untitled

page 1
page 2
page 1
page 2
page 3

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVEDCLERK'S

TIERED APPROACH TO CORRECTIVE )

ACTION OBJECTIVES : AMENDMENTS)

TO 35 111. Adm. Code 742

)

R06-10

(Rulemaking-Land)

MOTION TO CORRECT THE TRANSCRIPT

NOW COMES the Illinois Environmental Protection Agency ("Agency") by one

of its attorneys, Kimberly A. Geving, and pursuant to 35 I11 . Adm

. Code 101 .604 moves

the hearing officer in this matter to correct the transcript of January 31, 2006 as follows

Paee

Line

Correction

Change "post" to "posed"

Change "modeled" to "model"

Change "states" to "sites"

Change "9061(a)" to "9060(a)"

Change "organ" to "organic"

Change `organ" to "organic"

Change "9060" to "9060(a)"

Delete the word "no"

Change "risk base" to "risk-based"

Change "three" to "there"

Insert "or" between 'Ingestion" and "inhalation"

Change "abbreviation" to "remediation"

Change "of' to "to"

14-15

Add a comma after "where" in line 14 and a comma after

"compound" in line 15, delete the period in 15, and make

the "the" lower case

Change "pHs" to "PAHs"

Change "vain" to "vein"

Change "appendix D" to "appendix B"

Dated: February 17, 2006

1021 North Grand Ave . East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

Kimberl A . Geving

Assistan Counsel

Division of Legal Counsel

THIS FILING IS SUBMITTED ON RECYCLED PAPER

ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF :

PROPOSED AMENDMENTS TO TIERED

R06-10

APPROACH TO CORRECTIVE ACTION

(Rulemaking-Land)

OBJECTIVES (35 ILL

. ADM . CODE 742)

Proceedings held on March 1st, 2006, at 10 

:30 a .m . at the

Illinois Environmental Protection Agency, North Entrance, TQM

Room, 1000 E 

. Converse, Springfield, Illinois, before Richard R .

McGill, Jr., Chief Hearing Officer 

.

Reported by 

: Beverly S . Hopkins, CSR, RPR

CSR License No . : 084-004316

KEEFE REPORTING COMPANY

11 North 44th Street

Belleville, IL 62226

1

HEARING OFFICER MCGILL : Sure . Yeah, that will not be a

2 problem 

. But go ahead, again just state your name and the

3 organization you're representing .

4

MR . THOMAS 

: Jarrett Thomas with Suburban Laboratories . I

5 too would like to give a brief summary 

.

6

HEARING OFFICER MCGILL : Okay . Just -- And that's fine . I

7 think we may save some time with the three Agency witnesses

8 unless -- 

before we went on the record I was conferring with

9 counsel for the agency, Ms . Kim Geving, and the Agency's

10 comfortable not providing brief summaries. Is there any

11 objection to the Agency's witnesses not running through a brief

12 summary of their testimony? Is there anyone who would rather

13 hear their summaries? Okay 

. Seeing no response, I think we'll,

14 at least with the Agency witnesses, dispense with the summaries 

.

15

Are there any questions about the procedures we're going to

16 be following today? I would ask that everyone please speak up

17 and try not to talk over one another so our court reporter can

18 clearly transcribe everyone's comments 

.

19

I'm going to -- At this point since the Agency witnesses

20 are not going to be providing any summaries of their testimony,

21

what I'd like to do is take care of some paperwork here

. The

22 Agency filed a Motion to Correct Portions of the Hearing

23 Transcript, the first hearing transcript, the February 21, 2006,

24 motion . Is there any objection to granting that motion, to

8

KEEFE REPORTING COMPANY

1 corrections to the first hearing transcript? Seeing no

j

2 objection, I'll grant that Agency motion 

.

3

There are several proposed hearing exhibits 

. We had six

4 hearing exhibits from the first hearing 

. Now there are several

5 more Agency exhibits that are being proposed

. The first is

6 Errata Sheet Number 3 from IEPA 

. Is there any objection to

7 entering that as a hearing exhibit? Seeing none, Errata Sheet

8 Number 3 will be Exhibit 7 

. Is there any objection to entering

9 into the record, as if read and made a hearing exhibit, the

10 Pre-filed Testimony of Gregory Dunn? Seeing none, I'll grant

11 that motion 

. That will be Exhibit 8, Pre-filed Testimony of Mr 

.

12 Dunn entered as if read 

. The next motion is for the Pre-filed

13 Testimony of Dr

. Thomas Hornshaw of the Agency

. Is there any

14 objection to entering that as a hearing exhibit and entering it

15 as if read? Seeing none, I'll grant that motion and that will be

16 Exhibit 9

. And last, Pre-filed Testimony of Lawrence Eastep of

17 the Agency 

. Is there any objection to having that entered into

18 the record as if read and made a hearing exhibit? Seeing none,

19 that will be Hearing Exhibit 10 

. And that is entered into the

20 record as if read .

21

With that, at this point what I'd like to do is open it up

22 to questions for the Agency's witnesses 

. I understand the Agency

23 would like to field the questions as a panel 

. I'm going to go

24 ahead and have the court reporter swear in the Agency's witnesses

9

KEEFE REPORTING COMPANY

ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO )

OBJECTIVES (35 ILL. ADM. ) Rulemaking-Land

CODE 742)

)

The following is a transcript

9 held in the above-entitled cause, taken

10 stenographically before TERRY A. BUCHANAN,

11 CSR, a notary public within and for the

12 County of Will and State of Illinois, at

13 Suite N502, 160 North LaSalle Street,

14 Chicago, Illinois, on the 31st day of

15 January, A.D., 2006, commencing at 10:30

16 o'clock a.m.

1 A P P E A R A N C E S:

ILLINOIS POLLUTION CONTROL BOARD,

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(312) 814-6983

BY: MR. RICHARD R. McGILL, JR.

(HEARING OFFICER)

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

1021 North Grand Avenue East

Springfield, Illinois 62794

(217) 782-5544

BY: MS. KIMBERLY A. GEVING and

MS. ANNET C. GODIKSEN

15 BOARD MEMBERS PRESENT: IEPA WITNESSES:

HEARING OFFICER McGILL: We're

going to go on the record.

Good morning. I'd like to

welcome you to this Illinois Pollution

Control Board hearing in Chicago.

My name is Richard McGill

and I'm the hearing officer for this

rulemaking proceeding docketed as

R06-10, in the matter of proposed

amendments to the tiered approach to

corrective actions objectives, 35

Illinois Administrative Code 742.

Briefly, by way of

background, on September 30, 2005 the

Board received this rulemaking proposal

from the Illinois Environmental

Protection Agency. Generally, the

tiered approach to corrective action

objectives, or TACO, rules provide

procedures for developing remediation

objectives based on risks to human

health post by sites environmental

conditions.

The Agency states that its

proposed amendments are designed to

improve procedures and reflect updated

contaminant standards, test methods and

toxicity criteria.

On October 20th, 2005, the

Board accepted the Agency's proposal

for hearing.

Today is the first hearing

in this rulemaking. A second hearing

is currently scheduled for March 1,

2006 in Springfield.

Also present today on behalf

of the Board, to my left, member Andrea

Moore, the lead Board member for this

rulemaking. To her left, Dr. Tanner

Girard, acting chairman of the Board

and to his left, member Thomas Johnson.

To my right, the Board's technical

unit, Anand Rao and Alisa Liu.

Today's proceeding is

governed by the Board's procedural

rules. All information that is

relevant and not repetitious or

privileged will be admitted into the

record.

We will begin with the

Agency's testimony. The Agency

prefiled its testimony, so they will be

providing summaries of that prefiled

testimony.

After that, we will have

questions from any members of the

public here as well as questions from

the Board for the Agency's witnesses.

After that, anyone else may testify

time permitting and I would expect

there will be time for that today.

Those who testify will be

sworn in and may be asked questions

about their testimony.

For those who wish to

testify today, but who did not prefile,

there is a sign-up sheet to my left

there in the center of the room by the

entrance.

For the court reporter

transcribing today's proceeding I would

ask that you, please, speak up and do

not talk over one another and, please,

identify yourself by name and title and

organization before giving testimony or

before posing a question.

Any questions about our

procedures today? Seeing none, I would

ask the court reporter to swear in the

Agency's witnesses collectively.

(Whereupon, the Agency's

witnesses were sworn in.)

HEARING OFFICER McGILL: Thank

you. I will now ask Agency attorney,

Kimberly Geving to begin the Agency's

presentation.

MS. GEVING: Good morning. As

stated, my name is Kim Geving. I am

assistant counsel for the division of

legal counsel, bureau of land, Illinois

Environmental Protection Agency and to

my right is co-counsel Annet Godiksen,

assistant counsel for the bureau of

air.

This morning we're going to

start with testimony summary by Gary

King who is to my far right.

Mr. King, I'm going to show

you what's been marked as Exhibit 3 for

identification and if you could,

please, tell me what that is.

MR. KING: This is a copy of the

testimony that I prepared for purposes

of this proceeding.

MS. GEVING: Is that a true and

accurate copy of what we filed with the

Pollution Control Board in this matter?

MR. KING: Yes, it is.

MS. GEVING: At this time I

would request that the Board accept

this into the record.

HEARING OFFICER McGILL: Okay.

Just for clarification, this is being

marked as Exhibit 3. There are

Exhibits 1 and 2 which the Agency plans

to be offering. Those are errata

sheets one and two respectively.

Regarding Exhibit 3,

Mr. Gary King's prefiled testimony, is

there any objection to entering this as

Hearing Exhibit 3 and entering it into

the record as if read? Seeing none,

we'll do that.

MS. GEVING: Mr. King, if you

would, please, provide a summary of

your testimony for the record?

MR. KING: As I said, my name is

Gary King. I'm the manager of the

division of remediation management

within the bureau of land of the

Illinois EPA. I've been in that title

since May of 1990. Within that

division are three sections, all of

which deal with remediation efforts of

the agency and all three of which deal

with the TACO regulations that we're

here to talk about this morning.

I've testified in numerous

rulemaking proceedings before the

Board, including all of the rulemakings

under Title 17 that led to the adoption

of the site remediation program and to

the TACO rules.

In this case we're proposing

amendments to part 742. We've been

implementing part 742 since it was

adopted in 1997. It has proven to be a

very effective methodology for

developing remediation objectives. I

had the opportunity to do some

traveling on behalf of the Illinois EPA

through our national trade organization

and I certainly get a lot of inquiries

as to what Illinois does and is doing

with regards to their remedial

objectives program under TACO and I've

personally spoken with state

environmental representatives from

Indiana, Missouri, Wisconsin, New York

and Mississippi as they have developed

their own state programs and have

looked to Illinois TACO rules to help

guide their decision-making.

As we have progressed with

the implementation of TACO over the

last year -- eight years we have found

the need for updating and refinements

either based on new information, that's

something I'm going to be talking about

a little bit later, or from operational

experience, which is one of the things

I'm talking about this morning.

I'm not going to go through

all the changes that are discussed in

my testimony, but just let me talk

about a couple of things.

We made some changes to the

applicability provision and those

aren't really -- those are not intended

to do anything new with regards to how

the TACO rule operates, but they

represent longstanding Agency practices

in interpreting TACO. For instance, in

the original TACO rulemaking in 1997 I

testified that landfills were not an

appropriate fit for use of TACO because

of technical and regulatory issues and

really 742.105(h), that's really

confirming that concept.

We've made a number of

changes on the institutional control

provisions and those are really

intended to reflect our experience with

regards to using those institutional

controls over the last eight years.

One of the things we

progressed in implementing the rule

when it first came out, it was just the

rulemaking language and we learned that

it would be appropriate to develop

model documents. We developed model

documents over the years. We then took

those model documents and posted them

on our web site to make them easy to

use. We now think we're at a point

where it's appropriate to codify those

modeled documents within the TACO rule

itself. That will help in terms of --

sometimes we've had issues come up and

we wanted to make sure that those were

clarified and that the format of how

those documents should be handled

should be -- place it right in the rule

itself.

I think that concludes my

summary of my testimony. I'll be happy

to take questions at this time.

HEARING OFFICER McGILL: Does

the Agency prefer to take questions of

an individual witness or as a panel?

MS. GEVING: I would prefer we

do it as a panel.

HEARING OFFICER McGILL: That's

fine. Why don't you proceed then with

your next witness?

MS. GEVING: My next witness is

Dr. Tom Hornshaw who is the manager of

the toxicity assessment unit for our

Agency and I have three documents to

show you this morning, Dr. Hornshaw.

The first one has been

marked as Exhibit 1 for identification.

If you could take a look at that,

please, and identify it for the record.

MR. HORNSHAW: This is errata

sheet number one.

MS. GEVING: And is that a true

and accurate copy of what we filed with

the Pollution Control Board?

MR. HORNSHAW: Yes, it is.

MS. GEVING: Thank you very

much. I'm going to show you now

Exhibit 2 marked for identification.

If you could, please, identify that for

the record?

MR. HORNSHAW: Errata sheet

number two.

MS. GEVING: And is that a true

and accurate copy of what we have filed

with the Pollution Control Board?

MR. HORNSHAW: Yes, it is.

MS. GEVING: The third is marked

as Exhibit 4 for identification. If

you could, please, identify that.

MR. HORNSHAW: This is a copy of

the prefiled testimony I prepared for

this hearing.

MS. GEVING: And is that a true

and accurate copy of what we filed with

the Pollution Control Board?

MR. HORNSHAW: Yes, it is.

MS. GEVING: At this time I

would request that the Board accept

these into the record as if read and

then Dr. Hornshaw may provide his

summary of testimony.

HEARING OFFICER McGILL: Okay.

We'll take these one at a time.

There's a motion to enter

errata sheet number one as a hearing

exhibit. Is there any objection to

that? Seeing none, errata sheet number

one is Hearing Exhibit No. 1.

The second motion is for

errata sheet number two to become

Hearing Exhibit No. 2. Is there any

objection to that? Seeing none, errata

sheet number two will be our Hearing

Exhibit No. 2.

And finally a motion to

enter as if read the prefiled testimony

of Thomas Hornshaw. Any objection to

that? Seeing none, that will be

entered as if read and will be

designated as Hearing Exhibit 4. Thank

you.

MS. GEVING: Dr. Hornshaw, you

may proceed with your summary.

MR. HORNSHAW: Before I

summarize my testimony I have to

confess that it's probably my fault

primarily that we had to do errata

sheet numbers one and two. I've been

extremely busy with writing the report

that the legislature has required of us

regarding flame retardants and I didn't

get a chance to review the full copy of

TACO until very late in the proceedings

when I caught some of the typos and

things that I will be discussing, so I

confess, I was the culprit.

Regarding my testimony, it's

in four pieces basically. The first

has to do with toxicity information

that has changed from USEPA. As in the

first amendment to TACO there are a

handful of chemicals that USEPA has

updated the toxicity data. There are

six of them this time that require

changes in the Tier 1 tables. We also

learned in discussions with our

counterparts in region five, the

toxicologist in region five, that EPA

does Manganese kind of differently, the

chemical Manganese differently. When

they developed the toxicity information

originally they did not account for the

Manganese that people take from their

diet so they have since reduced the

toxicity criteria to account for the

exposure that comes from diet and water

so we've done that with Manganese in

the Tier 1 tables as well.

The second portion of my

testimony deals with lead. There have

-- in the original TACO the only

toxicity information available is

regarding childrens exposure to lead

and soil and because of that objective

for all of the exposure routes;

residential, industrial, commercial,

construction and migration to

groundwater were 400 milligrams per

kilogram in the soil because that was

the only data available. Since then we

have talked with USEPA staff about how

to deal with adult exposures to lead.

We have used the adult blood lead model

to calculate objectives for industrial,

commercial and construction workers

rather than have them based on a

child's exposure and we also got a

document from USEPA that gives us a way

of calculating pH specific migration to

groundwater objectives. So we're

proposing to fill in the Tier 1

toxicity tables with new values for

lead.

Another thing that I'm

testifying to has to do with the major

nutrients, calcium, magnesium,

phosphorous, sodium and potassium.

We've had numerous inquiries about how

to deal with these major nutrients

because laboratories quite often report

them. When they show up on an

analytical sheet some people have

determined that they need objectives

for them so what we did was look at the

intakes that would come from normal

diet and made calculations based on how

much that intake would compare with the

intakes that are assumed for the TACO

cleanup calculations and we have

decided that most of the major

nutrients do not need to have cleanup

objectives because the daily diet is

already so much more than you would

expect just from incidental ingestion

of soil.

And then the last thing on

my testimony deals with a lot of the

things that are in the two errata

sheets, minor changes and corrections

in the text. There were some

formatting problems that occurred and

so we made quite a bit of changes that

were either held over from the previous

update of TACO and there were some text

corrections that had to be made as well

as some formatting problems that turned

up some screwy things in the draft

that's before the Board right now.

A couple of other things, we

had to update analytical methodology

and a couple of the incorporations by

reference to bring them up-to-date with

current publications.

We had to clarify how

compositing and averaging should be

done to show compliance with

remediation objectives and finally,

because of a quirk in the software that

we use to calculate remediation

objectives, we found that our software

treated mercury as a particulate even

for the inhalation exposure route and

when we forced it to treat it as a

vapor instead of a particulate it

resulted in fairly large changes in the

remediation objectives for mercury for

the construction worker and the

industrial commercial worker, so we

made those changes.

That's the summary of my

testimony.

HEARING OFFICER McGILL: Thank

you.

MS. GEVING: The Agency's third

witness is Larry Eastep. Larry is now

retired, but he is the former manager

of the remedial project management

section and is back on contract with

the state for purposes of this hearing.

Mr. Eastep, I'm going to

show you what's been marked as

Exhibit 5 for identification. If you

would, please, identify that for the

record.

MR. EASTEP: This is a copy of

the prefiled testimony that I prepared.

MS. GEVING: Is that a true and

accurate copy of what we filed with the

Pollution Control Board?

MR. EASTEP: Yes, it is.

MS. GEVING: At this time I

would request that the Board enter this

into the record as read.

HEARING OFFICER McGILL: We have

a motion to enter into the record as if

read the prefiled testimony of Lawrence

Eastep. Any objection to that? Seeing

none, we will enter this as a Hearing

Exhibit 5 and enter it into the record

as if read.

MS. GEVING: Mr. Eastep, you may

proceed with your summary.

MR. EASTEP: I really prepared

testimony to address two issues. The

first of which is being the background,

polynuclear aromatic hydrocarbons.

Because of the experience in the site

remediation program it became evident

after a couple of years that we were

seeing levels of certain polynuclear

aromatic hydrocarbons or PNAs as I'll

refer to them. We were seeing PNAs

occur very frequently in situations not

just in heavily industrialized areas,

but throughout the state as well. The

more we looked into it the more we

became aware that there was perhaps a

background in the state of these

particular chemicals, although we

didn't -- at the time we didn't have

enough information to really quantify

what that background was.

In about 19 -- excuse me.

About 1999 or 2000 we started

addressing the issue and we addressed

it really two ways. A Brownfield's

grant was issued to the City of Chicago

to do a PNA background study strictly

within the city limits of Chicago. We

also talked with the Electric Power

Research Institute, which is a group

that is funded -- it's a nationwide

group funded by utilities across the

country and they were also interested

in this topic and so the Electric Power

Research Institute or EPRI conducted a

study across the state exclusive of the

boundaries of the city of Chicago. We

weren't active partners nor did we fund

the EPRI study, but we did work with

them throughout the process and we were

in constant communication and

consultation with EPRI.

What resulted from both of

these studies were the identification

of naturally occurring levels of PNAs

throughout the state in what we've

defined as populated areas and what we

did here with this change is we created

a table and allowed people to use, if

they qualify, to use the background

PNAs. I'll be available for questions

later on the PNA issue.

The other particular part

that I addressed, the inclusion of

construction worker objectives for

certain chemicals in appendix B, table

A for the residential scenario. There

are a number of chemicals that have

industrial, commercial, construction

worker remedial inhalation objectives

that are more stringent than

residential inhalation objectives.

However, the manner in which TACO is

used allows for the construction

activities on residential properties.

For example, a site cleaned up to

residential objectives might be

expected to have construction on

residential property, et cetera.

Additionally, many states clean up to

TACO residential objectives even though

the intended use of the property might

be industrial. In other words, they're

kind of going that extra step to clean

up a little better. Therefore, in

order to protect the construction

worker we felt that it was necessary to

apply industrial, commercial

construction worker remedial inhalation

objectives to residential scenarios.

Trying to do that, there were several

options we could have looked at and we

felt that since there were only 28

chemicals involved, what we did was

footnote those 28 chemicals in the Tier

1 table and that footnote directs the

reader to apply the construction worker

inhalation objectives in these

particular instances.

That concludes my summary.

HEARING OFFICER McGILL: Thank

you. Why don't we proceed with your

next witness then?

MS. GEVING: The Agency's fourth

witness is Greg Dunn and Greg is the

manager of one of the voluntary site

remediation units for the Agency.

Greg, I'm going to show you

what's been marked as Exhibit 6 for

identification. If you would, please,

identify that for the record.

MR. DUNN: This is a copy of my

prefiled testimony.

MS. GEVING: Is that a true and

accurate copy of what we filed with the

Pollution Control Board?

MR. DUNN: Yes, it is.

MS. GEVING: At this time I

would request that the Board enter this

into the record as if read.

HEARING OFFICER McGILL: There's

a motion to enter into the record as if

read the prefiled testimony of Gregory

Dunn. Is there any objection to that?

Seeing none, this will be entered into

the record as if read and identified as

Hearing Exhibit 6. Thank you.

MS. GEVING: Mr. Dunn, you may

proceed with your summary.

MR. DUNN: Thank you, Kim.

Good morning. Again, my

name is Greg Dunn. I am manager of one

of the voluntary site remediation units

with the bureau of land at the Illinois

Environmental Protection Agency. My

testimony has been prefiled, therefore,

I will summarize my testimony.

The Agency is proposing a

number of changes to the incorporations

by reference. This is done to update

to the most current and up-to-date

documents available to us and those

changes are outlined in my proposal, in

my prefiled testimony.

The second area is

determining fraction organic carbon.

This problem was identified by an

outside lab to us about a month -- a

year and a half ago that the way the

fraction organic carbon was calculated

may be wrong. There are two methods

identified in TACO right now to

determine the fraction organic carbon

of a site. The first one is the ASTM,

that's the American Society for Testing

Materials method D2974 and USEPA SW-846

method 9060(a). I'm going to briefly

go over the two methods. 9061(a) is a

water method. However, you can modify

this method for soil. However, this

method had some problems. The sample

amount that you use for this method is

very small, somewhere in the range of

ten to 50 milligrams and there is no

standard protocol to modify this method

for soils. With the small sample that

you have to analyze for the fraction

organic carbon obtaining reproducible

results are very difficult. Method

9060(a) does give you a total organic

carbon number, however. Under the ASTM

method it produces a total organ matter

concentration. This is an identified

method that has been widely used

throughout by ASTM and this is

something they have put out for

everybody to use. The problem with the

ASTM method, it is a total organ matter

not a total organ carbon. However,

under Nelson and Sommers they state

that there is a conversion factor that

you can use for the ASTM method

anywhere from 0.5 to 0.58 to convert

from total organic matter to total

organ carbon. Therefore, the Agency is

proposing to leave the ASTM method in

TACO and remove the 9O60 USEPA method.

At the same time, we will leave the

reference to Nelson and Sommers. That

is all located in 742.215 and also in

appendix C, table F.

HEARING OFFICER McGILL: I'm

sorry, table?

MR. DUNN: Table F.

One of my other issues is

under 742.305(e), an exposure route may

not be excluded if no soil exhibits the

characteristics of toxicity for

hazardous waste as determined by

721.124 or an alternative method

determined by the Agency. There is no

alternative method determined by the

agency to determine toxicity,

therefore, the Agency proposes to

delete alternative method.

Under 742.320(d), it does

identify that an ordinance within

2,500 feet from the source has to be

used to exclude a groundwater exposure

route pathway. However, there are many

sites that have come through the site

remediation program where the source of

the release has been located within

this 2,500 feet barrier from a

municipal boundary that has a

groundwater ordinance.

Within this 2,500 feet these

people cannot use the groundwater

exclusion pathway. Therefore, the

Agency is proposing to remove the

2,500 foot exclusion from this part

because there are a number of sites

where the source of release, even

though it's located within 2,500 feet,

the extent of the contamination which

has to be determined by the regulations

anyway may only extend a short

distance. Therefore, there should be

no reason why they cannot still use the

exclusion -- groundwater exclusion

pathway under 320. We propose to take

out the 2,500 feet from that section.

Under 742.805(c)(1) there's

a number of contaminants that are

identified in this section and they

range from 2 to 14. However, if you

review appendix A, table E and appendix

A, table F, the actual range should be

from 2 to 33. Therefore, the Agency is

proposing to revise that to -- from 2

and 14 to 2 to 33.

Under 742.1015(b)(2) the

word modeled was inadvertently left off

after the last TACO rulemaking and,

therefore, the Agency proposes to

reinsert modeled after contamination in

742.1015(b)(2).

My last area is in appendix

C, table D, the symbol for soil bulk

density is mislabeled and, therefore,

the Agency proposes to correct that.

That concludes my testimony.

HEARING OFFICER McGILL: Thank

you. Why don't we go off the record

for a second?

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER McGILL: The

Agency has concluded with its witnesses

who prefiled their testimony, so I will

turn it back over to Kimberly Geving to

introduce the last Agency witness.

MS. GEVING: Yes. The last

Agency witness is Doug Clay who is the

manager of the leaking underground

storage tank section for the Agency and

he is here for purposes of questions as

a panel.

HEARING OFFICER McGILL: Thank

you. Thank you all for your testimony

and for being here today.

Before the Board proceeds

with some of the questions it has we'd

like to open it up to members of the

public who are present here who may

have a question for any of the Agency's

witnesses. I would ask, if you do have

a question, to just signal me first and

state your name, title and any

organization that you're representing

before you proceed with your question.

So with that, does anyone

have any questions for any of the

Agency's witnesses? Go ahead. Again,

if you would state your name and title

and organization, please.

MR. THOMAS: My name is Jarrett

Thomas. I'm with Suburban

Laboratories. I'm vice-president of

Suburban Laboratories, an environmental

testing laboratory. I'm also president

of an environmental -- Illinois

Association of Environmental

Laboratories.

HEARING OFFICER McGILL: Would

you mind stepping up here to the front?

MR. THOMAS: Sure.

HEARING OFFICER McGILL: Thanks

a lot. Let's go off the record for a

moment.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER McGILL: Why

don't we go back on the record?

Please proceed with your

questions.

MR. THOMAS: I have a few

questions, most of which are going to

be related to the ADLs and TACO

objectives itself and the ability to

achieve those limits analytically, but

I have a couple quick questions with

regards to FOC.

Is there any reason why the

Agency didn't include the actual factor

to be used for the determination of

FOCs? You mentioned the range of -- I

think it was .5 or .58. Is that

something that could be specified in

the actual reference so as to alleviate

any potential confusion as to what

factor to use?

MR. DUNN: Under Nelson and

Sommers they give a typical range of

0.5 to 0.58. However, in some of their

literature, when you read through

Nelson and Sommers, it can be as high

as .86. So you can have a conversion

factor as high as .86. When we

discussed this conversion factor we did

not want to put a number in there that

would set exactly what that conversion

factor would have to be. We want the

consultants to propose a conversion

factor to us. We have widely accepted

the 0.5 to 0.58 conversion factor.

However, if a consultant wants to come

in and prove that they can have a

higher conversion factor, we were going

to allow that, that's why we didn't put

an actual number in there.

MR. THOMAS: At that point would

the consultant need to justify the

factor they provided if it was in that

range or do they just simply use -- use

whatever factor as long as it's within.

.5 to .58 without any support for that

factor.

MR. DUNN: The factor between .5

and .58 they can use without pretty

much any justification. Once we get

above that -- the .58 conversion factor

-- we assume they won't go below, but

once they go above the .58 they're

going to have to have some kind of

justification.

MR. THOMAS: The remainder of my

comments have to do primarily with the

ADLs that are specified in the TACO

tables. I guess my first question is

how were those ADLs actually

determined?

MR. HORNSHAW: You're testing my

memory a little bit. In the original

TACO rulemaking we looked through the

-- all the different SW-846 and USEPA

drinking water methodologies to

determine the lowest detection limit

from any of the methodologies that

pertain to a particular analyte and if

the calculated risk based remediation

objective was less than the lowest of

the detection limits then we used the

lowest detection limit, the ADL, as the

remediation objective.

I believe in the first

update to TACO we updated some of those

ADLs and I'd really have to go back and

look through either my testimony or

somebody from my unit's testimony on

that.

I'm not sure about this

current update, if there are reasons to

update any of the ADLs.

MR. THOMAS: For some of the

analytes where there was no specific

detection limit -- let me rephrase

this.

Were all the ADLs that are

listed in TACO, did those all come from

the USEPA methodology reference?

MR. HORNSHAW: Yes. Either the

SW-846 methods or the EPA drinking

water methods for groundwater criteria.

HEARING OFFICER McGILL: Could I

just ask both of you to speak up a

little bit. With the air conditioning

and we're having a hard time hearing

you? Thanks.

MR. THOMAS: And you mentioned

that there were actual detection limits

were what was used for the ADL, not

quantitation limits, it was the method

of detection from those methods?

MR. HORNSHAW: Right. It's

defined in TACO as the lowest PQL,

practical quantitation limit.

MR. THOMAS: There is a

difference between PQL and detection

limit as defined, but you said earlier

that was the lowest detection limit?

MR. HORNSHAW: Right. And ADL

is specifically defined in the

definition section as being the lowest

PQL of any method.

MR. THOMAS: One of the tables

-- one of the issues that we are trying

to review these ADLs is that there's

groundwater limits and soil limits and

in looking at the groundwater

objectives there were no ADLs listed.

It seems like all the ADLs were listed

on for soil, but appendix A, table A is

being proposed to be changed to table

I, but originally H, that's the

chemicals, Tier 1, class one,

groundwater remediation objectives

exceeds the one, one million cancer

risk by concentration. There's

actually ADLs listed there for

groundwater.

What is it the same type of

situation in terms of how those were

evaluated, just the lowest detection in

the method applied and then ADLs --

MR. HORNSHAW: That's correct.

MR. THOMAS: Okay. Why are ADLs

listed in TACO at all? What's the

purpose of having those listed there?

MR. HORNSHAW: The purpose of

having them there is to allow the

determination of a remediation

objective that is verifiable and

achievable. Some of the chemicals,

especially the -- almost entirely the

carcinogens, have risk based values

that are less than the lowest of the

detection limits that we could find and

if you can't show that the chemical is

there because the detection limit is a

problem then we reasoned in the

original TACO that the detection limit

would have to be a remediation

objective just because you can't go

lower than that and I might add, the

620 standards specify that -- for

carcinogens -- not the standards, but

the health advisory section specifies

for carcinogens the groundwater

objective -- the groundwater health

advisory is the lowest PQL.

MR. THOMAS: Are you familiar

with the SW-846 definition of PQL in

that the method allows for PQLs to be

elevated based on the type of matrix?

For example, most methods specify --

HEARING OFFICER McGILL: Excuse

me. If you want to provide testimony

I'm going to go ahead and swear you in.

It might make sense if there's some

substantive pieces of information you'd

like the Board to consider.

MR. THOMAS: Sure.

(Mr. Thomas was sworn in by

the court reporter.)

MR. THOMAS: I was saying that

the definition of the practical

quantitation limit in SW-846 provides

for matrix effects and the PQLs listed

are necessarily always achievable. For

groundwater, for example, most SW-846

methods have a factor of ten that they

-- they have applied to the detection

limit. Some soil, for example, has

different factors as high as, I

believe, 600 times the factor -- the

actual detection specified in the

method.

Were those factors at all

considered when putting these

ADLs in for soil and groundwater?

MR. HORNSHAW: Yes, they were.

I'm kind of testifying for Jim O'Brien

who did all of the testimony regarding

ADLs in the original TACO hearing. I'm

testifying from memory right now, but

I'm almost positive that all of the

modifying factors were used in

developing the ADL list.

MR. THOMAS: And are you aware

that the environmental laboratory

community cannot achieve all of the

ADLs and all of the TACO objectives

that are currently specified in TACO?

MR. HORNSHAW: I'm not the one

who should be testifying to that.

MR. THOMAS: Maybe I'll ask Greg

that question since I know I've had

a lot of conversations with Greg over

the years about what the environmental

lab community can do and what it can't.

Greg, are you aware that

there is some real problems achieving

the necessary TACO objective as they

stand right now in TACO?

MR. DUNN: Yes. It has been

discussed between not only us, but a

couple other labs.

MR. THOMAS: Was there a reason

why that -- that there were no changes

to these ADLs or to the TACO objectives

to create ADLs where ones didn't exist

in response to that?

MR. HORNSHAW: Again, I can't

totally testify to this, but it's my

recollection that the SW-846 methods

that were on the books when we did the

first update have not changed with

maybe a couple of exceptions. So I

didn't think there was reason to change

the ADLs for this update.

MR. THOMAS: I guess back to my

question as to why ADLs are included in

the -- in TACO at all.

If different programs

reference TACO for their own specific

reasons, why wouldn't the analytical

requirements, detection limits and so

forth for those programs be specified

in the program because they may have

different requirements than TACO in

terms of the analytical objectives?

For example, the method references, for

example, TACO lists dozens of method

references for drinking water, but

drinking water is not a applicable

matrix when you're talking about soils.

You can't reference a drinking water

MDL or PQL when you're running a soil

SW-846 procedure. They're completely

separate.

Why does TACO include any

information with regards to the method

to be selected or the detection limits

that the laboratory needs? Shouldn't

that be placed in the applicable

program side of the regulatory

requirements? There's a lot of things

in TACO that I don't understand why

there's reference to SW-846 when

there's -- nowhere in TACO does it

state you need to use SW-846? That's a

program issue.

MR. HORNSHAW: Again, I'm

probably not the best person to testify

to this, but as I stated before, we had

to have objectives and they had to be

achievable. They couldn't be totally

risk base because the laboratories

can't go as low as some of the risk

based values. So they had to go into

the rule. It's a one size fits all

rule. It applies to whatever programs

are allowed to use it. It just made

sense to have them there.

MR. THOMAS: Even though

drinking water methods are referenced

here and used as a guidance for some of

these ADLs, have no applicability with

regards to soil, groundwater that are

being run primarily for TACO?

MR. HORNSHAW: Well, they would

have applicability to groundwater.

MR. THOMAS: Do the other

regulatory programs like SRP reference

groundwater methods or drinking water

methods, I should say, in their

requirements? Do they reference

anything to do with what method should

be followed.

MS. GEVING: If we could take

just a moment?

HEARING OFFICER McGILL: Sure.

Before we go off the record I'll just

remind everyone that we do have a

second hearing scheduled about a month

from now and if the Agency cares to,

they certainly may supplement their

responses with testimony at that

hearing and certainly you, sir, will

have an opportunity to provide

testimony at that hearing. In

addition, everybody can provide written

public comment. Just to be clear, if

someone wants to postpone responding to

make a more complete or thoughtful

answer, they'll have a later

opportunity.

MR. THOMAS: I would like to

just mention that the Laboratory

Association did intend to present

testimony, but a lot of these questions

were completely unanswered and we felt

it was premature until we got some of

these questions answered. We probably

will be at the next hearing.

HEARING OFFICER McGILL:

Terrific. Why don't we go off the

record for a moment?

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER McGILL: Why

don't we go back on the record? The

Agency can proceed with its response.

MR. DUNN: Concerning the

question are drinking water methods

identified in 740, under the

incorporations by reference Section,

740.125 it does reference USEPA method

-- or USEPA SW-846. It also identifies

methods for the determination of

organic compounds in drinking water

supplement two to that and supplement

three to that. So it does identify

drinking water -- the method for

drinking water in 740.

MR. CLAY: And with regard to

the leaking underground storage tank

program under 732.104 SW-846 is also

incorporated by references.

MR. EASTEP: Can I add one

thing? If you look at the

applicability of 742, it's not

restricted to LUST or the SRP.

MS. GEVING: For clarification

of the record, LUST stands for leaking

underground storage tank.

MR. EASTEP: Sorry.

MR. CLAY: Also, the two methods

that Greg referred to as far as

incorporation by reference, the methods

for the detection of organic compounds

in drinking water and determination of

organic compounds supplement three is

also referenced in leaking underground

storage tank regulations.

MR. KING: I guess I'm a little

bit confused by the question in terms

of, are you suggesting we should be

changing either what we have proposed

here in a certain way or suggesting the

program rule should be changed in some

fashion?

MR. THOMAS: I don't know and

that's why I'm trying to get these

questions answered. We've had a lot of

discussions in the association about

what do we suggest or what do we submit

to address some of these problems that

the industry has been having with

meeting of TACO objectives and it seems

to be that either the program -- the

program itself needs to be expanded to

include analytical requirements or TACO

needs to be expanded to improve

regulatory requirements. There's a

little bit of both in each regulation.

If the SRP and LUST and all the

individual programs specify the methods

to be used, then why should they be

included in TACO as well, if TACO is

meant to be the one place where all of

these other regulations refer or they

go to to get their objectives, then

shouldn't TACO be a place for that,

just the objective and not necessarily

where the analytical requirements

should be found.

HEARING OFFICER McGILL: Where

the analytical --

MR. THOMAS: Where the

analytical requirements should be

found.

HEARING OFFICER McGILL: If I

could just ask you to slow up a little

bit because I'm having a hard time

following and she's trying to get it

all down. Thanks.

MR. THOMAS: Again, as an

association we're trying to prepare our

testimony to deal with these problems

that we're experiencing as an industry

and we don't know where we should be

submitting these comments or what

exactly we should be commenting on.

There's ADLs in TACO. A lot of them

reference drinking water even though

drinking water is not applicable to

soil. There's situations, and I guess

my next question was going to be how

does the Agency currently handle

situations where they get analytical

data that does not meet the TACO

objectives?

MR. DUNN: Under the site

remediation program at least when the

project manager receives a report where

we have a compound or two that exceeds

a remediation objective in TACO they

have to address that compound one way

or another, whether it be through

modeling. If it's in the soil, they

can model it -- theoretical model to

ground water. If it's an objective

that exceeds ingestion inhalation

route, we may expect them to put some

kind of barrier in there to address

that compound.

MR. CLAY: And that would be the

same with the leaking underground

storage tank program.

MR. THOMAS: And for these

analytes that come across your desks

that are unachievable, why wouldn't

there be a recommendation by the Agency

to add an ADL for those compounds

instead of have it continually be

something that has to be modeled by the

engineer and explained in a report. If

it's not analytically achievable by the

analytical community, why go through

this procedure and is that procedure

that you're using defined?

MR. HORNSHAW: I'm not sure I

follow the question.

HEARING OFFICER McGILL: It was

sort of a compound question. Maybe you

could break it down.

MR. THOMAS: First question, is

that procedure that you just stated

defined? Is it clear in the

regulations that this is how one would

deal with a compound that is not

achievable?

MR. DUNN: In TACO you have to

meet the objective setting already set

in the regulation. I don't believe

that there is any set -- anything set

in TACO that says well, if you exceed

-- well, if you exceed an objective you

have to determine how to address it and

I think TACO does state that out. The

Agency or at least the site remediation

program and the leaking underground

storage tank program have come to the

conclusion you have to address it,

whether it be through modeling or the

use of barriers. It's probably spelled

out in TACO through the regulation.

MS. GEVING: I have a clarifying

question. This is Kim Geving for the

record.

In an instance where

something is not readily achievable,

would that be an instance that would

move a remediation applicant into a

Tier 3 scenario or would, for instance,

a Tier 2 be able to address some of

these problems? Could you run us

through maybe an example of a type of

situation like this, please.

MR. RAO: Before you answer

that, I just had a clarification

question. When you say achievable, are

you talking about whether you're able

to measure it in the lab or are you

talking about exceedence of a TACO

objective?

MR. DUNN: Being able to measure

it in the lab.

MR. RAO: Maybe that will help

you address this question. He's

talking about the lab capabilities, at

what level the detection level is. I

think that's what he was getting at.

To me it seemed like you were going at

different perspectives.

MS. GEVING: You're right.

HEARING OFFICER McGILL: Why

don't we go off the record? Thanks.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER McGILL: Back on

the record. I think we had left off

with the Agency about to begin a

response to the last question.

MS. GEVING: May we have the

court reporter read back the last

question, please?

(Whereupon, the requested

portion of the record

was read accordingly.)

MS. GEVING: That's the question

I was looking for. I think what I'd

like to do is have Mr. Dunn go ahead

and explain how the Agency addresses

this type of situation.

MR. DUNN: Typically, when we

run into a compound that exceeds the

objective in TACO where our lab

performed the analytical test method in

accordance with the SW-846 method or

whatever method is appropriate, that if

their number that they come up with at

the lab exceeds an abbreviation

objective, the consultant for the

project has to address that compound

and they can do it a number of ways.

They can use barriers to exclude the

route, whether it be the ingestion or

inhalation routes, they can use

modeling under your Tier 2 scenario in

TACO to model out the compounds,

especially for the migration of

groundwater route or they can even go

under a Tier 3 scenario, this is the

concentration the lab could get down to

under the method that's specified in

TACO and, therefore, we believe that's

a true and accurate number. So there

are a number of ways that we can

address that compound through TACO.

MR. THOMAS: I believe you

answered this question before, but

that's a common occurrence, correct,

that the laboratory is unable to detect

an analyte at the TACO -- that happens

quite frequently that a laboratory

cannot achieve the TACO objective?

MR. EASTEP: Was that a

question?

MR. THOMAS: Yes. Is that a

common practice?

MR. DUNN: Typically, my project

managers review the reports, so I'm not

privy to that information, whether they

have that, but I believe there are a

number of compounds and I can't

remember the number that are out there

that the labs have issues with where

when they analyze the compound. The

number they achieve is above the

objective in TACO. If that is the

case, the project managers are

instructed to have the consultant

address those compounds.

MR. THOMAS: If that's the case,

then why not propose an ADL for those

compounds so that it's no longer an

issue needing to model, needing to do

all this other justification from the

engineering side? If it's not

achievable analytically, why not create

an ADL for that?

MR. HORNSHAW: Let me start out

answering that one by what my unit's

experience is. My unit gets the Tier

3s. The bureau of land reviews the

Tier 2s, the modeling ones and then we

get the ones that take care of

everything else and when we have that

problem almost always it's because the

sample that was being analyzed is dirty

and there are interferences that

require the detection limit to be

raised.

Now, if it's a problem with

a detection limit that's elevated

because of interferences, I don't

believe that qualifies for what you're

talking about. If it's truly a problem

with the lab not being able to achieve

detection limits in a quote, unquote,

clean sample, then maybe that should be

addressed. Maybe if you would give us

an example where you have problems,

then that would kind of clarify it for

us, a chemical that you see as having a

detection limit that doesn't match with

what's in TACO.

MR. THOMAS: That information

has been presented to the Agency over

the last several years and that's why

we're surprised it's not in the current

revision. So that's why I'm trying to

understand why it wasn't included. I

thought that information was presented.

We'll be happy to provide that

information through this process.

MR. KING: To make sure what you

presented or talked about, you're

talking about a chemical that you

cannot achieve the ADL in a clean

matrix?

MR. THOMAS: Correct.

MS. GEVING: Mr. Thomas, is it

possible that you could present some

testimony or some alternative

suggestions at the next set of hearings

that we could consider?

MR. THOMAS: Yes. And one of

the things, maybe for the Board's

benefit I'd like to try to explain, I

think what's happened with the TACO

regulation is a lot of people have

gotten used to how to work around some

of the things that are not clear.

In the analytical laboratory

industry we usually like things to be

very specific. We want you to use this

method. We want you to achieve this

detection limit. In some cases, the

Agency has evaluated some of these

compounds and determined that they

cannot be met analytically and in that

case they've assigned ADLs. Some of

the ADLs that have been assigned are

higher than what the analytical lab

community can achieve and in other

cases there's compounds that the --

using the methods again that are

specified for soil in most cases and

then for groundwater, some of those

analytes are unachievable using

conventional methods that are used by

environmental labs every day.

There are methods that exist

in USEPA that have supersensitive

detection limits. However, the cost of

using those methods is very high.

One of the analytes, for

example, that we cited is

Pentachlorophenol. Pentachlorophenol

is an analyte that is listed as a

carcinogen. It's an analyte that does

not include an ADL, but most

laboratories that are running the

conventional method, in this case 8270

is the SW-846 method, that that method

just simply cannot meet the

pentachlorophenol limit, so we report a

higher value.

There's other methods that

exist, for example, method 8151, which

is an SW-846 method, a separate

technique, that can be used if we

needed to get pentachlorophenol down to

the TACO objective, but as an industry,

again, there's been a -- seems to be a

work around. The modeling concept is

something that a lot of laboratories

really don't understand and the

question as to why doesn't a laboratory

need to meet pentachlorophenol at the

TACO objective, why is it okay to model

that out, is more of an engineering

question and maybe a good decision from

the engineering side of things, but

from the analytical side of things, if

it's not achievable at the objective

that's being specified, we would like

that to be clear. We would like there

to be some ADL or some other

acknowledgment that this is the TACO

objective, here's the method reference,

but we understand you may not need to

get down that low, the engineer can

model that out or do whatever they need

to to compensate for that analytical

limitation.

So, again, I don't quite

know exactly where the best place is to

make these changes. I personally

believe that TACO should either include

ADLs for various programs. For

example, the ADLs for soil should be

specified for a soil sample and an ADL

for groundwater should be a groundwater

sample and the method should reflect

that, not drinking water methods

applying to a soil sample. It's

totally inappropriate to do that

analytically.

So our association is

trying to evaluate whether we want to

submit a proposal that would include

ADLs for each analyte that we think

needs to be changed in TACO or to make

those recommendations at a program

level. So since we're here to talk

about the TACO objective, that's where

we're probably going to land. I don't

know if that's something that would

cause more problems.

Again, my question, back to

it, why is it okay that you have to --

you don't have to meet a

pentachlorophenol objective, but you

have to meet a benzo (inaudible)

objective? That I never understood. I

don't know that most of the laboratory

community understands that, but if it

would make it easier for everyone

involved, our association can provide a

proposal to say here's the ADL we

recommend for these compounds.

HEARING OFFICER McGILL: Let me

just note for the record Board member

Nicholas Melas has joined us and I'll

also mention that at the end of today's

hearing we will be establishing a

prefiled testimony deadline for the

second hearing.

Any further questions from

you, Mr. Thomas, at this point?

MR. THOMAS: No.

HEARING OFFICER McGILL: Did

anyone present have any questions for

Mr. Thomas? There's two Agency

witnesses who have questions.

MR. HORNSHAW: I'd just like to

make a couple clarifying statements.

Mr. Thomas stated that we

shouldn't be using a drinking water

method for a soil sample, but there is

a reason to do that. When you're

having a lechate test be the

determination of a soil objective,

that's for the inorganics, most of them

can be achieved by showing that the

leachate test meets the groundwater

objective. So in that case a water

objective is appropriate for a soil

sample.

Regarding technology

availability, when we proposed the

objectives for the pHs in the original

TACO, the groundwater objectives were

based on drinking water -- I'm sorry,

the soil objectives were based on the

values that -- detection limits that

were available then from method 8310

and at that time -- that point in time

method 8310 was not available from a

lot of labs, but since we specified

that as the most appropriate way of

showing that the chemical is there or

not there, then the labs did adopt

method 8310 fairly widespread. I don't

know what the economics of that is, but

in that case we kind of forced the

technology to catch up with the

detection limits.

MR. THOMAS: And that's a very

good point. I tried to say something

similar in that one could probably

achieve every single TACO objective

that's listed in there now without an

ADL using a variety of different

methods. It would also cost $10,000 to

analyze one sample because you'd be

using the most sensitive equipment and

I think you'll find, we did some

research on this and we're happy to

provide more testimony at the next

hearing, but most of these methods that

would be necessary to achieve the

limits that are SW-846 methods that are

referenced in TACO, there are no labs

accredited for those. So that's

something that if -- a lab has to be

accredited according to SRP and LUST in

order to submit data to the Agency. So

just because there are methods that are

-- that exist, I think you'll find a

lot of laboratories may not have those

accreditations or the equipment or they

may have the equipment, but they're not

validated for that type of situation.

I also disagree that a

drinking water method is applicable for

a leachate. It's not at all applicable

for a leachate. Just because it's an

aqueous matrix does not necessarily

mean that a drinking water method is

the right method and, again, as I

mentioned earlier, SW-846 does include

factors for dealing with groundwaters

and deal with other things. A

detection limit should never be used as

a compliance objective. Again, we'll

go into that more when we provide

testimony.

MR. KING: I want to make sure

I'm understanding what you are going to

be coming back with. Is this going to

be from the association or just your --

MR. THOMAS: The association.

MR. KING: Okay. So you will be

identifying specific chemicals where

you believe the ADL is not appropriate

as it's stated in the TACO rule

currently?

MR. THOMAS: Correct, either not

existent or not appropriate.

MR. KING: And then you'll be

providing an explanation of why you

think that ADL should be there or be

changed from what it is now?

MR. THOMAS: Yes.

MR. KING: And then that will be

part of your prefiled testimony before

the next hearing?

MR. THOMAS: Yes.

HEARING OFFICER McGILL: Yes,

sir. If you could state --

MR. WALTON: I'm Harry Walton.

I'm chairman of the site remediation

advisory committee and I also represent

the Environmental Regulatory Group and

have participated in all of these

rulemakings in regard to TACO and SRP.

I'd like to ask Mr. Thomas a question

relative to his understanding. What

are the goals of -- how important is a

remedial objective to the remedial

applicant's role with the release?

Does he need a definitive number that

he can achieve to get a release from

the state for that compound?

MR. THOMAS: When you're saying

a release from the state, can you be --

MR. WALTON: When you get an NFR

letter from the State of Illinois, no

further action letter, that is a letter

that the state issues to a remedial

applicant that says he has satisfied

all obligations for those contaminants

that are identified in the remediation

site and that also states that the

contaminants achieve a concentration

and a receptor. That's a critical

point of TACO that you demonstrated

through your efforts that the

concentrations are acceptable for

exposure to a receptor.

HEARING OFFICER McGILL: I'm

sorry. Could you state your question

or I'm going to have to swear you in?

Why don't you state your question for

the witness and then if you want to

provide testimony, we'll swear you in.

Let's swear you in.

(Whereupon, Mr. Walton was

sworn in by the court

reporter.)

MR. WALTON: My comment is, the

remedial applicant when he gets a

release from the State of Illinois he

wants a number, a target, that gives

him (inaudible) now and in the future

that remedial objectives are such that

the receptor is not exposed to a risk.

We have a lot of tools, Tier 1, look up

tables, Tier 2, we go to site specific

issues. The issue he is talking about

is routinely handled through Tier 2s,

especially for the soil and

groundwater. The Tier 2 numbers are

typically much higher and if that's a

problem then you go to Tier 3. I would

request that you, when you offer your

testimony, factor in the policy and the

intent of the release that the remedial

applicant wants from the state. We get

a number -- an ADL that's too high we

will not have a definitive -- we will

not have a level of assurance that the

objectives are such that there's is no

risk to a receptor. That's it.

HEARING OFFICER McGILL: Thank

you.

MR. THOMAS: If I could respond?

From the laboratory perspective, again,

what we would like to see from this

regulation and any regulation that

affects environmental laboratories is

it to be very specific on what is --

what you want from us, what method

you'd like us to analyze, what type of

detection limit you'd like us to

achieve. Very simple questions. We're

analytical people. We like it to be

very black and white.

What we propose to present

in testimony would be what is

achievable currently for these target

TACO compounds. I don't know and I

haven't -- the engineering customers

that use laboratories, they take it to

the next level of taking our data and

applying it and presenting it to the

Agency, but it seems only logical to me

that if an objective cannot be achieved

analytically that it would be specified

somehow in either the program or in

TACO that this is the case and if it is

important that that analyte be achieved

analytically for some of the cases

you're mentioning, then specify the

method to be used in order to achieve

that and the entire laboratory industry

will then start using that method and

achieving that limit, but right now we

have a situation in this industry that

most, if not all, laboratories are

using methods that cannot achieve all

of the, in most cases, the SRP target

compounds at the TACO objective. It's

routine. It happens every day in every

lab. Just make it clear, what do you

want from the laboratories. That's

what we would like to see in TACO.

HEARING OFFICER McGILL: Okay.

Thank you.

Any other questions at this

point for any of the witnesses who have

testified so far?

Seeing no further questions

from members of the public or

otherwise, why don't we go off the

record for a moment?

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER McGILL: Back on

the record.

At this point the Board

would like to proceed with some of the

questions it has for the Agency's

witnesses and mindful that some of the

witnesses may need to leave sooner than

others, we're going to ask a question

initially here for Mr. Hornshaw,

although I suspect this will end up

being a question for the lawyers, but

it does come up in your testimony so

I'll pose it to the panel.

Your testimony notes that

the Agency proposes to incorporate

USEPA's SW-846 by referring to a web

site rather than to a date certain

document. Your testimony recognizes

that the Illinois Administrative

Procedure Act requires a date certain

reference. The Agency requests that

the Board make a special exception here

and my question is is the Agency aware

of any authority for making that

exception?

MR. HORNSHAW: On advice of

counsel, no, we're not.

HEARING OFFICER McGILL: Okay.

We have some technical

questions for you actually. I don't

know if anyone else wanted to take a

stab at that question or at least take

that under consideration for the next

hearing.

We'll proceed with some

technical questions that we had

regarding your testimony, Mr. Hornshaw.

MS. LIU: Good morning,

Mr. Hornshaw. Following up on the

hearing officer's question, in your

prefiled testimony on page eight you

indicate that the Agency is proposing

to make this change, but I didn't find

the actual change in the statement of

reasons in the proposed language made

there and I was wondering if that was

an oversight? Your change specifically

deleted the reference to April 1998,

added update 2 and 2B and the words

available at the web site address for

the EPA.gov, but I didn't see those

revisions made in the proposal.

MR. HORNSHAW: I believe that

was an oversight on our part.

MS. LIU: Would that be

something that might show up in errata

sheet three?

MR. HORNSHAW: Yes, it would.

MS. GEVING: I'm sorry. Can you

tell me again specifically what we

missed? He was pointing to something

and I didn't catch the reference, the

exact reference.

MS. LIU: On his prefiled

testimony on page eight he indicates

what the proposed wording would be as

an incorporation by reference for the

test methods for solid waste.

MS. GEVING: Thank you.

HEARING OFFICER McGILL: Then

you go to section 742.210(a) dealing

with incorporations by reference. Is

that where we didn't see it in their

proposal?

MR. RAO: That's correct.

HEARING OFFICER McGILL: We

didn't see that corresponding proposed

change in 742.210(a).

MR. HORNSHAW: You mean in the

new version of --

MR. RAO: The rule language --

HEARING OFFICER McGILL: Rule

language you're proposing. We didn't

see a reference in the proposed

language. We just saw the reference in

your testimony.

MR. RAO: And also, you may want

to take a look at the Agency's web

site, which has a more recent version

of SW-846 and see whichever version you

want us to incorporate by reference.

HEARING OFFICER McGILL: Can we

proceed then? Do you have any

follow-up questions?

MS. GEVING: You can proceed.

HEARING OFFICER McGILL: Thanks.

MS. LIU: Continuing along that

same vain, I can understand you wanting

to defer to the most recent updates

that are out there available on the

internet, but even in the proposed

citation that you provide for the

incorporation by reference the latest

update is still only 3A, although the

date certain has been removed. If a

final update four perhaps were to be

issued some time in the future, are you

envisioning it automatically be

included in that incorporation by

reference merely because you cited to

the web address?

MR. HORNSHAW: Our intent was to

have the remedial applicants going to

the web site and using the most recent

version of SW-846 that is on their web

site at the time they're doing their

work. So the answer, I guess, is yes.

MS. LIU: Just out of curiosity,

how often are updates made? The last

one is referenced 1998.

MR. HORNSHAW: I'm probably not

the right person to answer this.

Somebody from our division of

laboratories could probably answer that

better.

In my experience it's been a

little bit sporadic. Some years

nothing is updated and maybe something

else would get updated in the following

year. Do you want to try that?

HEARING OFFICER McGILL: I'll

just remind you you're sworn in.

MR. THOMAS: SW-846 it is not

updated on a regular basis. It is very

sporadic. There is a trend to not be

issuing as many updates. I would say

probably every three years a new method

would come out, but that doesn't

necessarily mean that each method is

updated every three years.

MS. LIU: Since TACO seems to be

updated every few years anyway because

of other changes, would it be

appropriate to just defer the SW-846

updates to the time when you're simply

updating the other TACO --

MR. HORNSHAW: Instead of having

the remedial applicant go to the web

site and get the most recent?

MS. LIU: My concern is about

perhaps having laboratories being

required to use a new method when it

might not be in a statute or in the

regulations.

MR. HORNSHAW: I think the way

we should do it is to cite the most

recent one at the time TACO is amended

and then the next amendment go to

whatever is current at that time.

HEARING OFFICER McGILL: Thank

you.

MR. RAO: I have a bunch of

questions that were kind of triggered

by Mr. Eastep's testimony, but I think,

Dr. Hornshaw, you may also pipe in when

it touches on risk assessment and

things like that.

Under the current

regulations, the use of area background

as remediation objectives as provided

under part 742 subpart D which sets out

the procedures for determining area

background and also it lists certain

limitations on the use of area

background. Could you, please, clarify

whether it's the Agency's intent to

allow the use of area background for

the proposed polynuclear aromatic

hydrocarbons in accordance with subpart

MR. EASTEP: No applicant would

be prohibited from using area

background if they wished to and, in

fact, I think some people have used the

area background provisions to determine

objectives, but our intent here was to

do the PNAs similarly to how we handled

arsenic a few years ago, was to go in

and instead of -- we thought it would

be a lot simpler assistance we know

that there is a certain background

concentration out there, these various

PNA chemicals, that they would simply

go into the tier tables, look at the

footnote and if they qualified then

they would be automatically able to use

that background number and the reason

why was it -- originally we never

anticipated that we would have

background levels that were naturally

occurring that were higher than the

risk based objectives, which sort of

put people behind the eight ball, so to

speak, when they went out and there was

absolutely no reason for arsenic a

couple of years ago or PNAs now to be

there and all of the sudden they're

there and they haven't been contributed

to by the applicant then how do they

address this and so that's why we did

it in the objectives.

MR. RAO: Under subpart D in

section 742.405(b) -- do you have --

it's not part of the proposal. I'm

looking at the current regulations for

TACO.

HEARING OFFICER McGILL: If you

need a copy, we have a copy here.

MR. EASTEP: We've got it here.

MR. RAO: Under 742.405 sub

section B, which describes different

approaches for determining area

background, under (b)(1) the rules list

the concentrations of inorganic

chemicals in background soils in

appendix A, table G. Do you think a

similar provision should be included

for the proposed PNAs also in the rules

part of the TACO instead of just having

it in a footnote in a table so that

people know where the area background

provisions are?

MR. EASTEP: This kind of goes

back a little bit and I recall

discussing that briefly internally and

I can't recall our exact discussions

now because it was so long ago, but I

think we put it in there, but I think

our feel was at the time we really

didn't need it. The footnoting in the

tables was sufficient.

MR. RAO: Would this be

something the Agency can take a look

and tell us whether it would be

appropriate to have something in the --

some provision in the rule which

directs a person using the rules to how

this area background provisions fit in?

MR. EASTEP: We'd be happy to

look at that.

MR. RAO: Also under the same

subpart, moving on to section 742.415,

which basically sets forth the

procedures and limitations for use of

area background. There are two sub

sections, sub section C and D, which

has the statutory limitations on the

use of area background.

Do those limitations also

apply to the use of PNAs, the proposed

area background for PNAs?

MR. EASTEP: No, they don't.

MR. RAO: They don't?

MR. EASTEP: No. We haven't put

them in a position to apply here

because we've essentially used the area

background as the Tier 1 objective.

MR. RAO: If these provisions

don't apply to the PNAs, as a part of

the Agency's evaluation of those area

background levels for the proposed --

in table -- appendix A, table H, did

the Agency do any evaluation to see

whether those area background levels

comply with the statutory provisions?

MR. HORNSHAW: Are you talking

about the one about acute threat?

MR. RAO: Yeah, both acute

threat and also -- yeah, mainly the

acute threat.

MR. HORNSHAW: We didn't do that

per se, but since so many millions of

people are exposed to these

concentrations and we don't see acute

toxicity occurring, we just didn't

think it was worth doing an actual

calculation of what an acute threat

would be at these levels.

MR. RAO: So based on the

proposed levels, you're comfortable

that there's no acute threat to human

health of the environment?

MR. HORNSHAW: That's correct.

MR. RAO: Okay. Moving onto sub

section D, which talks about the

situation where the area background may

be higher than a remediation objective

for residential use. It says that the

property may not be converted to

residential use unless such remediation

objective is met or an alternative

remediation based objective is

determined.

Could you explain what this

alternative risk based remediation

objective means in this context? Is it

something that under Tier 3 --

MR. HORNSHAW: That would be a

Tier 2 or a Tier 3 remediation

objective. So what am I supposed to be

answering now?

MR. RAO: I was just asking what

does alternative risk based remediation

objective mean in the context of this

provision?

MR. HORNSHAW: That's when site

specific information is used to

calculate a Tier 2 value or risk based

information is used to calculate a Tier

3 value.

MR. RAO: In the list of PNAs

for which area background has been

proposed, are you aware if any of those

PNAs or carcinogens are similarly

acting substances?

MR. HORNSHAW: Yes. Seven of

them are carcinogens.

MR. RAO: Has the Agency taken

into consideration whether the levels

that they propose are consistent with

the risk levels -- the acceptable risk

levels in section 58 --

MR. HORNSHAW: Yes. We did look

into that and the sum of the risk -- or

the background based value still falls

within the risk range that's acceptable

for TACO. It's less than ten to the

minus four.

HEARING OFFICER McGILL: I'm

sorry. You said less than ten to the

minus four?

MR. HORNSHAW: It falls within

ten to the minus four to ten to the

minus six risk range when you sum up

the risks from the seven carcinogens.

MR. RAO: How about for

residential use where ten to the minus

six is set as the acceptable risk

levels? Are any of those proposed

levels -- do all of those levels meet

the ten to the minus six for

residential use?

MR. HORNSHAW: No, they don't.

MR. RAO: I guess Alisa had some

questions about, you know, a little bit

more about the risk levels associated

with carcinogens and also about similar

acting substances if you want to go

ahead and ask them.

MS. LIU: Good morning,

Mr. Eastep. I first would just like to

say congratulations on your retirement

and for your years of service to the

Agency and let you know that we really

appreciate you being here and

continuing to lend your experience.

MR. EASTEP: Thank you for those

kind comments.

MS. LIU: Thank you.

This question actually can

go to both you and Mr. Hornshaw.

First of all, is there a

difference between a PNA and a PAH?

MR. HORNSHAW: No. For all

practical purposes, no. Some people,

I'm not even sure which one it is, some

people consider polycyclic aromatic

hydrocarbons to be strictly carbon and

hydrogen compounds, whereas polynuclear

aromatic hydrocarbons, PNAs, can have

something other than carbon in the

molecular background, but they're used

so interchangeably that effectively

there's no difference.

MS. LIU: Thank you for that

explanation.

Following on Mr. Rao's last

question about the cancer risk levels,

the acceptable levels of either one in

a million or one in 10,000. From what

I understand when you have the multiple

similarly acting chemicals you're

allowed to slow a cumulative risk level

of ten to the minus four and Mr. Rao

asked is that applicable then to a

residential cleanup and I wasn't quite

clear on the answer.

MR. HORNSHAW: I'm not sure

exactly how that gets worked out, to be

honest. There is the prohibition in

the original legislation of not more

than ten to the minus six and I don't

know for sure whether that only applies

to an individual chemical carcinogen or

to the sum of all chemical carcinogens

for residential uses. In either case,

the background values for some of those

seven carcinogens do exceed ten to the

minus six.

You could probably read into

subpart D that -- it talks about

regulated substance of concern, which

means something that is known to be

there because of the actions of the

remedial applicant and if you accept

that these carcinogens are there

because of background issues, then it

may not be a regulated substance of

concern. In that case, you don't

really consider it as part of the

chemicals to be evaluated for the site.

HEARING OFFICER McGILL: That's

an interesting interpretation. I take

it that by the proposed footnote in

appendix D, tables A and B you're

suggesting that the background PAH

value would be a remediation objective?

So presumably it would be considered a

contaminant of concern, is that

correct?

MR. EASTEP: That's correct.

MR. HORNSHAW: Just exactly as

we did with arsenic in the previous

update to TACO.

HEARING OFFICER McGILL: I think

that part of our question is you now

have -- to take your arsenic example,

there's table G with arsenic and a

background value, but table G is

followed into subpart D and is still

subject to those protections, the

statutory limitations that you were

discussing earlier, but the way you're

proposing table H for PAHs, it's

standalone, it's not folded into

subpart D, area background. So that's

our question and it sounds like, and

you can certainly add to your earlier

responses, but it sounds like you're

also going to take a closer look and

get back to us at the second hearing as

well? Could we go off the record for

one moment?

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER McGILL: In

addition to looking at subpart D of the

current part 742 rules, you'll

obviously want to be looking at section

58.5 of the act that sets forth a lot

of the area background information

we've been discussing and whether you

think the current proposal is subject

to that or is it consistent with it.

We've got some more

questions for the Agency witnesses.

MS. LIU: Mr. Hornshaw or

Mr. Eastep, this question goes to

appendix B, table A, the Agency's

statement of reasons explain that there

are 28 chemicals that have the

industrial, commercial or construction

worker inhalation objectives more

stringent than the residential

objectives and the Agency is proposing

to add a footnote, footnote X, designed

to apply to the -- designed to apply

these levels to residential settings.

Is the intent to always

replace the residential remediation

inhalation objectives for these 28

chemicals with the worker objectives?

MR. EASTEP: Yes.

MS. LIU: Would there ever be a

scenario where there would be no

construction worker activity allowed on

a residential site?

MR. EASTEP: I suppose that

could be a condition of the NFR letter.

You could do that, but we tried looking

at different ways to put this in here.

I mean, it doesn't -- something just

doesn't standalone. If you make a

change here, that could impact

something else and I wasn't sure why we

didn't because we had so many different

scenarios. When we were trying to put

this together it wasn't just as simple

as well, you might have a residential

scenario where somebody could come in

and have a contractor there putting in

a sewer line or something that might be

exposed to this because we have a lot

of people, and I won't say it's the

rule, but it's very common where in an

industrial setting just to protect

themselves and their liability and to

ensure it's cleaned up better will

actually clean up to some residential

level. Well, you're much more likely

to have construction activities at an

industrial site. So we kind of

grappled with how to put that in and

how to make it meaningful and we just

don't know because it's voluntary and

people have the option of doing either

-- and, of course, you do find

situations where, you know, maybe

they're used as an industrial setting

and they decide to sell the property

and convert it to townhomes or

something like that. We've seen that.

MR. HORNSHAW: And one other

thing I'd like to add is even if you

were able to put in a sentence that

prohibits construction work in an NFR

letter the construction worker scenario

was always intended to include

emergency repair workers and you can't

prohibit them from working on a site.

MR. EASTEP: I don't know if I

answered your question or not.

MS. LIU: I was just thinking

along the road someone might come up

with a financial incentive for not

wanting to go down that far and if they

could place an institutional control in

there I would think they would want to

do that. I was just wondering if that

was ever a practical scenario.

MR. EASTEP: I would think the

Agency has the authority to do that, to

implement some sort of an institutional

control that would prohibit

construction.

MS. LIU: But what if you have

the emergency worker situation, would

that contradict --

MR. HORNSHAW: In most cases it

would unless there's no utilities.

MS. LIU: Thank you.

MS. MOORE: This question is for

Gary King. On your prefiled testimony

on page two and three the section is

742.105(a), applicability. The Agency

proposes to expand part 742,

applicability, beyond the leaking

underground storage tank program, the

SRP and the RCRA part B permits and

closures.

What other remediation

programs have been using or are

expected to use TACO and would the

Agency provide, as applicable, the

Illinois Compiled Statutes and Illinois

Administrative Code citations to these

other programs?

MR. KING: One of the programs

that the Agency runs is dealing with

emergency responses. We have an office

of emergency response and they really

-- they don't have a specific set of

program rules that determine their

procedural requirements for making

decisions. However, you do end up with

-- there will be situations where

persons who are doing an emergency

response want to have a remediation

objective relative to that emergency

response. So that's an example of one

of the programs that isn't really

referenced -- it doesn't have a set of

procedural rules that are already in

the Board rules.

MS. MOORE: Any other programs

that you're aware of just by -- just as

a matter of practice?

MR. KING: Another program would

be the -- we work with the Federal

Superfund program. The TACO

procedures, they are not considered an

ARAR (phonetic) for purposes of CERCLA,

but they are still something that are

called a to be considered. So that is

a -- TACO can be used by people in

Illinois who are doing cleanups under

CERCLA, looking at it as a reference

document and, again, there's not a set

of Board rules that guides how the

Federal Superfund programs operate.

MS. MOORE: Is there then

something in the Illinois Statute that

allows that?

MR. KING: No. That would be a

matter of procedures under the federal

rules that govern the Superfund program

in that instance.

HEARING OFFICER McGILL: I guess

a follow-up question is, do you think

it's consistent with Title 17 of the

act to expand TACO to these other

programs you have in mind?

MR. KING: I think it's

appropriate because we have, for

instance, in the private world many

cleanups are performed in which the

Agency doesn't have any oversight

responsibilities and yet -- you know,

so what do people in the private sector

who are dealing in a private

transaction, they are not coming to the

agency for oversight, where do they

look to figure out what remediation

objective should be used. They

generally looked to TACO and so it's --

it's a reference that allows it, I

think, a problem.

HEARING OFFICER McGILL: That

example that you just gave, again, I'm

looking at your proposed language --

MR. KING: Maybe that one

doesn't exactly fit the language there

because it does say under one of

Illinois EPA's remediation programs.

So it might not be quite as direct

there.

HEARING OFFICER McGILL: I guess

it would be helpful -- this is just

such an open-ended reference in the

proposed language to IEPA remediation

programs, if you could let us know

everything you have in mind. You've

given us a couple of examples, the

federal CERCLA sites and emergency

response and that's helpful. If other

examples occur to you that you could

share with us later or at the next

hearing, it would just help us

100

understand where these Board rules are

intended to be used or have been used

in practice and how you want to codify.

MR. KING: Now, a number of

those -- so a number of those will not

be cited to specific Board rules. The

issue is you want to know what kind --

what the programs are regardless of

whether there's a Board procedural rule

that guides it along?

HEARING OFFICER McGILL:

Exactly. If there is an Illinois

Compiled Statute site or an Illinois

Administrative Code site for that

particular program, that would be

excellent, but if there isn't, we'd

still like to know what those programs

are.

MR. KING: We certainly can do

that.

HEARING OFFICER McGILL: Just so

Mr. Clay doesn't feel neglected, I

wondered if we should, in light of the

pending R04-23 rulemaking and Public

101

Act 92-554, I believe it is, should the

TACO rules where we site to part 731

and 732 UST rules now also include a

reference to part 734?

MR. CLAY: Yes, they should.

HEARING OFFICER McGILL: Okay.

Thank you.

This is a question for

Mr. King. Your prefiled testimony

discusses the proposed form documents

in appendices D through I. Who would

the Agency expect to be completing

these forms? Would it be an

environmental consultant for a client?

Take the first example, I think

appendix D is a highway authority

agreement and then there's a memorandum

of understanding.

There are several legal

document forms that are now being

proposed and am I correct that the

proposal that those forms would be

mandatory, all but the ordinance, I

believe, is that correct?

102

MR. KING: Some would be

mandatory, others would not be

mandatory. I think how it's cross

referenced in the rule depends on

whether it's mandatory or not. You

know, I guess there could be a debate

between engineers and lawyers as to

whether this is -- filling out one of

these forms is the practice of law. I

really don't -- authorized practice of

law. I don't particularly want to be

involved in that debate, but I think we

certainly have had these agreements

prepared by lawyers and by non-lawyers

I think over the course of the

administration of our programs.

HEARING OFFICER McGILL: Did the

Agency receive any input from any of

the bar associations or ARDC about

these forms -- proposed forms?

MR. KING: When we had meetings

with the site remediation advisory

counsel, as we generally have done with

the TACO rules, there are environmental

103

attorneys who are on that -- part of

that, so they did review these -- this

proposal and I presume they may have

looked at that issue. I'm not sure.

There certainly -- as this was

distributed to the -- to SRAC for their

comment and discussion with us, I know

that they, as an internal process, sent

our proposal out to a fairly widespread

group that would have included

attorneys working within -- for private

companies who would have looked at

this. We did not transmit anything

directly to the bar association.

HEARING OFFICER McGILL: Would

the Agency consider making the form

models as opposed to mandatory? Do you

think that would really lose the

benefit that you're seeking?

MR. KING: We had proposed this

as mandatory because of the fact that

we see so many of these and you really

would -- you begin to lose the benefit

if you don't have it mandatory because

104

then it's a model, now you have to --

well, then you have to review the --

what they proposed against the

regulations, et cetera, et cetera. It

makes the process of review more

complex.

We felt we're at a point

that the model documents had been used

enough by the private sector and by the

Agency that we've been able to flush

out issues that were important so that

they could go in as a model that would

be mandatory in certain instances.

HEARING OFFICER McGILL: It

would help -- if you mentioned SRAC,

site remediation advisory committee,

was created when Title 17 came about

and maybe for the next hearing you

could just tell us what the makeup of

SRAC is -- who --

MR. KING: Mr. Walton is

chairman of SRAC

HEARING OFFICER McGILL: You're

still sworn in, so could you just tell

105

-- the Agency has represented in their

proposal that they've gotten input from

SRAC and that SRAC -- that you've

circulated various versions of their

proposal, I guess.

MR. WALTON: Yes, we have and we

concur with using these forms.

HEARING OFFICER McGILL: Could

you tell us what the makeup of the site

remediation advisory committee is.

MR. WALTON: They are

representatives from the state chamber,

representatives from the IMA, chemical

industry counsel, he's a lawyer, two

banking groups, realtors, then ERG, the

environmental regulatory group,

basically provides a support staff for

that and in this rulemaking, Hodge,

Dwyer, Zeman, that's their legal

counsel for ERG, and then we have a

number of lawyers that provide support

to the various associations. All of

these people have reviewed and

commented on this and we've had a

106

number of meetings independent of the

Agency and in none of these meetings

did any of the various groups have any

problems with these documents. In

fact, these documents save a lot of

money and time for remedial applicants.

It provides them a very clear target of

what issues have to be addressed. Most

of the details in the agreements are

very technical. They go to the nature

of the contaminants, the extent of the

contaminants, types of barriers, legal

strategies that were used to resolve

the issues at the site. Again, it's a

very technical legal document, but the

legalities comes from the issuance of

the state of Illinois and the

acceptance by the property owner and

all of those parties have their own

representation on these issues.

HEARING OFFICER McGILL: Thank

you.

MS. LIU: Good afternoon,

Mr. King. I have one very simple

107

question.

On page seven of the

statement of reasons the Agency

proposal for appendix A, table G

indicates that a footnote is proposed

to be removed, but I didn't notice it

in the actual proposal. I was

wondering if you could shed some light

on that.

MR. KING: You said page seven

of the statement of reasons --

MS. LIU: Appendix A, table G.

MR. KING: The letters here are

so small. I'm trying to see whether I

can see whether there's a strike

through it. I can't. Yeah. I guess

if you look real closely there's a

strike through on just the footnote,

not the text of the Board note, just

the cross reference --

MS. LIU: Thank you. I see it.

MR. KING: This is

non-substantive. This truly fits that

category.

108

MS. LIU: Thank you.

MS. GEVING: So, in other words,

our intent was to leave the Board note

intact, but to just delete the footnote

itself?

MR. KING: That's correct.

HEARING OFFICER McGILL: And

that's a tiny A?

MS. GEVING: It's a very tiny A.

MR. KING: A very tiny A with a

tiny slash mark.

HEARING OFFICER McGILL: While

we're on the subject. Current table H

is going to become table I as proposed.

I think it's getting displaced by the

new PAH table. There are references in

the current rules to table H, but those

were not proposed to be changed to

table I on the Agency proposal. It may

just be a matter of doing an electronic

search in the part 742 rules, but as an

example in 742.505 and 742.805 there

were some references to table H and I

just want you to consider whether that

109

should become table I.

MS. GEVING: The answer would be

yes. That's an oversight on the

Agency's part. I apologize.

HEARING OFFICER McGILL: No

problem.

One last question, I don't

expect a response to this, it's mostly

for Kim. The Illinois Administrative

Procedures Act was amended fairly

recently and it requires that first

notice publication in a rulemaking

describe any I'll quote, I'll give you

the citation, quote, published study or

research report used in developing the

rule, among other things. That is at

section 5-409(b)3.5 of the IAPA and

it's in the Board's procedural rules at

102.202(b) and we would just ask if you

could supply us with the Agency's

response to that. It's something that

the Board would have to complete for

first notice publication of the

Illinois Register, identifying any such

110

published studies or reports that were

used in developing the rule. It's

something that we have to do now in all

of our rulemakings.

MS. GEVING: Are you asking for

new studies that we've relied on or

everything in the rule --

HEARING OFFICER McGILL: Just to

-- I'm sorry. Could you repeat your

question?

MS. GEVING: Is it everything

that is in the rule currently that

existed before this amendment or just

new things that we're putting in that

we relied on?

HEARING OFFICER McGILL: Just

for this rulemaking proposal. Do you

want to answer that now?

MS. GEVING: Well, I'd have to

go through the incorporations by

reference probably one-by-one, but I

can tell you that both PNA studies were

included in that.

HEARING OFFICER McGILL: I would

111

imagine so. If there's anything else

you want to add to that you can do that

in prefiled testimony or at hearing.

Is there anyone else who

wishes to testify or pose any questions

today at this point? Mr. Thomas?

MR. THOMAS: I just have one

follow-up question. Mr. King had made

a couple of comments that triggered

these questions about the incorporation

by reference and other programs using

TACO.

My first question is with

regard to incorporation by references.

One of the ASTM methods specifically

referenced in the incorporation by

reference section, however, SW-846 is

referenced as an overall incorporation,

that document is about this long, it's

a huge document. Could the methods be

specified in there instead of the

entire manual? There's a lot of things

in there that have no applicability at

all to TACO.

112

HEARING OFFICER McGILL: Could I

just make sure I understand your

question. You're asking for more

specific identification of test methods

within SW-846 as opposed to just

referring generally to SW-846?

MR. THOMAS: Yes.

HEARING OFFICER McGILL: I think

I understand the question. Does the

Agency care to respond to that at this

point.

MR. HORNSHAW: I'm not sure why

you'd want to do that because if there

is a chemical that -- if you specify

just individual methods, there may be

reason to go to a different method to

obtain a detection limit for a specific

compound that would be of concern to us

and if you haven't got that method

specified in the current version of

TACO, you wouldn't be able to use it, I

think.

MR. RAO: Would there be also a

possibility that a chemical that's not

113

listed in one of the appendix tables

may be encountered at one of these

sites for which --

MR. HORNSHAW: That happens all

the time and that's why I'm making the

comment that I am.

MR. THOMAS: That's kind of the

purpose for the request, is that there

are methods that -- for one thing,

there's no one certified to perform to

comply with the other regulations where

the use of a certified lab must be

used, so that's why I was thinking it

would be much more appropriate to have

the actual method specified instead of

leaving it up to the dozens and dozens

of methods which no one performs. Some

of those methods that are listed in

there are completely experimental.

My other question is there

is a reference in appendix B, table B,

I believe, both tables for soil

remediation objectives there's a

footnote F that states the level is at

114

or below the contract laboratory

program required quantitation limit for

regular analytical services. That

particular reference is not in the

incorporation by reference. So I would

ask that that -- whatever that is be

specified in the incorporation by

reference.

HEARING OFFICER McGILL: Could

you identify again the appendix and the

table?

MR. THOMAS: Appendix B, table

B. I believe it's also in table A, but

I am looking at table B. I believe

it's the same footnote for both. It's

footnote F.

MS. GEVING: Are you saying that

we don't have the method incorporated

in the incorporations by reference?

MR. THOMAS: Correct.

Mr. King had made reference

to the Superfund program. That is a

Superfund document, which is why I

believe it should be incorporated, a

115

USEPA Superfund program.

HEARING OFFICER McGILL: Does

the Agency have anything they'd like to

add at this point?

MS. GEVING: We will take a look

at that before the next hearing.

HEARING OFFICER McGILL: And

certainly, Mr. Thomas, feel free to

include any suggestions, rule language

that you care to.

Is there anyone else who

would like to testify today? Anyone

who has any questions they'd like to

pose?

MR. WALTON: In error I didn't

include the Illinois Consulting

Engineering Counsel as a member of SRAC

and they'd kill me if I didn't mention

them.

HEARING OFFICER McGILL: We

wouldn't want that. Why don't we go

off the record for a moment?

(Whereupon, a discussion

was had off the record.)

116

HEARING OFFICER McGILL: Just a

few procedural items before we adjourn.

I'll note that anyone may

file written public comments on this

rulemaking with the clerk of the Board.

The second hearing is

scheduled for March 1 starting at

10:30. It will be held in the IEPA

building, the north entrance, TQM room,

that's 1000 East Converse in

Springfield.

Prefiled testimony for the

second hearing must be filed with the

clerk of the Board by February 22.

The mailbox rule does not

apply to this filing. So the clerk

must receive the prefiled testimony by

that date, that's Wednesday the 22nd.

The current notice and

service list are located by the

entrance to this room. There are also

sign-up sheets if you would like to be

added to either of those lists.

Persons who are on the

117

notice list receive only Board and

hearing officer orders. Those on the

service list are those who wish to

actively participate in this proceeding

and receive copies not only of those

orders, but also other filings such as

prefiled testimony and public comments.

Prefiled testimony and

public comments may be filed on-line

through the clerk's office on-line.

It's on the Board's web site. Again,

that's filling, that's not service.

You still have to serve those on the

service list and, please, check with

the Board before you do file something

to make sure you have the most recent

version of the service list.

We expect copies of this

transcript to be in the Board's offices

by February 10 and we will get it

posted on our web site shortly after

that.

Are there any other matters

that need to be addressed at this time?

118

Go ahead.

MS. GEVING: Just one quick

question. If we file on your on-line

COOL system on the 22nd, that's

considered meeting the filing

requirement, correct?

HEARING OFFICER McGILL: Yes.

Just do so early enough in the day,

don't do it at 11:59 at night. I don't

know how our voluntary electronic pilot

project is working exactly, but I think

we need to get it before 4:30 that day.

Anything else? Seeing no

further matters I'd like to thank

everyone for participating today and

this hearing is adjourned.

(Whereupon, no further

proceedings were had.)

119

1 STATE OF ILLINOIS )

) SS.

3 COUNTY OF W I L L )

I, TERRY A. BUCHANAN, CSR,

7 do hereby state that I am a court reporter

8 doing business in the City of Chicago,

9 County of Cook, and State of Illinois; that

10 I reported by means of machine shorthand the

11 proceedings held in the foregoing cause, and

12 that the foregoing is a true and correct

13 transcript of my shorthand notes so taken as

14 aforesaid.

_____________________

Terry A. Buchanan, CSR

Notary Public

Will County, Illinois

22 SUBSCRIBED AND SWORN TO

before me this ___ day

23 of ________, A.D., 2006.

_________________________

Notary Public