Microsoft Word - NOF - R06-10 - Pre-filed testimony.doc

Testimony of Brian H. Martin

THIS FILING SUBMITTED ON RECYCLED PAPER

BEFORE THE 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) )

NOTICE OF FILING

TO: Ms. Dorothy M. Gunn Richard R. McGill, Jr., Esq.

Clerk of the Board Illinois Pollution Control Board

Illinois Pollution Control Board James R. Thompson Center

100 West Randolph Street 100 West Randolph

Suite 11-500 Suite 11-500

Chicago, Illinois 60601

(VIA ELECTRONIC MAIL) (VIA FIRST CLASS MAIL)

(SEE PERSONS ON ATTACHED SERVICE LIST)

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Illinois Pollution Control Board a

PRE-FILED TESTIMONY OF BRIAN H.

MARTIN,

copies of which are herewith served upon you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By: /s/ Katherine D. Hodge

One of Its Attorneys

Dated: February 22, 2006

Katherine D. Hodge

Monica T. Rios

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

CERTIFICATE OF SERVICE

I, Katherine D. Hodge, the undersigned, hereby certify that I have served the

attached

PRE-FILED TESTIMONY

OF BRIAN H. MARTIN

upon:

Ms. Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

via electronic mail on February 22, 2006; and upon:

Richard R. McGill, Jr., Esq. William G. Dickett

Illinois Pollution Control Board

Sidley Austin Brown & Wood LLP

James R. Thompson Center Bank One Plaza

100 West Randolph, Suite 11-500

10 South Dearborn Street

Chicago, Illinois 60601

Chicago, Illinois 60603

Kimberly A. Geving Annet Godiksen

Assistant Counsel Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East 1021 North Grand Avenue East

Post Office Box 19276 Post Office Box 19276

Springfield, Illinois 62794-9276

Mr. Bob Mankowski Ms. Lisa Frede

Environmental Protection Industries Chemical Industry Council of Illinois

16650 South Canal 2250 East Devon Avenue, Suite 239

South Holland, Illinois 60473 Des Plaines, Illinois 60018-4509

Mark R. Sargis, Esq. Tracy Lundein

Bellande & Sargis Law Group, LLP Hanson Engineers, Inc.

19 South LaSalle Street, Suite 1203 1525 South Sixth Street

Chicago, Illinois 60603

Springfield, Illinois 62703

Douglas G. Soutter Georgia Vlahos

Conestoga-Rovers & Associates Naval Training Center

8615 West Bryn Mawr Avenue

2601A Paul Jones Street

Chicago, Illinois 60631 Great Lakes, Illinois 60088-2845

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

Matthew J. Dunn, Division Chief Diane H. Richardson

Office of the Attorney General Commonwealth Edison Company

Environmental Bureau 10 South Dearborn, 35 FNW

188 West Randolph Street, 20th Floor Chicago, Illinois 60603

Chicago, Illinois 60601

Monte Nienkerk Elizabeth Steinhour

Clayton Group Services, Inc. Weaver Boos & Gordon Consultants LLC

A Bureau Veritas Company 2021 Timberbrook Lane

3140 Finley Road Springfield, Illinois 62702

Downers Grove, Illinois 60515

Mark Marszalek Jarrett Thomas, Vice President

Andrews Environmental Engineering Suburban Laboratories, Inc.

3535 Mayflower Boulevard 4140 Litt Drive

Springfield, Illinois 62711 Hillside, Illinois 60162

Stanley Yonkauski Raymond T. Reott

William Richardson Jorge T. Mihalopoulos

Illinois Department of Natural Resources Reott Law Offices, LLC

Legal Division 35 East Wacker Drive

One Natural Resource Way Suite 650

Springfield, Illinois 62702

Chicago, Illinois 60601

Steven Gobelman Dr. Douglas C. Hambley, P.E., P.G.

Thomas Benson Graef Anhalt Schloemer & Associates, Inc.

Illinois Department of Transportation 8501 West Higgins Road, Suite 280

2300 South Dirksen Parkway Chicago, Illinois 60631-2801

Springfield, Illinois 62764

Erin Curley Chetan Trivedi

Environmental Department Manager Trivedi Associates, Inc.

Midwest Engineering Services 2055 Steeplebrook Court

4243 West 166th Street Naperville, Illinois 60565

Oak Forest, Illinois 60452

John W. Hochwarter

David L. Rieser, Esq.

Jeffrey Larson McGuire Woods LLP

Missman Stanley & Associates

77 West Wacker Drive, Suite 4400

333 East State Street Chicago, Illinois 60601-1681

Rockford, Illinois 61110-0827

Charles A. King, Esq.

Chicago Department of Law

30 North LaSalle Street, Suite 900

Chicago, Illinois 60602

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

Musette H. Vogel Harry Walter

The Stolar Partnership SRAC

The Lammert Building, 70th Floor 2510 Brooks Drive

911 Washington Avenue Decatur, Illinois 62521

St. Louis, Missouri 63101-1290

by depositing said documents in the United States Mail, postage prepaid, in Springfield,

Illinois, on February 22, 2006.

/s/Katherine D. Hodge

Katherine D. Hodge

IERG:001/R Dockets/Fil/COS – R06-10

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

BEFORE THE 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) )

PRE-FILED TESTIMONY OF BRIAN H. MARTIN

NOW COMES the Illinois Environmental Regulatory Group (“IERG”), by and

through its attorneys, HODGE DWYER ZEMAN, and submits the following Pre-Filed

Testimony of Brian H. Martin for presentation at the March 1, 2006 hearing scheduled in

the above-referenced matter:

Testimony of Brian H. Martin

Good Morning. My name is Brian Howard Martin, and I am a Consulting

Environmental Scientist at Ameren Services in St. Louis, Missouri, and I have over 23

years of experience working in the environmental field. In addition, I represent the

Illinois Manufacturer’s Association as current Chairman of the Site Remediation

Advisory Committee (“SRAC”), and I am Chairman of the IERG Corrective Action

Work Group, which includes numerous companies engaged in industry, commerce,

manufacturing, and transportation related activity. On behalf of IERG and its member

companies, I want to thank the Illinois Pollution Control Board (“Board”) for the

opportunity to present this testimony today.

SRAC and IERG Meetings with Illinois EPA

As you may know, Section 58.11 of the Illinois Environmental Protection Act

(“Act”) authorized the SRAC. SRAC consists of members from the Illinois State

Chamber of Commerce, Illinois Manufacturer's Association, Chemical Industry Council

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

of Illinois, Consulting Engineers Council of Illinois, Illinois Bankers Association, the

Community Bankers Association of Illinois, Illinois Realtor Association, and the

National Solid Waste Management Association. Additional groups, such as IERG, the

Illinois Petroleum Council, the Illinois Petroleum Marketer's Association, and City of

Chicago, participate on an ad hoc basis. SRAC also extended an invitation to participate

to the environmental community. The collective experience of such a diversified group

of SRAC members has greatly facilitated the development of the issues that SRAC and

the Illinois EPA (“Agency” or “Illinois EPA”) have had to address in the development of

the Part 740 and Part 742 regulations. The participants’ clear understanding of these

issues has fostered a consensus between members and the Agency regarding the revisions

and amendments to the TACO regulations. The consensus-building process required all

parties, especially within the regulated community, to proceed in a spirit of compromise

in order to produce the current SRP and TACO regulations.

On January 20, 2005, SRAC, IERG, and representatives from the Illinois EPA’s

Bureau of Land met to discuss many of the proposed TACO amendments included in this

rulemaking. Throughout 2005, the group continued to meet and discuss the amendments,

and the group was able to reach agreements on most of the proposed amendments to the

TACO regulations. SRAC and IERG support the Illinois EPA’s proposed amendments to

the regulations. Subsequent to SRAC and IERG’s meetings with Illinois EPA, the

Agency added one significant amendment to the proposed TACO amendments, the

addition of the worker protection risk scenario to residential land use. I am testifying

today to offer support in general for the Agency’s proposal here.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

PNA Comments

More specifically, I would also like to provide some supporting comments

relative to the polynuclear aromatic hydrocarbon (“PNA”) background concentrations

that were included as footnotes in Appendix B, Tables A and B, and linkage to the new

Table H. During the January 31, 2006 hearing, several questions were raised regarding

the PNA background concentrations, and Illinois EPA responded to the questions by

providing supplemental testimony for this hearing in order to further clarify the record. I

would like to offer additional comments on behalf of SRAC and IERG on the adoption of

the PNA background values as footnotes in the Tier 1 tables and the link to the new Table

The Illinois electric utilities including ComEd, Ameren-IP, Ameren-CIPS and

Ameren-CILCO sponsored, and participated in, the studies of the Illinois PNA

background concentrations for areas outside of the City of Chicago. The objective of this

investigation was to determine ambient concentrations of PNAs due to natural and human

activities in non-impacted residential and commercial (including some agricultural and

light industrial) areas. The sampling protocol goal was to obtain PNA data from

residential areas with no known sources of PNAs (

i.e

., strong data bias to the residential

land use including rural areas adjacent to communities). The protocol did not attempt to

characterize PNAs on a statewide basis meaning that industrial, commercial, rural,

agricultural, and recreational areas were not investigated. My understanding is that the

protocol for the City of Chicago’s Brownfield Grant PNA investigation was similar.

Mr. Eastep stated in his supplemental testimony regarding the new PNA

footnotes:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

The purpose of incorporating the new PNA numbers as footnotes directing

the reader to a new table was to avoid the “area background” connotation.

In the original legislation, the concept of “area background” was needed to

ensure persons remediating sites were not required to clean up to levels

lower than “background” while at the same time protecting the public

from increased levels of risk. This made sense when referring to regulated

substances in the vicinity of a site or an area local to the site. For

example, the steelmaking industry was prevalent around Granite City,

southeast Chicago, and a few other areas around the State. In the general

area of these steel mills, slag was frequently used for construction

purposes, and regulated substances may have been dispersed as a result of

air emissions. Thus, many sites in the area of these mills would be

expected to be contaminated by releases from the mills. Section 58.5 of

the Act states that these sites do not have to clean up beyond what is

considered “area background.” However, the Act goes on to state that

these sites can’t be converted to residential use unless the contamination

meets risk-based residential standards. Thus, even though a site might not

have to be cleaned up to below background, it still can’t cause the

residents to be subjected to excess risk.

See

Supplemental Testimony of Lawrence Eastep, PCB No. R06-10 (Feb. 21, 2006). We

concur with this as well as with the relevance of examples provided by Mr. Eastep.

I would also like to offer some additional insight regarding the use of TACO

background concentrations at SRP remediation sites. In general, the concentrations of

inorganic chemicals in background soils are less than Tier 1 residential remedial

objectives and are not used to characterize risk.

See

Appendix A, Table G

Concentrations of Inorganic Chemicals in Background Soils. However, it is a common

practice to use Table G concentrations as a screen to determine if inorganic chemicals are

contaminants of concern at a site requiring source characterization and additional TACO

evaluations. The presence of inorganic chemicals in concentrations less than those listed

in Table G is due to natural, geologic sources. Thus, inorganic chemicals are not

contaminants of concern for the remediation site.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

I would now like to comment on the new Table H. In general, Table H can be

used, as with Table G, for determining if a PNA is a contaminant of concern at a

remediation site. PNA concentrations in Table H are not appropriate for “area

background.” Concentrations were not determined as part of a local area around a

remediation site, and remediation should not be subject to the prohibition from

converting the site to residential use. Also note that TACO area background provisions

contain a prohibition from converting a commercial/industrial site to residential use. This

residential conversion prohibition is not relevant in many cases because there is no

increase in risk to people. The Act and existing rules were written with the goal to

address situations where remediation site contaminants of concerns are from an industrial

source. Many remediation sites including commercial and industrial sites have PNAs

concentrations less than the proposed Table H concentrations but greater than Tier 1

residential ROs. Requiring the remedial applicant to remediate to achieve Tier 1

residential would result in “islands of clean” and would “chill” the recycling of

commercial/industrial properties to a residential land use. The increased cost to achieve

the Tier 1 ROs will not result in a decreased risk to the residential community. This

prohibition must not apply to remediation sites with PNA concentrations less than those

listed in Table H. The Table H concentrations must be considered as the applicable PNA

ROs.

Today’s proposed amendment to the PNA ROs is similar to the amendments the

Board adopted regarding the Tier 1 remediation objective for arsenic. Since the arsenic

Tier 1 remediation objective is less than the Table G concentration, arsenic is an

exception. Arsenic was found to be present everywhere above the Tier 1 residential

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006

objectives including residential areas, natural areas, and many other uncontaminated

areas. Based on this determination, Illinois EPA proposed amendments to TACO for

arsenic background concentrations, which the Board adopted. These amendments were

based on the record that ambient arsenic concentrations were above Tier 1 objectives and

posed no additional or incremental excess risk over what the public was exposed to every

day. The amendment included the removal of the arsenic Tier 1 objective and replacing

it with a footnote that directed the reader to the background table.

Conclusion

I have concluded my testimony and appreciate this opportunity to participate in

the development of the record in this proceeding. I will be happy to respond to questions.

* * *

IERG reserves the right to supplement or modify this pre-filed testimony.

Respectfully submitted,

By:/s/ Katherine D. Hodge

One of its Attorneys

Dated: February 22, 2006

Katherine D. Hodge

Monica T. Rios

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

IERG:001/R Dockets/R06-10/Fil/Pre-Filed Testimony of Brian H. Martin

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 22, 2006