
    9 I would like to welcome everybody to our
    10 second set of hearings in this matter. Present
    11 today on behalf of the Board, seated to my right,
    12 is Board Member
    Marili McFawn. Seated to my left
    13 is Board Member Joe
    Yi. Seated to Board Member
    14 Yi's left is Attorney Assistant, Chuck
    Feinen.
    15 In the back please note that I have
    16 placed copies of the draft language as proposed by
    17 the Agency. This draft was prepared by the Board,
    18 but was approved by the Agency at the May 21st,
    19 1997 hearing in Chicago, with the exception of some
    20 minor editorial changes. These minor editorial
    21 changes are reflected in the record from the May
    22 21st, 1997 hearing. If you have any questions
    23 regarding those changes, please speak with either
    24 me or Kimberly
    Robinson from the Agency.
    4
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Also in the back are copies of the
    2 Board's May the 1st, 1997 order and the Agency's
    3 testimony. In the back I have also placed notice
    4 lists and service list sign-up sheets. If your
    5 name is not already on either of those lists,
    6 please sign them. If you have any questions
    7 regarding the purpose of those lists, please
    8 contact me during one of our breaks or after this
    9 hearing.
    10 This hearing will be governed by the
    11 Board's procedural rules for regulatory
    12 proceedings. All information which is relevant and
    13 not repetitious or privileged will be admitted.
    14 All witnesses will be sworn and subject to cross
    15 questioning.
    16 This hearing will be continued on the
    17 record to Friday, May 30th, 1997, at 10:00 a.m. at
    18 this same location and time in Springfield, if
    19 necessary, to accommodate the parties testimony and
    20 any questions of either the Agency or any of the
    21 parties.
    22 This proposed
    rulemaking was filed on May
    23 the 1st, 1997, and is intended to fulfill the
    24 mandates of Title 17 of the Environmental
    5
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Protection Act. Title 17 was added to the Act by
    2 Public Act 89-431, which was signed and became
    3 effective on December 15th, 1995.
    4 On September 16th, 1996, the Illinois
    5 Environmental Protection Agency proposed a new Part
    6 740 to the Board's rules, to create a Tiered
    7 Approach to Establishing Corrective Action
    8 Objectives, also known as TACO. On November 7,
    9 1996, the Board adopted the TACO proposal for first
    10 notice.
    11 On April 17th, 1997, the Board adopted
    12 the TACO proposal for second notice and
    13 reclassified this proposal as R97-12, Docket A. On
    14 April 17th, 1997, the Board proceeded the first
    15 notice and opened Docket B to address the
    16 additional language proposed by the Agency
    17 regarding mixtures of similar-acting substances.
    18 After proceeding to the first notice of
    19 Docket B on April 17th, 1997, the Secretary of
    20 State informed the Board that it could not publish
    21 the proposed rules for first notice because these
    22 amendments are proposed to amend rules in the new
    23 Part 742 which has not yet been adopted as final.
    24 Consequently, on May 1st, 1997, the Board
    6
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    1 vacated its April 17th, 1997 order and opened a
    2 proposed R97-12, Docket B, to address the
    3 additional language proposed by the Agency
    4 regarding the mixtures of similar-acting
    5 substances. The Board's May 1st, 1997 order, in
    6 effect, mirrors the Board's April 17th, 1997
    7 order.
    8 The purpose of today's hearing is to
    9 allow any person which needs to testify either for
    10 or in objection to the proposed
    rulemaking in
    11 Docket B. After a party has an opportunity to
    12 testify, questions of that party will be
    13 entertained.
    14 Procedurally, this is how we plan to
    15 proceed today. I prefer that during the
    16 questioning period all persons with questions raise
    17 their hand and wait for me to acknowledge them.
    18 When I acknowledge you, please state in a loud and
    19 clear voice your name and the organization you
    20 represent, if any. If you will be testifying
    21 today, we ask that you please come up here and be
    22 sworn in and take a seat here next to the court
    23 reporter, just for purposes of consistency sake.
    24 Are there any questions regarding
    7
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 procedures, and how we plan to proceed at this
    2 time?
    3 All right. Seeing none, at this time I
    4 would like to ask Board Member
    McFawn if there is
    5 anything else she would like to add to my comments.
    6 BOARD MEMBER
    McFAWN: Nothing more than
    7 just to welcome you all to the hearing.
    8 HEARING OFFICER FELTON: I would like to
    9 ask Board Member
    Yi if he has any further comments.
    10 BOARD MEMBER YI: Good morning.
    11 HEARING OFFICER FELTON: Okay. At this
    12 time, I would like to ask the Agency if they have
    13 any comments regarding their testimony from May
    14 21st regarding any additional testimony they would
    15 like to present.
    16 MS. ROBINSON: I believe there are going
    17 to be some follow-up questions for Dr.
    Hornshaw, so
    18 we would like to proceed with those as an opener.
    19 HEARING OFFICER FELTON: Okay. Just one
    20 second, please.
    21 (Discussion off the record.)
    22 HEARING OFFICER FELTON: Back on the
    23 record.
    24 Okay. We will proceed with Dr.
    8
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Hornshaw. At this time is there anyone who has any
    2 questions for Dr.
    Hornshaw for the Agency?
    3 MR. RIESER: From the Agency?
    4 HEARING OFFICER FELTON: For the Agency.
    5 MR. RIESER: Oh, for the Agency.
    6 HEARING OFFICER FELTON: Yes.
    7 MR. RIESER: Yes, I do. I am Dave
    Rieser
    8 from Ross &
    Hardies on behalf of the Illinois
    9 Petroleum Council.
    10 Dr.
    Hornshaw, I asked you numerous
    11 questions at the hearing last week, and I would
    12 like to follow-up with some areas where I think
    13 there has been some misunderstandings on some of
    14 those questions, in order to clarify some of the
    15 issues.
    16 Focusing entirely on what has been
    17 proposed as 805(E), I would like to ask you -- we
    18 talked last week about how to reevaluate the
    19 cumulative risk in this context. I would like to
    20 ask you again to go through what methodologies the
    21 Agency would use in evaluating how you would arrive
    22 at a cumulative risk.
    23 MR. HORNSHAW: I think I testified at the
    24 last hearing that there are several ways that could
    9
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 be used to evaluate whether the mixture of
    2 similar-acting chemicals, the risk from them, does
    3 not exceed 1 in 10,000, which is what is listed in
    4 this Subsection D as the target or the ceiling not
    5 to be exceeded, basically.
    6 One of those approaches is to use the
    7 same kind of approach that is in 805(c)(1) where we
    8 would calculate a weighted average using the
    9 concentration detected over an acceptable
    10 concentration. In this case that acceptable
    11 concentration could be the 1 in 10,000 risk level.
    12 If you will look to that, you have CUO,
    13 X, sub 1 as the acceptable concentration for
    14 contaminate, X, sub 1, and you could simply figure
    15 out what the 1 in 10,000 risk concentration is for
    16 X, sub 1, and that would be the denominator in that
    17 fraction that gets -- where the risk is summed.
    18 Another approach would be to do a Tier 3
    19 risk evaluation, look at the cumulative risk from
    20 those chemicals in the context of a larger risk
    21 assessment, identify what the cumulative risk is,
    22 and if it is not greater than 1 in 10,000, then
    23 that would be another way of showing that
    24 Subsection D has been achieved.
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Then a third way, which I don't think I
    2 presented very clearly at the last hearing, would
    3 be to simply look at the values that we have got in
    4 new Appendix A, Table H.
    5 MS. ROBINSON: Excuse me, Dr.
    Hornshaw,
    6 if I could interrupt you. I think you are looking
    7 at some documents. For purposes of clarifying the
    8 record, could you state what you are looking at?
    9 MR. HORNSHAW: This is the testimony that
    10 I presented at that first hearing in this document.
    11 MS. ROBINSON: Which was marked as
    12 Exhibit 1 for identification; is that correct?
    13 MR. HORNSHAW: Not mine, but that's what
    14 you say.
    15 MS. ROBINSON: The other document that
    16 you were referring to?
    17 MR. HORNSHAW: The other document I was
    18 referring to is Draft of Agency Proposal R97-12,
    19 Docket B. It was prepared by the Board.
    20 MS. ROBINSON: Which was marked as
    21 Exhibit 2?
    22 MR. HORNSHAW: Yes, Exhibit 2.
    23 MS. ROBINSON: Thank you.
    24 MR. HORNSHAW: Going back to Exhibit 1,
    11
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 in my testimony, a new Table H has been proposed to
    2 address specifically which chemicals are subject to
    3 this new Subpart D, and there are -- in this table
    4 is the Class I Groundwater
    Remediation Objective,
    5 the 1 in 1,000,000 Cancer Risk Concentration and
    6 the Acceptable Detection Limit.
    7 One could take the detected concentration
    8 of whatever chemical is on this table and compare
    9 it directly to the 1 in 1,000,000 cancer risk
    10 concentration, determine what the cancer risk is
    11 from the detected concentration by a simple ratio
    12 of detected versus the 1 in 1,000,000 cancer risk
    13 concentration, and you will have an estimate of
    14 what the cancer risk is from each individual
    15 component in the mix.
    16 Then you just add those, and as long as
    17 the risk doesn't exceed 100 in 1,000,000 or 1 in
    18 10,000, then, again, you have shown that the
    19 risk -- the cancer risk is acceptable and meets the
    20 Subpart D requirements.
    21 MR. RIESER: Okay. Let me walk through
    22 the first and the third methodologies that you
    23 indicated. I just want to make sure I understand
    24 it.
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 The first methodology is using the same
    2 type of added -- addition of ratios, if you will,
    3 that is included in the 805(C), correct?
    4 MR. HORNSHAW: Correct.
    5 MR. RIESER: And in the denominator, you
    6 would use a 1 times -- a Corrective Action
    7 Objective that is based on a 1 times 10 to the
    8 minus 4th target; is that correct?
    9 MR. HORNSHAW: That's correct.
    10 MR. RIESER: And how would you identify
    11 that value?
    12 MR. HORNSHAW: It would be 100 times the
    13 1 in 1,000,000 cancer risk concentration that is
    14 presented in the Appendix A, Table H.
    15 MR. RIESER: Okay. And then when you
    16 added up those ratios, the question would be is the
    17 sum of those ratios greater than 1 and if it is,
    18 then you have to do some further analysis, say, a
    19 risk assessment, and if it is not then you would
    20 not be concerned about cumulative risk; is that
    21 correct?
    22 MR. HORNSHAW: Yes, that's correct. You
    23 would meet the requirements of this new proposed
    24 Subpart D.
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    Belleville, Illinois

    1 MR. RIESER: I think that was where the
    2 source of my confusion, at least, was from last
    3 week.
    4 So in that formula that you just
    5 described, you would not use -- in using that
    6 formula to arrive at a -- to identify whether the
    7 sum of the ratios was greater than 1, you wouldn't
    8 use the ADL as the denominator or the 10th to the
    9 minus 6th value in the denominator, you would use
    10 the 10th to the minus 4th?
    11 MR. HORNSHAW: In almost all cases there
    12 would -- I think for the chemical Vinyl Chloride,
    13 where the 1 in 10,000 risk level is still less than
    14 the ADL, you would use the ADL.
    15 MR. RIESER: You use the ADL?
    16 MR. HORNSHAW: Yes. I am sorry. I take
    17 that back. That's not true either.
    18 That was true at the time the standard --
    19 the drinking water standard for Vinyl Chloride was
    20 issued. That's no longer true because analytical
    21 methodologies have pushed the detection limit for
    22 this chemical lower, so that is no longer a
    23 problem.
    24 MR. RIESER: Is the ADL that is stated in
    14
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 the table -- the ADL that is stated in this table
    2 is the regulatory value that you would be using in
    3 that context?
    4 MR. HORNSHAW: No.
    5 MR. RIESER: What ADL would you use?
    6 MR. HORNSHAW: The ADL is not an issue.
    7 The only time the ADL becomes an issue is when the
    8 target concentration is less than the ADL.
    9 MR. RIESER: Right.
    10 MR. HORNSHAW: Then the ADL gets
    11 substituted for the target concentration, whichever
    12 that -- you know, whether that is the 1 in
    13 1,000,000 risk concentration or the standard or
    14 whatever.
    15 MR. RIESER: The ADL the people rely on
    16 in making that comparison is the ADL that is stated
    17 in the Board's rules?
    18 MR. HORNSHAW: Yes.
    19 MR. RIESER: Okay.
    20 MR. HORNSHAW: I am not sure I followed
    21 what you just said.
    22 MR. RIESER: Well, just to finish up that
    23 issue, if somebody is -- it has been testified in
    24 prior hearings on Docket A that if you have a
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    1 remediation objective that is lower than the ADL
    2 you look to the ADL?
    3 MR. HORNSHAW: That's correct.
    4 MR. RIESER: And the ADL that you look to
    5 was the ADL that is stated in the Board's rules?
    6 MR. HORNSHAW: That's correct.
    7 MR. RIESER: In the 742 Rules?
    8 MR. HORNSHAW: Yes.
    9 MR. RIESER: Okay. So that even if there
    10 are advances in science that people are aware of,
    11 the ADL that you use for the purpose of the
    12 compliance with the regulation is the one that the
    13 State then uses?
    14 MR. HORNSHAW: That's correct.
    15 MR. RIESER: I just wanted to get that.
    16 Okay.
    17 With respect to the third methodology,
    18 now you are talking about adding up the ratio of
    19 the detected level to its 1 times 10 to the minus
    20 6th value as stated in Table H; is that correct?
    21 MR. HORNSHAW: That's correct.
    22 MR. RIESER: Okay. And so that gives you
    23 a ratio, you add that ratio, and then the sum of
    24 all of them, the question is whether that sum is
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    1 above or below 1 times 10 to the minus 4th?
    2 MR. HORNSHAW: That's correct.
    3 MR. RIESER: Now, if it is in excess of 1
    4 times 10 to the minus 4th, then you would be
    5 looking at a Tier III -- you may be looking at a
    6 Tier III response to that?
    7 MR. HORNSHAW: That may be, or you may be
    8 looking at doing some remedial work.
    9 MR. RIESER: Okay. A Tier III would be
    10 available to somebody --
    11 MR. HORNSHAW: Yes, always.
    12 MR. RIESER: -- on this program?
    13 MR. HORNSHAW: Yes.
    14 MR. RIESER: All right. Looking at what
    15 has been proposed in Exhibit 2 as 805(c)(1), and
    16 this is on page six of Exhibit 2, C -- there is an
    17 explanation of the term CUO, sub X, sub A. Do you
    18 see that?
    19 MR. HORNSHAW: Yes.
    20 MR. RIESER: And it says, A Tier I
    21 remediation objective must be developed for each X,
    22 sub A?
    23 MR. HORNSHAW: Yes.
    24 MR. RIESER: Would it be acceptable for
    17
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    1 the Agency in this context to say a Tier I or a
    2 Tier II
    remediation objective must be developed for
    3 each --
    4 MR. HORNSHAW: Yes, that would be
    5 acceptable.
    6 MS. ROBINSON: Could you state the reason
    7 for that, Dr.
    Hornshaw?
    8 MR. HORNSHAW: Yes. The reason -- we
    9 intended that all along. We are already in Tier II
    10 once we have gotten to 805, and so the remedial
    11 applicant certainly has the option of developing a
    12 Tier II groundwater
    remediation objective, and that
    13 can also be used in this approach.
    14 HEARING OFFICER FELTON: Mr.
    Rieser, any
    15 additional comments or questions?
    16 MR. RIESER: Just a minute, please.
    17 HEARING OFFICER FELTON: Okay.
    18 MR. RIESER: When you are doing all of
    19 these, either the first or the second methodology
    20 or any of these methods that you are talking about,
    21 the things that you are adding up or considering
    22 are the -- is the chemicals that affect the same
    23 target organ based on -- the chemicals listed on
    24 Table H affect the same target organ as described
    18
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    1 on Table F?
    2 MR. HORNSHAW: That's correct.
    3 MR. RIESER: Okay. You are not talking
    4 about the whole range of chemicals that you have
    5 identified at the site, just those that affect the
    6 same target organ?
    7 MR. HORNSHAW: That's correct.
    8 MR. RIESER: Looking at 805(C) again,
    9 should a portion -- looking at what has been
    10 proposed in Exhibit 2, on page five, two sentences
    11 were deleted as part of the Agency's proposal. Is
    12 the Agency considering a modification of what of
    13 those should be deleted?
    14 MR. HORNSHAW: Yes, the second sentence
    15 that has been deleted should still be included in
    16 this part in Subsection C. I testified to this
    17 effect in the first hearing, that if a -- even
    18 though a contaminate or a chemical of concern may
    19 have met the Tier I objective, if that chemical of
    20 concern affects the same target organ as one of the
    21 chemicals that got pushed into this subpart, then
    22 all of those chemicals need to be brought into this
    23 Tier II evaluation. So that sentence should still
    24 be there. The first sentence --
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    1 BOARD MEMBER
    McFAWN: Could you read that
    2 sentence, for the record, please?
    3 MR. HORNSHAW: Yes. The sentence that we
    4 think should still be in Subsection C is,
    5 "Contaminants of concern for which a Tier I
    6 remediation objective has been developed shall be
    7 included in any mixture of similar-acting
    8 substances under consideration in Tier II."
    9 The first sentence that was deleted is no
    10 longer relevant and that should have been deleted,
    11 but the second sentence should stay.
    12 MR. RIESER: I think we talked last week,
    13 just in the sense that we are in the language of
    14 this particular section, that the Agency would have
    15 no problem with an addition so that the first
    16 sentence here regarding mixtures of similar-acting
    17 chemicals which affect the same target organ, organ
    18 system or similar mode of action shall be
    19 considered?
    20 MR. HORNSHAW: Yes.
    21 MR. RIESER: Those are all of the
    22 questions I had. I appreciate your taking the time
    23 to resolve some of this confusion for us.
    24 HEARING OFFICER FELTON: Thank you, Mr.
    20
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    1 Rieser.
    2 Does anyone else present today have any
    3 questions for Dr.
    Hornshaw?
    4 All right. I have one question.
    5 MR. HORNSHAW: Okay.
    6 HEARING OFFICER FELTON: How does the
    7 Agency feel about adding a definition of
    8 similar-acting chemicals? Something to the effect
    9 of similar-acting chemicals means chemicals which
    10 affect the same target organ, organ system or
    11 similar mode of action. Similar-acting chemicals
    12 with
    noncarcinogenic and carcinogenic affects are
    13 listed in Table A, Table E and F, respectively.
    14 MR. HORNSHAW: That seems appropriate.
    15 HEARING OFFICER FELTON: Okay. Thank
    16 you.
    17 MS. WAGNER-ROSEN: Could I ask a
    18 question?
    19 HEARING OFFICER FELTON: Sure.
    20 MS. WAGNER-ROSEN: Well, I don't know if
    21 it is appropriate to question you. Just a moment,
    22 please.
    23 HEARING OFFICER FELTON: Okay.
    24 MR. RIESER: If I can sort of question --
    21
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    1 well, let me ask a question of Dr.
    Hornshaw, a
    2 question of the validity of this definition.
    3 The Agency's position on this is that the
    4 universe of similar-acting chemicals are those that
    5 are specifically listed on Table F; is that
    6 correct?
    7 BOARD MEMBER
    McFAWN: For the record, I
    8 believe the definition proposed listed Tables E and
    9 F of Appendix A.
    10 MR. RIESER: Oh, E and F?
    11 BOARD MEMBER
    McFAWN: Right.
    12 MR. HORNSHAW: Yes, E and F, that's
    13 correct.
    14 MR. RIESER: So that those would not be
    15 examples? Those would be -- the substances on
    16 those tables would be the universal similar-acting
    17 chemicals for the purposes of this rule?
    18 MR. HORNSHAW: For this rule, that's
    19 correct.
    20 To make it even clearer, there may be
    21 other chemicals that are not included in this rule
    22 that would be at the beginning of a project anyway
    23 by definition in Tier III, because there is -- they
    24 are not here and they would have to be evaluated as
    22
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    1 a different -- as a separate issue in Tier III. We
    2 would look to what target organ that chemical
    3 affected and if appropriate we would include it
    4 within a mixture of chemicals already included in
    5 the rule, too.
    6 MR. RIESER: So these would be chemicals
    7 that don't even appear on the general tables for
    8 groundwater?
    9 MR. HORNSHAW: That's correct. Chemicals
    10 outside the scope of TACO at the beginning of a
    11 project are by definition Tier III, and in
    12 developing the toxicity criteria for those
    13 chemicals so that the project couldn't proceed, we
    14 would also look to the target that that chemical
    15 affects in the body and if appropriate, we would
    16 notify the remedial applicant that this chemical
    17 belongs in the mixture with whatever other
    18 chemicals are detected at that site so that the
    19 mixture of similar-acting substances would be
    20 complete for that project.
    21 MR. RIESER: Thank you.
    22 HEARING OFFICER FELTON: Any further
    23 questions?
    24 MR. FEINEN: I have a few questions.
    23
    KEEFE REPORTING COMPANY
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    1 HEARING OFFICER FELTON: Okay. Mr.
    2 Feinen?
    3 MR. FEINEN: Chuck
    Feinen with the Board.
    4 Dr.
    Hornshaw, you stated that the ADL for
    5 certain chemicals have changed. How often do
    ADLs
    6 change?
    7 MR. HORNSHAW: Could I defer that to Mr.
    8 O'Brien? He is better at this than I am.
    9 MS. ROBINSON: He would need to be sworn
    10 in.
    11 (Whereupon Mr.
    O'Brien was
    12 sworn by the Notary Public.)
    13 MR. O'BRIEN: For the record, my name is
    14 James Patrick
    O'Brien. I am the Manager of the
    15 Office of Chemical Safety with the Illinois
    16 Environmental Protection Agency.
    17 The
    ADLs essentially change irregularly.
    18 It is primarily based upon U.S. EPA methods,
    19 specifically SW846 methodology, and the U.S. EPA
    20 publishes proposed changes in the Federal Register,
    21 accepts comments, and then publishes a notice in
    22 the Federal Register when changes are made to the
    23 laboratory methodologies and the detection limits
    24 in those methodologies.
    24
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    1 In the past, those changes have occurred
    2 about every four or five years. It kind of depends
    3 upon the progress of analytical technology, and
    4 they test out the methodologies through Round Robin
    5 tests with various laboratories to make sure that
    6 they are accurate, and before they propose them for
    7 general usage.
    8 MR. FEINEN: So at some point it is
    9 possible for an ADL to drop below a Tier I number?
    10 In other words, in the idea of using ADL as your
    11 objective when you can't detect the generated
    12 number, at some point that might not be true
    13 anymore?
    14 MR. O'BRIEN: That's correct. In that
    15 case we would have to come back and propose to the
    16 Board to make a change in this rule and in the
    17 context that the
    ADLs are used.
    18 MR. FEINEN: Right, because Part 742
    19 establishes the
    ADLs as they are now and at some
    20 point those will change?
    21 MR. O'BRIEN: That's correct. So can the
    22 toxicological perimeters, which the end points, the
    23 toxicological end points, could change, too. So we
    24 realize that it is -- that as changes occur, that
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    1 the Agency will have to come back and propose those
    2 changes to the Board.
    3 MR. FEINEN: I have another question, and
    4 this is for Dr.
    Hornshaw. This is -- I drew the
    5 short straw, and I have to ask a technical question
    6 that was written by the technical unit, but I read
    7 through it and let me see if I can relay it.
    8 During the first
    rulemaking docket,
    9 Docket A, in the Agency public comments they say
    10 that mixtures of similar-acting substances in the
    11 Class I groundwater must be addressed because, and
    12 this is in quotations, "The Agency has taken the
    13 position that Part 742 should rely on the State's
    14 groundwater standard as closely as possible." I
    15 think that was in public comment number 10, page
    16 11.
    17 This 35 Illinois Administrative Code
    18 626.615 states that mixtures of similar-acting
    19 chemicals must be addressed. The statute, which I
    20 believe is 58.5, states that risk levels for
    21 carcinogens can be within the range of 10 to the
    22 minus 4th and 10 to the minus 6th, but did not
    23 state a risk level for the range of
    24 noncarcinogens.
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    1 So it was determined that the -- as long
    2 as the range for carcinogens stayed between 10 to
    3 the minus 4th and 10 to the minus 6th, the
    4 cumulative affects is not a problem. However, when
    5 you are talking about
    noncarcinogens which doesn't
    6 have a range, doesn't have a 10 to the minus 4th
    7 and doesn't have 10 to the minus 6th, has a hazard
    8 quotient, the Board found that when you are
    9 evaluating two contaminates of concern that are
    10 similar-acting, two or more it could be, that the
    11 value for the cumulative weighted average equation
    12 could come out greater than that one hazard
    13 quotient.
    14 So when we adopted the Docket A we had
    15 the groundwater cumulative effect for
    16 noncarcinogens addressed, and we felt that was
    17 based off the testimony and the findings of the
    18 Agency. Now it sounds like what I think the Agency
    19 is proposing is contrary to that.
    20 I guess I want to know why did the Agency
    21 decide that the only time you look at
    22 noncarcinogens in groundwater is when there is one
    23 of them being at the Tier I number or above, when
    24 it doesn't necessarily have to have to be a Tier I
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    1 or above to add up to be above the hazard quotient
    2 of one?
    3 MR. HORNSHAW: I testified to this in the
    4 first hearing on this docket. We came to the
    5 conclusion that there is enough conservatism built
    6 into the Tier I objective for the
    noncarcinogens
    7 that -- and this is completely analogous to our
    8 reasoning for putting off consideration of the
    9 noncancer affects of chemicals in soil to Tier II
    10 evaluation. The conservatism that is built into
    11 the Tier I numbers for soil or groundwater is
    12 appropriate enough that we don't think that there
    13 is a concern for mixtures.
    14 Once you have gotten into Tier II, where
    15 you have lost some of that conservatism that is
    16 built into the Tier I process, then we think it is
    17 appropriate to look at mixtures of similar-acting
    18 substances. We also drew from the language of
    19 620.615 which in Subpart A of 615 says where two or
    20 more of the chemical substances are similar-acting,
    21 that the Agency shall consider, and our
    22 consideration for the purposes of this Part 742 is
    23 that it is okay in Tier I, but once you have
    24 reached Tier II then you better look at it.
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    1 MR. FEINEN: Doesn't 620.615 also state
    2 that a hazard quotient of one should be used? I
    3 think it is in Subpart I.
    4 MR. HORNSHAW: No, not really.
    5 MR. FEINEN: No?
    6 MR. HORNSHAW: No.
    7 MR. FEINEN: Okay.
    8 MR. HORNSHAW: 620.615 doesn't list a
    9 specific target. It just says mixtures shall be
    10 considered. Wait. Shall be determined. I am
    11 sorry. It is not considered. It is shall be
    12 determined when mixtures are present.
    13 BOARD MEMBER
    McFAWN: There is a
    14 difference between 620 and 615 and the proposed
    15 rule in TACO, right?
    16 MR. HORNSHAW: Yes.
    17 BOARD MEMBER
    McFAWN: So they don't --
    18 they don't reconcile?
    19 MR. HORNSHAW: Pardon me?
    20 BOARD MEMBER
    McFAWN: When you think
    21 about it in a Tier I they do not reconcile, but for
    22 the language that says shall be considered?
    23 MR. HORNSHAW: Right.
    24 BOARD MEMBER
    McFAWN: Under 620 and 615
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    1 you would have to behave differently than you would
    2 under Tier I, because there you would have to
    3 consider the mixture, and here you are given a
    4 pass?
    5 MR. HORNSHAW: I am not sure that is
    6 exactly how it is. For one, 615 doesn't look at
    7 tiers. It just looks at what is present in
    8 groundwater at a site. And it says if there is two
    9 or more chemicals that affect the same target, then
    10 the need for additional health advice shall be
    11 determined.
    12 Then it is -- I guess it leaves it to
    13 Agency policy how that is to be determined. In the
    14 past we have used a hazard index of one for the
    15 whole mixture as our policy. In the context of
    16 this
    rulemaking, we are being more specific on --
    17 BOARD MEMBER
    McFAWN: Then that would be
    18 the policy that you would advocate to be
    19 incorporated into the rule?
    20 MR. HORNSHAW: That's correct.
    21 MR. FEINEN: So you are changing your
    22 policy of the hazard of one?
    23 MR. HORNSHAW: Somewhat, yes.
    24 MS. ROBINSON: And that's because we feel
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    1 that Tier I is conservative enough for -- that
    2 there are built-in conservative parts of that that
    3 it doesn't need to be considered under Tier I?
    4 MR. HORNSHAW: That is correct.
    5 MS. ROBINSON: Because Tier II is more
    6 flexible, the mixtures need to be addressed?
    7 MR. HORNSHAW: Right. Tier II uses more
    8 site specific information. You have lost some of
    9 the conservative non-site specific information that
    10 is built into the Tier I
    remediation objectives, so
    11 we feel that is where we need to look at it.
    12 HEARING OFFICER FELTON: Are there any
    13 further questions for Dr.
    Hornshaw or Mr. O'Brien
    14 at this time?
    15 BOARD MEMBER
    McFAWN: I have one
    16 question.
    17 I can't remember whether the example was
    18 provided by the Agency or if it is one we are
    19 working on at the Board, but when we consider two
    20 noncarcinogens, Toluene and Ethyl Benzene, I think
    21 it was, they both target the same two organs, the
    22 kidney and liver. We found that these could be
    23 present at a site and exceed the hazard quotient of
    24 one. Now you are telling me that we should just
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    1 ignore that?
    2 MR. HORNSHAW: Basically that's what I am
    3 saying, yes.
    4 BOARD MEMBER
    McFAWN: Could you elaborate
    5 on why we should ignore that and not be concerned,
    6 why the levels are conservative enough when we know
    7 that usually it is judged against a hazard quotient
    8 of one?
    9 MR. HORNSHAW: If both of those chemicals
    10 are present at the Tier I
    remediation objective,
    11 then basically the hazard quotient could be two.
    12 But built in to the Tier I
    remediation objective is
    13 a relative source contribution term from U.S. EPA's
    14 standard setting process that apportions the total
    15 daily intake of that chemical from all roots to
    16 account for other kinds of exposure during the day
    17 so that you are not getting your entire acceptable
    18 dose just from drinking water.
    19 In fact, the default value of the
    20 relative source contribution term is 20 percent,
    21 meaning you only get 20 percent of your daily dose
    22 of that chemical from drinking water. You get the
    23 other 80 percent from breathing, from eating, from
    24 your job site, or whatever. That's a conservative
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    1 estimate in itself, so that there is a level of
    2 conservatism even built into the U.S. EPA's
    3 drinking water standard that we feel is going to be
    4 acceptable under most situations.
    5 BOARD MEMBER
    McFAWN: If the Board wasn't
    6 to repeal the rule it has got right now, the
    7 first -- the second notice, do you have any idea
    8 how many sites the Agency may encounter or
    9 anticipate encountering where you might have these
    10 two or other two
    noncarcinogens present at a Tier I
    11 investigation?
    12 MR. HORNSHAW: My guess is we would
    13 probably have Ethyl Benzene and Toluene at the
    14 majority of the lost sites where groundwater has
    15 already been impacted. Whether they are present at
    16 the -- at their respective Tier I
    remediation
    17 objectives, I couldn't answer that.
    18 I might point out, though, that usually
    19 Benzene is going to be present at those sites, and
    20 if it is present chances are it is going to be
    21 present above its Tier I
    remediation objective, and
    22 that chemical is going to drive most of those
    23 cleanups.
    24 By the time the
    remediation objective for
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    1 Benzene has been achieved, generally the
    2 concentration of Ethyl Benzene, Toluene, and
    3 Xylenes are also well below their respective Tier I
    4 remediation objectives, and at that point then
    5 chances are the mixture of Ethyl Benzene and
    6 Toluene is probably not going to exceed 1.0 as a
    7 hazard quotient.
    8 MR. O'BRIEN: As some additional
    9 information, the Toluene and Benzene, Ethyl
    10 Benzene, and
    Xylene travel through groundwater at
    11 different rates and so the proportion won't stay
    12 the same over time. That is because they have
    13 different affinities for soil components, and they
    14 tend to be -- they tend to move at different rates,
    15 and we see that over time that the proportions
    16 change. So the normal calculation assumes
    17 exposures over a period of time, and that wouldn't
    18 necessarily occur because of the changing
    19 proportion that you would see in the groundwater.
    20 BOARD MEMBER
    McFAWN: Not being familiar
    21 with those rates, is that good news or bad news? I
    22 mean, does the Benzene go more quickly through the
    23 groundwater?
    24 MR. O'BRIEN: Benzene goes a lot more
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    1 quickly through the groundwater and is followed by
    2 Toluene,
    Xylene and Ethyl Benzene, in that
    3 sequence. If you just have a spill at a point in
    4 time, eventually those components can be -- and we
    5 see many sites where those components are entirely
    6 separated. In a down gradient well we will see
    7 each component in sequence. Of course, there are
    8 points in there where you will see -- passing in a
    9 down gradient well you will see there will be a
    10 mixture where they overlap.
    11 BOARD MEMBER
    McFAWN: You were explaining
    12 how because of the presence of Benzene and you have
    13 two, maybe it is not so critical that you address
    14 them. Doesn't that work also because since Benzene
    15 is probably present and they will be considering
    16 remediation objective for that, this is not so much
    17 extra work to request at a site where all three are
    18 present?
    19 MR. HORNSHAW: You mean evaluating the
    20 Ethyl Benzene and Toluene mixture?
    21 BOARD MEMBER
    McFAWN: Yes. Thank you.
    22 MR. HORNSHAW: The data will already be
    23 there. It is no big deal to calculate the ratio of
    24 each to its respective
    remediation objective.
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    1 That's a simple calculation.
    2 BOARD MEMBER
    McFAWN: Then how do the --
    3 if you can, can you address how
    remediating the
    4 Benzene as well as the other two, would those be
    5 the same type of
    remediation or is it a different
    6 process?
    7 MR. HORNSHAW: No, it would -- if it is a
    8 groundwater pump and treat, you are going to be
    9 capturing all of those in an activated carbon so
    10 that you go for one and you get them all.
    11 BOARD MEMBER
    McFAWN: Okay. Thank you.
    12 MR. HORNSHAW:
    Uh-huh.
    13 MR. KING: Gary King. I was sworn in at
    14 the last hearing.
    15 At some point you have to make a public
    16 policy judgment, and you can take all these
    17 calculations and we could drive things into
    18 everything being a Tier III calculation and drive
    19 everything into a full risk assessment, but what we
    20 are trying to do is kind of step back and back away
    21 from that process in steps that we felt were
    22 appropriate.
    23 One of the things that we wanted to do
    24 was continue to have a Tier I Table that had
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    1 integrity to it, so that if you met the Tier I
    2 numbers you didn't have to jump into Tier II or
    3 Tier III. Yes, there is a potential that for these
    4 noncarcinogens you could have a number over one.
    5 We didn't think that that was a serious risk. We
    6 felt, from a policy standpoint, it was more
    7 important to have a table where people could rely
    8 on that table.
    9 As Tom was saying, on the issue of Ethyl
    10 Benzene and Toluene, if we see Ethyl Benzene and
    11 Toluene, we are most assuredly going to see Benzene
    12 there as well. If we see the first two together we
    13 are most assuredly going to see Benzene with that,
    14 and Benzene then is going to drive the cleanup as
    15 far as the objectives. That has just kind of
    16 been -- that's been our history on it.
    17 So when you were asking the number of
    18 sites, the number of sites that would be controlled
    19 by the mixture of Ethyl Benzene being somehow, you
    20 know, over two and it should be a one, it is going
    21 to be very, very small in comparison.
    22 So we didn't want to try to drive
    23 everybody who had entered the system going into
    24 Tier II when it would seem appropriate, at least
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    1 from our standpoint, to do it within the Tier I
    2 objectives.
    3 BOARD MEMBER
    McFAWN: I am speechless
    4 because that is not what we heard before we went to
    5 the TACO rules. Your policies seemed to have
    6 changed somewhere in midstream. You were effective
    7 advocates and now I understand how you are changing
    8 the policy.
    9 MR. KING: Yes, we did have some further
    10 discussions and it certainly was pointed out to us
    11 that if we were going to effect -- that we were
    12 going to effect the integrity of those Tier I
    13 tables and we wanted to maintain those.
    14 BOARD MEMBER
    McFAWN: Okay. Thank you.
    15 MR. FEINEN: I have a couple more
    16 questions. Is Benzene a carcinogen?
    17 MR. HORNSHAW: Yes.
    18 MR. FEINEN: So it is not a
    19 noncarcinogen?
    20 MR. HORNSHAW: That's correct.
    21 MR. FEINEN: So Benzene's groundwater
    22 numbers have the scale from 10 to the minus 4th to
    23 10 to the minus 6th, based on the cumulative
    24 affects for it?
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    1 MR. HORNSHAW: Actually, the only
    2 chemical that Benzene has a cumulative effect with
    3 is 2,4,6-Trichlorophenol. That is in my
    4 testimony. Even if both Benzene and
    5 2,4,6-Trichlorphenol are present at their
    6 respective Tier I
    remediation objectives, the sum
    7 of the risks of the two is only 7.1 in 1,000,000
    8 which is well within the range acceptable. So we
    9 decided to drop Benzene out of Table H, new Table
    10 H, for that reason. So its
    remediation objective
    11 is just going to be the Tier I value. There is no
    12 reason to consider a mixture.
    13 MR. FEINEN: It is not going to follow
    14 the same
    remediation objective for groundwater for
    15 a noncarcinogen because it is a carcinogen?
    16 MR. HORNSHAW: Right, but it also has a
    17 Tier I objective.
    18 MR. FEINEN: Right, and it is below --
    19 MR. HORNSHAW: That's the only thing you
    20 would have to meet, would be the Tier I objective.
    21 MR. FEINEN: Okay. If the policy for
    22 Tier I is that the hazard quotient for these
    23 noncarcinogens can be above one, and because that
    24 is the built-in
    conservativeness of Tier I, under
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    1 Tier II, how would the Agency be evaluating the
    2 cumulative affects for groundwater
    noncarcinogens?
    3 MR. HORNSHAW: That would be the language
    4 that is proposed at 742.805(C), either 1 or 2.
    5 MR. FEINEN: Okay. Thank you.
    6 HEARING OFFICER FELTON: Are there any
    7 additional questions for either Dr.
    Hornshaw or Mr.
    8 O'Brien or Mr. King?
    9 MR. RIESER: I would like to ask another
    10 question of Mr. King in follow-up of what he was
    11 just saying in terms of the policy, and that is to
    12 kind of emphasize the point that you were making
    13 about the importance of Tier I, and it certainly
    14 points out some of the -- if you read it, it points
    15 out some of the differences between what Section
    16 620 was designed to do and what 742 was designed to
    17 do. 620 is a consideration of what is protective
    18 for groundwater and 742 is designed to be remedial
    19 objectives specifically not examined in the context
    20 of 620.
    21 MR. KING: Is that a question?
    22 MR. RIESER: Yes. Do you agree with
    23 that?
    24 MR. KING: There clearly is a difference
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    1 between the purpose of 742 relative to developing
    2 remediation objectives and the reasons why 620 was
    3 established.
    4 MR. RIESER: Okay. Thank you.
    5 HEARING OFFICER FELTON: Any further
    6 questions for any of the Agency witnesses at this
    7 time?
    8 Okay. Seeing none, thank you, Dr.
    9 Hornshaw and Mr.
    O'Brien and Mr. King.
    10 At this time I would ask if --
    11 MR. RIESER: Can we take a break?
    12 HEARING OFFICER FELTON: Yes, why don't
    13 we take a quick ten minute break.
    14 (Whereupon a short recess was
    15 taken.)
    16 HEARING OFFICER FELTON: Back on the
    17 record.
    18 Are there any further questions for the
    19 Agency at this time?
    20 Okay. Seeing none, we will proceed with
    21 any other testimony at this time.
    22 MS. WAGNER-ROSEN: Thank you. My name is
    23 Whitney
    Rosen. I am Legal Counsel for the Illinois
    24 Environmental Regulatory Group. With me today is
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    1 Mr. Harry R. Walton from Illinois Power Company.
    2 He will be making a statement on behalf of the
    3 Illinois Environmental Regulatory Group or IERG.
    4 I would just like to briefly thank the
    5 Agency and the Board. The Board, for giving us
    6 this opportunity to have extensive discussions on
    7 this issue and present the matter for its
    8 consideration, and the Agency for engaging in those
    9 discussions, and really allowing the IERG and the
    10 other groups from the regulatory community to
    11 present their views on the issue and so that we
    12 could get a consensus approach. Thank you.
    13 All right. Mr. Walton?
    14 MR. WALTON: My name is Harry R. Walton.
    15 I would like to thank everyone for the opportunity
    16 to --
    17 HEARING OFFICER FELTON: Excuse me. We
    18 need to swear the witness.
    19 (Whereupon Mr. Walton was sworn
    20 by the Notary Public.)
    21 MR. WALTON: My name is Harry R. Walton.
    22 I would like to thank you for the opportunity to
    23 provide some brief comments today in regards to
    24 this
    rulemaking. I am offering my comments on
    42
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    1 behalf of the Site
    Remediation Advisory Committee,
    2 and
    i am the chairman of that group representing
    3 the State Chamber; and also on Behalf of the
    4 Illinois Environmental Regulatory Group, and I am
    5 the chairman of that work group, also; and also on
    6 behalf of the Illinois Power Company.
    7 The Advisory Committee, again, would like
    8 to thank the Agency for the time. They have
    9 allowed us to work through some very hard issues.
    10 We developed a set of policy guidelines and
    11 agreement that went to the intent of the
    12 legislation and we have worked very diligently to
    13 try to live up to the intent of the legislation.
    14 The issues that we address this time --
    15 and we appreciate the Agency raising the issue of
    16 mixtures. We believe that most recent discussions
    17 we have had in agreement best reflect the intent
    18 and goals of the legislation in regards to 742.
    19 They are still protective.
    20 We need to look at the use of the Tier I,
    21 Tier II, and Tier III and the mixtures in total
    22 context of 742. Prior to getting into the tiers,
    23 you already have a delineation of the source, you
    24 have an understanding of the source. You have
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    1 taken the appropriate steps to remove free product
    2 and remove the source. We have already started on
    3 the process that is protective.
    4 What we are doing now is completing the
    5 pathway and ending the risk to receptors. One of
    6 the guiding intents that we wanted in this
    7 regulation was a look-up table that if you went
    8 through the analysis and a look-up table says you
    9 were done, you were done. You had finality.
    10 But, again, realizing the uncertainty to
    11 some of these constituents on the mixture rules, we
    12 agreed with the Agency, there is a need to evaluate
    13 those constituents for which the Tier I value was
    14 not based on 1 cancer in 1,000,000, and that should
    15 be under a Tier II analysis. This keeps the
    16 integrity of the look-up tables.
    17 Typically, it has been my experience, for
    18 Illinois Power Company, that if you have a problem
    19 with a mixture, you are going to have another
    20 constituent that is going to drive the cleanup. If
    21 you have a remedial strategy that addresses the
    22 constituent that failed the Tier I, go to Tier II,
    23 whatever, it will, in 99 percent of the cases,
    24 resolve mixture rules.
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    1 The issue that was discussed previously
    2 on Benzene, Benzene drives cleanups. It is very
    3 aggressive in the environment. It moves. If you
    4 satisfy that constituent, you typically satisfy the
    5 other constituents that pose risk.
    6 We do have some concerns to the
    7 consensus, the agreements that we worked out with
    8 the Agency, and those go to the issue of the risk.
    9 We believe that the risk -- the cleanup objectives
    10 should not be more stringent than Tier I. A Tier
    11 II objective should not be more stringent than Tier
    12 I. A Tier III objective not more stringent than
    13 Tier I.
    14 Since Tier I is based on the groundwater
    15 standards, we think that that meets the intent of
    16 the groundwater protection standards. Again, you
    17 have to look at the basis for the generating of the
    18 620 numbers. Those were generated in a general use
    19 type strategy, whereas in 742 this is a remedial
    20 program.
    21 As I stated earlier, we have a total
    22 package to look at. We have taken care of the
    23 source. We have an understanding of the source.
    24 We know the receptors. It is in a controlled
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    1 situation. Whereas the thought process for the 620
    2 regs, which I was involved with, is more of a
    3 general use type standard.
    4 I think that those are the key issues I
    5 wanted to address at this time. I would be happy
    6 to answer any questions anybody would have.
    7 MS. WAGNER-ROSEN: I would like to ask a
    8 question.
    9 MR. WALTON: All right.
    10 MS. WAGNER-ROSEN: Mr. Walton, do you
    11 agree with the testimony that Mr.
    Hornshaw provided
    12 this morning regarding the equation included at
    13 Section 742.805(C) that the CUO, X, A, should also
    14 include a reference to Tier II
    remediation
    15 objectives?
    16 MR. WALTON: Yes. The clarifications
    17 provided by Mr.
    Hornshaw on that issue as well as
    18 Paragraph D, I think, provides sufficient clarity
    19 and support for the record.
    20 MS. WAGNER-ROSEN: Okay. Thank you.
    21 HEARING OFFICER FELTON: Are there any
    22 further questions for Mr. Walton?
    23 Yes, Mr.
    Rieser, please proceed.
    24 MR. RIESER: Mr. Walton, would you
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    1 explain further why it is important that the Tier I
    2 Table have integrity, why that is a large issue for
    3 us?
    4 MR. WALTON: Well, the regulated
    5 community has to have certainty. The concept of
    6 Tier I was you could go through the table and if
    7 you met these objectives there is an understanding
    8 in the regulated community, as well as hopefully in
    9 the future the business community, if you hit those
    10 numbers, in the eyes of the Agency and in the eyes
    11 of the government that site does not present risk,
    12 quote, liability, to any future property owners.
    13 That has to have some finality to it. We
    14 have great concern about jeopardizing that
    15 finality. But we are in agreement for those
    16 constituents that have been addressed, there should
    17 be -- those can and should be addressed as a Tier
    18 II analysis.
    19 MR. RIESER: Okay. Thank you.
    20 HEARING OFFICER FELTON: Are there any
    21 further questions for Mr. Walton?
    22 BOARD MEMBER
    McFAWN: I have a question,
    23 Mr. Walton.
    24 You said that -- I think I heard you say
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    KEEFE REPORTING COMPANY
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    1 that the Tier I levels should be the bottom line.
    2 But do you agree that if you do a Tier II analysis
    3 you might come up with
    remediation objectives which
    4 are less than the Tier I?
    5 MR. WALTON: That is one -- on a policy
    6 level I would -- based on the agreements and
    7 intents and principles by which we interacted with
    8 the Agency, I would be in a policy level
    9 disagreement with having numbers more stringent
    10 than Tier I, on a policy level.
    11 But in a practical sense, for those
    12 constituents that have been discussed we agreed
    13 that that would be appropriate for those
    14 constituents. I don't know if --
    15 BOARD MEMBER
    McFAWN: So the level could
    16 be less than the Tier I? If you are in a Tier II
    17 analysis you could come up with a
    remediation
    18 objective less than a Tier I?
    19 MR. WALTON: Conceptually, that could
    20 happen. But we challenged ourselves in the
    21 regulated community to try to develop a scenario
    22 where that would come to pass.
    23 BOARD MEMBER
    McFAWN: Okay. And the
    24 result was?
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    1 MR. WALTON: We could not find a scenario
    2 where that would come to pass. Typically, the
    3 primary constituent of concern is going to drive
    4 cleanup. The one that is in everybody's mind,
    5 because of the situation, and in Illinois Power's
    6 experience, the MGP plant, what drives our cleanup
    7 is Benzene. If we can satisfy the remedial
    8 objective for Benzene, typically we can satisfy the
    9 other remedial objectives, but Benzene would
    10 dominate our remedial efforts.
    11 BOARD MEMBER
    McFAWN: You say typically.
    12 When wouldn't it?
    13 MR. WALTON: I have no knowledge of when
    14 it wouldn't.
    15 BOARD MEMBER
    McFAWN: Okay. Thanks.
    16 HEARING OFFICER FELTON: Okay. Any other
    17 questions of Mr. Walton?
    18 MR. FEINEN: If Tier II does come with a
    19 more stringent number than Tier I, isn't it the
    20 option to either go back to Tier I or Tier III?
    21 MR. WALTON: The option -- I believe as
    22 Mr.
    Hornshaw stated, you would then have an option
    23 to go to Tier III, to -- well, you could go -- I
    24 don't think you can go back to Tier I on the
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 mixtures, but you could then go to Tier III and
    2 resolve it under Tier III.
    3 MR. FEINEN: So your testimony about the
    4 tiers was pointed towards the mixture?
    5 MR. WALTON: I don't understand.
    6 MR. FEINEN: The mixture of chemicals,
    7 not the other chemicals that are listed in Tier I
    8 that don't have cumulative affects?
    9 MR. WALTON: I was discussing mixtures.
    10 MR. FEINEN: Okay.
    11 HEARING OFFICER FELTON: Are there any
    12 other further questions for Mr. Walton?
    13 Seeing none, thank you very much, Mr.
    14 Walton and Ms.
    Rosen for your time.
    15 MS. WAGNER-ROSEN: Can I have just one
    16 moment, please?
    17 HEARING OFFICER FELTON: Sure. Off the
    18 record.
    19 (Discussion off the record.)
    20 HEARING OFFICER FELTON: Back on the
    21 record.
    22 It is our understanding that Ms.
    Rosen
    23 has a follow-up question.
    24 MS. WAGNER-ROSEN: Yes, I do. This is
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 just briefly to clarify the point Mr.
    Feinen
    2 raised.
    3 If you were doing a Tier II evaluation,
    4 not in the context of a mixture rule application
    5 but just in general, and you somehow came up with a
    6 number that was more stringent than the Tier I
    7 remediation objective would be, would it not be
    8 your option to simply meet the Tier I number?
    9 MR. WALTON: It is my understanding that
    10 you then go to Tier I or Tier III.
    11 MS. WAGNER-ROSEN: Okay. Thank you.
    12 HEARING OFFICER FELTON: Thank you very
    13 much, Mr. Walton and Ms.
    Rosen.
    14 HEARING OFFICER FELTON: Just one
    15 second. Off the record.
    16 (Whereupon a short recess was
    17 taken.)
    18 HEARING OFFICER FELTON: Back on the
    19 record.
    20 Is there anyone else at this time that
    21 would like to testify?
    22 Seeing that there is no one else here
    23 interested in testifying, does the Agency have any
    24 follow-up comments at this time?
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 MS. ROBINSON: Are you going to go
    2 through the time line for when everything --
    3 HEARING OFFICER FELTON: Yes.
    4 MS. ROBINSON: Okay. Then I will just be
    5 patient.
    6 HEARING OFFICER FELTON: Okay. Then
    7 seeing that there is no one else that will be
    8 testifying or presenting any questions, and that we
    9 have completed all testimony and questioning of
    10 this matter, it will not be necessary to continue
    11 with the hearing tomorrow. The further hearing
    12 tomorrow will be
    cancelled.
    13 With regard to the public comment period,
    14 we expect that we would have public comment with
    15 regard to this matter 15 days from today, which
    16 would be June 13th.
    17 BOARD MEMBER
    McFAWN: Actually, that is a
    18 little more than 15 days.
    19 HEARING OFFICER FELTON: Yes, just a
    20 little bit more.
    21 MS. ROBINSON: Thank you.
    22 MS. WAGNER-ROSEN: That is when the
    23 comment period will end?
    24 BOARD MEMBER
    McFAWN: Yes. We will have
    52
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 public comment period before we go to first notice
    2 which will end on June 13th.
    3 MS. WAGNER-ROSEN: Thank you.
    4 BOARD MEMBER
    McFAWN: That is because we
    5 anticipate on June 19th the second meeting of the
    6 Board in June. That's our target date.
    7 HEARING OFFICER FELTON: There will be a
    8 45 day public comment period thereafter before we
    9 proceed to second notice.
    10 Otherwise, other than that, are there any
    11 other further comments or anything needed to --
    12 MR. KING: On Docket A, is that still on
    13 schedule for a July 1st effective date?
    14 BOARD MEMBER
    McFAWN: Yes, it is. The
    15 Board anticipates adopting it as final.
    16 MR. KING: Will that be with an effective
    17 date of July 1?
    18 BOARD MEMBER
    McFAWN: As I understand it
    19 now, yes, it will kick in on July 1.
    20 MR. KING: Okay. Thank you.
    21 HEARING OFFICER FELTON: Okay. Any other
    22 further things that we need to address right now?
    23 Okay. Seeing none, I would like to thank
    24 everyone for attending the second set of hearings
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 here in Springfield and for your attention with
    2 regard to this matter.
    3 This matter is hereby adjourned. Thank
    4 you, everyone, for coming.
    5
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 STATE OF ILLINOIS )
    ) SS
    2 COUNTY OF MONTGOMERY)
    3 C E R T I F I C A T E
    4 I, DARLENE M. NIEMEYER, a Notary Public
    5 in and for the County of Montgomery, State of
    6 Illinois, DO HEREBY CERTIFY that the foregoing 54
    7 pages comprise a true, complete and correct
    8 transcript of the proceedings held on the 29th of
    9 May
    A.D., 1997, at the
    Howlett Building, in the
    10 Lincoln Room, Springfield, Illinois, in the matter
    11 of Tiered Approach to Corrective Action
    12 Objectives: Amendments to 35 Ill. Adm. Code
    13 742.505 and 742.900, in proceedings held before the
    14 Honorable Amy
    Muran Felton, Hearing Officer, and
    15 recorded in machine shorthand by me.
    16 IN WITNESS WHEREOF I have hereunto set my
    17 hand and affixed my
    Notarial Seal this 9th day of
    18 June
    A.D., 1997.
    19
    20
    Notary Public and
    21 Certified Shorthand Reporter and
    Registered Professional Reporter
    22
    CSR License No. 084-003677
    23 My Commission Expires: 03-02-99
    24
    55
    KEEFE REPORTING COMPANY
    Belleville, Illinois

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