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
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
Phone: (312) 814-6983
By: Mr. Richard R. McGill, Hearing Officer
ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
Springfield, Illinois 62794
(217) 782-5544
By: Ms. Kimberly A. Geving
Annet Godiksen
SUBURBAN LABORATORIES, INC.
4140 Litt Drive
Hillside, Illinois 60162
(708) 544-3260
By: Jarrett Thomas
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
By: Dierdre K. Hirner
HODGE, DWYER & ZEMAN
3150 Roland Avenue
Springfield, Illinois 62705
(217) 523-4900
By: Katherine D. Hodge
Monica T. Rios
ILLINOIS DEPARTMENT OF TRANSPORTATION
Bureau of Design & Environment
2300 South Dirksen Parkway
Springfield, Illinois 62764
By: Steven L. Gobelman
Cindy Bushur-Hallam
AMEREN SERVICES
1901 Chouteau Avenue
St. Louis, Missouri 61366
(314) 554-2233
By: Brian H. Martin
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BOARD MEMBERS PRESENT: IEPA WITNESSES:
Nicholas Melas Gregory W. Dunn
G. Tanner Girard Ron Turpin
Thomas E. Johnson Larry Eastep
Andrea S. Moore Tracey Hurley
Anand Rao Douglas W. Clay
Gary King
Thomas Hornshaw
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1 HEARING OFFICER MCGILL: Good morning and welcome to this
2 Illinois Pollution Control Board hearing in Springfield. My name
3 is Richard McGill and I'm the hearing officer in this rulemaking
4 Docketed R06-10 and captioned "In the Matter of: Proposed
5 Amendments to Tiered Approach to Corrective Action Objectives (35
6 Illinois Administrative Code 742)."
7 On September 30th, 2005, the Board received this rulemaking
8 proposal from the Illinois Environmental Protection Agency.
9 Generally the Tiered Approach to Corrective Action Objectives, or
10 TACO rules, provide procedures for developing remediation
11 objectives based on risks to human health posed by site
12 environmental conditions.
13 Today is the second hearing in this rulemaking. At this
14 time no additional hearings are scheduled. We held the first
15 hearing in Chicago on January 31st, 2006. Also present today on
16 behalf of the Board, Member Andrea Moore, the new board member
17 for this rulemaking, Chairman Tanner Girard, Member Thomas
18 Johnson and Member Nicholas Melas, and to my right the head of
19 our Technical Unit, Anand Rao.
20 Today's proceeding is governed by the Board's procedural
21 rules. All information that is relevant and not repetitious and
22 privileged will be admitted into the record. Just so everybody
23 -- A number of you know already there's a -- another board
24 hearing, rulemaking hearing, scheduled this afternoon at two
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1 o'clock. It is Docketed R06-19 "In the matter of: Clean
2 Construction or Demolition Debris Still Operations Under Public
3 Act 94-272." That's 35 Ill. Admin Code 1100. I expect that we
4 would be finished probably no later than one o'clock so that
5 anyone interested in attending that hearing will be able to get
6 over to the Illinois State's Museum Auditorium, that's 502 South
7 Spring Street, Lower Level. Our technical head, Anand Rao, is
8 going to need to be in attendance there, but I will stick around
9 and we will stay as long as anyone cares to testify and pose
10 questions even if that goes past one o'clock. But there are a
11 number of folks who want to get over to that other rulemaking
12 hearing at two, and I think we should be able to finish here in a
13 timely manner.
14 In terms of the order that we will follow today, we will
15 begin with the Agency's testimony followed by any questions for
16 the Agency's witnesses. The issue of ADLs, or Acceptable
17 Detection Limits, we're going to hold off on questions relating
18 to ADLs until later on in this proceeding in part because the
19 ADLs were not part of the IEPA's rulemaking proposal and they are
20 the proponent, so I want to get through the items that are the
21 subject of the Agency's proposal first and then we will move on
22 to the ADLs.
23 We have testimony that we're expecting to hear today from
24 several people concerning ADLs, that will come later. And I
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1 would ask that everyone hold off on any questions they have
2 concerning ADLs until -- until we get to that stage of today's
3 hearing. We will then proceed likewise with the others who
4 pre-filed their testimony. I've been made aware of two other
5 witnesses who did not pre-file but who are interested in
6 testifying today: Steven Gobelman, with the Department of
7 Transportation and Richard Halm of Environmental Monitoring and
8 Technologies, and certainly anyone else who wishes to testify
9 today will have an opportunity to do that, time permitting.
10 Those who testify will be sworn in and may be asked questions
11 about their testimony.
12 I will take care of a few housekeeping items first before
13 we begin with the Agency's testimony. One of those items is the
14 issue of the Department of Commerce and Economic Opportunity's
15 lack of response to the Board's request that DCEO perform an
16 economic impact study on this rulemaking proposal. Basically
17 under the Environmental Protection Act, Section 27(b), we are
18 required to request that DCEO conduct an economic impact study on
19 proposed rules before the Board adopts the rules. DCEO may,
20 within 30 to 45 days of that request, produce a study on the
21 economic impact of the proposed rules. The Board must make that
22 study, or DCEO's explanation for not conducting one, available to
23 the public at least 20 days before a hearing. On November 10th,
24 2005, the Board sent DCEO a request to conduct an economic impact
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1 study on the Agency's rulemaking proposal. DCEO has not
2 responded to the Board's request as of yet.
3 Is there anyone who would like to testify today regarding
4 DCEO's lack of response? Seeing none, I'll move on to just one
5 other housekeeping item. If there's no objection -- And again,
6 trying to keep things moving along quickly, the persons who
7 pre-filed their testimony, that testimony, assuming there's no
8 objection, is typically entered into the record as if read.
9 Sometimes we'll have that witness provide a brief summary of that
10 testimony, but the entirety of that written pre-filed testimony
11 is entered into the record as if it was read here in its
12 entirety.
13 Would there be any -- is there any objection to us waiving
14 the brief summary -- brief oral summaries of any of those
15 pre-filers? Go ahead, if you could just state your name.
16 MS. HODGE: Kathryn Hodge.
17 HEARING OFFICER MCGILL: And the organization you're
18 representing?
19 MS. HODGE: With Hodge, Dwyer & Zeman for the Illinois
20 Environmental Regulatory Group today. We have one witness who we
21 pre-filed testimony for, Mr. Brian Martin, and we -- we would
22 like for Mr. Martin to be able to present a brief summary. It
23 will be brief. We understand your concerns of moving this ahead,
24 but we do want a summary for Mr. Martin.
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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
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1 corrections to the first hearing transcript? Seeing no
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
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1 collectively at this point, and then perhaps, Ms. Geving, as
2 counsel for the Agency, you can introduce the witnesses.
3 MS. GEVING: Yes. We have two extra witnesses sitting on
4 the panel today for purposes of questioning and responding to
5 questions posed to the Agency. One to my right is Ron Turpin who
6 is Manager of the Quality Assurance Section for our Division of
7 Lab, and to his immediate right Tracey Hurley who works in our
8 Toxicity Assessment Unit. The rest of the witnesses were at the
9 first hearing. We have Tom Hornshaw who is the manager of the
10 Toxicity Assessment Unit, Greg Dunn, Larry Eastep, Doug Clay and
11 Gary King.
12 HEARING OFFICER MCGILL: Welcome. I would ask the court
13 reporter to swear in the Agency's witnesses collectively at this
14 time.
15 (The witnesses were sworn by the reporter.)
16 HEARING OFFICER MCGILL: Before the Board asks the several
17 questions it has, I would open it up to members of the public, if
18 anyone else has any questions for the Agency's witnesses. And
19 again, I would just ask at this point we hold off on questions
20 concerning Acceptable Detection Limits. Ms. Hodge?
21 MS. HODGE: Katherine Hodge. I have just one question, and
22 I believe this is for Mr. Eastep. And, Mr. Eastep, you offered
23 testimony in your pre-filed regarding the mandatory use of the
24 new form. And we have a question today about retroactivity.
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1 Specifically what is the Agency's position regarding agreements
2 such as the ELUC and/or the Highway Authority Agreement that have
3 been negotiated and executed prior to the effective date of the
4 rules but not yet submitted to the Agency? Does your proposal
5 require that such agreements be re-negotiated if they are not
6 identical to the new form?
7 MR. KING: If I may go ahead and answer that?
8 MS. HODGE: Sure.
9 MR. KING: The answer is no.
10 MS. HODGE: Thank you.
11 HEARING OFFICER MCGILL: Are there any other questions for
12 any of the Agency's witnesses? Seeing none, at this time the
13 Board will proceed with a few questions.
14 Dr. Hornshaw testified at the first hearing that the seven
15 carcinogenic polynuclear aromatic hydrocarbons, or PAHs, and the
16 Agency's proposed Table H on background levels, pose a cancer
17 risk between one and 10,001 and 1,000 -- I'm sorry. One and
18 10,001 -- between one in 10,000 and one in one million; is that
19 correct?
20 MR. HORNSHAW: Correct.
21 HEARING OFFICER MCGILL: There's a provision in Section
22 58.5, via of the Act, that concerns residential use and ensuring
23 the remediation objectives not be greater than one in one
24 million. Do you see any inconsistency between that language and
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1 in the statute of the Agency's use of the background table for
2 carcinogenic PAHs?
3 MR. HORNSHAW: The inconsistency -- I guess the
4 inconsistency would arise statewide. And by that, I mean, the
5 background levels that we've measured or have been measured in
6 the Chicago study and the EPRI study kind of represent urban
7 conditions statewide. And so literally just about everybody in
8 the state that lives in an urban environment is probably exposed
9 to greater than a one in a million risk because of the background
10 levels of PAHs that are present. I don't know how better to
11 answer that question.
12 HEARING OFFICER MCGILL: Thank you. I have just one other
13 follow-up question. Do the non-carcinogenic PAHs in the Agency's
14 proposed Table H have a hazard quotient greater than one?
15 MR. HORNSHAW: No, they don't.
16 HEARING OFFICER MCGILL: It's less than one?
17 MR. HORNSHAW: Yes.
18 HEARING OFFICER MCGILL: Thank you. Are there any other
19 questions for any of the Agency's --
20 MR. THOMAS: Could you just repeat that citation that you
21 had from the Agency?
22 HEARING OFFICER MCGILL: Yeah, I'm sorry. It's section
23 58.5(d). That's 415 ILCS 5/58.5(d). We have a few more
24 questions for some of the Agency's witnesses. Mr. Rao?
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1 MR. RAO: Yeah, actually I have a couple of questions for
2 Dr. Hornshaw on the same line about the PAHs that are being
3 proposed here with a background level. As looking at the
4 evaluation for similar -- similar acting chemicals under TACO,
5 you know, and even though we don't require similar acting
6 chemical evaluations for soil remediation objectives --
7 MR. HORNSHAW: In Tier 1?
8 MR. RAO: -- in Tier 1, and I think a while back when we
9 did the original TACO rule you testified there was -- that
10 evaluation for soil at Tier 1 was not necessary because of the
11 convoluted soil screening levels that were offered as Tier 1
12 levels in the Board rules. Now since we are moving away from the
13 SSL for these PAHs, is there any concern about the cumulative
14 effect of the similar acting chemical because some of these PAHs
15 are on the list of similar acting substance?
16 MR. HORNSHAW: I agree it's probably less conservative than
17 if you would follow the risk based values. However, the sum of
18 the risks from the background levels that are in the table still
19 follow within the 10 to minus 4 to the 10 to minus 6 risk level.
20 MR. RAO: Even if they are present at the site, like more
21 than one of these chemicals are present at a particular site, it
22 would still fall within the range?
23 MR. HORNSHAW: If they're present at concentrations less
24 than the values listed in the background table, yes, they still
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1 fall within that risk range.
2 MR. RAO: Okay. Yes. Yeah, that's just what I wanted to
3 make sure that whether we should require evaluation in Tier 1 or
4 not if these chemicals show up, multiple chemicals show up at a
5 particular site.
6 MR. HORNSHAW: At Tier 1?
7 MR. RAO: Yeah. Or have you looked at that issue?
8 MR. HORNSHAW: That might deserve some looking into.
9 MR. RAO: Yeah, we'd really appreciate it if you can take a
10 look at it and get back to us and provide some comments.
11 MR. HORNSHAW: Sure.
12 MR. RAO: Thank you.
13 HEARING OFFICER MCGILL: At this point the Board doesn't
14 have any further questions for the Agency's witnesses. I'll just
15 ask one last time if anyone has any questions of these witnesses
16 other than ADL questions? Seeing none, let's just go off the
17 record a moment.
18 (A discussion was held off the record.)
19 HEARING OFFICER MCGILL: At this point of the hearing we're
20 going to proceed with IERG's presentation, that's the Illinois
21 Environmental Regulatory Group, and I'll turn is over to IERG's
22 attorney, Ms. Hodge.
23 MS. HODGE: Thank very much. I have one witness with me
24 today, Mr. Brian Martin, and he is with Ameren Services and he
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1 has -- we did submit the pre-filed testimony for him and I would
2 like to move to admit that as an exhibit.
3 HEARING OFFICER MCGILL: Okay. With that motion to have
4 Brian Martin's pre-filed testimony entered into the record as if
5 read, is there any objection? Seeing none, I will grant that
6 motion and that will be Hearing Exhibit 11.
7 MS. HODGE: Thank you. And I would also like to introduce
8 some other folks here today with the Illinois Environmental
9 Regulatory Group. We have D. K. Hirner who is the Executive
10 Director of IERG, Harry Walton who is the consultant with IERG
11 and from Hodge, Dwyer & Zeman, Monica Rios who is here today.
12 HEARING OFFICER MCGILL: Welcome. Why don't we go ahead
13 and swear in your witness. Can you swear in the witness, please?
14 (The witness was sworn by the reporter.)
15 HEARING OFFICER MCGILL: You can proceed.
16 MR. MARTIN: Thanks.
17 MS. HODGE: You just summarize.
18 MR. MARTIN: Okay. I'd just like to offer a little summary
19 of the history of how this background PAH study came to be and
20 purpose that we an industry were trying to achieve whenever we
21 started this.
22 We approached the Agency a few years ago with some
23 anecdotal information that the Tier 1 residential PAH objectives
24 were in some cases becoming an impediment to cleanups because we
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1 were finding that background concentrations of PAHs in many
2 cleanup situations were actually higher. It was difficult to
3 achieve the Agency's cleanup objectives, so we approached the
4 Agency with doing a background study similar to studies that had
5 been done other days.
6 The utility industry undertook this effort because of our
7 interest in PAHs, specifically in our cleanups of manufactured
8 gas plants, and in discussions, starting with Larry Eastep and
9 later with Dr. Hornshaw, we realized this study could have
10 broader implications and might be useful for lots of cleanup
11 opportunities outside the -- the utility industry, for example,
12 facilitating ground fill cleanup and avoiding the creation of
13 islands of clean where background PAHs are a problem and make it
14 difficult to reach Tier 1 objectives.
15 In order to, I guess, get Agency buy-in and make sure that
16 they were comfortable with the work that we did, we put together
17 our experts at the Electric Power Research Institute with IEPA's
18 experts, Dr. Hornshaw and some others, and we developed a method
19 of the study. Before we collected any samples we wanted to make
20 sure that techniques, the areas being sampled, the sample
21 location selection, things like that were all going to be
22 satisfactory to the Agency so that in the end the results would
23 be acceptable, and then we went out and did the study.
24 The other thing we got by collaboration with the Illinois
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1 EPA was consistency with the background PAH study that was being
2 done in the city of Chicago concurrently, that way there was a
3 study in Chicago and then a study that covered the rest of down
4 state so that we could cover all of Illinois at the same time
5 without a lot of duplicating resources.
6 And I guess in the end I just want to commend the Agency on
7 working with us collaboratively in this research endeavor and the
8 rulemaking. It worked out very well, I think, and the results
9 were very satisfactory. So I guess I'll take questions.
10 MS. HODGE: Thank you. Any questions for Mr. Martin?
11 HEARING OFFICER MCGILL: Before the Board poses any
12 questions it might have, does anyone else have any questions for
13 the witness? Seeing none, let's just go off the record for one
14 moment.
15 (A discussion was held off the record.)
16 HEARING OFFICER MCGILL: Go back on the record. Thanks.
17 MR. RAO: I just have a few general questions about the
18 report that was submitted by the Agency. I think we are -- we
19 have incorporated these reports by reference and also there will
20 be -- instead of published studies on which the rules, you know,
21 Agency relied on. I just wanted to know if looking at the EPRI
22 report it seems like it has officially been published by EPRI?
23 MR. MARTIN: Yes.
24 MR. RAO: Is that correct?
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1 MR. MARTIN: That's correct.
2 MR. RAO: During this process will there be any additional
3 pier review that it goes through or is it just order of this
4 report and the IEPA?
5 MR. MARTIN: There was internal review within EPRI and also
6 within the participating utilities and members of the utility
7 Agency and the IEPA. But at this point the document is final.
8 There will be no more review.
9 MR. RAO: And I think it was also mentioned that EPRI is
10 involved in a nationwide study, is that --
11 MR. MARTIN: That's correct.
12 MR. RAO: That's correct. And this is part of the study?
13 MR. MARTIN: That's right.
14 MR. RAO: So some of the, you know, methodology used in
15 this study are also being implemented in other states?
16 MR. MARTIN: That's right.
17 MR. RAO: Okay. That's all I have. If you have anything
18 to add.
19 MR. HORNSHAW: Nobody else has questions?
20 HEARING OFFICER MCGILL: I have a couple of follow-up
21 questions. Would you like to ask some questions?
22 MR. HORNSHAW: I was wondering if Mr. Martin has any
23 insight as to what the other -- other parts of the EPRI study are
24 finding, whether -- if he can divulge it, whether they're finding
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1 differences in other states or if it's pretty similar to what
2 they found in Illinois?
3 MR. MARTIN: I've not seen the other studies, but in
4 speaking to Dr. Andy Coleman at EPRI, who is in charge of the
5 nationwide efforts, he tells me that the results they're seeing
6 in other states are very consistent and there's very good
7 corroboration between the Illinois results and other states.
8 Specifically one state we talked about was Pennsylvania.
9 MR. HORNSHAW: Thank you.
10 MR. RAO: And in other states also are they doing the study
11 pretty much like they did in Illinois with, you know, major urban
12 centers being done separately or --
13 MR. MARTIN: They are. We're trying to select -- or
14 they're trying to select sample locations that are representative
15 of urban background. What they're avoiding are rural properties,
16 farm fields, for example. They're picking locations that are in
17 populated areas but are not known to have any obvious source of
18 contamination. And they're generally finding properties that are
19 public use or, for example, public parks or utility easements and
20 things like that.
21 MR. RAO: Thank you very much.
22 HEARING OFFICER MCGILL: I just have one question. Mr.
23 Martin, on page three of your pre-filed testimony when you're
24 describing this investigation, it indicates that the protocol did
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1 not attempt to characterize PNAs on a statewide basis. I'm
2 quoting it says, quote meaning that industrial, commercial,
3 rural, agricultural, and recreational areas were not
4 investigated, and earlier in the paragraph it indicated that the
5 investigation -- the objective was to include -- included some
6 agricultural and light industrial areas. I wasn't -- maybe I'm
7 misreading that or is that --
8 MR. MARTIN: Well, I understand the --
9 HEARING OFFICER MCGILL: Could you explain that?
10 MR. MARTIN: Yeah, I understand the confusion. Early on in
11 the discussion of selecting the sampling methods, we agreed with
12 IEPA that it would be best to try to make these background
13 determinations conservative, so to that end we avoided industrial
14 properties where there was obvious contamination. Likewise, we
15 didn't want to go out and sample a lot of open vacant land where
16 -- where -- where there was no population. We were trying to
17 identify background PAHs in populated areas, small cities, things
18 like that. In some cases where it was necessary to find
19 representative samples for populated areas, there might have been
20 samples, and probably were, samples collected from agricultural
21 land at the edge of town, for example, but it was still
22 considered to be within a population center.
23 HEARING OFFICER MCGILL: Thank you. Any other questions
24 for IERG's witness? Seeing none, why don't we go off the record
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1 for a moment.
2 (A discussion was held off the record.)
3 HEARING OFFICER MCGILL: We're going to go out of order,
4 again, just for continuity in our hearing transcript and we're
5 going to hear from the Illinois Department of Transportation. At
6 this point I will turn it over to IDOT's attorney. Welcome.
7 Just go ahead and introduce yourself and your witness.
8 MS. BUSHUR-HALLAM: My name is Cindy Bushur-Hallam and I'm
9 legal counsel for the Department of Transportation. And with me
10 today is Steven Gobelman who is our basically Special Waste
11 Assessment Engineer in the Department. And we have with us today
12 his testimony and an attached exhibit. And after he's through
13 with that, I'd like to move for that to be admitted into the
14 record.
15 HEARING OFFICER MCGILL: Okay. Why don't we swear in the
16 witness and he can then provide his testimony.
17 (The witness was sworn by the reporter.)
18 HEARING OFFICER MCGILL: Thanks. You can proceed.
19 MR. GOBELMAN: My name is Steve Gobelman. I am currently
20 the Geologic and Waste Assessment Specialist with the -- within
21 the Bureau of Design and Environment of the Illinois Department
22 of Transportation. I have been at my current title since
23 September of 1993. Prior to being employed with the Department,
24 I was employed by the Illinois Environmental Protection Agency
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1 from 1985 through 1993.
2 I'm a graduate of the University of Alaska-Fairbanks in
3 1985 with a master's of science degree in Geological Engineering
4 and a graduate of the University Missouri-Rolla in 199 -- 1983
5 with a bachelor of science degree also in geological engineering.
6 Today I will testify in regards to the proposed changes to
7 certain highway authority agreements, in particular Section
8 742.1020. I have provided an attachment to be entered into as
9 exhibit an amendment to Section 742.1020. In such amendment, the
10 Department is requesting that the Department be exempt from the
11 model highway authority agreement set forth in Appendix D. The
12 Department has worked with the Agency, meaning, the Illinois
13 Environmental Protection Agency and the Illinois Attorney
14 General's Office, in establishing our own standard highway
15 authority agreement which satisfies not only the requirements of
16 the model highway authority agreement but also the TACO
17 regulations.
18 As a state agency, the Department has unique legal
19 requirements that other highway authority would not have. The
20 Department's current agreements contains the following additional
21 legal provisions unique to the State of Illinois (1) that all the
22 department highway authority agreements must be reviewed and
23 approved by the Attorney General's office (2) that the
24 Department's highway authority agreement is null and void if the
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1 Illinois Attorney General's Office and Illinois Environmental
2 Protection Agency do not approve of such agreement (3) if the
3 Department should breach the highway authority agreement, the
4 owner's sole remedy for an action of damages is through the
5 Illinois Court of Claims. Because of these additional
6 requirements, the Department should be exempt from complying with
7 the standard form and substance found in the model highway
8 authority agreement found in Appendix D.
9 This concludes my portion of the Department's testimony for
10 the proposed amendments to TACO.
11 HEARING OFFICER MCGILL: Thank you. Are there any
12 questions for IDOT's witness? Ms. Hodge?
13 MS. HODGE: I just have one question. Do you have
14 additional copies of his testimony?
15 MS. BUSHUR-HALLAM: Yes.
16 MS. HODGE: Thank you.
17 MR. GOBELMAN: Yes.
18 MS. GEVING: I have one question too. In your own highway
19 authority agreements would you still meet the four corners of the
20 TACO regulation?
21 MR. GOBELMAN: Yes.
22 HEARING OFFICER MCGILL: Any further questions?
23 MR. GOBELMAN: Wait. Maybe instead of a one word answer,
24 what we would plan to do would be to probably take the model
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1 agreement that's in the regulations that's adopted and then add
2 onto the end of that whatever additional requirement that is
3 required by our statute and requires for the Attorney General's
4 Office to that. We would add on and build additional sections
5 that we need to have to make our agreement then consistent with
6 your agreements.
7 MS. GEVING: Thank you.
8 HEARING OFFICER MCGILL: Any further questions for this
9 witness? Okay. At this point there's been a motion to enter the
10 written version of the testimony along with the attached proposed
11 language change to Section 742.1020(a), is there any objection to
12 that motion? Seeing none, that will be entered as hearing
13 Exhibit 12. Did IDOT have anything further?
14 MS. BUSHUR-HALLAM: Not at this time.
15 HEARING OFFICER MCGILL: Thank you very much for coming
16 today. Let's go off the record for a moment.
17 (A discussion was held off the record.)
18 HEARING OFFICER MCGILL: Before we move on to testimony
19 concerning Acceptable Detection Limits, there is a motion to
20 enter as Exhibit 13 a group exhibit, and I'll describe what that
21 group exhibit would consist of. The Agency is submitting this in
22 response to the requirement of the Illinois Administrative
23 Procedure Act. It's codified in more procedural rules at
24 102.202(e), a listing of published studies and research reports
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1 that the Agency used in developing these proposed amendments.
2 What this exhibit consists of is a listing of the materials
3 incorporated by reference as well as a listing of documents not
4 incorporated by reference, and then there are six USEPA
5 Integrated Risk Information System documents.
6 I can describe those very briefly. The first one concerns
7 Acetone. The second one is Boron and Compounds, CASRN 7440-42-8.
8 The third one is 1, 2-Dibromoethane. The next one is 1,
9 1-Dichloroethylene. The next concerns Phenol. And the last of
10 the Integrated Risk Information System documents concerns
11 Xylenes. Is there any objection to entering this group exhibit
12 as Exhibit 13? Seeing none, I'll grant that motion.
13 At this point what I'd like to do is ask Mr. Thomas to come
14 up front. Mr. Jarrett Thomas from Suburban Laboratory,
15 Incorporated pre-filed his testimony. It concerns Acceptable
16 Detection Limits. And he's going to provide a summary of his
17 pre-filed testimony. Welcome. We'll go ahead and swear you in
18 at this point and you can proceed with your summary of your
19 testimony.
20 (The witness was sworn by the reporter.)
21 HEARING OFFICER MCGILL: You can proceed.
22 MR. THOMAS: I don't have any representation with me so I
23 don't know the formalities of asking for my testimony to be
24 entered into the record.
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1 HEARING OFFICER MCGILL: I'll -- If you like your pre-filed
2 testimony entered as if read -- In fact, we can just take care of
3 that the right now. Is there any objection to having Mr.
4 Thomas's Pre-filed Testimony entered into the record as if read?
5 Seeing none, I will grant that request and his pre-filed
6 testimony becomes Exhibit 14.
7 MR. THOMAS: Thank you.
8 HEARING OFFICER MCGILL: Go ahead. Thanks.
9 MR. THOMAS: First off I'd like to clarify at the last
10 hearing I -- I testified and I mentioned that I would be willing
11 as a member and as the president of the Illinois Association of
12 Environmental Laboratories to present testimony here and in
13 response, I believe, it was to Mr. King's question of submitting
14 actual ADLs on behalf of our association, I acknowledged that I
15 would be willing to do that.
16 Our association had a few work group meetings over the past
17 couple of months to discuss this rulemaking and this testimony.
18 And on the issues of ADLs and methods, specifically, our
19 association was unable to come up with a consensus primarily due
20 to the lack of time from the last hearing to this hearing and the
21 deadline to pre-file.
22 So while a lot of my comments are going to be in -- in
23 agreement with the association, we felt that it would be best not
24 to proceed as the Illinois Association of Environmental Labs. So
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1 my comments and my testimony is on behalf of my company, Suburban
2 Laboratories, of which I'm the vice president and co-owner.
3 Where my comments may reflect those of the association, I will do
4 my best to try to acknowledge those. There are a few that are
5 very specific and it's very clear cut.
6 First off I'd like to just acknowledge Greg Pronger, who's
7 also with Suburban Laboratories. He helped me prepare this
8 testimony and maybe -- I may call on him if there's some
9 technical questions that I cannot answer. We'll see if we need
10 to do that.
11 On the issue of the ADLs in particular, I believe that the
12 -- the heart of the problem is the EPA's use of the terms PQL,
13 ADL and MDL interchangeably. Both or all three of those acronyms
14 have different meanings. And we believe that in the preparation
15 of the original TACO where the ADLs were originally specified,
16 that the Agency did rely on detection limits from methods rather
17 than quantitation limits from various methods. And I go into
18 some explanation as to why that's inappropriate. I'm not going
19 to rehash any of that. But Mr. Hornshaw in his testimony on
20 several occasions referenced detection limits. I tried to
21 question him as to whether he was meaning quantitation limits.
22 And it just struck me that there's a confusion between those
23 terms.
24 There's many methods, especially drinking water methods,
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1 that were cited for -- as the Agency reviewed in setting up the
2 ADLs, where they don't use quantitation limits. The methods
3 don't even specify quantitation limits. They specify detection
4 limits. And, again, I don't want to go into details. It's in my
5 testimony. So I believe that's at the heart of the matter and
6 the reason why some of the ADLs that are currently in TACO are
7 inappropriate.
8 The EPA -- the USEPA no longer uses the term PQL. That's a
9 term that came out of their SW-846 methods manual, and sometime
10 ago, I don't have the specific date, it was several years ago
11 they stopped referring to that term. They changed it to EQL,
12 Estimated Quantitation Limit, and in the definition SW-846 they
13 specify that sample EQLs are highly matrix dependent and that the
14 EQL in SW-846 are provided for guidance and may not always be
15 achievable.
16 Another reason why I'm strongly against the use of
17 published ADL -- or published MDLs, I'm sorry, or PQLs or EQLs
18 for use of any analytical requirement, I cited in my testimony a
19 Federal Advisory Committee that was established to address the
20 issue of detection and quantitation limit approaches. I didn't
21 provide a lot of specific detail there but there is a Federal
22 Register citation that I listed.
23 There -- The issue of MDLs in particular in the analytical
24 laboratory community have really come under fire. It's a
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1 statistical calculation done on clean sample matrices. And there
2 have been a lot of regulatory compliance rulemaking that has been
3 done across the country using detection limits in trying to say
4 these are the compliance objectives that are required of
5 laboratories. Everyone understands the need to try to get as low
6 as possible, but there become -- there's a point at which the
7 laboratories can only detect solo using, you know,
8 state-of-the-art instrumentation without running into problems.
9 And this is the purpose for this Federal Advisory Committee to
10 come up with a new approach and a new way to -- to calculate
11 detection limits and how to assign appropriate quantitation
12 limits at that point that can be used for rulemaking and used for
13 reporting analytical data.
14 The EPA's definition of PQL, and this is something that was
15 not caught by our association when the SRP rulemaking came out a
16 few years ago, but the definition that the Agency has in TACO
17 almost mimics the SW-846 definition up to a point. It leaves out
18 all the discussion of the being highly matrix dependent and not
19 always achievable and then adds a section where it talks about
20 filtered water samples and that the EQL or PQL at that point is
21 synonymous with method detection limit. Again, we're opposed to
22 any use of detection limits for -- for setting compliance
23 objectives.
24 And this is a -- The issue of performance based methods,
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1 performance based measurement systems is something I reference in
2 here as well. That's something that the environmental laboratory
3 community is trying to get behind and trying to make more a part
4 of rulemaking and more a part of laboratory method creation.
5 SW-846, for example, is new methods that are being published and
6 out for draft reference performance based measurement systems
7 more and more, and I cite in here some -- some -- again some
8 Federal Register notices and a brief definition of what
9 performance based measurement systems are.
10 Ron Turpin from the EPA, who's here, could probably speak
11 more on the issue of performance based measurements.
12 But we strongly suggest that the Agency can sit here
13 adopting a performance based approach which takes into account
14 what's analytically achievable, not just what the statistical
15 risk based objectives end up calculating out to be.
16 I did my best to identify specific compounds that the --
17 that are difficult to achieve under the current ADL or -- or TACO
18 objective. And I listed them in my testimony. There are other
19 compounds that I did not reference. These are only the specific
20 target compounds that are required in either the LUST or SRP
21 programs, they're listed as target compounds in those programs,
22 and those are the most common analytes that are performed in a
23 laboratory. There's -- TACO contains dozens of compounds that
24 aren't in those lists that may be specific -- site specific
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1 target compounds, but in -- for most -- for the all intense
2 purposes the labs don't analyze compounds unless they're required
3 by -- by the EPA.
4 On the issue of FOC, we -- and this is something that our
5 -- the laboratory association was in full agreement on, was
6 making the FOC requirement a little more specific to help report
7 data accurately, to remove any inconsistency in how one lab would
8 report versus another.
9 And in conclusion, the main objective that we would like to
10 see is that the Agency re-evaluate the ADLs that exist in TACO
11 currently. There are ADLs that are listed that laboratories can
12 routinely see lower than those ADLs. And then there are some
13 compounds that have no ADLs and the objective is not achievable
14 and the EPA has -- has acknowledged that.
15 What we would like done is a full review of the analytes in
16 TACO and the -- an evaluation made as to the analytical
17 capability so that a more performance based approach can be taken
18 and remove the ambiguity with regards to the analytical
19 requirements that are currently in TACO. Thank you.
20 HEARING OFFICER MCGILL: Thank you. The Board has several
21 questions for Mr. Thomas, but we'll open it up for the rulemaking
22 proponent. IEPA, I understand, has some questions for Mr. Thomas
23 so I'll turn it over to Ms. Geving.
24 MS. GEVING: Thank you very much. My first question was
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1 already answered by you at the beginning of your testimony. I
2 believe our second question we're going to have a number of
3 witnesses asking him questions as well as potentially providing
4 rebuttal, so I'll just remind everybody that your sworn in under
5 oath. Dr. Hornshaw, I believe, you had the first question for
6 Mr. Thomas.
7 MR. HORNSHAW: Actually, what I'd like to do before we get
8 into any kind of questioning is respond to what appears to be
9 three misconceptions that Mr. Thomas has about how we deal with
10 ADLs and detecting limits in general.
11 He states that we use PQL, MDL and ADL interchangeably, and
12 that's really not true because the definition of PQL that's
13 already incorporated into TACO states exactly what we intended
14 for how to determine what the ADL is. So I don't -- I don't -- I
15 don't see how we're using those three terms interchangeably.
16 The second misconception is in page four of Mr. Thomas's
17 Pre-filed Testimony. He says that water samples are not
18 filtered, and that is not true. There are a lot of cases where
19 water samples are filtered. In fact, any of the projects that
20 come to my unit in Tier 3 evaluations we have for a long time
21 specified when groundwater samples are taken that either a low
22 flow in-line filter be used, or if that's not going to work out
23 for a project, that both filtered and non-filtered sample be
24 analyzed. I won't speak for the Bureau of Land on how they deal
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1 with filtered versus non-filtered, but for my unit his statement
2 is not true.
3 And another statement also on page four he says that the
4 PQL or the EQL should not be equal to the MDL, and to my
5 knowledge we have not ever used an MDL as an ADL, Acceptable
6 Detection Limit, for a cleanup objective. So -- so if you would
7 like to respond to those before -- before I proceed, be my guest.
8 MR. THOMAS: Sure. Your first and third points I guess I
9 can address together. One of the problem is we -- we have no way
10 of -- some of the ADLs that are listed we have no way to verify
11 where those came from. We were able to, and I say we, I mean me
12 and several other laboratory people. I'm not speaking
13 necessarily on behalf of the entire association. People I have
14 talked to and worked with on this.
15 Some of the ADLs that are currently in there we cannot
16 verify and there's -- we can't come up with where those numbers
17 came from in looking at some of the methods. There may be
18 methods that exist that you did refer to in coming up with those
19 and found a quantitation limit. We weren't able to find that
20 because that information isn't available. That is something we
21 again would like to see is --
22 MR. HORNSHAW: That information --
23 HEARING OFFICER MCGILL: Let's let him finish his response
24 and then, Dr. Hornshaw, you can comment.
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1 MR. THOMAS: It wasn't readily available to us when we were
2 reviewing the methods, the most commonly used methods for this
3 work, which is SW-846 methods. Again, there may be methods out
4 there. We don't know which ones you looked at.
5 MR. HORNSHAW: Okay. That information has already been
6 entered into the record in the previous R99 rulemaking. It is
7 attached as an exhibit to the testimony of Tracey Hurley, which I
8 have here if you would like to look at it.
9 MR. THOMAS: Sure. I'd love to have a copy of it.
10 HEARING OFFICER MCGILL: Why don't we, since it's now being
11 referenced in the transcript, it sounds like this is testimony
12 earlier -- from a prior rulemaking?
13 MR. HORNSHAW: That's correct.
14 HEARING OFFICER MCGILL: Why don't -- Just for the
15 convenience of following along in this rulemaking, why don't we
16 make that a hearing exhibit. Do you have an extra copy?
17 MR. HORNSHAW: This is the only copy I brought,
18 unfortunately.
19 HEARING OFFICER MCGILL: This is the -- Could you just hand
20 it to me and I'll describe it. It sounds like this is already in
21 a Board rulemaking record. Testimony of Tracey Hurley on
22 Appendix A Table H and Appendix B Tables A, D, E and F. This is
23 a TACO rulemaking. The caption is R99. Doesn't give the entire
24 docket number. Do you recall which docket?
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1 MS. GEVING: I don't recall. There was so many of them.
2 I'm sorry.
3 HEARING OFFICER MCGILL: From looking at the source note in
4 TACO -- Yeah, I was conferring with Mr. Rao. We believe this is
5 from one of the R00-19 dockets, I believe Sub Docket A, but we'll
6 verify that. In any event, this is Ms. Hurley's testimony on
7 behalf of the Agency. Is there any objections to entering that
8 as Hearing Exhibit 15 in this rulemaking? Seeing none, that will
9 be Hearing Exhibit 15. And as long as I can -- why don't you
10 hang onto it for purposes of -- Let's go off the record a moment.
11 (A discussion was held off the record.)
12 HEARING OFFICER MCGILL: Let's take a 10-minute break.
13 (A 10-minute break was taken.)
14 HEARING OFFICER MCGILL: While we were off the record the
15 Agency realized that Ms. Hurley's testimony was from the prior
16 proceeding, R00-19. There was a marked up copy and may not have
17 been complete. So instead of designating that marked up copy as
18 Hearing Exhibit 15, I'm just going to reserve Hearing Exhibit 15
19 and the Agency can file a clean, complete copy and that will be
20 designated as Hearing Exhibit 15. It was previously filed in
21 R00-19. It's already a matter of public record, and it's in that
22 Board rulemaking record. With that clarification, Chairman
23 Girard had a clarifying question.
24 MR. GIRARD: Yes, I just had a follow-up question to one of
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1 the responses that Mr. Thomas had there. When you said that the
2 values you get from the Agency can't be verified, are you talking
3 about they can't be replicated or exactly what did you mean by
4 can't be verified?
5 MR. THOMAS: We were unable to find the ADLs that were
6 listed in TACO in all -- for all the methods that exist for
7 environmental analysis. We were going to find that exact value
8 in the publications.
9 MR. GIRARD: Oh, okay. Thank you.
10 MR. THOMAS: This may help us in searching for more of that
11 information, this exhibit.
12 HEARING OFFICER MCGILL: Referring to Ms. Hurley's?
13 MR. THOMAS: Yes.
14 HEARING OFFICER MCGILL: Thank you. I believe where we
15 left off there was an exchange between Dr. Hornshaw and Mr.
16 Thomas. And, Mr. Thomas, I believe you were still responding --
17 MR. THOMAS: Yes.
18 HEARING OFFICER MCGILL: -- to some of Dr. Hornshaw's
19 initial comments?
20 MR. THOMAS: Yes.
21 HEARING OFFICER MCGILL: Do you want to continue there
22 then?
23 MR. THOMAS: Yes. I guess getting back to the issue of the
24 MDLs and not being able to identify or replicate the data, the
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1 exhibit that was provided here lists SW-846 methods, a variety of
2 them. I didn't count them all up. There's probably seven or
3 eight different analytical methods that are specified here. And
4 one of the problems --
5 HEARING OFFICER MCGILL: I'm sorry. You're referring to --
6 when you say specified here --
7 MR. THOMAS: Yes, that would be the exhibit -- Ms. Hurley's
8 exhibit.
9 HEARING OFFICER MCGILL: Thank you.
10 MR. THOMAS: And one of the difficulties that the
11 laboratories run into is the inconsistency between regulations,
12 the Site Remediation Program, for example, that specifies
13 analytical methods. And for some of the compounds, the methods
14 that are listed on Ms. Hurley's exhibit aren't the same compounds
15 that are referenced in SRP. And so that's part of the problem.
16 When we as an industry are looking at the sources for some of
17 this data, we're looking at the most commonly used method
18 references. We're not necessarily looking at the most -- just
19 because a method exists somewhere in USEPA, that that's going to
20 be a commonly used or a method. There may be one or two
21 laboratories in the country running a super sensitive,
22 state-of-the-art piece of equipment that are able to achieve
23 certain detection limits, but there are methods that are more
24 commonly used and methods that are not commonly used.
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1 And for a large number of the analytes on Ms. Hurley's
2 exhibit, I would say it would be very difficult to find a
3 laboratory in the State of Illinois that's certified to do that
4 work. And I'm -- you know, I understand there may be one or two
5 laboratories that are certified for one or two methods, but to do
6 a cleanup investigation, to analyze a full list of target
7 compounds that typically come through to an environmental
8 laboratory, running all of these methods to achieve all of the
9 cleanup objectives is not done right now -- commonly done in this
10 industry. And I can -- I can make that statement with fact.
11 That's a situation that it's not common. The PQLs -- And that's
12 what's listed in Ms. Hurley's exhibit is PQLs, not MDLs.
13 As I mentioned in the SW-846 definition of PQL, it
14 specifically states that PQLs listed are not always achievable,
15 which is another problem, again, we've been running into in the
16 industry.
17 The second point that Mr. Hornshaw made was about the
18 filtered water.
19 MR. JOHNSON: Wait a second. Before you leave that, when
20 you say it's not achievable, you mean you don't have the
21 equipment that's sophisticated enough to detect it at that level?
22 MR. THOMAS: Correct. The equipment nor the
23 certifications.
24 MR. JOHNSON: Okay.
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1 MS. GEVING: It would be possible for you to get the
2 accreditation; is that correct?
3 MR. THOMAS: Sure. If you have the equipment and the staff
4 and go through the process of getting accredited.
5 MS. GEVING: Do you feel that the process of getting
6 accredited in Illinois is onerous?
7 MR. THOMAS: It's very time consuming. It's not an easy
8 process. It can take a year or more in some cases, especially
9 when you're bringing on line a piece of equipment that perhaps is
10 new to a laboratory.
11 MS. MOORE: And how many certified labs are there?
12 MR. THOMAS: Totally? I'd have to defer to the EPA for
13 that.
14 MS. GEVING: Mr. Turpin can answer that.
15 MR. TURPIN: There are -- I didn't bring that.
16 Approximately 92. Approximately 60 of those would be in
17 Illinois. We also accredit laboratories in other states.
18 MR. GIRARD: Well, why does the accreditation process take
19 a year?
20 MR. THOMAS: From the time that you're -- from the time a
21 laboratory is ready to request accreditation, it has to go
22 through an extensive validation process internally. It has to
23 follow the method requirements to validate an instrument. It has
24 to run proficiency testing samples. Those proficiency testing
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1 samples have to be run in a certain schedule.
2 For example, you can't run on -- you have to pass two out
3 of three proficiency samples. And those studies can't be done
4 at -- give or take a few days -- within a month of each other.
5 So you have time in just waiting for results on those.
6 Assuming you do pass the proficiency testing sample,
7 sometimes when you're setting up new technologies, you don't have
8 it quite right at first and you have to run a third proficiency
9 testing sample, so that process takes time. You have to write up
10 your standard operating procedures, then you have to submit your
11 accreditation to the EPA.
12 And there is -- I can only speak from my laboratory, but
13 there's accreditations that I've asked to be added to my scope of
14 accreditation and it's been a year since I've gotten that added
15 to my scope. So it does -- it's just a process. The EPA has to
16 respond to your request for accreditation if there's any
17 problems. You have to respond. And it's a fairly lengthy
18 process.
19 If everything goes smoothly, it could go as smoothly as
20 maybe less than six months. But in most cases -- Matter of fact,
21 our laboratory right now is in the process of validating some new
22 technologies and new instruments and we're -- we have used a
23 one-year time frame internally to say we need to be certified
24 within one year from the time we submit our application. That's
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1 what we use internally in our lab for that.
2 MR. TURPIN: I could make a few clarifications regarding
3 the accreditation process. If a laboratory is already accredited
4 in the technology involved in a new method, then the process
5 would be, as Jarrett described, they have to run the method.
6 They have to do some test samples. They have to do some QCs,
7 initial demonstration of capability, submit that data to the
8 Agency. The Agency assures that it looks good and can issue an
9 accreditation.
10 If it's technology that the laboratory does not currently
11 hold accreditation for, then we would have to -- we couldn't
12 issue the accreditation until we visited the laboratory and
13 inspected their performance of that. And our accreditation
14 schedules now are done on a six-month schedule depending on -- if
15 they called us in January, we've already scheduled all our visits
16 through June. And so we would put them in the July through
17 December schedule. So if they called in January, it could be,
18 you know, November before we could get out there and do a visit.
19 Other than the assessment, if it was necessary, then the
20 only time consuming factors would be the -- under the laboratory
21 control in terms of how quickly they could bring the method up
22 and the PC sample, performance testing sample, do have to be a
23 certain period from one try to the next.
24 MR. JOHNSON: Before you go on to your second in your list,
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1 with regard to your pre-filed testimony's assertion that the use
2 of these acronyms, the ADL, MDL and PQL being used
3 inappropriately and interchangeably, which Dr. Hornshaw suggested
4 they're not, are there instances in the body of the rule that you
5 could point out where you think they're using one term when they
6 need to be using another?
7 MR. THOMAS: Yes. Well, in -- in specifically in the
8 definition -- the Agency's definition of PQL, when they say when
9 applied to filtered water sample, PQL includes the method
10 detection limit. Right there they're using the terms
11 interchangeably.
12 MR. JOHNSON: Okay.
13 HEARING OFFICER MCGILL: And just for clarification you're
14 referring to the section within the TACO?
15 MR. THOMAS: 742.200, the definition section.
16 HEARING OFFICER MCGILL: Thank you.
17 MR. JOHNSON: Okay.
18 MR. THOMAS: And which leads me to the next question Mr.
19 Hornshaw had about the filtered water samples. I'm not familiar
20 with what department you're seeing analytical data coming
21 through. And there are cases for some inorganics, metals types
22 samples where the sample -- groundwater sample may be filtered,
23 but that's not the case of organics. And I can't say with 100
24 percent certainty, but I do not remember any time in the past,
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1 since the beginning of following TACO, where I received a
2 filtered sample for organic analyses. I've checked with a few
3 other laboratories in the room as well as engineers and that's
4 not at all a common practice. So with regards to that
5 definition, I think it either needs some serious clarification as
6 to when -- when filtered water samples are required or when
7 necessarily you're going to be using the method detection limit
8 in lieu of the PQL, but that is not a common practice. Maybe
9 some of the other people in Bureau of Land could testify to that
10 as well. I don't know that they request -- they require a sample
11 to be filtered for organic.
12 MR. DUNN: Greg Dunn. As far as the Site Remediation
13 Program, we have a hard enough time trying to figure out what the
14 consultants are doing out in the field and asking them questions
15 and how they're doing their field work, so if they filter their
16 samples for organics, we hardly ever know that.
17 Typically the filtering that we see will be done for the
18 inorganics, but if they filter for organics in the field, a lot
19 of times we won't even know about it. We're just not getting
20 that type of information. And that's something that we're
21 struggling with right now.
22 MS. GEVING: I have a clarifying question too for the
23 Agency, specifically would be Tom Hornshaw, Greg Dunn and Doug
24 Clay, regarding the PQL definition. Isn't the PQL definition
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1 from TACO Part 742 the same as the definition of PQL in Part 620,
2 734 and 740?
3 MR. HORNSHAW: I believe for 620 it is. I'm not familiar
4 with 740 and 743 enough to answer that.
5 MR. DUNN: Under 740.120 definition, the definition for PQL
6 is the same.
7 MR. CLAY: And I believe it's the same under 734.
8 MS. GEVING: Thank you.
9 MR. THOMAS: I would like that verified because I don't
10 believe it's a case in law 7 -- sorry, 630, 740 --
11 MS. GEVING: 620.
12 MR. THOMAS: Sorry, 620.
13 HEARING OFFICER MCGILL: Well, considering we'll take a
14 look at the regs and you can certainly take a look at the regs
15 yourself, and if you see any discrepancy, it can be noted in a
16 public comment if you like.
17 MR. THOMAS: The requirements to filter a sample, is that
18 something that should be specified in the -- in the regulation?
19 Mr. Dunn said he doesn't know what they're doing in the field. I
20 mean, surely we know how the samples should be collected?
21 HEARING OFFICER MCGILL: You're posing a question to the
22 Agency?
23 MR. THOMAS: Yes. Sorry.
24 MR. HORNSHAW: I'll answer from my unit. The reason that
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1 we specify either local in-line filtered or filtered plus
2 unfiltered samples in the Tier 3 assessment is to mimic what a
3 private well user would actually be drinking. They wouldn't be
4 drinking mud if it's a really dirty, unfiltered sample which is
5 why we say use a low flow in-line filter to mimic what wouldn't
6 otherwise be coming out of most wells. And if they can't do that
7 procedure, then we use the results from both the filtered and the
8 unfiltered with some professional judgment to make assessments of
9 what the risks are to the private well owner.
10 There has to be some professional judgment depending on
11 what the well is producing as far as clear versus a muddy sample.
12 HEARING OFFICER MCGILL: Any further Agency response to the
13 point? The question from the member of the public, if you could
14 just state your name and title and who you're representing.
15 MR. TRUESDALE: My name is Joe Truesdale. I'm a
16 professional engineer and professional geologist with CSD
17 Environmental Services. Dr. Hornshaw, in the Tier 3 assessment
18 relative to Tier 1 and Tier 2, you think the relative ratio of
19 Tier 3 assessments to more standard Tier 1 and Tier 2 assessments
20 are in the programs in Illinois, that would be how many you do
21 versus --
22 MR. HORNSHAW: I can't answer that because we only see Tier
23 3.
24 MR. TRUESDALE: Right.
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1 MR. HORNSHAW: Because the Bureau of Land does Tier 1 and
2 2, so I couldn't --
3 MR. TRUESDALE: About how --
4 HEARING OFFICER MCGILL: Just make sure you take turns
5 talking. Let the question finish before the response starts.
6 MR. HORNSHAW: Our workload ranges between roughly 70 to 90
7 individual projects, some of which may have more than one
8 document, more than one risk assessment. That's the ones that we
9 tend to see during the year.
10 MR. TRUESDALE: Then another question would be to Doug
11 Clay.
12 MR. EASTEP: Can I verify that a little bit?
13 HEARING OFFICER MCGILL: Mr. Eastep, go ahead.
14 MR. EASTEP: I would say that it's a relatively small
15 percentage, probably less than 10 percent, of the sites come
16 through the SRP program would end up getting a Tier 3.
17 MR. CLAY: So that would be the same for the LUST program.
18 MR. TRUESDALE: So the filtering sample is not standard
19 operation in the Bureau of Land then for organic analysis?
20 HEARING OFFICER MCGILL: Could you repeat that question?
21 MR. TRUESDALE: Filtering of samples for organic analysis
22 is not standard?
23 MR. EASTEP: That's correct, not standard.
24 HEARING OFFICER MCGILL: Did you have any follow-up
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1 questions?
2 MR. TRUESDALE: I think that's it for right now.
3 MR. GIRARD: I have a follow-up. Mr. Thomas, you said the
4 MDL is a statistical rather than chemical concept. Now how does
5 the use of unfiltered water violate the assumption of your
6 statistical test?
7 MR. THOMAS: I'm -- I don't necessarily follow. It doesn't
8 violate the nature of -- it's still -- the MDL is still a
9 theoretical value regardless if it's filtered water or not. I
10 mean, I guess I think to understand your question, filtered water
11 is a much cleaner matrix than unfiltered water. And again, I
12 don't know the source of the water we're talking about here, but
13 we will -- as a laboratory we like the water as clean as
14 possible, and it doesn't make a difference in terms of the actual
15 method detection limit that a laboratory is able to determine.
16 There's going to be issues of reliability with any sample that
17 comes through whether it be filtered or unfiltered as you
18 approach the method section.
19 MR. GIRARD: So the issue is more with the reliability of
20 the test than it is with the assumptions of your statistical
21 model that go into formulating your MDL, which is a number that
22 is still a statistical number?
23 MR. THOMAS: Yes.
24 MR. GIRARD: But you could do studies on various samples of
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1 unfiltered water and figure out sort of the parameters of the
2 chemical reactions and maybe come up with, you know, at least
3 ranges of reliability, couldn't you?
4 MR. THOMAS: Yes, absolutely. We've done studies like that
5 for a variety of customers where they have a particular sample
6 and maybe there's some type of interference with the sample or
7 some other reason where they would submit samples and we would
8 take that actual sample matrix and spike that -- spike seven
9 aliquots of those samples just like we would in the method
10 detection limit study in reagent water. Do all the statistics,
11 run the sample, do all the statistics and be able to come out
12 with a method detection limit on that specific sample.
13 MR. GIRARD: You think these rules create a problem with
14 doing that?
15 MR. THOMAS: It would be -- I don't know that the rules
16 cause a problem. It would be extremely cost prohibitive for most
17 people to run seven analyses plus their original sample and do
18 all the detection limits. And the reporting of that would be a
19 pretty costly process.
20 MR. GIRARD: So it's a cost problem rather than taking that
21 data back to the Agency and getting approval?
22 MR. THOMAS: In most cases it would be cost prohibitive,
23 yes.
24 MR. GIRARD: Thank you.
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1 HEARING OFFICER MCGILL: I'm sorry. Did you have a
2 question?
3 MR. PRONGER: This is to some extent clarification --
4 HEARING OFFICER MCGILL: I'm sorry. I don't mean to
5 interrupt you. Did you want to make some testimony or did you
6 have a question?
7 MR. PRONGER: Yes.
8 HEARING OFFICER MCGILL: Okay. Why don't you -- if you
9 could state your name and title.
10 MR. PRONGER: Greg Pronger, Technical Director for Suburban
11 Laboratories. Been in the industry environmental testing for
12 roughly 20 years.
13 HEARING OFFICER MCGILL: Let's go ahead and swear you in,
14 if that's all right, if you would like to give some testimony.
15 MR. PRONGER: Sure.
16 HEARING OFFICER MCGILL: Thank you.
17 (The witness was sworn by the reporter.)
18 MR. PRONGER: It's clarification that you have a general
19 question regarding detection limit and the impact to filtering.
20 I have personally been involved with the state of Wisconsin.
21 They had concerns with regards to what I would call an MDL,
22 Method Detection Limit, from -- with the laboratory performance
23 using the cleanest water available to the laboratory, the ionized
24 water, versus environmental samples. So they funded for the
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1 laboratory, and this is specifically on pesticides, a comparison
2 of MDL based on the ionized water and river water out of
3 Wisconsin.
4 Generally speaking there is at least an order of magnitude
5 difference between the published data from the EPA and the
6 ionized water versus an MDL study in basically relatively to
7 drinking water out of Wisconsin. So there's a very significant
8 impact on the detection limits between the two matrices.
9 The water we are dealing with from Wisconsin was not
10 heavily industrially impacted, is probably the best way to put
11 that. So it's a fairly clean matrix but was still a significant
12 change in the MDLs.
13 On top of that, even though this was the end matrix MDL
14 study, an MDL by it's very nature is a theoretical number. There
15 is no constraint within the EPA, the federal EPA's protocol, that
16 the value that you get is ever validated.
17 So if you ask me as a laboratory person to run an MDL for
18 you and I end up with an MDL at one, at one, there is no
19 constraint that I ever verified that can I see one on my
20 instrumentation. That is a completely theoretical value.
21 Whether or not, depending on the constraints of the
22 instrumentation, all sorts of perimeters that I could actually
23 see one, there is no requirement that I can demonstrate that.
24 So that is part of the other issue when the state utilizes
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1 a value based upon MDLs for TACO, these numbers are highly
2 theoretical. The published ones are based upon the ionized
3 water. A laboratory could go through the work, perform an in
4 matrix MDL study, that gets you closer to reality. That is still
5 a value that is never validated.
6 The EPA right now, that Jarrett had alluded to, is
7 evaluating MDLs and they're more than likely going to drop the
8 utilization of statistics to generate their MDL. It will be a
9 spiked value which will change a complexion on how the laboratory
10 demonstrates a lowered number of the report dramatically. That
11 would be the end of my comment.
12 I hope that clarifies your question. I was trying to
13 address the question on the issue of filtering, non-filtering and
14 the issue of MDLs in its entirety.
15 MR. GIRARD: Thank you.
16 MR. PRONGER: You're welcome.
17 HEARING OFFICER MCGILL: And you're referring to USEPA when
18 you mentioned EPA?
19 MR. PRONGER: Yes. The Federal EPA. The State generally
20 defers to the USEPA guidelines for method detection and study.
21 That was published originally as part of the Clean Water Act 40
22 CFR Part 136 Appendix B. That goes back to around 1982 when
23 there was a comparatively simple seven replicate spikes that you
24 run. It's changed since that point, but when people talk MDL,
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1 when you talk to somebody like me, an old lab person, that's what
2 we think about in terms of MDL is we're spiking the ionized water
3 to generate those statistics. Right now protocol does not have
4 me validate that I can actually see that number.
5 HEARING OFFICER MCGILL: Thank you. We're still in the --
6 generally in the middle of Agency questions for Mr. Thomas, but
7 as people have questions that are on points of what we're
8 covering, we've allowed that to -- we've allowed those questions
9 to jump in. And on that note, if you could state your name for
10 the record and your question.
11 MR. TRUESDALE: Joe Trusdale. Jarrett, I have a question
12 for you and your general stance. I think one of the other
13 problems that the Lab Association has is with the general
14 reference to SW-846 in the TACO regulations without any
15 specificity of what particular portions of SW-846 are being
16 considered within TACO; is that correct?
17 MR. THOMAS: Yes.
18 MR. TRUESDALE: Actually, I probably -- I probably have
19 some testimony to offer on that respect. I don't know if you
20 want me to be sworn in or wait until later.
21 HEARING OFFICER MCGILL: Why don't we -- if you -- since
22 you've asked that question, for the continuity of the transcript,
23 why don't we swear you in now and you can make your testimony.
24 (The witness was sworn by the reporter.)
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1 MR. TRUESDALE: With respect to the SW-846 within the SRP
2 program and the LUST program, sample collection, as Mr. Dunn
3 referenced, they don't really know what the consultants do in the
4 field. A lot of that has to do with the non-specificity of the
5 programs themselves. They reference SW-846 and tell us that
6 samples shall be collected in accordance with SW-846. In the
7 LUST program, particularly the new revisions in 732.307(j)(3)(g),
8 it simply states that all wells shall be developed to allow free
9 entry of groundwater, minimize turbidity of the sample and
10 minimize clogging. It makes no reference to filtering, makes no
11 reference to not having turbidity free samples.
12 And in SW-846 the broad scope of that reference actually
13 qualifies different sampling methods for inorganics, organics,
14 various analytes. But using the broad reference of SW-846 within
15 the context of TACO, or any of the other programs, causes
16 confusion on the laboratory -- from the laboratory side and the
17 consulting side on what exactly the Agency would like us to do.
18 And another -- another item if, in fact, the labs aren't
19 capable of meeting these Tier 1 objectives, although TACO allows
20 for Tier 2, Tier 3 evaluation, the underlying premise in all of
21 these programs, from a consulting side, is we must define the
22 extent of contamination to the most stringent objectives
23 published in TACO before we can evaluate the risks associated
24 with those exceedence of objectives.
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1 And by not being able to reach PQLs that are dictated by
2 TACO or the Tier 1 objective dictated by TACO, that essentially
3 puts the process to -- brings the process to a grinding halt
4 because the consulting industry has no option after that.
5 That's something that was brought up in testimony
6 previously regarding groundwater ordinances. And the item
7 someone else offered testimony about limiting groundwater
8 investigation areas that have groundwater ordinances, and
9 essentially the Agency indicated that that's not possible because
10 the extent must be defined to the most stringent Tier 1 values in
11 order to use the options available under TACO to address those
12 exceedences.
13 MR. DUNN: If I may address that. Actually TACO says you
14 have to find the extent of contamination. It does not say what
15 remediation objective you define it to. And I think in the Site
16 Remediation Program, and I will refer back to my pre-filed
17 testimony, when we have a compound, there's only a number of -- a
18 small number of compounds that we have an issue with or that
19 there is an issue with. If it's one of those compounds, there's
20 a number of ways in TACO that can be used to address the
21 compound. And that's already in my pre-filed testimony as far as
22 whether it be pathway exclusion, using barriers. You can also
23 use the Tier 2 route or the Tier 3 route.
24 So from my standpoint I don't think we make anybody go out
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1 there and automatically say you have to go and define the extent
2 of contamination to a Tier 1.
3 MR. TRUESDALE: I have another comment about that. And
4 specifically in the groundwater injection exposure route, Section
5 742.320(d) says for any area within the measured and modeled
6 extent of groundwater contamination above what would otherwise be
7 the applicable Tier 1 groundwater remediation objective, that's
8 one reference to the Tier 1 objective. There are others for the
9 soil in here. So the implication of TACO is, in fact, that you
10 must define to Tier 1 before you can address the risks over and
11 above those Tier 1 objectives.
12 MR. RAO: Mr. Truesdale, I have a question. In your
13 experience have you had problems with dealing with these kind of
14 issues?
15 MR. TRUESDALE: We've had problems with PQLs in the past
16 and detection limits because of matrix interferences that did not
17 allow a laboratory sample to get down to a Tier 1 objective in
18 order to find that, yes.
19 MR. GIRARD: So when you have those problems, how did you
20 deal with it?
21 MR. TRUESDALE: In most cases it requires extensive
22 re-sampling. In some cases we -- in most cases it's presented to
23 the Agency whether or not they will accept that particular
24 concentration as -- as defining extent and many, many cases that
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1 I'm aware of we still have ongoing negotiations with the Agency
2 regarding how do we define extent of contamination in those
3 cases. So there's additional sampling that's conducted, more
4 negotiation with the Agency. So essentially in -- I would say
5 the two cases I can think of off the top of my head there's still
6 ongoing negotiation with the Agency how to define extent.
7 MR. RAO: So do you generally follow some of the options or
8 alternatives Mr. Jarrett has stated in his pre-filed testimony
9 when you come across these kind of situations?
10 MR. TRUESDALE: Right. I mean, my experience with the SRP
11 program has been different. If we don't have the extent defined,
12 and the LUST program as well, if the extent's not defined,
13 there's been testimony in previous hearings about that. If you
14 can't show where your extent meets the Tier 1 residential
15 objectives, you can't essentially use that, if you just went to a
16 Tier 2 objective at the property line. You don't know that the
17 off-site residential properties are adequately protected from the
18 risks associated with any exceedences of those Tier 1 residential
19 objectives under TACO.
20 So in order to qualify the risks associated with
21 contaminates under the premise of TACO, everything has to be
22 defined to the most stringent objectives in order to see how
23 those contaminants relate to the exposure pathways that are
24 present.
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1 After that's done, then you can use those methods under
2 TACO to eliminate those exposure of pathways, but first and
3 foremost the exposure to pathways have to be identified. That's
4 pretty much it.
5 HEARING OFFICER MCGILL: If you could just identify your
6 self. Did you have a question?
7 MR. WALTON: I want to expand on the previous testimony.
8 HEARING OFFICER MCGILL: Okay. Why don't we swear you in
9 pleas.
10 (The witness was sworn by the reporter.)
11 MR. WALTON: My name is Harry Walton. I'm a consultant
12 through the environmental regulatory group. I'm also the SRAC
13 representative of Illinois State Chamber, and I'm the former
14 chairman of SRAC. I've been involved in this process from day
15 one. I was involved in the legislative development of Title 17
16 that set the policy for TACO. It set the policy at the receptor.
17 Compliance with TACO is measured at the receptor.
18 Now I think we're getting confused here. I'm getting
19 confused. TACO is the process by which we tell what the risk
20 levels -- the acceptable risk level is, is a theoretical -- Tier
21 1 is a theoretical series of calculations that says these
22 concentrations for the State of Illinois on a general basis are
23 protective at the point they're measured at the point of the
24 receptor.
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1 The methodology -- TACO does not stand alone. TACO has to
2 be implemented by RCRA, SRP and the LUST program. Those are the
3 programs that tell how we collect samples. They tell us the
4 methodology by which the samples were collected.
5 In the early SRP regulations we had to have sampled
6 analysis plans. It's very expensive to generate or replicate, so
7 to mitigate that one of the early 2000 rulemakings we went to the
8 certified laboratory approach that was accepted by the regulated
9 community.
10 We've always had problems with matrix interference and such
11 as that where we don't achieve Tier 1 method -- Tier 1. We
12 accept that. But we have to have Tier 1 and numbers.
13 An ADL to me is a remedial objective that had to be based
14 on the ability to detect it and quantify it. It's a number.
15 It's our job as consultants to collect sufficient data to
16 determine the extent and nature of the contaminants relative to
17 the program in which you're in.
18 It's different on the LUST program for the extent and
19 nature of contaminant to the SRP program. Now the SRP and RCRA
20 are very similar. The site drives the methodology. The site
21 drives how -- how you assess the site.
22 For example, the site is in Chicago. I've got lead. I
23 have monitoring data from my site that tells me that I exceed the
24 Tier 1 groundwater sample. I then take my site specific data and
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1 use a calculation that tells me how far down gradient do I have
2 to go to achieve Tier 1, how far down gradient do I have to go to
3 make sure if somebody put a well at that point, I meet the Tier 1
4 objective. I don't have to characterize that with actual data.
5 I have to predict that. And our predictions are very
6 conservative. TACO has a very conservative set of regulations
7 and processes. We have to have add -- again, I said at the
8 previous hearing, we have remedial objectives.
9 When we get a comprehensive release from a site, we know
10 that based on the site data and the conditions of this site,
11 there's no risk to a receptor at the 10 to minus 6 risk level.
12 That is our typical goal. Either of our discussions about 10 to
13 minus 4 to 10 to minus 6 range is previous. That is Superfund.
14 Those are acceptable rates for a Superfund. Illinois our
15 acceptable risk under Tier 1 and Tier 2 is 10 to minus six.
16 We're much more conservative.
17 When somebody collects a sample, we talk about matrix
18 interference. And I agree the laboratories can't win on this.
19 They have a problem. Real world situation is, if you have a
20 matrix, you're going to have contaminants you can't quantify
21 because it's a dirtier sample. But yet that data has to be put
22 through a conservative process that's excluded. You take it off
23 the table. Just because we can't quantify it, based upon the
24 conservative nature of TACO and the need to be protective at the
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1 receptor at 10 to minus 6, we had to take it off the table, that
2 is, Tier 2. And Tier 2 has a lot of these different options to
3 predict off site such as that. Then we also have the Tier 3.
4 Tier 3 can be the simplistic approach, or as Tom alluded to, the
5 10 to minus 6, 10 to minus 4 quote Superfund analysis.
6 So remember TACO is contaminant by contaminate. When you
7 go to a Tier 3, 10 to minus 4, 10 to minus 6 range you evaluate
8 all contaminants. It's the Superfund approach. So this TACO
9 process is a remedial objective. All the violence on detection
10 limits and all those things are under the table. I've seen under
11 the table literature by the LUST regulations, the SRP regulations
12 and the RCRA regulations. Those -- those are taken through your
13 development of work plans with the Agency that there are
14 approved.
15 In the early days of the SRP, we tried to develop a set of
16 regulations that would be more prescriptive to tell more people,
17 give more guidance, but the problem was due to the site specific
18 nature of the -- the site themselves were variable, the
19 contaminants were variable, the risk receptors were variable. We
20 wanted a process where one would develop the protocol and the
21 interior site based upon the site condition.
22 We heard a lot -- I'm really getting confused and
23 frustrated by all this techno crap stuff. I'm not a laboratory
24 person. I like the concepts. We have a broad set of concepts on
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1 this TACO today to finally -- receptors are not exposed to risks
2 greater than 10 to minus 6, and that's a point, you know, and the
3 ADL is the best number we have at this time to achieve that.
4 That's the end of my comment.
5 HEARING OFFICER MCGILL: Why don't we go off the record for
6 a moment.
7 (A discussion was held off the record.)
8 HEARING OFFICER MCGILL: Mr. Walton's testimony there were
9 several hands up. Are those -- Mr. Thomas, did you have a
10 question for Mr. Walton or follow-up testimony?
11 MR. THOMAS: I wanted to address his comments.
12 HEARING OFFICER MCGILL: Okay. Go ahead.
13 MR. THOMAS: I think part of the problem that we have is we
14 have chemists and laboratory people trying to understand
15 engineering and we have engineers trying to understand chemistry
16 and it's causing a lot of confusion. You know, I talked with
17 Harry at the last hearing about some of these issues, and one of
18 the things I think -- and to use your own example about the lead
19 detected at a site, the problem is we're unable to detect lead,
20 in your example, at the TACO objective. We don't know if it's
21 there or not. We can't get -- That's the one thing, we can't get
22 past that simple issue of there are specific target analytes that
23 we can't even detect at the TACO objectives for you to make a
24 decision on where to go with it. And that --
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1 MR. WALTON: I can make a decision. You give me a
2 concentration, I can predict -- I can predict the concentration
3 to Tier 1. I predict it. Then I restrict the receptor to that
4 point. That's all part of the Tier 2 under TACO. All I need is
5 the source concentration and the hydro generalize the
6 characteristics of the site and I can predict very conservative
7 models that tell me how far down gradient I have to go to have a
8 safe receptor. That's routinely done.
9 MR. THOMAS: And that's my basic understanding of TACO and
10 how it's all done. The question we have is why -- why does there
11 -- why is there ADL that exist for some analytes and not others?
12 Why is it this big mystery that when you submit a sample that for
13 X group of compounds, we can tell you what's there and for
14 another group we can't and there's no -- EPA does not want to
15 address those issues. You know, I really -- I understand that
16 this whole ADL issue was not part of the rulemaking.
17 I appreciate Mr. King offering to have a work group, but
18 we've asked for a work group since 2002 to address these issues.
19 This is our opportunity to say, look, this is a big problem out
20 there. We deal with these samples every day. We got samples
21 coming in from all kinds of programs within the State of Illinois
22 and they all reference TACO, every single one of them. And this
23 is something -- and I don't understand the costs. I don't know
24 what the costs are to do all this modeling and this other
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1 investigation that Mr. Truesdale was discussing. I'm sure
2 there's substantial cost in doing that. And that's why from the
3 laboratory's perspective we would like those ADLs addressed.
4 There was a reason -- The EPA sought that there was need to
5 address ADLs for some compounds. We're just saying we'd like
6 them to address ADLs for other compounds that they know they have
7 a problem. And it's not a matter of dirty samples that we have
8 matrix inference. We're talking about pristine, clean samples
9 that we can't tell you if they meet the TACO objectives.
10 So that's something, you know, I mean, if the -- if the
11 rulemaking comes to a point where TACO is stripped of all its
12 analytical requirements, I think that would be fine as well. I
13 made that comment last time. Perhaps TACO is not the place to
14 have ADLs since they're -- since they apply differently to
15 different programs. You know, that's something that we would
16 support and remove it from -- remove those requirements from TACO
17 and put them where they belong and make them more specific in the
18 other regulations.
19 MR. JOHNSON: But you think this rulemaking is the
20 appropriate place to make that decision?
21 MR. THOMAS: Well, it's our only opportunity. Like I said,
22 we submitted comments when SRP was out for revision. Mr. Dunn
23 asked us to provide, as an association, you know, some comments
24 with regards to specific problems. We did so. And one of our
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1 recommendations was to form a technical committee to review this
2 type of stuff. So we've been talking about it for years and, you
3 know, if there's another means for us to get that addressed, I'd
4 like to know what they are. So it seems to be the best shot.
5 HEARING OFFICER MCGILL: Let's just go off the record for
6 one moment.
7 (A discussion was held off the record.)
8 HEARING OFFICER MCGILL: We'll go back on the record.
9 Thank you.
10 MR. RAO: I have just a few clarification type questions
11 for Mr. Thomas based on his testimony. Maybe it won't affect the
12 big picture. Maybe it may. At page five of your testimony you
13 note that TACO risk based remediation objectives and ADLs as well
14 as all USEPA MDL, PQLs/EQLs are all on wet weight basis. Could
15 you please explain what you mean by TACO remediation objectives
16 are on a wet weight basis? Do you mean to say that the
17 analytical results that you obtain in the lab are in a wet weight
18 basis or the numbers that we are -- have listed in the rules are
19 on a wet weight basis?
20 MR. THOMAS: Well, when the methods that we use reference
21 wet weight versus dry weight, it's a simple matter of accounting
22 for the percent moisture in a sample. When you're analyzing a
23 sample as is, meaning -- and this only applies to soil samples,
24 not to water. When you're running a sample as is, you're taking
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1 the sample and you're taking an aliquot of that sample and you're
2 going right to your preparation procedure for analysis. That's
3 considered an as is wet weight basis. The result you get off
4 your instrument is on a wet weight basis. You need to convert
5 that result by determining the percent moisture on the sample and
6 then applying a correction factor, a dry weight factor to that
7 final result to account for the percent moisture, then you have
8 your dry weight result.
9 So it can only be done when you're accounting for the
10 actual sample's percent moisture. It has to be done on a
11 sample-by-sample basis. So when these -- when the remediation
12 objectives in TACO are established is these risk based
13 statistical values, they're not on a sample by sample accounting
14 for the percent moisture in a real world sample. They're
15 theoretical. So that's why they are -- that's why they're
16 considered to be as is.
17 MR. RAO: But how does that pose a problem? You know, you
18 do your conversion. You get your dry weight number and you
19 compare it with the remediation objective. That's what the rule
20 says. Do you see any problems with that?
21 MR. THOMAS: If the compliance objective or the ADL is set
22 at the lab's lowest concentration that they could report and for
23 sake of argument, let's say it's a quantitation limit, whatever
24 limit is, the value that the laboratory determines. If they're
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1 forced to go as low as they possibly can with an analysis, any
2 additional correction factor applied to the final value is going
3 to raise that reporting limit. So if a method says you can only
4 detect down to one, which turns out to be the ADL, which turns
5 out to be the lab's lowest reporting value, if you have a factor
6 that you have to apply to that level of one for, you know, a no
7 detect value, you're going to raise that value up to 1.2 or
8 something or 1.1. It will be a -- it will be a higher value.
9 This mainly is of concern when there's a no detect value at the
10 compliance objective.
11 MS. GEVING: And a problem that can be overcome by using a
12 different method than SW-846?
13 MR. THOMAS: It would be method-by-method specific. But
14 the problem is universal whenever you're being -- whenever you're
15 pushing the level of detection and level of reporting down to
16 meet that level of detection. Pretty soon you can't report any
17 lower. And accounting for the moisture will raise that reporting
18 limit.
19 MR. RAO: But that should not cause any concern for the
20 lab, right? If there's any argument to be made, that should be
21 the consulting engineer who has to make the argument to the
22 Agency if there's any problem?
23 MR. THOMAS: The only way it becomes a problem for the lab
24 is when the engineer calls and says you didn't meet the TACO
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1 objectives.
2 MS. MOORE: That could be a problem.
3 MR. RAO: Then it goes back to your original concerns about
4 some of these ADLs and, you know, what's achievable?
5 MR. THOMAS: Yes.
6 MR. RAO: Thank you. I also have a question about your
7 additions to allow these performance based systems. Do you
8 believe right now as TACO stands that somehow, you know, are you
9 prohibited from using any of these performance based methods,
10 that the rules prohibit you from doing that?
11 MR. THOMAS: I think that's one of the -- one of the things
12 that's not clear in the -- in the rules and that is which
13 specific method can you use. If you -- Which is another reason
14 why we wanted the incorporation by reference to be more specific
15 and for there to be some reference back to those incorporations.
16 To simply reference SW-846 would mean to me that you want a
17 laboratory to use a method out of that manual. It wouldn't allow
18 a lab to use another method, even a method that was a performance
19 based method, that had the same level of quality, perhaps lower
20 detection limits or what have you.
21 MR. RAO: Have you had any discussions with the Agency as
22 to whether you would be allowed to use these other performance
23 type methods?
24 MR. THOMAS: With the Agency we've had some discussion with
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1 regard to certification issue and the difficulties of accrediting
2 a laboratory to a non-specific method. Most labs use some type
3 of performance based system when they're running these analyses.
4 The objectives that are listed, for example, the PAHs which we've
5 talked about. Mr. Hornshaw in his testimony had mentioned that
6 the Agency required the use of a -- of a alternative method, in
7 this case 8310, to achieve the lowest possible detection limit
8 for the carcinogenic PNAs. And that's -- that's a method that
9 there's a lot of laboratories that don't use that method. They
10 modify the existing 8270 method which has higher detection
11 limits. They've made modifications to that method to be able to
12 achieve lower detection. I would consider that to be a
13 performance based approach.
14 MR. HORNSHAW: I might add we accept Method 8270 in
15 selected ion monitoring.
16 MR. RAO: Mr. Truesdale had a question.
17 HEARING OFFICER MCGILL: Do you have any follow-up? If you
18 just go ahead and state your name again.
19 MR. TRUESDALE: Joe Truesdale. I think just in response to
20 what Mr. Walton said with the ADLs. We do have to have a number
21 as he mentioned at the end and we -- what he says we have the
22 ADLs, but what Mr. Thomas is alluding to we don't necessarily
23 have these ADLs. If their laboratories can't meet these ADLs,
24 then we don't have them. And from the standpoint of determining
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1 the extent from a model or measured standpoint, even using the
2 modeling under TACO, one of the provisions is determining the
3 source width, which is defined as the width of groundwater at the
4 source which exceeds the Tier 1 groundwater remediation
5 objectives.
6 In both cases I mentioned that's where our problems lies.
7 We can't model it because we don't know what the source width is
8 because we haven't it down to a Tier 1 objective perpendicular to
9 the predominant flow direction. In that case you cannot model --
10 HEARING OFFICER MCGILL: I'm sorry. Perpendicular to?
11 MR. TRUESDALE: Perpendicular to the predominant
12 groundwater flow direction.
13 HEARING OFFICER MCGILL: Thank you.
14 MR. TRUESDALE: So there are issues. And once again, it --
15 in TACO it does refer to the Tier 1. So inherently, although
16 there's been reference that SRP and so forth do not require
17 identification to Tier 1, the implications throughout TACO is you
18 must define to Tier 1 in order to use these options.
19 MR. JOHNSON: Well, all this talk about TACO.
20 HEARING OFFICER MCGILL: I think at this point we will take
21 a break for lunch. Why don't we start up again at 1:45. I've
22 got about five until one. At this point we'll go off the record
23 for lunch.
24 (A lunch break was taken.)
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1 HEARING OFFICER MCGILL: I'll just mention briefly Mr.
2 Thomas earlier you had inquired about if not in this rulemaking
3 docket how could you present your concerns or -- and I just --
4 I'm not suggesting this for you, but I just want for you to
5 understand that any person can propose rule amendments under
6 Section 28 of the Act. Again, not recommending that, but I just
7 wanted you to know and we'll see how this all plays out certainly
8 in this docket. But I wanted to answer your question.
9 MR. THOMAS: I appreciate that. Most of the people dealing
10 with some of this stuff are all doing it volunteer with their
11 business. And our association is all volunteer run and we don't
12 have any kind of representation and it's real hard.
13 HEARING OFFICER MCGILL: Sure. We welcome your
14 participation in this rulemaking proceeding. With that, when we
15 took our lunch break, there were a couple of people who had their
16 hands up who either had questions or were interested in
17 testifying. And we're generally here at this point in the
18 proceeding Mr. Thomas is testifying, the Agency had some
19 questions for him but as the subjects are changing we're allowing
20 others to chime in. Anyone have a question or want to testify at
21 this point? All right. Seeing none, I think we'll just continue
22 with the Agency's questions for Mr. Thomas.
23 MS. GEVING: I believe our next question is regarding page
24 six of Mr. Thomas's testimony where he states that for many of
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1 the drinking water methods and non-standard SW-846 methods there
2 are no IEPA accredited labs and Mr. Turpin would like to add some
3 remarks to that.
4 MR. TURPIN: I first had a question about the tables on
5 page 7 and 8 of Mr. Thomas's filed testimony, a list of compounds
6 that ADLs or remediation objectives are difficult to meet using
7 common methods analysis. I had a question about what are common
8 methods of analysis. And beyond that the specific compounds were
9 -- are there problems meeting them using the specific methods
10 designed for these compounds or is the problem with you -- with
11 using the general methods, the 8260 and 8270?
12 MR. THOMAS: The common -- I would consider a common method
13 of analysis to be any of those methods that are listed in the
14 SRP. Method 8260, Method 8270, 8081. Those are three common
15 methods for volatiles, semi-volatiles and pesticides.
16 MR. TURPIN: Okay. And then in response to the statement
17 on page six that for many of the drinking water methods and
18 non-standard SW-846 methods there are no IEPA accredited -- I was
19 quoting from page 6 from many of the drinking water methods and
20 non-standard SW-846 methods there are no IEPA accredited
21 laboratories in the State of Illinois. Again, non-standard is
22 not defined. But I did a quick -- or had the staff do a quick
23 query of a selection of what may be considered non-standard
24 methods. And we have laboratories -- I have eight methods here
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1 that some more obscure than others. We didn't find any method
2 that had no laboratories accredited. For three of the methods
3 all of the laboratories were out of state, and for five of the
4 methods there were laboratories within the State of Illinois.
5 But in all cases there are Illinois accredited laboratories
6 available to perform these non-standard or specialized methods.
7 HEARING OFFICER MCGILL: Can I just follow-up. You had
8 started off with a two-part question. I wasn't sure the second
9 part was answered. When you asked about the meaning of common
10 methodologies and then you had a specific question for those
11 listed constituents.
12 MR. TURPIN: I guess I made an assumption that when he said
13 that the common were essentially 8081, 8260 and 8270 that that
14 applied to the table that those detection limits were -- could
15 not be reached with those methods; is that correct?
16 MR. THOMAS: Yes. The -- I know that there's at least one
17 compound on this list that could probably be detected using 8270
18 in particular with modification to the method much similar way
19 that PNA compounds are analyzed by Method 8270 modifying the
20 procedure to use selective ion monitoring. But that's the only
21 -- I'm only aware of one just looking at the system. There may
22 be others. I haven't done that investigation. I know there are
23 at least four, looking at them, that I would highly doubt could
24 be modified using the Standard 8270 procedure. They're just too
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1 low of a detection limit.
2 HEARING OFFICER MCGILL: Thank you.
3 MR. TURPIN: Well, I hate to speak for the program people,
4 but it's my understanding that it was never the intention that --
5 that the program be able to be operated only using what some
6 laboratories call routine or common methods. It's understood
7 that there are times in order to be protective of health and the
8 environment that more specialized methods would be needed. But
9 that -- I guess my point is, that if that is the case, then there
10 are labs available that are accredited by Illinois to do those
11 specialized methods.
12 HEARING OFFICER MCGILL: Thank you.
13 MS. GEVING: Would the Board like a copy of the printout of
14 the labs that he's referring to as an exhibit?
15 HEARING OFFICER MCGILL: Yes. I have motion --
16 MR. THOMAS: If I didn't define how -- what a standard
17 method is, how can they do a search for non-standard methods?
18 HEARING OFFICER MCGILL: Well, let's take care of this
19 procedural item first and then we'll get to your question. A
20 motion to make Hearing Exhibit 16 a group exhibit, which is a
21 printout of laboratories that are Illinois accredited and which
22 can perform specialized tests.
23 MR. TURPIN: For selection of specialized methods.
24 HEARING OFFICER MCGILL: Better said than I. Any objection
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1 to entering this group exhibit as Exhibit 16? Seeing none, I'll
2 grant that motion. And, Mr. Thomas, you had a -- I think a
3 question for the Agency.
4 MR. THOMAS: Well, I would like -- could I take a look at
5 that before I ask a question?
6 HEARING OFFICER MCGILL: Sure. Do you an extra one?
7 MS. GEVING: Yes.
8 MR. THOMAS: Great. Thanks. Just at first glance of this
9 exhibit there's -- the first three pages include methods where
10 there's no laboratory certified in the State of Illinois for --
11 I'm cross referencing this list to the previous exhibit from Ms.
12 Hurley, listing the methods that were used in evaluating TACO.
13 And there's one method in particular 8330 that I -- that was used
14 and I don't see any sort which would indicate to me there's no
15 certified labs for that particular method.
16 The point -- the point of -- that I was making with regards
17 to that there's not laboratories, and I did specify in the State
18 of Illinois, for many of the methods and the non-standard methods
19 that's true. There's not -- there are -- there are several
20 methods and analytes where there's no certified lab in the state.
21 Excuse me.
22 In the case of one method in particular 8070, there's one
23 lab located in Colorado. That represents the entire scope of the
24 accreditation for the country to run those analytes that may be
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1 performed by that method.
2 And it goes back to my original point that the -- it may be
3 that the Agency wants to specify the methods and say these are
4 the methods that are required using the methods that we used when
5 first creating TACO and these are the methods that a laboratory
6 should be using every day when they get a sample. That's not
7 reality. And the Agency understands that and the Agency has
8 steps to work around that reality.
9 But my point isn't that it can't be done. Those -- These
10 methods -- these detection limits and new methods can be brought
11 on line. We can get the equipment. We can get certified. All
12 of that. The problem is that since inception of TACO that's not
13 been the reality. That's not been the norm with routine samples.
14 I don't know if the Agency has any information to support how
15 many times they've received a sampling report that has met all
16 the cleanup objectives where they've gone to labs in California
17 and Pennsylvania and Colorado to subcontract in order to meet all
18 of the TACO objectives. I would guess it's probably pretty rare.
19 But again, back to my point. That's the problem. That's why it
20 needs to be readdressed, re-assessed, ADLs even need to be
21 created or there needs to be some clear cut just like there was
22 in the cas of PNAs. You must follow this method to meet these
23 objectives. It's that important.
24 HEARING OFFICER MCGILL: And why is it that Illinois labs
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1 couldn't bring these on line and you say would be cost
2 prohibitive?
3 MR. THOMAS: There could be a variety of reasons. I'll --
4 For my -- in my own labs a case I can tell you that, you know, I
5 think I mentioned earlier that there's probably only a couple of
6 methods that we're unable, if we wanted to, we would have to
7 purchase some equipment or take some additional steps to pursue
8 accreditation. It becomes a matter of demand. Our customers are
9 not demanding that we meet these objectives using these methods.
10 As soon as customers start telling laboratories here's the
11 objectives we need you to meet, by any means they're going to
12 start driving the industry and the industry will have to start
13 adding equipment, adding new capabilities.
14 The issue of whether or not it's cost-effective I think is
15 really between the Board and the EPA. If it's required to meet
16 these objectives and there are methods that exist out there,
17 then, you know, that's up to you whether or not you believe it's
18 cost-effective to require that or to assign an ADL that is within
19 one of the standard methods that people are commonly using now
20 and say that's, you know, this is the new ADL from -- from now on
21 that's what's achievable.
22 MR. JOHNSON: By being within one of the standard methods,
23 you mean it's detectable using -- detectable to that level using
24 the standard method?
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1 MR. THOMAS: Yes. And again my definition of a standard
2 method would be any method that's currently specified in SRP as
3 being a method of choice for the target compound listed in SRP.
4 MR. TURPIN: I just have one short response in that I
5 believe Jarrett mentioned 8330. I didn't have Ms. Hurley's
6 pre-filed testimony from the previous case and didn't know to
7 look for that method, so I have no information whether there are
8 -- I have no information as to whether there are any labs
9 accredited for that method or not, but I think an assumption that
10 there are none would be hasty.
11 MS. GEVING: You didn't run the entire gamut of evidence
12 in --
13 MR. TURPIN: Not the staff selects randomly non-routine --
14 it's a subjective call what's called non-routine or non-standard
15 and they selected some that they felt were more obscure or less
16 used.
17 HEARING OFFICER MCGILL: Can the Agency in its public
18 comment maybe run a search as you did for the -- or in the next
19 hearing depending on what you see procedurally.
20 MR. THOMAS: All the methods that are maybe on this exhibit
21 is what you mean, correct?
22 HEARING OFFICER MCGILL: I'm not sure how many there are,
23 but the Agency can certainly take into consideration whether they
24 would like to pursue that if you're referring to Ms. Hurley's
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1 exhibit. Mr. Halm?
2 MR. HALM: Yes. I'm Richard Halm. I'm the general manager
3 of environmental monitoring and technologies. And I'd like to
4 ask a question. There's been a great deal of discussion about
5 MDL, ADL, PQLs so on and so forth. And the question was raised
6 at the January 31st meeting as to whether or not it wouldn't be
7 possible to go back to the source documents that show that the
8 original methods, the detection limits and so on and so forth.
9 So my question is, is in light of Ms. Hurley's pre-filed
10 testimony coming to light today and in light of fact that Mr.
11 Turpin wasn't even aware of the fact that 8330 was covered under
12 that pre-filed testimony, doesn't that demonstrate the confusion
13 that the regulated community has over the proper application of
14 methods to the different, you know, remediation programs that are
15 supposed to be governed by TACO?
16 HEARING OFFICER MCGILL: I suppose that's a question.
17 Anybody care to respond to that? I take it -- and if you'd like
18 to get sworn in, I take it you had asked the Agency a question
19 about whether it demonstrates confusion in a regulated community?
20 MR. HALM: Uh-huh.
21 HEARING OFFICER MCGILL: Do you want to provide some
22 testimony in that because is the Agency going to respond to that
23 question?
24 MS. GEVING: I don't know that the Agency's -- I mean, Mr.
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1 Turpin was unaware of something that was in Ms. Hurley's
2 testimony in another hearing that he didn't participate in has
3 anything to do with what the regulated community can do it about
4 it. I see no correlation.
5 HEARING OFFICER MCGILL: Fair enough. Okay. Mr. Halm, why
6 don't we go ahead and swear you in if that's okay.
7 MR. HALM: Thank you.
8 (The witness was sworn by the reporter.)
9 MR. HALM: Okay. I had come to this meeting today actually
10 wanting to make comments, wanting to provide testimony. And I
11 did not have the opportunity to pre-file testimony, and I
12 apologize for that. So I want to leap right to my conclusion,
13 okay.
14 I would like to -- I would like to request or recommend,
15 I'm not sure what the appropriate forum is here, by which to do
16 it. The topic has come up earlier today that an ad hoc committee
17 be established between the laboratory industry, interested
18 parties and the engineering community that might care to
19 participate and the Agency to resolve several issues.
20 First, in those cases where we have detection limits which
21 cannot be reached by using the quote/unquote commonly available
22 methods that are employed by accredited labs today, that this be
23 examined and a recommendation be made to the Pollution Control
24 Board with regard to whether or not alternative detection limits
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1 should be provided.
2 Secondly, I would recommend or request that the issue of
3 nomenclature, specifically the confusion that appears to exist
4 with regards to MDLs, PQLs, ADLs and now EQLs be addressed and
5 that we attempt to come to some sort of consensus that can be
6 applied not at an overreaching level but at a level that is
7 specific to the different programs that are administered under
8 TACO, whether that be groundwater, drinking water, LUST and UST,
9 SRP or maybe it's matrix specific whether it's soil versus water
10 versus drinking water.
11 But I think that -- I think that in doing so that we would
12 serve the purpose of good public policy by getting the regulated
13 community to a point that they are using the health based -- that
14 the risk based factors, where ever possible, to establish cleanup
15 objectives. And in those rare instances when we can't reach
16 those, that there be some alternative that's recommended that the
17 community can cajole around and all agree should be used.
18 I think that -- I think that if we were able to do this,
19 you'd provide greater certainty to the regulated community. I
20 think that -- I think that the stakeholders in this, whether it's
21 the Agency or whether it's the consultant or whether it's the
22 labs themselves, would have a safe harbor that we could operate
23 in that would give us an opportunity to resolve issues, cleanup
24 sites at the lowest level that we possibly can but still give us
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1 the room that we need to operate, okay?
2 I want to double back. That's my conclusion. That's what
3 my recommendation is. I want to go back to the things that have
4 been discussed over the course of the last few weeks.
5 The cleanup objectives today, as I understand them, are
6 health based risk factors. And public policy is served through
7 the use of those factors, okay. Today we have a situation where
8 there's a number of compounds that are used for -- or there's a
9 number of cleanup objectives for compounds that are below the
10 theoretical capabilities of the labs to detect. We are -- we are
11 making that statement within the confines of how the business is
12 being administered by the engineering community today.
13 My company is NELAC accredited. We were one of the first
14 companies to be NELAC accredited and we probably have a list of
15 accredited compounds that probably are longer than most of the
16 other labs in the State of Illinois. And in many instances I can
17 run --
18 HEARING OFFICER MCGILL: I'm sorry to interrupt you. Could
19 you explain what NELAC is for the record?
20 MR. HALM: Brian, you want to explain that?
21 HEARING OFFICER MCGILL: That's an acronym I take it?
22 MR. HALM: It's an acronym. It's the overarching body that
23 accredits a laboratory within the State of Illinois.
24 MR. TURPIN: N-E-L-A-C is an acronym for National
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1 Environmental Laboratory Accreditation Conference, which
2 establishes standards that the State of Illinois follows in
3 accrediting laboratories. And to be accurate, laboratories are
4 NELAP accredited which is National Environmental Laboratory
5 Accreditation Program. Up until this point USEPA had
6 administered a recognition program wherein they examine a state
7 program and recognized that it conforms to the NELAC standard and
8 recognizes our -- the State of Illinois Laboratory Accreditation
9 Program is a recognized NELAP accrediting authority. So
10 laboratories can advertise and use a logo that they are NELAP
11 accredited.
12 HEARING OFFICER MCGILL: Thank you. You can continue, Mr.
13 Halm.
14 MR. HALM: Okay. So the laboratory that I worked for has
15 an extensive list of analytes that we are accredited for. But if
16 the engineering community does not ask me to provide it, if it's
17 not used in practice, okay, then the laboratory industry as a
18 whole doesn't seek to fill that niche. It's supply and demand,
19 okay.
20 So when we -- the methods that are commonly used by the
21 engineering community to deal with TACO, Tier 1, Tier 2 to reach
22 cleanup objectives for the different programs are -- are most
23 commonly 8081, 8260, 8270 and the vast majority of the labs in
24 the State of Illinois are fully accredit for that.
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1 My company is accredited for Method 8151. Nobody calls for
2 it. We're accredited for it and it is, in fact, and it may
3 provide assistance with regard to some of the compounds that are
4 on that list. But if the engineers don't call for it and if
5 they're not willing to bear the cost of us performing that test,
6 there is no demand for the service. If there is no demand for
7 the service, then the labs don't choose to provide it, okay.
8 So we asked in the January 31st, meeting for the list of
9 compounds where there was no ADL. That an ADL be established.
10 It was -- that request was made through Jarrett Thomas on behalf
11 of the Environmental Lab Association.
12 On February 21st Mr. Dunn filed pre-filed testimony that
13 said there's no need to consider ADLs. And his reasoning for
14 that was two-fold. His first reason was that in 1997 the
15 Illinois Pollution Control Board directed the Agency to use
16 health based risk factors to determine cleanup objectives and,
17 oh, by the way, secondly, if you couldn't reach those health
18 based risk factors, that there was Tier 2. There was modeling.
19 There was Tier 3. That there were alternative programs that were
20 available, okay.
21 I speak today as the general manager of EMT. My company
22 is a member of the Environmental Lab Association. But I want to
23 be clear that I speak as the general manager of EMT. I
24 personally do not believe that the Illinois Pollution Control
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1 Board intended the Agency to be at a point where they were
2 prescribing cleanup objectives that could not be measured, okay.
3 And it's my opinion that if we are -- that given the practice
4 that we have over 22 years dealing with -- with industry, dealing
5 with consultants, dealing with the regulated community, that if
6 cleanup objectives were based upon the limits of present
7 technology, and if we use the commonly available methods that I
8 believe the more sites could be, you know, taken off the books,
9 and they could be done so more cost-effectively.
10 And those instances where ADLs were available, we would
11 often reach those ADLs if we knew what they were and the sites
12 would be closed out under Tier 1.
13 In those instances that couldn't be cleared out under Tier
14 1, it would now be a smaller group of sites that had to go to
15 modeling, that had to go to additional expense of additional
16 sampling, additional engineer type, additional Agency time by
17 people who have dedicated their careers to this. I think that
18 there is a good public policy and there are good reasons to come
19 up with ADLs in those instances where they're not even when those
20 ADLs would be above the health based risk factors.
21 There's been very significant discussion with regard to
22 MDLs, ADLs, EQLs, PQLs. The gentleman back here said it before,
23 it gets very confusing. I think we're all confused. And I think
24 there's a similar way to reach the objectives of the public
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1 policy and that would be to take another look at this situation.
2 Jarrett Thomas brought it up before, the MDL is a
3 statistical measure. It's not cast in stone. It's based upon
4 pristine conditions that -- that don't mimic real life. The
5 samples that my laboratories get, they stink. They, you know,
6 they're dirty, even sometimes when you're getting what appears to
7 be clear water.
8 We run into problems where one analyte of interest will
9 interfere with another. We run into problems where things that
10 we're not even looking for interfere with the analyte that we're
11 trying to measure. And so the method detection limit is based
12 upon a theoretical norm in a pristine condition. And when you
13 try to apply that to the real world, the numbers change and you
14 frequently end up a situation where you cannot reach the method
15 detection limit.
16 If I was given my druthers, I would use different measures,
17 okay. And I understand that there's been a great deal of work
18 that's been put in to creating the rules and regulations that
19 exist within TACO and the different remediation programs today.
20 So I would request again that if it was possible to do so,
21 whether it be through a subset of a rulemaking or whether it be
22 as an independent group, that we make commitment jointly to
23 tackle this issue and to try to come up with some sort of rules
24 by which we all can operate within that safe harbor. I thank you
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1 for your time.
2 HEARING OFFICER MCGILL: Thank you. Any questions for Mr.
3 Halm while we're at this point in the transcript? Seeing none,
4 did the Agency have any further questions for any of the
5 witnesses, Mr. Thomas or otherwise?
6 MS. GEVING: We do have some clarification and maybe some
7 questions on Mr. Thomas's testimony. I'm going to refer him back
8 to page seven and, Tracey, I believe that you wanted to address
9 something on page seven of Mr. Thomas's testimony.
10 MS. HURLEY: Yes. Back to the tables, actually looking on
11 page seven and eight.
12 HEARING OFFICER MCGILL: Page seven and eight of Mr.
13 Thomas's pre-file testimony?
14 MS. HURLEY: Yes. His -- The table of chemicals that have
15 Class 1 Groundwater Remediation Objectives he said they have
16 trouble meeting. The objective listed for Vinyl chloride,
17 Pentachlorophenol, Toxaphene and PCB are based on MCLs
18 established by USEPA. And when USEPA establishes their MCLs,
19 they take a look at not only health based limits but also
20 practical consideration such as treatability and detectability.
21 So I guess I don't understand why there would be a problem
22 meeting or detecting the chemicals that have MCLs. I would like
23 a little clarification on that.
24 MR. THOMAS: The -- One of the -- one of the issues with
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1 those, in particular, are that -- and can I -- I would like to
2 clarify the term MCL, when you're talking about Maximum
3 Contaminant Level, that's a drinking water term, correct?
4 MS. HURLEY: Yes.
5 MR. THOMAS: So we're talking about drinking water limits.
6 If I was using a drinking water method, I would have no trouble
7 meeting those detections. But those drinking water methods are
8 not what's specified in SRP. It specified Method 8260 for
9 Bromoform, Chloroform and Vinyl chloride in 8082.
10 Now those -- the issued again of the cost effectiveness and
11 the demand for the laboratory services is again what's driving
12 all this. If a customer were to say I need those detection
13 limits achieved, those compliance objectives achieved, we would
14 propose that we use these methods, which would be drinking water
15 methods. They would -- We would then attach a cost with that and
16 they would get back to us and say, well, okay, yes or no. We
17 want you to analyze those or not. And in some cases for ground
18 water we've done that. Not -- And I'm talking, is it 620 again,
19 I'm sorry?
20 MS. GEVING: Yes.
21 HEARING OFFICER MCGILL: Part 620.
22 MR. THOMAS: 620. We've done some groundwater work in our
23 laboratory for that program and the methods that we were asked to
24 use were drinking water methods, not SW-846 methods that are
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1 referenced in SRP and LUST and so forth. So the issue becomes
2 the cost versus the demand. And once we start presenting the
3 cost to do some of these other compounds using alternative
4 methods, then the cost goes up and then the customers usually
5 come back and say, well, you know, we haven't been achieving
6 these limits ongoing and we aren't going to require it. In most
7 cases we're not being asked to run alternative methods to reach
8 those objectives by our engineer -- engineering customers.
9 HEARING OFFICER MCGILL: The Agency -- I'm sorry. Mr.
10 Thomas, did you want to add anything to your testimony?
11 MR. THOMAS: The issue again of cost-effectiveness is
12 something that I was -- when we were discussing the different
13 methods. And I keep referring to SRP because SRP is really the
14 one place where I go in the Illinois rules and say here's where
15 it links a specific method to a specific analyte. In the case of
16 some of these they may specify, you know, different methods.
17 But it's also -- it's also a factor in the LUST rules,
18 under the current LUST rulemaking, there's costs associated with
19 the different -- reimbursement, maximum reimbursement amounts
20 associated to different analyses. And for semi-volatile organics
21 and for volatile organics, the cost that are listed in the LUST
22 rulemaking, I have the R 04-22(A) and 223(A)[sic], the costs that
23 were assigned to semi-volatile organics and volatile organics
24 were again using methods that are common in SW-846 and specified
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1 in SRP and that are mostly used by labs. They did not take into
2 account any additional methods that were as in Ms. Hurley's
3 testimony, or any other low level methods, some drinking water
4 methods or anything like that. Those -- those costs in the
5 proposal for maximum reimbursement amounts was based on what's
6 commonly being done in this industry. What's commonly being done
7 is not achieving the objectives.
8 As soon as it becomes a -- I hate to use the word
9 requirement because a lot of us, I think, are confused that it
10 isn't already a requirement. But when it becomes -- when the
11 demand starts to be that the engineering community is requiring
12 laboratory to use specific methods, then we're not going to see
13 this issue addressed.
14 HEARING OFFICER MCGILL: The Agency have any further
15 questions?
16 MS. HURLEY: Also on page seven of Mr. Thomas's pre-filed
17 testimony he questioned the soil ADL for
18 N-Nitrosodi-n-propylamine.
19 HEARING OFFICER MCGILL: And this is -- you're reading from
20 the pre-filed testimony of Mr. Thomas on page seven?
21 MS. HURLEY: Seven.
22 HEARING OFFICER MCGILL: Thank you.
23 MS. HURLEY: It's questioning the soil ADL appears to be in
24 error because it's the same value as for groundwater. That soil
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1 ADL, ADL from soil and groundwater, was based on Method 8070(A)
2 and the method lists the MDL and then also a range of
3 multiplication factors and we chose the lowest factor four,
4 multiplication factor four, which results in EQL of 0.0018
5 milligrams per liters as used as the ADL for ground and water and
6 0.0018 milligrams kilograms of soil, so it's not in error.
7 Also, I have a clarification to Mr. Thomas's pre-filed
8 testimony. Page eight of his testimony is responding --
9 MR. THOMAS: Can I respond to that before --
10 HEARING OFFICER MCGILL: Yeah, I think she's sworn in and
11 that was her testimony if you -- There wasn't a question, but if
12 you have counter testimony to that.
13 MR. THOMAS: I can check the method but the act of
14 preparing a soil sample versus analyzing a water sample, there's
15 a concentration factor. If you go and check any of the other
16 ADLs, for example, the other one I list is Pentachlorophenol with
17 an objective of .03. If you look at the groundwater objective,
18 it's .001. There's always going to be an order of magnitude
19 higher for a soil and I don't want to say always, but when you're
20 -- when you're doing a water sample and doing a soil sample,
21 soils will almost always have a higher detection limit. And
22 that's something that goes along with the prepping of the sample.
23 You don't have the same prep in an analysis that you're doing
24 with the water. Waters commonly have lower detection limits than
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1 soils do.
2 The other thing I guess I would like to respond to again is
3 the use of the term detection limit. The detection limit is
4 something we -- we -- we believe should not be used in creating
5 these limits.
6 HEARING OFFICER MCGILL: Thank you.
7 MS. HURLEY: I think it was on page eight of Mr. Thomas's
8 pre-filed testimony. He's talking about the Class 1 Groundwater
9 Remediation Objectives that are listed in Appendix B Table H. I
10 think that's supposed to be Appendix A Table H; is that correct?
11 MR. THOMAS: I believe so, yes.
12 MS. HURLEY: Okay. Table -- Appendix A Table H contains
13 chemicals in Tier 1 Class 1 Groundwater Remediation Objectives be
14 the one in one million cancer risk concentration. And Mr.
15 Thomas's questioning the fact that Table H includes ADLs that are
16 lower than the groundwater remediation objectives for some
17 chemicals. And that occurs because some of the Class 1
18 Groundwater Remediation Objectives are based on USEPA MCLs, for
19 example, carbon tetrachloride.
20 MR. THOMAS: Drinking water MCLs is what you're saying?
21 Drinking water?
22 MS. HURLEY: There be would applicable to drinking water
23 MCL I was wondering about. I don't have anything else.
24 MS. GEVING: The next question we had is also on page eight
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1 and, Mr. Dunn, I think you wanted to ask this question. But it's
2 regarding the reference to the ASTM D2974-00. Greg, did you want
3 to ask that question?
4 MR. DUNN: Mr. Thomas, how many methods are identified in
5 the ASTM D2974-00 Method? You specified in your pre-filed
6 testimony that you said Method C at 440C. I was kind of
7 wondering why that method was specified.
8 MR. THOMAS: I believe there's four methods A, B, C and D.
9 Inside the method itself there's four different options on how to
10 analyze samples. And I'd have to defer someone more technical to
11 answer -- Greg could probably answer the question as to why C.
12 HEARING OFFICER MCGILL: I'll just remind you you're sworn
13 in.
14 MR. PRONGER: Greg Pronger responding to the question.
15 That is simply the method applicable to the measurement trying to
16 be made. If go through ASTM, it specifies for soil for this
17 purpose -- ASTM that method it refers you to C for the
18 measurement that is being made. C is just the appropriate
19 protocol to follow. If you read the document, the point being in
20 trying to specify it is just so there's no confusion if it's
21 Option A, Option B, Option C as to what maybe everybody's
22 measurement -- comparability of data. If you focus on C, then
23 you're ensuring that we're running the same protocol.
24 MR. DUNN: The other methods that are identified in the
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1 ASTM methods, do they have different temperatures then?
2 MR. PRONGER: Yes.
3 MR. DUNN: As far as Mr. Thomas's proposal on page eight of
4 his pre-filed, I believe the Agency agrees with leaving in method
5 C at 440C. I think that is the appropriate method for -- the
6 Agency believes that is the appropriate method. However, using a
7 factor of 0.5 and 0.58, the Agency still contends that we don't
8 want to set a specified factor, conversion factor, in a
9 regulations. We want to allow some flexibility to the
10 consultants to use something other than conversion factor.
11 Now with that said, I believe at the last hearing I stated
12 that we would widely accept 0.5 and 0.58 conversion factor
13 without any additional requirement on the consultant to give us a
14 reasoning why for that conversion factor. But there could be
15 instances where a conversion other than 0.5 and 0.58 could be
16 used. Therefore, we contend, still contend that a factor should
17 not be added in that -- in that notation.
18 HEARING OFFICER MCGILL: Go ahead, Mr. Thomas.
19 MR. THOMAS: I would ask that if that were the case, then
20 could you add language just stating here's the common factor?
21 You can use any factor you want, but it just has to be explained,
22 and which I believe is your requirement anyway, but I don't know
23 that's specified anywhere in TACO or in the individual programs.
24 Could you make your requirement specific in here?
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1 HEARING OFFICER MCGILL: Does the Agency want to just take
2 that under consideration or do you have a response now, or both?
3 MS. GEVING: We'll take that under consideration.
4 MR. THOMAS: To give the Board a little idea of how the
5 laboratories sometimes become the expert in these interpretations
6 of TACO, usually what happens is an engineer will bring us a
7 sample and say run FOC, you tell us what factor to use. So, you
8 know, laboratory -- that's typically how it goes. It's -- I
9 don't know want that -- I don't know that there's a whole lot of
10 decision going on in establishing these FOC factors. It's
11 usually they defer to the lab to say what kind of factor. Then
12 we report that value out and then they run with it. And it's
13 really not a lot more decision. I think it's good to leave it
14 open to them, but it ultimately falls on the laboratories having
15 to make a determination of what factor and what we know about the
16 factors in this. It's an engineering concept.
17 MR. GIRARD: Well, but is there a problem with leaving the
18 decision up to the lab?
19 MR. THOMAS: I don't feel comfortable with that. Again,
20 it's -- I done a lot of research into FOC in trying to assist the
21 Agency in making this a more consistent requirement. And the --
22 the factor of .5 and .58 seems to be very consistent with what
23 other states are doing. They -- There's other states that
24 specify use .5. Again, it's more -- it's an engineering concept.
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1 It's an engineering calculation that -- where that value is
2 attended. And that's -- if the laboratories are left up to
3 deciding it. I'm sure we could. I don't know what the
4 ramifications are of that from an engineering side. Maybe
5 someone technical can respond to that.
6 MR. PRONGER: For clarification --
7 HEARING OFFICER MCGILL: If you could speak up.
8 MR. PRONGER: Greg Pronger, I apologize for not talking
9 loud enough.
10 HEARING OFFICER MCGILL: Thank you.
11 MR. PRONGER: The factor is related to that actual soil
12 chemistry. And generally speaking, the laboratory does not have
13 information on the type of soil it is. We may or may not have
14 location so we are ill prepared to determine the factor. So us
15 determining the factor, it's -- it's -- the engineer has that
16 information.
17 What most labs are doing is putting on the result and
18 notating what factor was applied. But the lab is not the one to
19 make that decision. We do not have information to determine
20 what's the appropriate correction factor.
21 MR. GIRARD: Well, doesn't this reference here Nelson and
22 Sommers (1982), does that specify how to make the decision
23 whether it's 0.5 or 0.58?
24 MR. PRONGER: No, they talk about it's based upon the type
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1 of soil. It's based upon location. I'll defer to Mr. Truesdale.
2 He's an engineer with a little more background on soil chemistry
3 side.
4 MR. TRUESDALE: The factor that's widely been used is known
5 as the Van Beelman Correction Factor. It is specified in Nelson
6 and Sommers. It's one they refer to. They list several other
7 optional studies that give different varying organic carbon
8 concentration, but the principle factor of correction that's used
9 is the Van Beelman Correction Factor. It's actually -- The .58
10 is the multiplier. You don't actually do it that way. You
11 divide it by 1.74.
12 HEARING OFFICER MCGILL: Could you spell that Van Beelman?
13 Do you have it there?
14 MR. TRUESDALE: V-A-N B-E-E-L-M-A-N, I guess.
15 HEARING OFFICER MCGILL: I'm sorry. I thought you had it
16 in front of you there as a reference.
17 MR. TRUESDALE: No, I'm just pulling it out --
18 HEARING OFFICER MCGILL: That's in Nelson and Sommers?
19 MR. TRUESDALE: It is within Nelson and Sommers, correct.
20 And Jarrett is correct, that unfortunately a large majority of
21 the consultants in the industry are not aware of the specifics
22 related to a lot of these analytical methods, and they do look to
23 the laboratories in a lot of cases to -- for guidance on what to
24 use. And I agree with Jarrett too, it's probably -- or I could
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1 agree with Greg it's probably inappropriate for them to make that
2 determination because they don't have the type of information
3 that is required to make a determination as to what correction
4 factor should be used if it's outside of a standard that's used.
5 MR. GIRARD: Well, are you afraid that there are liability
6 issues involved with the lab making that kind of determination?
7 MR. THOMAS: I would be. I would.
8 MR. TRUESDALE: I mean, from my standpoint I wouldn't have
9 any reference to their liability issues.
10 MR. THOMAS: In a very general way, my understanding that
11 of this factor is that higher or lower, whatever result ends up
12 coming, will affect the level of which the site has to be cleaned
13 up. So if we make a wrong assumption, we could be saying that
14 the site only has to be cleaned up to a certain point and I don't
15 know if that would be correct. So I'm afraid there would
16 liability associated with.
17 MR. GIRARD: It seems to me there's another side to this
18 and that is the possibility that they want the numbers run and
19 then pick out a factor that makes it fall in the right range. It
20 doesn't sound like a very honest process to me. If you don't
21 have a determination being made by the people in the field, who
22 tell you what kind of characteristics then have to determine what
23 kind of factor you use, is that part of the problem?
24 MR. THOMAS: I would agree.
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1 MR. GIRARD: You feel that the rule should specify and tell
2 you what those environmental characteristics are to determine
3 what factor you could use; is that correct?
4 MR. THOMAS: The main purpose for me listing the range is
5 because that's the range that's most commonly used now. I don't
6 know many -- Greg could speak to how many times they get an FOC
7 factor on site of that range and the engineer has to justify
8 that. But my experience has been that the engineer wants to see
9 when they ask a laboratory to test for FOC, they want a final
10 corrective value with the factor. And in -- when we first
11 started doing FOC analysis in Suburban Laboratories, we didn't
12 report a factor. And we just -- we assumed that the engineer was
13 going to apply the factor, whatever factor is appropriate, before
14 we understood the requirements.
15 And I believe a lot of data went to the Agency that was
16 uncorrected. And the Agency started seeing a wide variety of
17 results coming from different labs, coming from different
18 engineers. Some engineers would apply the factor before
19 submitting the report to the Agency, others would not. Some labs
20 were applying the factor and not notifying the engineer that they
21 applied a factor. And the Laboratory Association did an
22 extensive survey which we presented to the EPA which outlined
23 just about all of the labs doing FOC in the state and how they
24 were running it at the time, and there was enough variety for the
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1 Agency to say we need to get a little more specific. There was
2 some labs using some certain methods, some were not using Method
3 C as we recommended here.
4 So it's simply a -- putting the factor in there is simply a
5 means from the laboratory perspective of getting everyone off our
6 back and saying here's what's required. If there's a decision
7 not to specify a factor, then I think the Agency should specify
8 how to come about that factor a little more clearly because I
9 guarantee very, very few people in this industry understood what
10 the Agency meant by FOC when they first proposed it in TACO.
11 It's only until recent, last couple of years, I think, when
12 people finally understood just how to do FOC properly.
13 MR. GIRARD: Thank you.
14 MR. DUNN: Just for the Board's information, the Van
15 Beelman factor is identified on page 561 of Nelson and Sommers.
16 That's where it could be found. I actually just had a question
17 for Mr. Thomas. Under the ASTM method for the ASTM D Method
18 2974, does that method specify a conversion factor in that method
19 itself?
20 MR. THOMAS: No. I'd also like to clarify that the method,
21 the ASTM Method is not a method for determining FOC. That method
22 is a method for determining moisture, ash and organic matter.
23 That's not FOC. You have to apply the correction factor in order
24 to get the FOC.
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1 HEARING OFFICER MCGILL: Thank you. Any further questions?
2 MS. GEVING: I just have one more thing and it's a
3 clarification on page nine of his testimony. He states that the
4 Class I and Class II Soil Component the Groundwater Ingestion
5 Exposure Route Values for metals were deleted from Section 742
6 Appendix B Table B. It appears to be in error that values are
7 still in Table A. I believe we addressed that in our Errata
8 Sheet Number 1.
9 MR. THOMAS: Yes.
10 MS. GEVING: And I think if we're going to close, Mr. King
11 has some closing remarks he would like to make if he could.
12 HEARING OFFICER MCGILL: Before we get to that, did we have
13 any further questions or testimony on ADLs?
14 MR. TRUESDALE: I have a question or testimony deciding the
15 ADL, other issues within the proposed changes to TACO.
16 MR. PRONGER: I have one issue relating to ADLs.
17 HEARING OFFICER MCGILL: Okay. So two other witnesses with
18 questions.
19 MR. HORNSHAW: We may have a few questions or comments,
20 yes.
21 HEARING OFFICER MCGILL: Okay. Mr. King, if you think this
22 is a good point of -- you're welcome to go ahead.
23 MR. KING: I was going to wrap it up once we're done with
24 the whole laboratory issue.
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1 HEARING OFFICER MCGILL: Okay. Mr. Truesdale, I saw your
2 hand first.
3 MR. TRUESDALE: It's unrelated to ADLs.
4 HEARING OFFICER MCGILL: Okay. I'm sorry. You had an ADL
5 question?
6 MR. PRONGER: And this was within the Agency, the
7 utilization of drinking water methods to the program. And it is
8 -- it would be frequently inappropriate to attempt to utilize a
9 method that was designed for a fairly pristine drinking water
10 system for site remediation cases. So where there's been
11 adoption of drinking water methods, those methods are
12 specifically designed for a very clean matrix. And so the --
13 there's not a general applicability of a analytical procedure
14 that's designed for very clean water to groundwater samples
15 collected around the State of Illinois, around sites that are
16 being remediated, trying to utilize those.
17 Whether or not we call them ADLs, MDLs whatever the case
18 is, how we're setting that number, utilizing those values within
19 the program, in many, many cases those methods are simply
20 inappropriate for application. I wanted to make that point
21 regarding where we're looking at the values from the drinking
22 water methods and then the method themselves for application to
23 the TACO topic. Those methods are frequently inappropriate to be
24 utilized.
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1 HEARING OFFICER MCGILL: And I'm sorry, they're
2 inappropriate why?
3 MR. PRONGER: Just because they are designed for a great
4 big matrix. If you're running a drinking water sample, it's
5 designed -- that method is designed for basically tap water. It
6 is not designed for raw water taken by an engineer from next to
7 the site that's being remediated. The level of material within
8 the groundwater that has contaminants, that method is simply not
9 constructed or designed to handle that type of matrix.
10 HEARING OFFICER MCGILL: Thank you. Dr. Hornshaw?
11 MR. HORNSHAW: At least one follow-up question, maybe two.
12 Most of the Class 1 Groundwater Standards in 620 are based on
13 MCLs, the drinking water standard. And so are you suggesting
14 that the groundwater standards would have to be changed also?
15 MR. PRONGER: No. It's just simply that trying to utilize
16 a analytical laboratory has a lot of different tools to make its
17 measurement. If you have the objective set to -- I'll use number
18 one just to have something to utilize here. If it is set to one
19 for drinking water, the method that the USEPA designed to get one
20 in drinking water may not be applicable to a groundwater from the
21 state of Illinois just because of the level of matrix.
22 We may have to use -- to use two numbers. 515 is utilized
23 for herbicides. 8151 is utilized for herbicides. 515 is
24 designed for water out of your tap. 8151 is specifically
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1 designed for groundwater. So there's fundamental differences in
2 how this sample is handled to deal with matrix. 8151 probably
3 can achieve that same level of detection. It's the appropriate
4 tool in this instance. 515 is not the appropriate tool to pull
5 out of my analytical pocket to deal with a drinking water sample.
6 Does that -- But we're referencing at the same time not just the
7 MCL, but also the method at times and that's a -- we're causing
8 problems when that request comes to the laboratory, 515 is the
9 wrong number to be asking for.
10 MR. THOMAS: Can I respond?
11 HEARING OFFICER MCGILL: Dr. Hornshaw, do you have --
12 MR. HORNSHAW: Let him go ahead. I think I need to think
13 here.
14 HEARING OFFICER MCGILL: Why don't we go off the record for
15 just one moment.
16 (A short break was taken.)
17 HEARING OFFICER MCGILL: I think where we left off, Dr.
18 Hornshaw, did you have a follow-up question or testimony?
19 MR. HORNSHAW: Well, yeah, and I just have to say I'm a
20 little bit confused on a couple of examples. A whole bunch of
21 public water supply systems in Illinois utilize groundwater as a
22 water source, and it's my understanding they have minimal, if
23 any, treatment other than chlorination before that water goes
24 into the distribution system, and those symptoms have to monitor
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1 and show they meet the MCLs. So I don't understand why the
2 drinking water methods that are used for tap water, and I assume
3 they're used for the raw water that comes out of the groundwater,
4 why they're not able -- why they shouldn't be able to use the
5 drinking water methods to show that they're complying with the
6 MCLs.
7 And then to use the Vinyl chloride example that Tracey
8 brought up earlier in Mr. Thomas's list of hard to detect
9 compounds, my unit looks through an awful lot of analytical data
10 when we're reviewing Tier 3s and we routinely see reporting limit
11 of .002 micrograms -- or milligrams per liter for Vinyl chloride.
12 And whether the labs are using a drinking water method or some
13 other method, they are seeing down to that concentration. So I
14 don't understand why drinking water methods shouldn't be used for
15 what are supposed to be clean water samples that are submitted to
16 the Agency to show that objectives. Does that make sense?
17 HEARING OFFICER MCGILL: There are a couple of people that
18 I think wanted to respond, and I saw Mr. Truesdale's hand up
19 first.
20 MR. TRUESDALE: Municipalities wouldn't typically site a
21 potable well extraction well field in an area that has
22 soilability limit, level of concentration for volatile organic
23 contaminants. That's the problem. It does haven't the matrix
24 interferences that they're referring to in a contaminated ground
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1 water sample. It's a potable resource groundwater that -- it may
2 not need treatment because of the location where it's at. They
3 don't put a well where the water is going to be influenced by
4 those type of matrix inferences associated with contaminant
5 concentrations.
6 MR. HORNSHAW: But then they're using drinking water
7 methods to analyze groundwater to show compliance with MCLs.
8 He's saying he shouldn't be using drinking water methods that
9 analyze groundwater.
10 MR. TRUESDALE: Just a --
11 HEARING OFFICER MCGILL: You just said he and the
12 transcript is not going to be clear who you're referring to.
13 MR. HORNSHAW: I'm sorry, Mr. Pronger.
14 HEARING OFFICER MCGILL: And just take turns giving your
15 responses, please.
16 MR. TRUESDALE: It's the -- associated with the level of
17 contamination that are present. It's not a, you know, the
18 samples that we collect have a very high concentrations of
19 organic constituents that require the laboratories to address,
20 you know, different matrix interferences. If we're -- if we're
21 only reporting a few constituents and the mixed contaminant plume
22 has 50 organic compounds and we're only interested in reporting
23 five of those compounds, the lab has to get through the
24 background interferences with those other non-target compounds
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1 that are associated with those contaminants that aren't
2 necessarily target compounds in the program.
3 And water -- in a drinking water situation municipalities
4 site their wells where there's very little impact to the
5 groundwater for potable purpose. It's just not put. It's
6 totally apple and oranges different comparison here. And then on
7 the other side -- from the standpoint of -- I don't remember, it
8 was Dr. Hornshaw's second --
9 MR. HORNSHAW: Oh, Vinyl chloride.
10 MR. TRUESDALE: The Vinyl chloride. You mentioned before
11 in your program you require filtering of samples for organic
12 analysis and that's not -- under the SW-846 method.
13 MR. HORNSHAW: No, I didn't say that. We either say that
14 the people have to use a low flow in-line filter --
15 MR. TRUESDALE: Right.
16 MR. HORNSHAW: -- or if they don't want to do that, then
17 they have to do both filtered and non-filtered.
18 MR. TRUESDALE: Right. So it has a filtering mechanism one
19 way or the other, the in-line filtering or filtered and
20 non-filtered. And that could very well explain why you get
21 concentration at the .002 versus typical SRP, LUST or RCRA sites
22 that don't have those requirements.
23 HEARING OFFICER MCGILL: I'm sorry. You said RCRA and
24 that's --
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1 MR. TRUESDALE: LUST and SRP. Resource Conservation
2 Recovery Act, R-C-R-A.
3 HEARING OFFICER MCGILL: Mr. Thomas?
4 MR. THOMAS: I appreciate your confusion on this issue. It
5 kind of helps me understand where this confusion is coming from
6 on all sides. One of the clarifications that I want to make with
7 regard to what Greg said about the -- the drinking water methods
8 not being applicability for groundwater. If you were to go to
9 the drinking water methods manual and pull out a method and look
10 at the scope and applicability, you're likely to find it's
11 applicable to groundwater and to surface water, but it's in the
12 methods for drinking water analysis. When they refer to -- when
13 we refer, I guess as a laboratory industry, drinking water, we're
14 talking about water you're going to drink and that could come
15 from groundwater, potable water, it could come from groundwater,
16 surface water, a mixture of those things.
17 When we -- when we look at groundwater in terms of saying
18 that we cannot meet certain limits and things, we're talking
19 about doing them in the context of SRP, LUST, RCRA, from a
20 contaminant, usually in a dirty monitoring well not intended
21 whatsoever for human consumption. And these samples are
22 typically going to have analytes in them unlike a drinking water
23 sample would, so when we're talking about -- we're talking really
24 about two things. When we say drinking water, it's a separate
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1 issue from groundwater. And the methods are totally different.
2 The drinking water methods, as Greg said, are very, very
3 sensitive procedures. They're meant to detect very minute
4 quantities of a chemical. And when you optimize a method that
5 way and that sensitive, if you have any kind of contamination of
6 what we commonly see in SRP and LUST groundwater samples, you're
7 going to blow your instrument away. You're going to peg your
8 detector. You're going to cause all kinds of problems in the
9 laboratory which is going to result in additional cost and
10 turn-around time, which is the primary reason that the laboratory
11 community in general is opposed to using drinking water methods
12 for -- for groundwater associated with SRP, LUST, RCRA and those
13 type of programs.
14 MR. HORNSHAW: And I fully understand that for exploratory
15 samples, but for final samples, at least for sites that are
16 seeking a comprehensive NFR, when they're taking a sample that
17 they're trying to show it met all the cleanup objectives, you
18 shouldn't have all those interferences raising your detection
19 limits, at least to my thinking. Because we do see lots and lots
20 of analytical data submitted in support of showing clean, that
21 they're able to achieve most or all of the detection limits that
22 are specified in the rule. That's where I'm having this
23 disconnect with you can't use these kind of sensitive methods
24 when you're getting to the point of trying to say is it clean
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1 enough or is it still dirty.
2 MR. EASTEP: Can I jump in?
3 HEARING OFFICER MCGILL: Mr. Eastep?
4 MR. EASTEP: A lot of sites that I dealt with in the site
5 remediation program recites where they are actually usually the
6 drinking water in that area and that not -- may not be every day
7 but it's certainly not an uncommon occurrence that we go out and
8 sample sites, and at the edge of where we're sampling, those are
9 people in that general area that are actually using the water for
10 drinking purposes.
11 MR. THOMAS: And that's exactly the reason why I feel the
12 method should be specific. If you -- if the analytes can only be
13 detected using drinking water limits and they're clean samples --
14 and again as a laboratory I may get a sample sent to me. I don't
15 know what state in the TACO process it is -- they may simple send
16 me a sample and say run it by Method 524. And at that point I
17 understand I have to meet Vinyl chloride detection limits
18 associated with drinking water and away we go. And that may be
19 the data you're seeing coming through. And maybe in those cases
20 the engineer's requiring specific methods and so forth. But in
21 the vast majority of these cases where the methods are not
22 specific, the limits are not being achieved.
23 HEARING OFFICER MCGILL: Mr. Truesdale?
24 MR. TRUESDALE: I think one of the things that we mentioned
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1 is the perimeters of the plume, that's where the concentrations
2 are low enough that it doesn't have the same kind of matrix
3 interference -- at the parameter of the plume the concentrations
4 you would be seeing are not subject to the same kind of matrix
5 interference because the level of contamination are then more
6 representative of naturally occurring groundwater or less
7 contaminated groundwater. And the ones that get closed under the
8 SRP are sites that can meet those criteria.
9 As I mentioned before, if you can't even define where Tier
10 1 is, it takes much, much longer to get to a point in the closure
11 in the site and you may never find -- or you may never be able to
12 get to a point of, yes, we've got the extent defined out to these
13 limits where we can get down to that objective at a site that is
14 highly, highly contaminant.
15 HEARING OFFICER MCGILL: Any further questions or testimony
16 regarding laboratory issues ADLs? Okay. Seeing none at this
17 point, I'd ask Mr. King if you'd provide some testimony to that
18 approach.
19 MR. KING: What I wanted to do was kind of try to frame a
20 little bit of context for the -- for the Board. We've been
21 listening for the last couple of hours, quite a bit of testimony,
22 in exchange on this -- these -- this ADL, but the issues brought
23 up that are related to laboratory programs.
24 If you listen to that and look at that testimony and just
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1 took it out of context you would think our remediation programs
2 are at a stalemate, but nothing, I repeat nothing, could be
3 further from the truth. The system that we have in place today
4 is the same system that we've basically had for the last eight
5 years other than improvements we've made on a periodic basis with
6 rules before the Board.
7 Since 1997 we've been processing about 800 LUST sites a
8 year, closing 800 sites a year. We've been closing 150 to 200
9 SRP sites a year, so we're moving things along. If we have an
10 issue, I mean, in the SRP program right now, we'd have an issue
11 that's holding back closing sites is that we don't have the
12 staffing to process things quickly enough.
13 We have regular meetings with the site remediation advisory
14 committee and that was the committee that was established by the
15 statute to provide advice to us, advise us on problems they see.
16 We look to them a lot because they're really, as far as we can
17 tell, are really representing the owners and the operators and
18 the remediation applicants for sites coming into our programs.
19 They've never brought this -- the issue that the labs have
20 brought forward today. I think Mr. Walton made a fairly eloquent
21 statement as to why that was not being brought forward.
22 In -- Just to kind of simplify what he's saying, part of
23 the beauty of TACO is that it's not just a single method of
24 looking at things. It's a methodology that allows different
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1 approaches depending on the site. You have Tier 1 and screen
2 things out. If that doesn't seem to be appropriate, you can use
3 Tier 2 or Tier 3 or you can us pathway exclusion methodologies.
4 So Mr. Dunn's testimony from this hearing wasn't -- he wasn't
5 trying to suggest that we were not willing to consider other
6 changes to the rule. It's just that at this point we didn't see
7 the testimony that the laboratories had presented as justifying
8 us changing our proposal.
9 We have over the years made -- proposed numerous changes to
10 the -- to the Board. We have really gone through a discipline
11 though of making sure that we understood the problem, that we had
12 a concrete proposal before us and that we went forward based on
13 that -- based on that concrete proposal.
14 Two of those are we're looking -- we've looked at in this
15 regulatory proceeding, PNAs. That was an issue that the SRAC
16 members brought forward to us, and we worked them over a period
17 of several years making sure that we had an investigation that
18 made sense, we had a regulation that made sense.
19 The FOC issue was one that there was, in fact, brought to
20 our attentions by the laboratories. We concluded that there was
21 a problem. We needed to make a change. We made a change. They
22 suggested that there -- that there -- it should be made a little
23 more concrete. And so we're willing to take that under
24 advisement and see if that makes some sense to do.
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1 At this point, you know, I'm confused by a lot of the
2 discussion because I'm having trouble following what's occurred,
3 but I think it really behooves the laboratory community as a
4 group to reach some consensus on what they want to do with this.
5 This is one of the things I asked for at the last hearing. I
6 asked for associations to come forward and propose a set of ADLs.
7 They said they didn't have time to do that. I can appreciate
8 that. But I think that's something that really needs to occur,
9 that there be -- that laboratories reach a consensus on what --
10 as an association as to what they -- how they think these rules
11 should -- should be changed and come forward to us in a concrete
12 way.
13 We don't have -- I mean, we've got a lot of program
14 responsibility in administering these programs. We can't just be
15 -- be going forward on some vague notion that we need to re-look
16 at things. So again, I would -- just as a conclusion I just
17 would like to challenge the laboratories to work with us to
18 present a concrete proposal that we can react with and work with
19 and have something that's technically justified and then come
20 forward at the appropriate time with additional rule changes as
21 needed to the Board on those issues.
22 HEARING OFFICER MCGILL: Thank you. Mr. Thomas?
23 MR. THOMAS: If I could just respond in one regard. We had
24 a discussion in the Laboratory Association about submitting ADLs
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1 and part of -- part of the problem in getting a consensus is it's
2 not as simple as it might sound. And there's a lot of people in
3 our association that feel it's not our place to be submitting to
4 the Agency what the compliance objectives for clean site are.
5 I mean, we -- we've already submitted, and the Agency has
6 -- already has information with regards to -- to the analytical
7 limitations associated with the variety of compounds. We
8 submitted those as a Laboratory Association and individual labs
9 have submitted those to people at the Agency.
10 This issue -- We've asked for there to be a committee back
11 in 2002, and this is something that I personally am concerned,
12 you know, just as a taxpayer at this point that sites are getting
13 closed out. Sure sites are getting moved through and closed out
14 because of some clipboard audit, some checklist, well, if the lab
15 detected up here, and as Mr. Walton said, you give me any number
16 and I'll tell you what I need to do to make sure that's not going
17 to impact the health and environment. I'd like to have a little
18 more confidence in the -- in the -- that the analytes of interest
19 are not present.
20 And the Agency saw fit. They saw -- they figured it was
21 important enough to establish ADLs and the inception of TACO.
22 Mr. Hornshaw in his own testimony stated that they wanted cleanup
23 objectives for ADLs as low as possible to the cleanup objectives
24 even if it required the use of alternative method as they did in
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1 PNAs. They're aware of which compounds are a problem, but they
2 don't want to do anything about it. And from an -- just an
3 analytical scientific background, that just confuses me. If you
4 know what the problem is, you establish ADLs in the past for
5 compounds you thought were problems back then but you don't want
6 to look at new ones today, you want us, the laboratories, to do
7 that, it's not that simple.
8 And I don't know that it's necessarily the laboratory
9 industry's place to say here's what the cleanup objective should
10 be. I think we have a hard time getting that consensus. May be
11 able to get consensus to say here's our -- here's our detection
12 limits or quantitation limits of an industry averaged out or
13 something, but, I mean, there's flaws with doing that type of
14 statistics too as we kind of talked about.
15 MS. MOORE: How many members are in your association?
16 MR. THOMAS: We have about 24 members. I'm only aware of
17 two environmental labs in the state that do soil work that are
18 not members of our association, so we represent nearly every
19 single environmental lab in the state doing this type of work.
20 MS. MOORE: And have you participated in any of these -- is
21 -- it's SRAC or something, but have you participated in that
22 organization?
23 MR. THOMAS: I participated in one SRAC meeting with
24 regards to the LUST rulemakings. I was invited there. I asked
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1 Mr. Walton at the last hearing and asked him are those meetings
2 public somewhere? Is there a notice? And he said, no, it's by
3 invitation. So I would love to be invited. I would go to every
4 SRAC meeting there was, trust me. I've never been -- I mean,
5 outside of the one time, I've not been invited nor do I know
6 where to go to find out where those meetings are held.
7 MS. MOORE: Mr. King, would you like to comment on that?
8 MR. KING: Mr. Thomas has shown a fundamental
9 misunderstanding of the TACO rule. We're not asking laboratories
10 to establish cleanup objectives. Cleanup objectives are
11 established on a site basis using a methodology for remediation
12 methodology. That's in the rule, okay. The Agency has the final
13 say so in doing that on a case-by-case basis.
14 We respond to proposals from a remediation applicant who
15 contacts the SRP from the owner/operator who contacts the LUST
16 program. We are not saying that the laboratories are coming up
17 with a set of cleanup objectives. We're asking that they apply
18 their expertise on issues that we seem to be testifying a lot
19 about today is within their expertise.
20 HEARING OFFICER MCGILL: Okay. Any further testimony
21 regarding laboratory issues? Questions? I think, Mr. Truesdale,
22 you said you had some questions or testimony on aspects of the
23 Agency rulemaking proposal?
24 MR. TRUESDALE: Yeah.
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1 HEARING OFFICER MCGILL: I think we'll run through those
2 and then if there are not any other persons who wish to testify,
3 we'll have some closing remarks. Mr. Truesdale, why don't you
4 proceed at this time.
5 MR. TRUESDALE: Once again I'm Joe Truesdale. My only
6 question, possible testimony related to 742.320(d) regarding the
7 changes to the compliance distances for ordinances adopted to
8 address prohibition of installation of potable water supply
9 wells. And I think, first of all, I'd like to start with a
10 question to Dr. Hornshaw. If the -- has the Agency in this
11 rulemaking put forth any consideration towards the vapor
12 intrusion pathway associated with dissolved constituents in
13 groundwater.
14 MR. KING: Joe, let me talk about that. In the context of
15 this rulemaking, no, we are in the process of -- I assume you
16 mean indoor vapor?
17 MR. TRUESDALE: Correct. Well, indoor and outdoor. The
18 USEPA has guidance for both.
19 MR. KING: There is an outdoor vapor intrusion pathway
20 element to TACO already.
21 MR. TRUESDALE: For the soil, not for the groundwater.
22 MR. KING: That's true.
23 MR. TRUESDALE: Correct.
24 MR. KING: We are looking at a -- developing further
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1 amendments to TACO that would address the vapor intrusion pathway
2 into buildings, okay. We would -- we'll look to do that as
3 another pathway under the TACO ordinance, okay. Under a best
4 case scenario we would have something proposed to the Board by
5 the end of calendar year, but I don't know that that's definitely
6 going to happen. But we certainly are going to be going through
7 a considerable amount of outreach to regulated community as we
8 develop that approach.
9 MR. TRUESDALE: Very good. That was easy enough.
10 THE COURT: Thank you. Would anyone else like to testify
11 today? Pose any questions? Seeing none, why don't we go off the
12 record for a moment.
13 (A discussion was held off the record.)
14 HEARING OFFICER MCGILL: We just had a discussion off the
15 record about establishing a pre-first notice public comment
16 filing deadline. We expect to receive the transcript of today's
17 hearing in the Board's offices by Monday, March 13th. I would
18 ask that anyone who wishes to ensure that their public comment is
19 considered for any first notice proposal by the Board get their
20 public comments filed by April 17th, that's a Monday, and the
21 mailbox rule would apply.
22 I note that anyone may file written public comments on this
23 rulemaking with the clerk of the board. There will be other
24 opportunities to file public comments. There's at least a 45 day
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1 public comment period after first notice of publication in the
2 Illinois Register. Just so you know, public comments may be
3 filed with the clerk through the Board's web base, clerk's office
4 on-line or COOL. Please note that all filings with the clerk of
5 the board must also be served on the hearing officer and on those
6 persons on the service list of this rulemaking. And please check
7 with the clerk before filing to make sure you've got the most
8 current version of the service list. We will -- Once we receive
9 the hearing transcript, it will be posted on our website shortly
10 after receiving it. Are there any other matters that need to be
11 addressed at this time? Let's go off the record for a moment.
12 (A discussion was held off the record.)
13 HEARING OFFICER MCGILL: Before we adjourn, Mr. King had
14 suggested a possibility of a work group to look at some of these
15 laboratory issues. I guess we just wanted to get a sense from
16 the participants as to the likelihood of that happening or will
17 the Agency and some of the laboratory representatives be engaging
18 in any discussions? Can you give us a sense of that at this
19 point?
20 MR. KING: It's an open door.
21 MR. THOMAS: Again, we would love to participate.
22 HEARING OFFICER MCGILL: Okay.
23 MS. MOORE: So can we count on Mr. King to coordinate the
24 meeting?
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1 MR. KING: You can count on me getting somebody to
2 coordinate that.
3 HEARING OFFICER MCGILL: Again, what we would ideally see
4 in public comment would include an indication on how the
5 participants think issues of ADLs and laboratory issues should be
6 addressed, whether another hearing is needed before first notice,
7 whether this issue should not be addressed in this docket at all,
8 whether there should be a sub docket left open to work on those
9 issues. There are all sort of different options but we would
10 certainly like to hear from you if you could indicate that in
11 your -- include that in your public comments, it would be greatly
12 appreciated so the Board carefully considers all of that input,
13 it would be very helpful to us.
14 Any other matters that need to be addressed at this time?
15 Seeing none, I would like to thank everyone for participating
16 today. It was a longer day than we thought it would be, but I
17 think ultimately very enlightening. Thank you.
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STATE OF ILLINOIS
COUNTY OF FAYETTE
C E R T I F I C A T E
I, BEVERLY S. HOPKINS, a Notary Public in and for the
County of Fayette, State of Illinois, DO HEREBY CERTIFY that the
foregoing 120 pages comprise a true, complete and correct
transcript of the proceedings held on March 1st, 2006, at the
Illinois Environmental Protection Agency, North Entrance, TQM
Room, 1000 E. Converse, Springfield, Illinois, In the Matter of:
Proposed Amendments to Tiered Approach to Corrective Action
Objectives (35 Ill. Adm. Code 742), in proceedings held before
Hearing Officer Richard R. McGill, Jr., and recorded in machine
shorthand by me.
IN WITNESS WHEREOF I have hereunto set my hand and affixed
by Notarial Seal this 8th day of March, 2006.
________________________________
Beverly S. Hopkins
Notary Public and
Certified Shorthand Reporter and
Registered Professional Reporter
CSR License No. 084-004316
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