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1
ILLINOIS POLLUTION CONTROL BOARD
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3
IN THE MATTER OF: )
4 )
STANDARDS AND REQUIREMENTS )
5 FOR POTABLE WATER WELL ) R06-023
SURVEYS AND FOR COMMUNITY ) (Rulemaking -
6 RELATIONS ACTIVITIES ) Public Water)
PERFORMED IN CONJUNCTION )
7 WITH AGENCY NOTICES OF )
THREATS FROM CONTAMINATION )
8 UNDER P.A. 94-134 )
)
9 NEW 35 ILL. ADM. CODE 1505 )
10
11
12 Report of proceedings had at the hearing in
13 the above-entitled cause at 160 North LaSalle
14 Street, Room N-502, Chicago, Illinois, commencing at
15 10:00 a.m. on the 28th day of March, A.D., 2006.
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L.A. REPORTING (312) 419-9292
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1 APPEARANCES:
2 Ms. Amy C. Antoniolli
(Illinois Pollution Control Board)
3 100 West Randolph Street
Suite 11-500
4 Chicago, Illinois 60601
Phone: (312) 814-3665
5
Mr. Nicholas J. Melas
6 (Illinois Pollution Control Board)
100 West Randolph Street
7 Suite 11-500
Chicago, Illinois 60601
8 Phone: (312) 814-3932
9 Ms. Alisa Liu
(Illinois Pollution Control Board)
10 100 West Randolph Street
Suite 11-500
11 Chicago, Illinois 60601
Phone: (312) 814-8916
12
Mr. Anand Rao
13 (Illinois Pollution Control Board)
100 West Randolph Street
14 Suite 11-500
Chicago, Illinois 60601
15 Phone: (312) 814-3956
16 Mr. G. Tanner Girard
(Illinois Pollution Control Board)
17 704 North Schrader Avenue
Havana, Illinois 62644
18 Phone: (309) 543-2230
19 Mr. Thomas E. Johnson
(Illinois Pollution Control Board)
20 2125 South First Street
Champaign, Illinois 61820
21 Phone: (217) 278-3109)
22 Ms. Carol L. Fuller
(Illinois Environmental Protection Agency)
23 1021 North Grand Avenue East
Springfield, Illinois 62794
24 Phone: (217) 524-8807
L.A. REPORTING (312) 419-9292
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1 APPEARANCES: (continued)
2 Mr. Kurt Neibergall
(Illinois Environmental Protection Agency)
3 1021 North Grand Avenue East
Springfield, Illinois 62794
4 Phone: (217) 785-3819
5 Mr. Richard P. Cobb
(Illinois Environmental Protection Agency)
6 1021 North Grand Avenue East
Springfield, Illinois 62794
7 Phone: (217) 785-4787
8 Mr. H. Mark Wight
(Illinois Environmental Protection Agency)
9 1021 North Grand Avenue East
Springfield, Illinois 62794
10 Phone: (217) 782-5544
11 Mr. Scott O. Phillips
(Illinois Environmental Protection Agency)
12 1021 North Grand Avenue East
Springfield, Illinois 62794
13 Phone: (217) 782-5544
14 Mr. Gary King
(Illinois Environmental Protection Agency)
15 1021 North Grand Avenue East
Springfield, Illinois 62794
16 Phone: (217) 785-9407
17 Ms. Joyce Munie
(Illinois Environmental Protection Agency)
18 1021 North Grand Avenue East
Springfield, Illinois 62794
19 Phone: (217) 524-3300
20 Ms. Kimberly A. Geving
(Illinois Environmental Protection Agency)
21 1021 North Grand Avenue East
Springfield, Illinois 62794
22 Phone: (217) 782-5544
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L.A. REPORTING (312) 419-9292
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1 APPEARANCES: (continued)
2 Ms. Stefanie N. Diers
(Illinois Environmental Protection Agency)
3 1021 North Grand Avenue East
Springfield, Illinois 62794
4 Phone: (217) 782-5544
5 Ms. Deborah J. Williams
(Illinois Environmental Protection Agency)
6 1021 North Grand Avenue East
Springfield, Illinois 62794
7 Phone: (217) 782-5544
8 Ms. Deirdre K. Hirner
(Illinois Environmental Regulatory Group)
9 3150 Roland Avenue
Springfield, Illinois 62703
10 Phone: (217) 523-4942
11 Ms. Monica T. Rios
(Hodge, Dwyer, Zeman)
12 3150 Roland Avenue
Springfield, Illinois 62705
13 Phone: (217) 523-4900
14 Ms. Ann Muniz
Ms. Bernadette Dinschel
15 Mr. Keith Harley
Mr. Dan Billings
16 Mr. Josh Atlas
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24 I N D E X
L.A. REPORTING (312) 419-9292
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1 WITNESS PAGE
2 MR. RICHARD P. COBB
3 Examination by Mr. H. Mark Wight ......... 15
4 MR. GARY KING
5 Examination by Mr. H. Mark Wight ......... 16
6 MR. KURT NEIBERGALL
7 Examination by Mr. H. Mark Wight ......... 17
8
9 E X H I B I T S
10 EXHIBIT PAGE
11 No. 1 .................................... 16
12 No. 2 .................................... 17
13 No. 3 .................................... 18
14 NO. 4 .................................... 111
15 Hearing Officer Exhibit A ................ 103
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L.A. REPORTING (312) 419-9292
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1 MS. ANTONIOLLI: Good morning, and
2 welcome to the Illinois Pollution Control
3 Board Chicago Hearing. On the docket,
4 R06-23, which the Board has captioned "In the
5 Matter Of Standards and Requirements For
6 Potable Water Well Surveys And For Community
7 Relations Activities Performed In Conjunction
8 With Agency Notices From Contamination." And
9 that's under P.A. 94-314, the new
10 35 Illinois Administrative Code Part 1505.
11 And, as I said, docketed as R06-23.
12 My name is Amy Antoniolli, and I
13 am assigned the hearing officer in this
14 rulemaking. The Agency is seeking in this
15 proceeding to add a new part, 1505, which
16 would allow and regulate the use -- And this
17 rulemaking was filed on January 20th, 2006,
18 by the Illinois Environmental Protection
19 Agency. The Board accepted the proposal for
20 hearing on February 2nd, 2006. Today is the
21 first hearing; and a second hearing is
22 scheduled for May 23rd, to take place at
23 10:00 a.m. in the Board's offices in
24 Springfield.
L.A. REPORTING (312) 419-9292
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1 To my left is Member Nicholas
2 Melas. He's the Board member assigned to
3 this matter. And seated to the left of
4 Member Melas is our acting chairman, Tanner
5 Girard. And to the left of Chairman Girard
6 is Member Tom Johnson. Also present from the
7 Board's technical unit today is Anand Rao and
8 Alisa Liu.
9 If you'd like to testify today and
10 you haven't told me already, please let me
11 know. Today's proceeding is governed by the
12 Board's procedural rules. All information
13 that is relevant and not repetitious or
14 privileged will be admitted into the record.
15 We will start today with the testimony of the
16 proponent, which is the Agency, three Agency
17 witnesses that have prefiled testimony in
18 this matter -- Mr. Gary King, Mr. Richard
19 Cobb, and Mr. Kurt Neibergall on behalf of
20 the Illinois Environmental Protection
21 Agency -- followed by any questions for those
22 witnesses.
23 Then we'll proceed with testimony
24 from two other participants that have
L.A. REPORTING (312) 419-9292
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1 prefiled, Ms. Bernadette Dinschel,
2 individually, and Deirdre K. Hirner, on
3 behalf of the Illinois Environmental
4 Regulatory Group, followed by questions for
5 those witnesses.
6 Please note that any questions
7 posed by Board members or by staff are
8 designed to help to develop a complete record
9 for the Board's decision and don't reflect
10 any bias. And after that, anyone else can
11 testify regarding the proposal. Like all
12 witnesses who wish to testify, you will be
13 sworn in and may be asked questions about
14 your testimony. We'll conclude today's
15 hearing with some procedural items.
16 Member Melas, before we begin,
17 would you like to add anything?
18 MR. MELAS: I'd like to just welcome
19 everyone to this hearing. I'm pleased to see
20 so many people here in attendance. I look
21 forward to hearing your testimony. Thank
22 you.
23 MS. ANTONIOLLI: And for the court
24 reporter today, who's transcribing the
L.A. REPORTING (312) 419-9292
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1 proceeding, please speak up and don't talk
2 over one another so that we produce a clear
3 transcript.
4 Are there any questions about the
5 procedures that we follow today or the order
6 of the hearing?
7 And seeing none, I'd ask that the
8 court reporter swear in the witnesses.
9 (Witnesses sworn.)
10 MS. ANTONIOLLI: And we'll turn it
11 over to the proponent for opening statements.
12 MR. WIGHT: Thank you. My name is
13 Mark Wight. I'm an assistant counsel with
14 the Illinois Environmental Protection Agency,
15 Bureau of Land. Also assigned to this
16 project are Kim Geving, who is sitting over
17 here at the second table to my right. Kim is
18 assistant counsel with the Bureau of Land.
19 Next to Kim is Stefanie Diers, who's
20 assistant counsel with the Bureau of Water.
21 And next to Stefanie is Deb Williams, who is
22 also assistant counsel with the Bureau of
23 Water.
24 Also here on behalf of the Agency
L.A. REPORTING (312) 419-9292
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1 are six witnesses. As the hearing officer
2 has mentioned, three have filed prefiled
3 testimony. They are Rick Cobb, on my
4 immediate left; Rick is deputy manager of the
5 Division of Public Water Supplies in the
6 Bureau of Water. Gary King, two places to my
7 right; Gary is manager of the Division of
8 Remediation Management in the Bureau of Land.
9 And Kurt Neibergall, two places to my left;
10 Kurt is manager of the Office of Community
11 Relations.
12 Additional witnesses on the
13 witness panel will be Joyce Munie. Joyce is
14 on my far right. Joyce is manager of the
15 Site Remediation Program in the Bureau of
16 Land and recent manager of the Permit Section
17 in the Bureau of Land. Scott Phillips, on my
18 immediate right; Scott is manager of the
19 Regulatory Development Section in the
20 Division of Legal Counsel. And Carol Fuller,
21 on my far left; Carol is a community
22 relations coordinator with the Office of
23 Community Relations.
24 We had also planned on Doug Clay,
L.A. REPORTING (312) 419-9292
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1 manager of the Leaking Underground Storage
2 Tank Section in the Bureau of Land as one of
3 our witnesses; but due to a death this
4 weekend, Doug had to remain in Springfield
5 for a funeral. Gary King is well acquainted
6 with the LUST program. And if we have any
7 program-specific questions, he should be able
8 to handle most of those. Also, I'm sure,
9 Mr. Clay will be available for the May
10 hearing if necessary.
11 Before continuing, I just wanted
12 to point out that we do have extra copies of
13 the documents that we filed in this
14 proceeding. They're on the table behind us.
15 There should be more than enough copies for
16 the folks here; but if you did need to sign
17 up for extra copies, you can sign your name
18 and e-mail address or mailing address and
19 we'll send additional copies out to you when
20 we return to Springfield. Or you can simply
21 go to the Board's website and download the
22 documents.
23 The Agency's proposed Part 1505
24 originates in the statutory requirements of
L.A. REPORTING (312) 419-9292
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1 Title VI-D of the Environmental Protection
2 Act as enacted by Public Act 94-314,
3 effective July 25th, 2005. Title VI-D of the
4 Act is entitled "Right to Know." It is an
5 expression of the legislature's intent that
6 the public be better informed by the
7 government and by responsible parties when it
8 is determined that soil or groundwater
9 contamination has impacted or threatens to
10 impact off-site property uses.
11 There are several components to
12 Title VI-D. The centerpiece is a requirement
13 that the Agency provide notification to
14 certain affected parties when these
15 contamination issues have been discovered.
16 Title VI-D also authorizes the Agency to
17 allow a responsible party who has implemented
18 community relations activities to provide
19 notice in lieu of the Agency.
20 In conjunction with these
21 notification requirements, Title VI-D
22 requires the Agency to propose rules for
23 potable water well surveys and for community
24 relations activities within 180 days of the
L.A. REPORTING (312) 419-9292
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1 effective date of the legislation. The
2 potable water well survey requirements will
3 help to ensure accurate and complete
4 identification of potable water wells that
5 may be threatened or impacted by groundwater
6 contamination. The community relations
7 requirements will help to ensure complete,
8 accurate, and timely notice to affected
9 parties of threats or impacts from
10 contamination and, if the scope of the
11 contamination warrants, a broader dialogue
12 with the interested and affected public to
13 respond to community concerns about
14 contamination related matters.
15 The well survey and community
16 relations requirements cut arose several of
17 the Illinois EPA's organizational structures.
18 The Agency's Bureaus of Land and Water, it's
19 Office of Community Relations, and the
20 Division of Legal Counsel all are implicated
21 in the administration of these requirements.
22 As a result, the panel of witnesses before
23 you today is somewhat larger than the normal
24 panel of witnesses that we bring in support
L.A. REPORTING (312) 419-9292
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1 of an Agency proposal, but each member of the
2 panel will be directly involved in some
3 capacity in administrating and implementing
4 Part 1505.
5 Before we begin our presentation,
6 I also would like to thank the many people
7 who have participated in our outreach
8 efforts. There are too many to name
9 individually, but we do appreciate their
10 assistance. Because of the statutory time
11 limits, we were unable to spend as much time
12 on the outreach as we might have liked.
13 However, we do feel we have reached a fairly
14 broad cross-section of industry and public
15 interest groups, and there's no question that
16 the proposal has been shaped by their
17 questions and comments. So thank you again
18 to those who have participated in our
19 outreach.
20 Gary, Scott, Kurt, or Rick, do any
21 of you have some opening comments?
22 Well, we've already sworn the
23 witnesses; so if the Board is ready to
24 proceed, we can begin by identifying the
L.A. REPORTING (312) 419-9292
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1 prefiled testimony and getting that admitted.
2 MS. ANTONIOLLI: Sure.
3 MR. WIGHT: Do any have Board members
4 or staff need copies of the prefiled
5 testimony?
6 WHEREUPON:
7 RICHARD P. COBB,
8 called as a witness herein, having been first duly
9 sworn, was examined and testified as follows:
10 EXAMINATION
11 BY MR. WIGHT:
12 Q. Mr. Cobb, I'm handing you a document,
13 and I'd like you to take a look at that document.
14 Do you recognize the document?
15 A. Yes, I do.
16 Q. Would you please tell us what it is?
17 A. This is my testimony that I prefiled
18 with the Board regarding the applicability section
19 of the proposed Part 1505, Section 1505.100.
20 Q. Is this a true and correct copy of the
21 document that you filed with the Board?
22 A. Yes, it is.
23 MR. WIGHT: Okay. I move that this
24 copy of the testimony be admitted as an
L.A. REPORTING (312) 419-9292
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1 exhibit and admitted to the record as if
2 read.
3 MS. ANTONIOLLI: Okay. And is there
4 any objection to entering the testimony of
5 Richard Cobb on the background of proposal
6 and proposed Subpart A as Exhibit -- we'll
7 make it 1?
8 And seeing no objection, I will
9 mark this as Exhibit 1 and enter it into the
10 record.
11 MR. WIGHT: Okay. Thank you.
12 WHEREUPON:
13 GARY KING,
14 called as a witness herein, having been first duly
15 sworn, was examined and testified as follows:
16 EXAMINATION
17 BY MR. WIGHT:
18 Q. Mr. King, I'm handing you a document.
19 Would you please look it over? Do you recognize the
20 document?
21 A. Yes, I do.
22 Q. Would you please tell us what it is?
23 A. This is a written copy of the
24 testimony that I have prefiled in this procedure.
L.A. REPORTING (312) 419-9292
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1 Q. And this is a true and correct copy of
2 that document as prefiled?
3 A. Yes, it is.
4 MR. WIGHT: I'd like to move that
5 Mr. King's testimony be admitted to the
6 record as if read.
7 MS. ANTONIOLLI: Is there any
8 objection to entering the testimony of Gary
9 King on proposed Subpart B into the record as
10 Exhibit 2?
11 Seeing none, I'll mark it as Exhibit 2
12 and enter it.
13 WHEREUPON:
14 KURT NEIBERGALL,
15 called as a witness herein, having been first duly
16 sworn, was examined and testified as follows:
17 EXAMINATION
18 BY MR. WIGHT:
19 Q. Mr. Neibergall, would you please take
20 a look at that document? Do you recognize the
21 document?
22 A. Yes, I do.
23 Q. Would you please tell us what it is?
24 A. This is my prepared prefiled testimony
L.A. REPORTING (312) 419-9292
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1 on Subpart C, the standards and requirements for
2 community relations activities of the proposed
3 rules.
4 Q. And is that a true and correct copy of
5 the document that was filed with the Board on
6 March 14th?
7 A. Yes, it is.
8 Q. Okay. Thank you.
9 MR. WIGHT: I move that
10 Mr. Neibergall's testimony be admitted as an
11 exhibit and entered into the record as if
12 read.
13 MS. ANTONIOLLI: Okay. And is there
14 any objection to entering Mr. Kurt
15 Neibergall's testimony on proposed Subpart C
16 into the record as Exhibit 3?
17 And seeing none, I will mark it as
18 Exhibit 3 and enter it into the record.
19 MR. WIGHT: We'd like to proceed then
20 with a brief synopsis of the prefiled
21 testimony, and Mr. Cobb will begin with his
22 synopsis of the testimony on Subpart A.
23 MR. COBB: Thank you. In recent
24 years, the Illinois Environmental Protection
L.A. REPORTING (312) 419-9292
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1 Agency has become aware of contamination in
2 the environment in certain areas of the state
3 that threaten the safety of drinking water
4 supplies from groundwater contamination
5 sources, and experience from working on
6 multiple sites were commonly used.
7 Commercial and industrial solvents migrated
8 into the groundwater from soil contamination
9 highlighted the need for early notification
10 to potable well users, in particular,
11 private, semi-private wells, since those
12 wells are not routinely sampled by any type
13 of a government program. The purpose of the
14 notice is so that individuals can test their
15 water and basically make important decisions
16 that may impact their family's health.
17 As Mike Wight indicated, Public
18 Act 94-314 was signed into law in July of
19 2005, and that Act amended the Environmental
20 Protection to mandate that the Illinois EPA
21 give timely notification to Illinois citizens
22 about contamination in soil or groundwater
23 that may be a threat to potable water
24 supplies. This is specifically in reference
L.A. REPORTING (312) 419-9292
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1 to contamination that originates from
2 permitted facilities or other sites as
3 measured and/or modeled to pose an off-site
4 threat of exposure to the public. In certain
5 circumstances, responsible parties or
6 remedial applicants may be allowed to issue
7 the notice as part of an Agency-approved
8 community relations tactic.
9 With input from the citizens and
10 business, Illinois EPA has developed the
11 proposed regulations that are now before the
12 Pollution Control Board. The purpose and
13 scope of the proposed regulation at Section
14 1505.100 described the requirements for
15 identifying drinking water wells in an area
16 of concern and for performing community
17 relations activities to notify and establish
18 communication with the public who may be
19 affected by contamination. And, if you will,
20 then, where community relations plans are
21 proposed in lieu of Agency notice, then
22 people are voluntarily wanting to use that
23 route, the regulations also become the
24 standard by which those community relations
L.A. REPORTING (312) 419-9292
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1 plans are judged.
2 And that concludes my synopsis.
3 MS. ANTONIOLLI: Okay. Thank you.
4 MR. WIGHT: I believe Mr. King also
5 has a summary of his testimony on Subpart B.
6 MR. KING: Good morning. My name is
7 Gary King. I'm the manager of the Division
8 of Remediation Management within the Bureau
9 of Land. My testimony here today is focusing
10 on the implementation of Subpart B, which is
11 the subpart that deals with the potable water
12 supply well surveys. And I'm talking with
13 regards to Subpart B in the context of the
14 Site Remediation Program, the LUST program,
15 and RCRA Closure Program.
16 Just to provide -- I'm just going
17 to summarize kind of a little bit of history
18 of how the Bureau of Land got involved with
19 the requirements as to well surveys. Back in
20 2001, there was -- we discovered areas of
21 groundwater contamination in DuPage County,
22 and that contamination had impacted or had
23 threatened to impact, as we found out,
24 hundreds of private wells in that area. And
L.A. REPORTING (312) 419-9292
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1 as a result of that, we began to revise our
2 internal administrative procedures so that we
3 could set up requirements for surveying water
4 supply wells to identify the location of
5 potable water wells in relationship to
6 cleanup sites.
7 We implemented -- We came up with
8 a procedure implementing more generic Board
9 rules, and we completed that in February of
10 2003. And we've been using those procedures
11 since 2003 for sites within the SRP, LUST,
12 and RCRA Closure programs so that they knew
13 what their responsibilities would be. The
14 Board just recently completed Docket A of the
15 LUST program, and part of the rules there
16 dealt with water well survey requirements.
17 And the rules that were developed for that
18 program and then put in place were based on
19 the template that we created in this internal
20 procedure in February of 2003.
21 And as the Board's well aware,
22 there was a lot of vigorous debate within the
23 context of the LUST rules, but those well
24 survey procedures were accepted without any
L.A. REPORTING (312) 419-9292
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1 comment or dispute. The Subpart B that we're
2 proposing in this proceeding follows that
3 same template of the 2003 BOL procedures. As
4 a result of the fact that we've been
5 implementing this for the last three years, I
6 really do not expect that Subpart B is going
7 to cause any significant burden for persons
8 participating in these programs that's
9 unacceptable. It obviously causes a burden
10 for people to have to do those -- all those
11 well survey procedures, but it certainly is
12 an accepted thing for the entities in our
13 program.
14 I'll just spend a few minutes
15 talking about what's in Subpart B, the rule
16 provisions. There's three sections there.
17 The first one 1505.200 sets forth the purpose
18 and scope of the subpart. Section 1505.205
19 contains the applicability provisions.
20 Subsection (a) there provides
21 that -- And I think this is an important
22 point here. Subsection (a) provides that
23 initial applicability is based on whether or
24 not a person is performing a response action
L.A. REPORTING (312) 419-9292
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1 pursuant to Board rules that govern how
2 releases of contaminants are to be addressed.
3 One of the key thoughts here is that it is
4 pursuant to Board rules. It doesn't mean
5 that these rules are going to apply in
6 situations where a person is not in a program
7 that's requiring them to -- requiring the
8 need for well surveys. So, for instance, if
9 a company was just doing its own real estate
10 transaction and is not part of an Agency
11 program, this does not automatically kick
12 them into a requirement to do those
13 procedures.
14 Note that in Errata Sheet 1 we put
15 in a definition of a person performing a
16 response action. The principle outlined
17 there is not one of liability; it's one of a
18 person who's within a program, whether they
19 would be a liable party or not, that would be
20 responsible for doing the well survey
21 procedures. Within the Site Remediation
22 Program, we have people enter the program who
23 are not owners and operators and yet they --
24 and may not be liable parties from a
L.A. REPORTING (312) 419-9292
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1 liability standpoint, but they, as well,
2 would have to follow these procedures.
3 We also made it clear, though,
4 that persons who are working for a person who
5 is the responsible person -- For instance, a
6 contractor. If a contractor is working for a
7 person who's entered the program, the
8 contractor is not required to meet these
9 rules. I wanted to clear clarify that.
10 One of the things in
11 1505.205(a)(2) that has an issue of
12 particular importance is a provision that
13 deals with the superseding of less stringent
14 provisions. As I mentioned before, the Board
15 has just gone through the process of adopting
16 rules within the LUST program that deal with
17 the well survey requirements. Those
18 requirements would apply to sites in the LUST
19 program as opposed to Subpart B. They're
20 almost -- They're virtually identical.
21 There's just some minor phrasing that's
22 different. So these rules will not apply,
23 but the LUST program rules will.
24 Now, for the SRP program, we have
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1 a little bit different situation there
2 because the rules are more generic in nature
3 within Part 740. And they also have --
4 They're, to some extent, more stringent than
5 the rules here; and to another extent,
6 they're less stringent. And so in that sense
7 we will be mixing and melding those so that
8 any -- a person will have to meet the
9 requirements of both these procedures and the
10 SRP rules.
11 1505.210 kind of lays out the
12 specific procedures as far as what has to
13 happen as far as the well surveys. There are
14 four categories of wells, potable water
15 supply wells, in Illinois: private,
16 semi-private, non-community, and community
17 water system wells. The first three
18 categories, the survey distance is 200 feet.
19 For the fourth category, it's 2,500 feet.
20 That's in the Subpart B. So the same with
21 the SRP program, there's been -- in Part 740
22 there's been a uniform 1,000-foot requirement
23 for all four categories. The way we intend
24 to interpret this is that for the first three
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1 categories for sites in the SRP program,
2 they'll be subject to the 1,000-foot
3 requirement. For the fourth category,
4 community water systems, they'll be subject
5 to a 2,500-foot requirement.
6 We made a number of changes in
7 Errata Sheet 1 with regards to our original
8 proposal in Subpart B. Those changes were
9 not intended to change the overall direction
10 of where we were headed. However, we did --
11 after we filed the proposal, we continued to
12 have outreach meetings. And we met with
13 members of the Site Remediation Advisory
14 Committee on an informal basis, and they
15 really expressed some concerns that what we
16 had put together in Subpart B was not
17 consistent with the TACO rule. So we went
18 back and took another look at what we had and
19 really were able to resolve those
20 inconsistencies so that Subpart B is
21 consistent with the provisions of TACO.
22 I think the rest of the items I
23 have there are pretty self-explanatory, so I
24 think I'll conclude my testimony with that.
L.A. REPORTING (312) 419-9292
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1 Thank you.
2 MR. WIGHT: Thank you, Gary. And I
3 think Kurt Neibergall has a similar synopsis
4 of his testimony on Subpart C.
5 MR. NEIBERGALL: Thank you, Mark.
6 Again, my name is Kurt Neibergall. I'm the
7 manager of the office of Community Relations
8 for the Illinois Environmental Protection
9 Agency. I'd like to offer this general, sort
10 of, summary of Subpart C proposed rules.
11 The Agency strongly believes the
12 public has a right to know about an
13 environmental contamination that affects or
14 may affect citizens lives or their
15 livelihood. Title VI-D, Right-to-Know
16 provisions of the Environmental Protection
17 Act, places responsibility to give notices to
18 the public of off-site contamination threats
19 on the Agency. Section 25d-3 of the Act
20 allows the Agency to offer the responsible
21 party the opportunity to assume the Agency's
22 notice obligations under the appropriate
23 circumstances, as several of our witnesses
24 pointed out. If the responsible party
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1 accepts the Agency's offer in good faith to
2 undertake notice work, then compliance with
3 the standards and requirements of Subpart C,
4 community relations activities provisions, of
5 these proposed rules is mandatory.
6 Critical communications with
7 individuals, groups, and communities about
8 off-site contamination impacts or potential
9 impacts must be done in a complete, accurate,
10 and timely manner. The level of involvement
11 of Agency staff in the development and
12 issuance of a notification package in
13 community relations activities outlined in
14 Subpart C is intended to ensure the public
15 receives at least the same amount of
16 quality -- same amount and quality of
17 information that would be contained in an
18 Agency-issued notification package with
19 necessary follow up.
20 The Agency is sensitive to
21 resource commitments in the notification
22 process and therefore is proposing two levels
23 of community relations activities reflecting
24 our view that not every off-site impact or
L.A. REPORTING (312) 419-9292
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1 potential impact justifies a full community
2 relations plan effort. A two-tiered approach
3 to community relations activities is proposed
4 based on a number of affected or potentially
5 affected properties. This reflects a general
6 notion that if the site has limited impacts
7 or potential impacts off of that site, fewer
8 people in the surrounding community at large
9 may be concerned or interested in information
10 about the site.
11 For sites with fewer or more
12 limited off-site impacts or potential
13 impacts, a fact sheet and a contact list is
14 proposed with fact sheet updates as
15 necessary. For sites with broader off-site
16 impacts or potential impacts on the
17 surrounding community, a community relations
18 plan, a fact sheet with a contact list, and a
19 document repository is proposed.
20 The community relations plan, in
21 essence, is a planning document that lays out
22 a public outreach program to establish and
23 maintain a two-way dialogue with the
24 community. The fact sheet required at the
L.A. REPORTING (312) 419-9292
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1 sites with broader impacts include responses
2 to key community concerns as expressed by
3 identified affected, potentially affected, or
4 interested parties. Finally, for sites with
5 broader off-site impacts, a document
6 repository must be established and maintained
7 at a World Wide Web Internet site as well as
8 at a physical location in a public place if
9 there is such a demand.
10 And that concludes my general
11 summary of Subpart C. Thank you.
12 MR. WIGHT: I think that takes care of
13 the formal part of our presentation, so we're
14 ready to begin taking questions as soon as
15 you'd like.
16 MS. ANTONIOLLI: And even before we do
17 questions, we have received our errata sheet,
18 I guess, a little closer to the hearing date,
19 and Mr. King explained that the errata sheet,
20 at least applicable to Subpart B, took into
21 consideration the TACO rules. Is that the
22 same with the other parts? Or would you like
23 to give a little, maybe, explanation just
24 about the errata sheet alone?
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1 MR. WIGHT: I think the prefiled
2 testimony reflects the changes in the errata
3 sheet, and I don't think we've prepared
4 anything more formal than that. But if you
5 would like something additional, we'll try to
6 expand on what we've presented to this point.
7 MS. ANTONIOLLI: No, that's good. We
8 can start with questions from here.
9 Is there anyone that has questions
10 for the Agency that would like to start? And
11 we can always start here with the Board's
12 questions; and then if anyone would like to
13 add or ask questions as we proceed, just let
14 us know. Do any of the Board members have
15 any questions to start?
16 MR. JOHNSON: I had a question about
17 your definition of responsible party, and I
18 guess that's Subpart C. And in quotes here
19 it says Agency may authorize the responsible
20 party to provide notice as part of your
21 approved community relations activity
22 developed and implemented in accordance with
23 Subpart C. Is there a more specific
24 definition of who the responsible party is,
L.A. REPORTING (312) 419-9292
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1 or do you think that's unnecessary?
2 MR. PHILLIPS: Scott Phillips. I
3 think that it's -- we really don't need a
4 more specific definition. I think what was
5 intended with our language there was, by
6 using the term responsible party, we were
7 not, as Mr. King pointed out in his
8 testimony, just limiting that to the
9 legally -- what one thinks of as the legally
10 liable party, but that we were thinking that
11 the opportunity should be afforded to SRP
12 applicants who may or may not fall into the
13 legally responsible category, that they're
14 not responsible for the release that is
15 causing the notice to be issued.
16 I think we've got that flexibility
17 in the way the law is drafted. You can note
18 a difference between Subsection (c) and
19 Subsection (d) of 25d-3, where 25d-3(d)
20 refers to responsible parties with respect to
21 the release or the substantial threat of
22 release, they are responsible for all the
23 cost recovery if the Agency issues the
24 notice. That responsible party, in that
L.A. REPORTING (312) 419-9292
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1 context, means the party responsible for the
2 release from whom we can obtain cost
3 recovery. Whereas, in subsection (d), it
4 just refers to responsible parties. So I
5 think that's a broader category which could
6 include the situations for the SRP applicants
7 who are not necessarily legally liable but
8 they are responsible for issuing the notice.
9 MR. JOHNSON: It's my understanding
10 from reading this that you have to make the
11 offer to that individual to allow them -- So
12 there's not going to be three people fighting
13 over who gets to do the notice or has to do
14 the notice, you guys make that determination?
15 MR. PHILLIPS: That is correct. The
16 whole thrust of Public Act 94-314 was to put
17 the primary responsibility for issuing these
18 notices upon the Illinois EPA. Only under a
19 very specific set of specifics -- and that's
20 reflected in subsection (c) -- would the
21 Agency have the discretion to allow another
22 party to issue that notice in lieu of the
23 Agency. And then that party has -- It's a
24 voluntary action on their part. They don't
L.A. REPORTING (312) 419-9292
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1 have to do it. We make the offer; they can
2 choose whether or not to accept that offer.
3 If they don't, then the Agency does it and
4 would seek cost recovery from the liable
5 party.
6 MR. JOHNSON: Thank you.
7 MR. MELAS: May I follow up with one
8 other question on that same line?
9 MR. PHILLIPS: Yes, sir.
10 MR. MELAS: You have made the offer
11 and the responsible party, whomever -- the
12 property owner, operator, whomever he may
13 be -- what follow-up does the Agency do to
14 make sure that the person, in actuality, does
15 provide the required notices to all of the
16 interested parties? Is there some procedure
17 that you contemplate utilizing? Because the
18 guy could accept the offer in very good faith
19 and for some reason or other fail to follow
20 through.
21 MR. PHILLIPS: Well, we would be
22 monitoring that situation. Kurt can give a
23 more detailed response here, but we would be
24 evaluating the completeness of the notice.
L.A. REPORTING (312) 419-9292
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1 Our community relations staff would be
2 monitoring the activities to ensure that
3 those activities would, in fact, occur.
4 And another feature of what we
5 have in the proposal is that once we do
6 approve the community relations plan by the
7 party, then that party is obligated to
8 perform that plan and is subject to
9 enforcement if they do not.
10 MR. NEIBERGALL: May I add to that,
11 Scott?
12 MR. PHILLIPS: Yes.
13 MR. NEIBERGALL: Just to give you a
14 little background on the office of community
15 relations, we have about ten community
16 relations coordinator positions sort of akin
17 to project managers. And basically the way
18 this would work is our internal group that
19 made the notification decision recommendation
20 to the director and this offer was made to a
21 responsible party, a community relations
22 coordinator would be assigned to that
23 particular site. And so acting sort of in a
24 project manager role, they would continue to
L.A. REPORTING (312) 419-9292
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1 track progress on that and, in fact, report
2 back to our internal contaminant evaluation
3 group to make sure that all the time lines
4 and notice work that's required is done and
5 the follow-ups. So there would be somebody
6 assigned to that particular action and would
7 follow through.
8 MR. RAO: I have a follow-up to
9 Mr. Melas's question. In section 1505.335,
10 you have some provisions that deal with
11 compliance monitoring. And in Subsection
12 (b)(2) it says that the Agency may monitor
13 the implementation of the approved CRPs and
14 the distribution of approved fact sheets,
15 et cetera. So how often do you monitor these
16 kind of situations? Do you assign a
17 coordinator in every case that deals with
18 community outreach, or is it done on some
19 intermittent basis?
20 MR. NEIBERGALL: Yes, we do. At any
21 site or facility that has -- you know, in
22 this case, off-site contamination threats
23 where the community would have an interest
24 and with potential impacts, we would assign a
L.A. REPORTING (312) 419-9292
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1 community relations coordinator. We have,
2 again, ten coordinators who have quite a bit
3 of experience with the Agency and may have
4 been tracking a particular site or facility
5 in the case at an operational facility for
6 many, many years in the Agency. So someone
7 is always assigned. If someone leaves our
8 unit, someone picks up the assignment to
9 continue any necessary oversight or outreach
10 work. A lot of this work, notification work,
11 you know, maintaining communications with the
12 community, is done by our coordinators
13 independent of an action by a responsible
14 party. We try to keep -- touch base. We
15 regularly review community relations plans,
16 make sure they're updated, contact lists are
17 updated, that kind of thing. We make sure
18 the repositories are up to date and people
19 have the information or know how to get it.
20 MR. RAO: Thank you.
21 MS. ANTONIOLLI: And going back to the
22 responsible party term, we have the
23 understanding that there's the responsible
24 party and then there's also the responsible
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1 parties that have been authorized by the
2 Agency to provide notice, which is a subset
3 of that group. But then, as I was reading
4 throughout Subpart C, I see that that subset
5 party, the one who's authorized to give
6 notice, has been referred to with different
7 terms: like, the "submitter" in parts; or
8 it's also been "persons subject to Subpart C"
9 in places; in other places, "persons
10 accepting the Agency's offer to provide
11 notice pursuant to Subsections (a) and (c)";
12 and in some cases, "the person."
13 So as I understand it, once they
14 agree to provide notice, that triggers this
15 whole -- they have to follow through from
16 start to finish. So would you consider
17 having a global term for this person that you
18 use throughout Subpart C that sort of
19 clarifies who this person is in all the
20 different sections?
21 MR. PHILLIPS: Certainly. Certainly
22 we can look at that issue. That is our
23 intent, to make this as clear as possible.
24 We'd be able to work something out there.
L.A. REPORTING (312) 419-9292
40
1 MS. ANTONIOLLI: And I think that
2 would just make it clear that once you start,
3 you have to follow through.
4 MR. PHILLIPS: Right. And that's
5 certainly a theme that we want very clear in
6 these rules as well.
7 MR. JOHNSON: And the term
8 "responsible party," to me implies liability.
9 I don't know what else you're going to use.
10 I'm just telling you the lawyer in me reads
11 that and wants to file suit.
12 MR. PHILLIPS: One thing that we did,
13 under 25d-7(b) -- These rules are being
14 proposed under Subsection (a) of 25d-7.
15 Under Subsection (b), the Agency has
16 currently under development -- and we should
17 be proposing those problems sometime early in
18 April for first notice -- rules pertaining to
19 cost recovery for the Agency's cost when the
20 Agency issues notice. That's the second
21 rulemaking that's required in this
22 Right-To-Know Law. And in that particular
23 rulemaking, one of the comments that we did
24 receive from industry was along the same line
L.A. REPORTING (312) 419-9292
41
1 about they wanted to be able to use that same
2 methodology in the SRP program, where you may
3 not have a legally responsible party under
4 that terminology.
5 So what we're planning to do in
6 that particular rulemaking is to make those
7 rules applicable to responsible parties, as
8 reflected in the rule, and to parties in the
9 SRP program, kind of distinguish them but
10 make it very clear that those rules will also
11 apply to them should they, again, voluntarily
12 accept the responsibility to issue the
13 notice. Those rules will define how those
14 costs will be assessed.
15 I mean, we can look at something
16 here to clarify that particular point along
17 those same lines.
18 MR. GIRARD: I have a question going
19 back to the community relations plan and the
20 contact list, so maybe Mr. Neibergall can
21 answer this. It seems to me fairly
22 straightforward on how you would figure out
23 who the owners are of affected property in
24 terms of developing or updating the contact
L.A. REPORTING (312) 419-9292
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1 list. But how do you go about finding out
2 who the occupants are as opposed to the
3 owners? What kind of burden does that place
4 on the responsible party?
5 MR. NEIBERGALL: Yeah, that's an issue
6 that we've dealt with significantly in
7 outreach, and others are offering testimony
8 on it; and it's key to this notification. I
9 think we feel strongly that, of course, the
10 whole focus of this Right-To-Know Law is to
11 make sure that people that are being impacted
12 or potentially impacted, in this case an
13 occupant of a residence that maybe has a
14 private well that has contamination or
15 potential contamination, be properly notified
16 and given accurate information. And, of
17 course, sometimes that could be a renter as
18 opposed to a property owner. We deal with
19 this quite a bit already with outreach work
20 we're engaged in ourselves. It is difficult
21 sometimes.
22 We, first off, know the address of
23 the residence as we sort of put together a
24 plan and identify affected neighborhoods.
L.A. REPORTING (312) 419-9292
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1 Many times there are different Internet-type
2 research tools and directories that you can
3 go to to find current names for residents.
4 Often it takes actually getting out and
5 talking to neighbors or going door to door to
6 get that information. So we would start
7 with, and we would expect the responsible
8 party to start with, resources that are
9 available research-wise and then, you know,
10 do follow-up that would be reasonable to
11 identify the occupant.
12 One of the things we heard from
13 our citizens that have been involved in the
14 development with our Right-To-Know
15 subcommittee and actually living through some
16 contamination issues of their own is that
17 it's very important to try and identify the
18 occupant by name or by family and address
19 correspondence to them as such. So that
20 would be our -- We would make a good faith
21 attempt to do that. And if all else fails --
22 as stated in testimony, we've had situations
23 where we can't identify a particular
24 occupant -- again, we know the address, and
L.A. REPORTING (312) 419-9292
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1 we would mail it to a resident at that
2 particular location.
3 MR. GIRARD: Can you mail things like
4 that certified, or you'd just mail it?
5 MR. NEIBERGALL: You would mail
6 them -- I think one of our original drafts of
7 the rulemaking proposed a certified return
8 receipt type of situation. But we discussed
9 that throughout the outreach process and felt
10 that that was overly burdensome, and we don't
11 often go to that length in Agency
12 correspondence.
13 The other thing that we're trying
14 to do with notification is work with the
15 local governments. And in this case, a lot
16 of times between the State Department of
17 Public Health, we would be working with the
18 local county health department. They are
19 there in the community or nearby in the
20 county, and so we would look to them to
21 provide guidance on how best to get out that
22 information. But again, the real key here is
23 to put that information in the hands of
24 people that are potentially affected so they
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1 can make informed choices.
2 MR. GIRARD: Thank you.
3 MS. ANTONIOLLI: And you'd say, with
4 interested parties, that the Agency usually
5 puts that same effort into finding out who
6 the interested, maybe, groups are or citizens
7 who are not in the area?
8 MR. NEIBERGALL: That's correct. As
9 far as the contact list, in the situation
10 where we are looking at a broader
11 environmental impact and we wanted to --
12 asking the responsible parties or ourselves
13 to reach out to those that are interested, a
14 lot of times it requires, you know, hitting
15 the bricks and going to the community,
16 talking to the local leaders, either the
17 actual elected officials or maybe there are
18 recognized community leaders, church leaders,
19 other folks that know the community, know the
20 neighborhoods, and finding out are there
21 groups, active groups, in the area. We
22 have -- We work with a lot of different
23 environmental groups and civic groups or
24 neighborhood groups; so if we have one
L.A. REPORTING (312) 419-9292
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1 facility in that community, we may even have
2 knowledge of other groups that are already
3 active or were active on other sites or other
4 issues. And so we would -- Of course the
5 Office of Community Relations would provide
6 that information to a responsible party,
7 saying here's a good starting point. But a
8 lot of times it's important to just survey or
9 really interview folks in the area to have an
10 understanding of the kinds of groups that
11 might be interested.
12 Carol Fuller works on these kinds
13 of site-related notices. Do you want to add
14 anything at all?
15 MS. FULLER: Yes, I would like to add
16 just a little bit -- Carol Fuller, Office of
17 Community Relations -- on the issue of owners
18 versus occupants. Some of the tools that are
19 out there -- for instance, if a person who is
20 operating under Board rules to do a response
21 action decides to use one of these mailing
22 lists provider services, that is generally
23 going to have the names of the occupants who
24 live at a certain address, not the owner. It
L.A. REPORTING (312) 419-9292
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1 may or may not be recently updated. You'll
2 find that out. That's generally going to
3 give you who lives there. And then if you
4 need the owner of record because the law
5 requires we notify the owner of record, that
6 can be found out, I guess everybody knows,
7 through the county tax assessor's records.
8 So there's more than one way to go
9 about this. Sometimes it's a narrative
10 process. But as Kurt mentioned, there are
11 Internet search tools available to find out
12 who's living at an address. We've certainly
13 used those over the years. And then as far
14 as the additional interested parties, many
15 times when we do reconnaissance around a
16 given site and just talk to perhaps the mayor
17 or the county health official, they'll let us
18 know what concerns have come up about the
19 site, and we may find out through talking to
20 local officials that there's a -- say, a
21 nursing home nearby that may not be
22 physically impacted, but they would be
23 concerned. If they see people doing work,
24 they would want to know how to explain this
L.A. REPORTING (312) 419-9292
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1 to their residents in their facility because
2 they have a responsibility for them.
3 MR. JOHNSON: So you would anticipate
4 the responsibility designee doing all the
5 research needed to identify these folks?
6 MR. NEIBERGALL: Yes.
7 MR. JOHNSON: Ultimately you guys are
8 going to be responsible, right? I mean, when
9 it comes down to it, if they don't do it
10 right or nobody volunteers to take on this
11 task, you're going to be doing it?
12 MR. COBB: That's correct.
13 MR. NEIBERGALL: That's correct, yes.
14 MR. JOHNSON: How much time -- I guess
15 give me the rationale. I wasn't at any of
16 these stakeholder meetings or the outreach.
17 Give me the rationale that you came up with
18 to have this responsibility designee or
19 responsible party in charge of this under
20 your supervision.
21 MR. NEIBERGALL: Well, I guess I would
22 say the Act defines this opportunity.
23 MR. JOHNSON: Oh, okay.
24 MR. COBB: Yeah, that was statutory in
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1 nature.
2 MR. JOHNSON: That debate was on the
3 house floor.
4 MR. PHILLIPS: And when the
5 legislation was being put together, I
6 think -- One of the features of this bill,
7 94-314 that actually made it through versus
8 some of the other bills that were proposed
9 that did not was that this bill allowed us to
10 take a look at these sites on a site-by-site
11 basis and didn't mandate a particular
12 procedure for every site, you know, a
13 cookie-cutter approach, which we felt would
14 not provide the public with the best type of
15 notice. We felt that you really need to take
16 a look at these sites individually and try to
17 tailor the type of notice, the extent of
18 notice, to the site in question.
19 And also, that type of flexibility
20 was built into this, that some of these sites
21 may require the Agency to issue the notice
22 itself because the timing of it, that people
23 are drinking the water, for example, and
24 you've got to get that notice out right away;
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1 whereas, some of these other sites that
2 notice might be required, that might be a
3 threat, they're not drinking the water now,
4 they may -- you know, projected model or
5 whatever, in a couple months from now they
6 may be at risk, where there's some time to
7 afford a party the opportunity to do this if
8 they want to do it.
9 So there may be some time for some
10 of these sites that's available for us to go
11 through this process. So that was really the
12 thought process.
13 MR. COBB: I have something to add to
14 this. Scott, as we were working on
15 development of the legislation, we were, in
16 fact, working with a particular site, Kurt
17 and I were both involved in it; and in this
18 case, this was a precursor to the law, but we
19 had gone through the Downers Grove and Lisle
20 experiences. And we were indicating to the
21 party that Illinois EPA is going to be doing
22 this notice, and immediately they -- And
23 remember, one of the intents of the notice is
24 to fill the gap of no monitoring for private
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1 wells, for example. It's a notice -- For
2 example, let's say there's a threat. We
3 recommend -- in some cases, the minimum
4 bottom line is that we recommend you sample
5 your wells for these volatile organic
6 chemicals.
7 This particular example that we
8 worked with while we were working on the
9 legislation, we more or less indicated we
10 were going to do the notice, and they turned
11 around and sampled all of the wells the very
12 next day. So that, in fact, is the ultimate.
13 They actually went out at their own expense
14 to determine the threat to the wells by
15 sampling all of the wells and then held a
16 public availability session that we
17 participated in. So that, in fact -- As we
18 were developing this legislation, we had some
19 of those experiences; and this, in fact,
20 would -- you know, you could pull this out in
21 that situation and achieve the intent of
22 Right-To-Know. Instead of just recommending
23 sampling, in fact, the company may decide to
24 just go ahead and sample the wells. That's
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1 better even than notice.
2 MR. RAO: Just to follow up to
3 Mr. Johnson's question, when you say that
4 this Act and the rules gives the Agency
5 flexibility to, you know, decide when to
6 provide notice, are -- is it once you find
7 out there is off-site migration in a soil or
8 groundwater contamination, does that
9 automatically produce notice requirement?
10 MR. PHILLIPS: Well, the flexibility
11 isn't to when we provide notice. That's very
12 specific. That's 25d-3(a) and (b). Where
13 the flexibility lies is when we take a look
14 at the release itself and whether or not
15 there is time for us to actually go through
16 this process of offering the responsible
17 party the opportunity to issue the notice and
18 get their community relations plan activity
19 approved. In some sites there may be that
20 time available; some sites there may not be.
21 MR. RAO: Thank you.
22 MR. COBB: Just to add to that,
23 Dr. Rao, I think that it might be based on
24 the hydrogeology of the situation. You know,
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1 is the contamination just in the saturated
2 zone and at the water table? Has the plume
3 moved next to the property boundary? Has it
4 already moved off site? As Mr. Phillips
5 indicates, it's a site-specific evaluation
6 process. And there may be certain
7 circumstances where we have an opportunity to
8 work on that, and others we better move and
9 get the notice out as soon as possible.
10 MR. RAO: We have a few questions for
11 the Agency based on the proposal.
12 MS. LIU: Good morning. In the
13 Agency's statement of reasons, the Agency
14 explains that the difficulty with the
15 statutory requirement of all of this is that
16 it affects as many as 18 to 20 parts of the
17 rules, and so you propose this overarching
18 new part. And we were wondering if you could
19 identify for us what those 18 to 20 parts
20 would be.
21 MR. RAO: You don't have to do it
22 right now.
23 MS. ANTONIOLLI: And also, if you
24 think eventually down the road it would be
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1 worthwhile to add citations to this part and
2 to those parts, or if you considered that and
3 decided it wasn't worth it to do it that way.
4 MS. LIU: The possibility being that
5 in future rulemaking, as those parts are
6 opened up, this could be something to keep
7 note of as the opportunity arises.
8 MR. PHILLIPS: Going into the
9 individual parts was one of the models that
10 we were thinking about early on in this
11 process before we settled on this particular
12 approach. But we felt that that was a lot
13 more complicated than what it really needed
14 to be to accomplish what the purpose of this
15 statute is. We can try to identify some of
16 those areas where these rules may, in fact,
17 affect the other portions of the rules. To
18 some extent, I think we can identify those.
19 MR. RAO: Another follow-up to that:
20 Does the Agency foresee any problems or
21 concerns that this proposed part applies
22 across a number of different programs of the
23 Agency in terms of implementing the Board
24 rules under the various programs? Do you
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1 foresee any concerns or problems how the
2 rules are implemented?
3 MR. KING: The simple answer is no.
4 We'll figure out a way to make it work. For
5 the land programs identified, there's three
6 key areas where we need to be focused on.
7 We've developed internal procedures as to how
8 we bring sites forward to make notice
9 decisions and have notable trigger into
10 Subpart C. And we're in the process of
11 gearing up to make sure that this works
12 effectively.
13 MR. COBB: And I'll add to that, too.
14 In the Bureau of Water, similarly we've
15 developed a strategy for anything that we see
16 via inspection or that may be permitted under
17 a State operating or construction permit.
18 And, of course, Section 39 of the Act
19 requires compliance with Part 620 and 12(a)
20 of the Environmental Protection Act.
21 So we do have certain sites under
22 State construction and operating permits that
23 have groundwater monitoring. And, in fact,
24 we're evaluating those sites to determine
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1 which may pose a threat to off-site potable
2 wells. So there was kind of a stand,
3 similarly, to what Mr. King indicated for the
4 Bureau of Land for the Bureau of Water.
5 We've also gone through a process of training
6 our staff. One of the keys pieces of this is
7 using the Internet GIS system that's
8 available on the Agency's website that can
9 help identify where off-site wells are,
10 basically hydrogeologic information,
11 et cetera. So we've trained regional staff
12 and we've trained internal staff in the
13 Bureau.
14 And similarly, the director has
15 established a multimedia contaminant
16 evaluation group whereby the Bureau, after
17 screening sites, can make recommendations to
18 do notifications. So we're trying to
19 coordinate in that fashion.
20 I, like Mr. King, say no, or we're
21 working to make it so that we don't have any
22 issues.
23 MR. RAO: Looking at your errata
24 sheet, Section 1505,210(c), some of the
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1 changes made to this subsection, you replace
2 a reference to Class I groundwater quality
3 standards to groundwater quality standards at
4 Part 620, Class I, III, and Class II
5 groundwater standards. Could you please
6 explain the rationale for the change?
7 MR. KING: I was a little slow getting
8 to the page.
9 MR. RAO: It's 1505.210(c).
10 MS. ANTONIOLLI: It's on page 3 of the
11 errata sheet.
12 MR. KING: And the question ...
13 MR. RAO: The proposed rule referred
14 to, you know, the applicable Class I
15 groundwater quality standards in reference to
16 the TACO rules, and I think the errata sheet
17 changed that to general groundwater quality
18 standards. And I was wondering what was the
19 rationale.
20 MR. COBB: I think I know the answer
21 to that one. Dr. Rao, if you go to the --
22 Let's see. It's almost the middle of the
23 paragraph, you see the example, e.g., Class I
24 and Class III?
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1 MR. RAO: Mm-hmm.
2 MR. COBB: Because those are the, if
3 you recall, the Board's groundwater quality
4 standards. The nondegradation standards, if
5 you will, of Section 620.301 apply to Class I
6 and Class III. So then later on, after that
7 example was given, it was just -- you know,
8 for conservation of the words, merely just a
9 drafting, not having to spell it all out.
10 It's intended to be Class I and Class III.
11 But you're right, later on it just says 620,
12 but what we're talking about is Class I and
13 Class III. Remember, Class III is --
14 MR. RAO: Special resource.
15 MR. COBB: -- special resource
16 groundwater, if you will. If you go to the
17 nondegredation provisions of the Board's
18 groundwater quality standards, Section
19 623.01, for example, applies to Class I and
20 Class III. And until more site specifics --
21 If an area is designated as Class III
22 groundwater, and we have those areas in the
23 state with the dedicated nature preserves,
24 the standards that apply until different
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1 standards are developed are the Class I
2 standards, if you will. So 12(A), the
3 concept of threat, applies to Class I and
4 Class III.
5 MR. RAO: There's some other sections
6 in the rule that still refer to just Class I
7 standard. Should those be changed?
8 MR. WIGHT: We'll have to take a
9 second look at that. As the primary drafter,
10 sometimes I relied on context and didn't
11 always repeat the same language. But we'll
12 go back and take a look at it.
13 MR. RAO: Just for making sure the
14 rules are consistent.
15 MS. LIU: While you've got that page
16 open, I've got a question on 210(c)(1).
17 There's a reference to, quote, the extent of
18 modeled groundwater contamination shall be
19 determined using the procedures of 35
20 Illinois Administrative Code 742 or another
21 model or methodology, unquote.
22 Does the phrase "extent of modeled
23 groundwater contamination" refer to the
24 extent of contamination at the present time,
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1 or could model refer to sometime in the
2 future anticipating that it will migrate at a
3 certain rate?
4 MR. KING: The 742 model is an
5 infinite time model, so you really don't have
6 to take that into account. It assumes you've
7 got an infinite amount of time and this is
8 the extent of the contamination as far as it
9 can possibly go.
10 MS. LIU: Thank you.
11 MR. COBB: Gary, that does include
12 predictions.
13 MR. WIGHT: Right. That's correct.
14 MS. LIU: At various time periods, one
15 month, ten years, that kind if thing?
16 MR. COBB: Correct.
17 MR. RAO: Mr. Wight, there may be one
18 more typographical error maybe you can take a
19 look at. It's the same section, 1505.210(c),
20 Subsection 2(a) and (b). In the errata
21 sheet, there's a phrase which reads "of the
22 measured and modeled extent of the
23 groundwater contamination." I was wondering
24 whether it should be "measured or modeled."
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1 MR. WIGHT: Yeah. That's an issue I
2 struggled with, and I'm not always sure how
3 to approach that. You think "or" would be
4 preferable to "and" at that point?
5 MR. RAO: Yeah, because I don't know
6 under TACO, when they do the modeling to
7 predict the extent of the plumb, do they
8 also measure a sample of the groundwater?
9 MR. KING: Yes. The answer is yes.
10 MS. ANTONIOLLI: They do both.
11 MR. RAO: So can you explain a little
12 bit more what this measure or model means in
13 the context of this?
14 MR. KING: I mean, to some extent the
15 word "measured" there is superfluous in the
16 sense that if you have contamination, you're
17 modeling how far it's going to go and you're
18 looking at a future time. The modeling is
19 always going to show some distance further
20 than the measured distanced. So I think we
21 just -- we included measured because you
22 could be in a situation where there was, in
23 fact, a -- a measured sample was taken of
24 groundwater off site and was found within a
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1 setback, which certainly for us would have a
2 higher level of expectancy as far as notice
3 getting out more quickly than if it was a
4 model situation.
5 MR. RAO: I had a question about
6 Section 25b-3(c) of the Act. Section
7 25b-3(c) sets forth that the Agency may allow
8 a responsible party to provide Agency
9 approved notices in lieu of notices required
10 to be given by the Agency only at sites which
11 the responsible party has implemented a
12 community response plan. Will you please
13 explain the statutory intent regarding the
14 implementation of a community response plan
15 and comment on whether the proposed Subpart C
16 is consistent with the statutory
17 requirements? Basically what it means when
18 they say the responsible party must implement
19 a community response plan.
20 MR. PHILLIPS: The way we structured
21 the proposal and our reading of the statute
22 is that we look at the notice and the
23 community relations plan as kind of a package
24 arrangement. We don't want a situation
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1 where -- You can't isolate the notice from
2 the follow-up work that's needed as specified
3 in the community relations plan, that both
4 have to be approved by the Agency. Otherwise
5 you could have a situation where a party
6 could have an approved notice, issue the
7 notice, but there's no follow-up work. The
8 public wouldn't know who to contact or
9 couldn't contact the party.
10 The person that is going to be
11 engaging in the notice activities in lieu of
12 the Agency, it's imperative that they have
13 the internal process set up, the
14 infrastructure to support the notice that
15 we're going to be issuing.
16 So I guess the answer to your
17 question is, yes, we believe this is
18 consistent with the statutory language
19 because the notice and the community
20 relations plan portion of this go hand and
21 hand. They have to.
22 MR. RAO: Okay. The reason I'm asking
23 this question is I was looking at Subpart C,
24 which is a tiered approach. You know, you
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1 have one section that I think just deals with
2 the notice for five or less. And for that
3 part, you don't have anything termed that
4 community response plan. They just do a
5 notice. So I was just asking you the
6 question to see if you consider the notice
7 requirements to meet the statutory
8 requirements.
9 MR. PHILLIPS: Yes. Kurt, do you have
10 anything to add to that?
11 MR. NEIBERGALL: In the tiered
12 situation with the five or fewer affected or
13 potentially affected properties, the fact
14 sheet is sort of the basic communication
15 tool. There is, in the fact sheet, as Scott
16 pointed out, information about who to contact
17 with further questions. And often when you
18 put out information, technical information
19 like that or information that people don't
20 readily understand, there's quite a bit of
21 personal follow-up to make sure they have all
22 their questions answered.
23 MS. ANTONIOLLI: So this may be a
24 formality, but just to call -- Because in
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1 both situations the procedure wouldn't
2 change; but if you called the instances where
3 there's that limited -- the fewer properties
4 affected, also a community relations plan and
5 then just had two different kinds, that at
6 least would follow the statutory language, I
7 think.
8 MR. NEIBERGALL: What I would point
9 out just to sort of differentiate the two,
10 the community relations plan for the broader
11 effort is not only the fact sheet. It's a
12 given in both situations. But consistent
13 with 25b-7, in maintaining that two-way
14 dialogue, that outreach, with the community,
15 it also would have a strategy for additional
16 public meetings or informational availability
17 sessions, living room meetings. It could
18 have site tours. It could have a number of
19 activities or events that would help the
20 community understand the situation and have
21 an opportunity to get answers to the
22 questions they have beyond just the fact
23 sheet.
24 MS. ANTONIOLLI: And there would
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1 definitely be a more extensive program there;
2 but under the Act, it says that the
3 notification can't go out unless there's been
4 an approved community relations plan.
5 Yes, do you want to introduce
6 yourself?
7 MS. HIRNER: I'm Deirdre Hirner,
8 executive director of the Illinois
9 Environmental Regulatory Group. I've not
10 been sworn in, so you might want to do that.
11 MS. ANTONIOLLI: Would you like to be
12 sworn in now? Okay.
13 (Witness sworn.)
14 MS. HIRNER: Regarding the
15 legislation, the question you're asking about
16 the community relations plan in 25d-3(c) of
17 the legislation, before it got to the Agency
18 level to write the rules and regulations, in
19 negotiating the terms of the legislation
20 itself, there were a number of industry
21 representatives who were involved in that
22 negotiation. And a number of the companies
23 have longstanding community relations plans
24 that they have had for many, many years, and
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1 they asked this language be placed into the
2 statute in order to give them the ability to
3 use their existing community relations
4 processes in order to be able to help the
5 Agency provide notice.
6 So this was actually placed in
7 with a separate thought process behind it
8 from the subsequent 25d-7 provisions. So
9 that's a little -- If that may shed a little
10 light, that's why this particular piece is in
11 the statute.
12 MR. RAO: It does. We were wondering
13 why it was written that way. Thank you very
14 much.
15 MS. FULLER: If I can just add
16 something to that discussion? On the Tier 1
17 approach, which is the site that would have
18 five or fewer properties involved, we were
19 looking at, and I believe the thought process
20 is, that in the act of putting together the
21 questions and concerns in the fact sheet, you
22 actually have to do the legwork. You have to
23 find out from the citizens at the site; and
24 in this case it would be a small group,
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1 probably talking to them one on one. So
2 you're doing community relations just to
3 develop the fact sheet.
4 MS. ANTONIOLLI: So practically it's a
5 descriptive term for those additional
6 properties that you'd have to contact.
7 MR. COBB: I think the term implement
8 is key because it's not just a plan, per se,
9 it's an implemented plan. So it's an action.
10 As D.K. said, there are sites that already
11 have implemented, and then there are other
12 sites that will implement in developing the
13 fact sheet.
14 MS. ANTONIOLLI: That does make a
15 difference.
16 MR. COBB: So it's an action verb
17 there.
18 MS. ANTONIOLLI: As long as we're on
19 that Section 25d-3(c), I had a question about
20 those requirements -- or in the statutory
21 language, (c) 1 through 5 there. The statute
22 lays out pretty specific items that the
23 notice must require -- must contain. So even
24 looking at Section 1505.310, again, notes
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1 that when contact lists and fact sheets are
2 sent out when there's a limited number of
3 properties involved, must those notices also
4 contain 1 through 5, the information?
5 MR. PHILLIPS: In 25d-3, the language,
6 those five -- those six items there that are
7 listed on there say notice issued under this
8 section may contain the following
9 information. So there is some flexibility
10 there in terms of what is to be included. I
11 mean, this is a good construct here, these
12 six items, good basic information, but it's
13 not mandatory under the statute given the
14 site-specific circumstances. So I think
15 there's flexibility there.
16 MS. ANTONIOLLI: Because I was, then,
17 looking at the section 1505.310(b)(2) and
18 letters A through H under (b)(2), and I
19 didn't -- so there's flexibility there with
20 what's required to be in those fact sheets,
21 but I didn't see, you know, a clear
22 identification of the contaminant released or
23 suspected to have been released that's talked
24 about in the statute as part of those A
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1 through H requirements.
2 MR. NEIBERGALL: I guess I would just
3 suggest that the nature and extent of
4 contaminants identified on site and off site
5 where the release occurred, that defining the
6 nature and extent would be clearly
7 identifying the contaminants of concern.
8 MS. ANTONIOLLI: And sometimes as far
9 as Board rules we take the statutory language
10 and include it in there, and that may be
11 just -- you just may be assuming that all
12 that information is included in these
13 A through H items. And then the other -- the
14 name and address of the site or facility
15 where the release occurred or is suspected to
16 have occurred, I assume that information
17 would be part of the notice, but it's also
18 not -- I guess under -- See, we have G, the
19 name of the representatives of the business,
20 site, or facility; we don't have a clear
21 reference to the name and address of the
22 site. So even though it may be part of the
23 application anyway, it just might be helpful
24 to kind of use the same language that's in
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1 the statute.
2 MR. RAO: Looking at Section
3 1505.315(b), this section sets forth a model
4 community relations plan which is provided in
5 Appendix A, the proposal. It says that this
6 model would be appropriate for a more complex
7 site. Would it be helpful to the regulative
8 community if the rules provide a model for a
9 more typical site, not a complex site? And
10 also, can you please explain a little bit
11 about what you mean by a complex site from a
12 community relations perspective?
13 MR. JOHNSON: Say that again, Anand.
14 I didn't --
15 MR. RAO: Explain a complex site and
16 give some examples of a complex site.
17 MR. NEIBERGALL: To answer the first
18 part of the question, if I understand it
19 correctly, we have the two-tiered approach
20 with the five or fewer properties. This
21 would be the five or more properties, more
22 complex, broader impacts type of site. That
23 is the only -- As we've proposed it, that is
24 the only type of site that would require a
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1 community relations plan. So for the five or
2 fewer affected properties, we're suggesting
3 that, as Carol, I think, pointed out earlier,
4 you sort of go through the community
5 relations planning process without developing
6 an actual written plan that needs to be
7 submitted to the Agency for that category and
8 size.
9 MR. RAO: So when you say complex,
10 you're basically talking about five or
11 greater number of affected --
12 MR. NEIBERGALL: Yes. Again, we
13 wrestled with that in work group
14 deliberations, you know, how to make a cut
15 off here. And I think it's just sort of
16 based on our experience. The more complex
17 sites -- You could have five properties that
18 cover the state of Wyoming, and that would be
19 probably complex. But, you know, generally,
20 we're looking at fewer impacts around the
21 site. And as a general concept, as the scope
22 of the potential problem expands, that there
23 be more interest in the community to have
24 knowledge and information about the
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1 activities and site.
2 MS. FULLER: And if I could just add
3 something, our definition of the more complex
4 site, it might be, you know, the physical
5 complexities, the hydrogeology that Mr. Cobb
6 was talking about earlier; that it's just
7 difficult to ascertain quickly where the
8 contamination might go and who it might
9 affect, so it takes time to do. And
10 meanwhile, you're having ongoing dialogue
11 with the community.
12 The other thing is, because there
13 might be a lot of people concerned at
14 different levels that may have private wells
15 or may not have private wells, not sure if
16 they're affected or not, if the time element
17 tends to be a long time, you're going to have
18 to talk to people at different levels and
19 have public outreach meetings and things that
20 would described in the community relations
21 plan, which makes it more necessary.
22 MS. LIU: Because of this time element
23 issue that you mentioned and you don't always
24 know what's going to happen, Ms. Hirner, in
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1 her prefiled testimony expressed the concern
2 that you don't always know what's going to
3 happen when you issue these facts sheets, in
4 particular what the closure documentation
5 would look like. She requested that the
6 proposal contain some sort of recognition
7 that the documentation might not be ready on
8 the initial forms. Is there some appropriate
9 way to do that?
10 MR. NEIBERGALL: Mr. Wight was
11 indicating, and I think our response is, we,
12 again, dealt with that in work group
13 discussion and listened carefully to the
14 outreach comments we received. And as we
15 develop a fact sheet, any given fact sheet --
16 and this would be the Agency's approach
17 also -- the idea here is to give the public
18 timely and accurate information. If that's
19 not available at the time that it's necessary
20 to do that fact sheet, we would anticipate
21 that, and I believe the language reflects, we
22 would ask the responsible party, as we would
23 do, to do a supplemental fact sheet at the
24 time those kinds of decisions were made and
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1 any other significant information that the
2 public needed to know about.
3 MR. WIGHT: The references he's
4 referring to are at 1505.310(b)(2), just
5 above the provisions A through H that we were
6 talking about a question or two ago. And
7 you'll find similar language in 1505.315 for
8 the fact sheet there as well. But you'll see
9 at the end of the introductory language under
10 Subsection (2) and just prior to Subsection
11 (2)(a), the fact sheet and any required
12 updates shall contain at a minimum the
13 following information to the extent
14 available. And I think that to the extent
15 available sort of qualifies the timing
16 issues.
17 Now, I know D.K. may be would like
18 some additional language in there, and she
19 can express that if she does. But this was
20 our attempt to accommodate that. There are
21 times when we know not all the information
22 will be available. If it's not available,
23 there's another provision that says you have
24 to explain why it's not available and when
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1 you estimate it might be available, and then
2 as Kurt pointed out, update the fact sheets
3 as new information of a material nature
4 becomes available. So it's an ongoing
5 process, and I think we've tried to
6 accommodate that in the language here.
7 Does that answer your question?
8 MS. LIU: Thank you. For those times
9 where a responsible party implements their
10 own community relations plan and is allowed
11 to issue Agency notices, would the Agency
12 review each notice, each piece of community
13 outreach before it's allowed to go public?
14 MR. NEIBERGALL: Yes. The short
15 answer is yes. We would expect that as a
16 community relations plan developed or as a
17 fact sheet developed or any other kind of
18 significant outreach, that the Agency
19 community relations coordinator, in
20 consultation with other project team members,
21 would review various efforts, either written
22 or event-related, and provide input into
23 those.
24 MR. WIGHT: I think the regulatory
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1 provision that addresses that is 1505.325,
2 the submission of review of fact sheets and
3 community relations plans.
4 MS. LIU: In each one of these cases,
5 would there be at least one initial
6 notification that came from the Agency itself
7 on official Agency letterhead before a
8 company is allowed to start doing these
9 things on their own?
10 MR. NEIBERGALL: I'll go ahead and
11 answer the question. We wouldn't anticipate
12 it. Although in our development with our
13 outreach work groups and Right-To-Know
14 subcommittee over the last year and a half, I
15 think that citizens involved and others had
16 expressed that the ultimate would be to have
17 an official-looking government letterhead,
18 local governmental letter correspondence; and
19 that's what we would work towards if the
20 Agency was doing the notice, to work with all
21 levels of government to get the information
22 packaged correctly and out to people that are
23 potentially impacted.
24 In the case where the responsible
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1 party is given the opportunity, you know, we
2 could certainly make suggestions, but it
3 would come from that company. And of course
4 in any kind of letter or fact sheet, there
5 would be information about Agency contacts at
6 our level or the Department of Public Health
7 or at the local level so people would have
8 government contacts to follow up with if they
9 so choose.
10 But, no, the correspondence
11 wouldn't be on our letterhead in that
12 situation.
13 MS. LIU: In your outreach meetings,
14 was there any concern from citizens groups
15 that if a letter didn't come in an
16 official-looking capacity, someone might
17 simply disregard it?
18 MR. COBB: I'll speak to that. If you
19 look at the statute under Section 25d-3(c),
20 it required us to go through and lay out
21 methods by which notices that the Agency
22 would be giving, we were required to consult
23 with members of the public and citizens.
24 And, if you will, in Attachment 3 of my
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1 prefiled testimony, you'll see the outcome of
2 that consultation process.
3 And, in fact, Ms. Hirner,
4 Ms. Dinschel, and Ms. Muniz participated in
5 this development of a resolution that lays
6 out the methods of notice. So this, in fact,
7 does kind of lay out a template by which
8 notices are given. And as we're reviewing
9 notice or plans that are going to be sent
10 out, I'm sure we would look to see if it
11 meets the expectations of this resolution.
12 This didn't require rulemaking.
13 It simply required a consultation process, so
14 we chose to document this via resolution and
15 as a subcommittee of the Government of
16 Groundwater Advisory Council. I'm hoping
17 maybe that sort of helps answer the question.
18 It is one of the key provisions that we heard
19 about before and after the law. We worked on
20 its pilot notification processes before the
21 law was even enacted or shortly thereafter it
22 was enacted, and official-looking letterhead
23 is something that's necessary. Now, that may
24 be coming from a company or, maybe as we're
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1 looking at that, we haven't gotten to one of
2 those yet. Maybe they're indicating they're
3 working with all parties, including us, and
4 maybe that's described in this letter.
5 That's the way I would envision that.
6 MR. NEIBERGALL: I would only add that
7 I think it's an important point, that direct
8 notification is one way to provide notice to
9 citizens. In working with companies or in
10 our own efforts, the Agency's own efforts, we
11 would look for multiple ways to get that
12 message out, including contacting local media
13 for articles. And hopefully we can get the
14 importance of any kind of issues before the
15 public and the need to do well testing, for
16 instance, through just multiple avenues and
17 make sure that people have contacts at all
18 levels of government to follow up with their
19 questions besides a company under their
20 notice work.
21 MR. COBB: I would just add that on
22 page 31 of Attachment 3 of my prefiled
23 testimony, in the recommendations for methods
24 by which notice shall be provided, just take
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1 a look at the third paragraph from the top of
2 page 31: The methods by which notice is
3 given should apply to both IEPA-issued
4 notices and responsible party-issued notices
5 under an approved community relations plan.
6 The notification methods may be applied
7 singly or in combination to effectively and
8 efficiently reach the target audience, taking
9 site-specific considerations into account.
10 The methods include personal notification,
11 public meetings, signs, electronic
12 notification, print media, actions taken by
13 local responsible bodies and units,
14 activities of citizen advisory groups, and
15 communications through responsible party
16 community outreach programs.
17 So that just further emphasizes
18 what Mr. Neibergall indicated and, in fact,
19 is laid out here.
20 MS. ANTONIOLLI: Mr. Neibergall, you
21 talk about a pilot project that happened in
22 the summer of 2005 in your prefiled
23 testimony. It starts on page 11. Can you
24 talk a little bit about that, like how many
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1 notices were sent out and responses that you
2 received from it?
3 MR. NEIBERGALL: Yes. I'd give just a
4 real quick overview, but then I'd let Carol
5 add to that since she was directly involved
6 as sort of the community relations
7 coordinator on this pilot work, as well, I
8 would add, that several of the citizens that
9 are here today who participated in our
10 Right-To-Know outreach committee.
11 But basically, without going into
12 too many details about the South Chicago
13 Heights -- the technical details about the
14 South Chicago Heights notification, our
15 Agency worked very closely, as we always do,
16 with the Illinois Department of Public Health
17 and, with this particular site, the Cook
18 County Health Department, to put together a
19 package, a notification package, for the --
20 sort of the target area for citizens with
21 private wells around the sites that had
22 identified problems.
23 And the package includes a cover
24 letter which really tells people what they
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1 need to know right away. I believe the
2 package was mailed to approximately 2,200 or
3 2,300 residents in this area of concern. And
4 as Mr. Cobb pointed out in previous
5 testimony, we started on this notification
6 effort with the GIS database work, which has
7 indicated sort of the level of private wells
8 in the area without going out and doing
9 neighborhood-to-neighborhood reconnaissance
10 to exactly identify those wells. In this
11 instance we sort of bounded the area of
12 concern, worked with the local Cook County
13 folks and, I believe, public works to sort of
14 identify the neighborhoods and develop,
15 through using a vendor that could give us a
16 database of names in that area of concern, a
17 mailing list and then pare it down and mail
18 this package, which includes the notice
19 letter telling people what they need to know.
20 It starts right off saying that if you are on
21 a public water supply, you don't need to be
22 concerned with this; we're at targeting folks
23 that have private wells in the area.
24 In this case we went beyond -- we
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1 did do a fact sheet with the notice letter.
2 We sort of tried to explain the technical
3 situation and what the concerns were. So if
4 people wanted to read further beyond the
5 notice letter and get a little bit more of
6 the details, as some people like to do, they
7 had that available. Of course there was
8 contact information at all three levels of
9 government for follow-up questions.
10 We also decided in this case to
11 have a public meeting, so notice of that was
12 provided. And we actually held an
13 informational meeting where the general
14 public can come and talk to us. There was
15 identified at the local county level a
16 significant population of the area was
17 Spanish speaking, so everything was
18 translated and sent as a package together.
19 So I think Carol can speak to
20 the -- sort of the other thing we did with
21 the notification, sort of pilot that we did
22 here was to try and survey folks to see what
23 they got out of this.
24 MS. FULLER: We surveyed a portion --
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1 I think we surveyed about 750 of the original
2 addressees were who were mailed to in the
3 2,300 contact list for the pilot project and
4 asked them was the information enough, was it
5 too much, were we overwhelming you, was it
6 helpful, just all kinds of questions to find
7 out if they felt satisfied that they had been
8 provided the right kind of information at the
9 right level, was it easily understandable.
10 We also gave them a list of laboratories and
11 asked some of those laboratories to
12 participate in public meetings, answer
13 questions about having private wells tested.
14 And the responses to the survey
15 were very good. People felt overwhelmingly
16 that the information provided was good. And
17 I think it helped that we worked with the
18 citizens as well as Cook County Health
19 Department and Illinois Department of Public
20 Health in developing to try to meet the needs
21 of those folks. We also worked with, as Kurt
22 mentioned, the public works operators for the
23 three areas that we were dealing with, South
24 Chicago Heights, Chicago Heights, and Steger.
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1 They not only helped us to target the
2 mailing, but they also let us know what
3 concerns were out there about the water
4 supplies and helped a little bit in our
5 understanding of how to address the materials
6 and develop the materials.
7 MS. ANTONIOLLI: Thank you.
8 MR. COBB: If willing, we have
9 citizens here who participated; you may want
10 to ask them for their impressions of the
11 process too since they were part of that if
12 you so desire.
13 MS. ANTONIOLLI: Definitely. And I
14 think at this time we'll take a short break,
15 and we'll come back and finish up questions
16 and hear from some people from the public and
17 take more testimony. So it is about 11:41,
18 and we'll come back at ten to.
19 (A short break was had.)
20 MS. ANTONIOLLI: We're back on the
21 record. It is about five minutes to 12:00.
22 We are continuing with a few questions for
23 the Agency's panel.
24 I have a few mostly procedural
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1 items. Generally throughout the proposal --
2 and granted, especially in subsection C, this
3 is a voluntary program -- but the Board
4 generally in rulemaking uses the term "must"
5 instead of "shall." Would there be any
6 objection to changing, where it's
7 appropriate, the "shall" to "must"?
8 MR. WIGHT: No.
9 MS. ANTONIOLLI: And then generally --
10 and this can be for all the witnesses, the
11 time frame -- I think in Subpart C the time
12 frame from beginning to end can end up being
13 about a two-and-a-half-month period before
14 the public is notified of the release or the
15 contamination. Did you have any comments on
16 this time frame from the public or anyone
17 else during your outreach, or did it seem
18 like a sufficient time frame for everyone
19 involved?
20 MR. NEIBERGALL: There was
21 considerable discussion because the statute,
22 of course, for some of the statutory notices
23 requires a 60-day window to get that notice
24 done. And so we were -- you know, and,
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1 again, that would be the Agency's -- if the
2 Agency were to take upon the notification
3 work itself once we determine that notice was
4 necessary, we would try to strictly follow
5 that. And, of course, allowing the
6 responsible parties the opportunity to do
7 this work and the coordination involved
8 between the Agency staff and responsible
9 party in crafting and issuing the notice
10 would lead to a slightly longer time frame.
11 I guess I would summarize our
12 discussion as we don't think that that is
13 unreasonable, the two-and-a-half-month period
14 or the 90-day period to get it done. I would
15 add that we had discussions that if there was
16 an immediate threat that was discovered with
17 credible scientific data, we would probably
18 not offer, as I think earlier testimony
19 indicated, the opportunity to the responsible
20 party to do this work. In other situations
21 like this, where we actually have confirmed
22 levels of contamination in private wells at
23 or near or above a particular standard, we
24 have gone out and called potentially affected
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1 or affected, in that case, families, gone
2 door to door, left door hangers, and by other
3 means get notice out to those folks about
4 potential health impacts in working with the
5 Department of Public Health and local county
6 health departments.
7 If circumstances warrant, as I
8 think was earlier testimony, we would allow
9 the responsible party to do this work. But
10 if the Agency deemed it was more of an
11 immediate threat, we would take matters into
12 our own hands. That doesn't mean we would
13 not coordinate with the responsible party,
14 though, make sure they were aware of
15 everything we were doing.
16 MR. COBB: I just want to add to that.
17 Under 25d-3(a), there is no time frame, so
18 the 60-day piece is more with your automatic
19 triggers, through your immediate removals,
20 sealed orders, et cetera. We could even go
21 faster. Depending on the impending nature or
22 threat, we could move as fast as we can under
23 the 25d-3 provisions.
24 MS. ANTONIOLLI: Okay.
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1 MR. WIGHT: I'd like to add to that
2 that in 1505.305(b)(1), you'll see that
3 Subpart C notice opportunities are basically
4 restricted to the 25d-3(a) sites. The (b)
5 sites do have that strict 60-day limit, and
6 those are more emergency circumstances. If
7 you read down to the 25d-3(b) sites, those
8 are removal actions and those sorts of things
9 that are more emergent. So with the strict
10 60-day time limit, you wouldn't be able to
11 comply with Subpart C within that 60 days, so
12 we basically limited Subpart C to the
13 Subsection A scenario, where you just
14 identify the contamination plume and know
15 enough about that to proceed under that
16 provision.
17 MS. ANTONIOLLI: We're looking at
18 right now Section 1505.330 and 335. Anand,
19 would you look to --
20 MR. RAO: I was just asking Amy if I
21 could ask you this on record. In section
22 1505.330 subsection (e), it states that the
23 Agency may, to the extent consistent with
24 review deadlines, provide the submitter with
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1 reasonable opportunity to correct
2 deficiencies. Would it be acceptable to the
3 Agency if we changed that subsection to read
4 "Agency will," or is that an option that the
5 Agency has reserved for itself, in certain
6 circumstances you would do it?
7 MR. WIGHT: Well, I think it's
8 primarily a timing issue, and that's why we
9 left it discretionary. It was mainly
10 concerned about how quickly we felt we had to
11 move in a certain situation. I think it's a
12 general rule. We don't object to trying to
13 work things out with responsible parties if
14 we have a disagreement about the approach,
15 but we didn't want to lock ourselves into a
16 mandatory requirement to take the time to do
17 that if we followed the fundamental
18 procedures and time seems to be of the
19 essence.
20 MR. RAO: Would it be possible for the
21 Agency to add a few sentences in there as to
22 when you will provide the submitter with a
23 reasonable opportunity? The reason I ask is
24 sometimes they ask the Board to explain; it's
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1 better if you provide the language for this
2 subsection.
3 And there's one more. Under
4 1505.335(B)(2), it states that the Agency may
5 monitor the implementation of approved CRPs.
6 And from what Mr. Neibergall testified, you
7 always monitor. So would it be acceptable to
8 the Agency if we say the Agency "must"
9 monitor instead of "may"?
10 MR. WIGHT: We certainly would go back
11 and discuss that. Are you just asking us to
12 take a second look at it? I think we would
13 want to discuss the implications of that a
14 little more thoroughly than to just give an
15 off-the-cuff answer at this point.
16 MS. ANTONIOLLI: Sure. You can think
17 about it.
18 MR. RAO: Thank you.
19 MS. ANTONIOLLI: And one last section
20 to look, as far as my questions, and that's
21 section 1505 -- this is of the errata
22 sheet -- .320. And in the errata sheet there
23 were some changes made to the section. And
24 with the changes, I think that when we read
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1 through it, it may be -- we may be able to
2 clarify, actually, by just taking out part of
3 that section. It says persons developing a
4 CRP pursuant to Section 1505.315 of this part
5 shall also establish a document repository
6 for the purpose of displaying documents and
7 providing copies of those documents. The
8 document repository shall be established at a
9 World Wide Web site unless -- and that's
10 where, I think, we wanted to avoid having the
11 possibility of having just a repository at a
12 physical location rather than also at a World
13 Wide Web site when there was -- when there
14 was a request by an individual.
15 So what we would propose, I guess,
16 is to end the sentence after World Wide Web
17 site and eliminate "unless" to the end of the
18 sentence so there was no either/or scenario.
19 MR. WIGHT: Okay. We'll look at it.
20 MS. ANTONIOLLI: Okay. Board members,
21 do you have any further questions, any other
22 questions for the Agency?
23 Okay. At this point,
24 Ms. Bernadette Dinschel has prefiled
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1 testimony in this rulemaking. And if you'd
2 like to at this time, Ms. Dinschel, you can
3 introduce yourself and maybe tell us a little
4 bit about who you are and your background and
5 involvement with this rulemaking.
6 MS. DINSCHEL: My name is Bernadette
7 Dinschel, and I'm a citizen of Lisle,
8 Illinois, and I was associated with the
9 Lockformer spill that occurred.
10 MR. WIGHT: Has she been sworn in?
11 MS. ANTONIOLLI: She was sworn in at
12 the beginning.
13 MR. WIGHT: I'm sorry.
14 MS. DINSCHEL: The number of wells,
15 private wells, that were affected by the
16 spill of TCE at that location was more
17 than -- we're not sure of the number still,
18 but were more than 150 private wells. So the
19 impact was pretty substantial, and the
20 distance that that plume traveled, which I
21 think is not normal, was actually tagged at
22 2 and a half miles.
23 So when they went to remediate
24 their property -- when the federal government
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1 came in to do the emergency remediation, they
2 found levels of 2,000 parts per million at
3 their source, and that was after they had
4 allegedly been involved in a ten-year
5 investigation on the property. So after all
6 that time, the impact of what was still there
7 was substantial.
8 Since I was in the immediate area,
9 I became concerned, and that's why I'm still
10 here today. And I'd be willing to take any
11 questions from the Board if they had any.
12 MS. ANTONIOLLI: So what was your --
13 Did you help participate in the rulemaking --
14 or the proposal before the general assembly
15 that became the RTK Law?
16 MS. DINSCHEL: Personally I did not
17 get involved in that drafting. There were
18 others that were involved. My immediate
19 involvement, other than being part of the
20 community action group that was formed
21 initially when we found out about the
22 situation, once we learned that the cleanup
23 would begin and that issues of connecting
24 people to water were being handled above and
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1 beyond my capability because they involved a
2 lot of politics, I stayed involved because
3 nowhere along the line did anybody address
4 the fact that we do have a right to know. So
5 when I was asked by other citizens to
6 participate in a Right-To-Know subcommittee,
7 I did that.
8 MS. ANTONIOLLI: Okay. And would you
9 like to talk about the rule as it ended up
10 and the rules that are being proposed today
11 before us? What is your thought on those?
12 MS. DINSCHEL: Well, as the rule --
13 the law, I guess. The law does state that
14 they need to notify property owners. And
15 that sounds pretty nice, that the property
16 owners should be notified. But in the scheme
17 of things, not everybody is privileged enough
18 to own real estate, so that's why we have
19 apartments and other situations. And when
20 the ruling was put into effect, it seemed to
21 follow the letter of the law in stating that
22 it should follow -- it should notify property
23 owners. I think because of our subcommittee
24 involvement, we contributed to the fact that
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1 property owners are not the only group that
2 should be notified and that residents should
3 be notified. It would be nice to think that
4 every property owner would be responsible and
5 act -- even if they're required by law to act
6 and notify their residents, some of them may
7 not. Just because the law is there doesn't
8 mean everybody is going to follow it. So
9 this is sort of added insurance that the
10 people who are, in fact, using the water get
11 notice. And if it came down to the simplest
12 form of notification of knocking on someone's
13 door and saying your water may not be safe,
14 that is a requirement that I think is
15 necessary regardless of any discussion of
16 expense or cost involved. It could be that
17 simple if it boils down to we don't have
18 money for mailing.
19 The thing is, in the Lockformer
20 situation, there were many responsible
21 parties that I respect that knew of the
22 situation. And as I said in my testimony,
23 they didn't -- for a number of reasons that
24 may have been valid, chose not to notify,
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1 were allowed to notify, because it wasn't
2 their jurisdiction or they didn't have the
3 authority to notify. And it's unfortunate
4 that government agency's, people that we look
5 to as leaders in the community, felt that
6 they didn't have any responsibility to notify
7 because they weren't sure who was supposed to
8 notify if anybody should be notified. So
9 firsthand notification, I think, is
10 important.
11 Can you ask anything more
12 specific?
13 MS. ANTONIOLLI: Does that summarize
14 what you talked about in your prefiled
15 testimony?
16 MS. DINSCHEL: What I would add is
17 that responsible parties may not always act
18 responsibly to their constituents, whoever
19 they may be. So firsthand notification is
20 valid. People's health can depend upon it.
21 I'm sure that water in the future is going to
22 become the most precious commodity that we're
23 going to be dealing with, so it would be nice
24 if we had some ground rules in place to
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1 assure people that they will receive notice.
2 On Monday, March 20th, 2006, the
3 Village of Lisle Board met again, and they
4 received an update on the cleanup at
5 Lockformer, and a very good presentation was
6 made. And the first question that the Board
7 asked was how much did this cleanup cost.
8 And for the answer to that question, it cost
9 Lockformer initially about 8 million to do
10 the emergency cleanup, which lasted at least
11 three and a half years.
12 The second question that the Board
13 asked was will we be notified in the future
14 by the provisions in the law that something
15 may be wrong with the water. The answer was,
16 yes, the law will, in effect, protect you
17 because now we've revisited it and we will
18 notify you if there is something wrong with
19 the water. In asking that question, I think
20 the trustee wanted to act responsibly; and if
21 the Board was notified, they would, in fact,
22 notify their constituents.
23 So of all the questions he could
24 have asked six years after the fact, the
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1 question of money came up and will we be
2 notified so that we can pass on that
3 notification.
4 MR. GIRARD: Amy, I have a question.
5 Ms. Dinschel, do you believe that
6 the proposal we have in front of us takes
7 care of the kind of problems you experienced?
8 MS. DINSCHEL: I'm going to only
9 address Section C because I think the water
10 survey -- the well survey information has
11 come a long way, but I'm less qualified to
12 address that. I think the proposal before
13 you is a compromise, and I don't think it's
14 necessary to compromise the public safety,
15 individual health issues that will be
16 affected by a poor water source. So I think
17 a compromise is just not appropriate. That's
18 my opinion.
19 But the fact is that it is there
20 in Section C, that if it's appropriate to the
21 appointed party that they notify, they can do
22 that. But unless they're required or must
23 notify, all things being equal, they will
24 probably say, well, this is one thing we
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1 don't have to do and we'll cross that off the
2 list. And yet that's the first string of
3 people who need to be notified because
4 they're the people using the water. So I
5 would -- I'm pleased that it's stated, but
6 the fact that it's only stated and appears to
7 be an option doesn't secure the fact that
8 individuals will be notified. They have to
9 rely on a whole bunch of other people to be
10 responsible and caring about providing safe
11 water to them, and that just doesn't always
12 happen.
13 MR. GIRARD: So how would you rewrite
14 the rules? Would you require that the Agency
15 in all cases notify affected persons?
16 MS. DINSCHEL: That they in all cases
17 notify property owners and occupants to the
18 best of their ability. We found, also in
19 discussion during subcommittee, that it
20 wasn't always easy to even find property
21 owners. So that in itself was a challenge at
22 times. So I don't think -- I don't see any
23 advantage to the public by not notifying
24 occupants. So as the rule is written, I
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1 think it should definitely include
2 notification without exception to property
3 owners and occupants.
4 MR. GIRARD: Thank you.
5 MS. ANTONIOLLI: Ms. Dinschel, I have
6 in front of me your prefiled testimony dated
7 March 14th that you prefiled with the Board,
8 and you have just summarized it and talked a
9 little bit about what is contained in this
10 prefiled testimony, including your
11 involvement that you live in Lisle and your
12 involvement with the Right-To-Know
13 subcommittee.
14 Do you or does anyone else object
15 to me entering this prefiled testimony in as
16 a hearing officer exhibit, Hearing Officer
17 Exhibit A, to this rulemaking? I don't have
18 copies of it, unfortunately, but it's been on
19 the website. I'm not sure if you've brought
20 any with you today.
21 MS. DINSCHEL: I do.
22 MS. ANTONIOLLI: So you do have
23 copies. Those are available for the public
24 to look at. Does anybody object at this
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1 time?
2 Indicating no objection, I will
3 enter your prefile testimony in as Hearing
4 Officer Exhibit A.
5 MS. DINSCHEL: Thank you.
6 MS. ANTONIOLLI: And does anyone else
7 have questions for Ms. Dinschel at this time?
8 MS. LIU: Since you're very intimately
9 familiar with this whole process, how do you
10 feel about a proposal to allow a company to
11 do the notification process to you rather
12 than official government Agency?
13 MS. DINSCHEL: When I first read that
14 option, I shuddered. I shared my feelings
15 with the Agency that if, in fact, that
16 company had been Lockformer, where would we
17 be today? Because they told us a lot of
18 things; they lied through their teeth,
19 basically. So my reference for notification
20 by a company or other responsible party was
21 not comforting to me at all.
22 And it may be a practical matter
23 in that the Agency may not be staffed enough
24 to take on these responsibilities as we go
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1 forward, and so I'm putting a plug in for new
2 hires for the Agency, because people need to
3 be notified.
4 And the other thing that came up
5 in discussion was, in the event that the
6 Agency is understaffed and may not have any
7 control over funding for new hires, some
8 companies, well-established, can in fact
9 provide a good service. And I was opposed to
10 having a company or another agent other than
11 the Agency send out notices; but as the
12 ruling states, the Agency has to review the
13 information.
14 So in our Steger pilot, we
15 insisted that the stationery -- and I'm so
16 glad you brought up stationery -- that the
17 letterhead actually be from the Department of
18 Health. And the reason why we did that in
19 that particular situation -- The letterhead
20 was Department of Health, Cook County, and it
21 was co-signed by the Agency and someone else,
22 I think, and it was a joint effort. And the
23 official look of the information was, I
24 think, appropriate. And the reason we
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1 insisted in that case that the Department of
2 Health stationery be used as opposed to the
3 Agency is that someone up state may not --
4 may feel that the IEPA, who lives in
5 Springfield, doesn't really know about us.
6 So some people objected to -- you know, are
7 we going to make a phone call now to
8 Springfield, are we going to be making long
9 distance calls to Springfield. There were
10 seniors on limited budget who say, you know,
11 I'm going to dial a 1 and an area code and
12 this is happening in my backyard, and I've
13 got to go to all these other people in places
14 I don't know.
15 So we thought it was important in
16 that case to at least have someone familiar,
17 something with a local area code that they
18 could call. And the Department of Health in
19 that situation seemed to be someone they feel
20 familiar with in terms of importance and
21 someone that they could have access to and
22 wouldn't be calling long distance to find out
23 what was going on. It was just a simple
24 practical matter.
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1 So I guess in the long run, having
2 someone else other than the Agency notify --
3 we'll just have to see how it works out. If
4 the party tries to refrain from telling the
5 story, people will pick up on it and the
6 trust will be lost immediately. I think
7 companies need to reestablish trust with the
8 public. And right now, because of these
9 situations, there isn't very good public
10 trust of companies. And the Agency lost some
11 trust in this factor too, and I think they're
12 trying to regain all this.
13 MS. ANTONIOLLI: Any other questions?
14 MR. JOHNSON: I noted in your
15 prefiled -- First of all, thank you for
16 coming. It's great when members of the
17 public come and do the right thing.
18 I did note in your prefiled
19 testimony that you indicated that your health
20 has been seriously compromised by this
21 Lockformer spill. And I was curious as to
22 whether or not you are now a party to a civil
23 suit against them.
24 MS. DINSCHEL: No. I have never been
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1 a party in a civil suit or any other suit. I
2 have never filed suit against them.
3 MR. JOHNSON: Thank you.
4 MS. ANTONIOLLI: Okay.
5 MR. RAO: Just a follow-up question to
6 the Agency based on what was testified to.
7 MS. ANTONIOLLI: Sure.
8 MR. RAO: I had a question about your
9 coming to the outreach survey that you did.
10 In that survey did you, by any chance, also
11 ask, you know, the affected people about who
12 should be sending these notices, whether it
13 should be coming from a public health agency
14 or the responsible party?
15 MS. FULLER: I don't believe that was
16 part of the survey that we sent out. It was
17 more like we had worked on the initial
18 package with the Right-To-Know committee,
19 which included not only these citizens but
20 other citizens and also public health
21 officials from other counties. And so we had
22 kind of decided on this pilot to do the
23 letterhead from Cook County Health
24 Department. That seemed to be acceptable. I
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1 don't know that that would be the only thing
2 that would be acceptable, but certainly we
3 were shooting for that based on the input we
4 had gotten.
5 Now, it could be that we would
6 have other local health departments that
7 simply don't have the staff or resources to
8 participate in mailing to that degree that we
9 were able to get from the participation from
10 Cook County. And, in fact, we did the
11 mailing. They sent the letterhead. We
12 provided for everything. We wouldn't always
13 be able to do that, either. And certainly if
14 a responsible party is taking it upon
15 themselves to do the notification, although
16 it's an Agency-approved notification, we
17 wouldn't be able to ensure that a local
18 county health department or city or whatever
19 would be willing to have their name on
20 something that's coming a company. So we
21 would encourage that, but we couldn't
22 guarantee it.
23 MR. RAO: What's the Agency's position
24 on this, your coming forward with a giant
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1 notice with your letterhead on it.
2 MR. NEIBERGALL: With a company?
3 MR. RAO: Yeah.
4 MR. NEIBERGALL: I think that's
5 something to consider. We've done it either
6 way now, either ourselves, notification, or
7 we've had some companies work through some
8 recent notification work.
9 I might point out also -- and Mark
10 can cite the specific references in the
11 proposed rule. But in working with companies
12 recently, nothing limits the Agency from
13 putting out supplemental information. In
14 fact, on a couple of sites that we're
15 currently working on we have supplemented
16 what the responsible party has done and put
17 out our own information and contact
18 information and additional responses to
19 citizens concerns. So, I mean, I would just
20 point out that that's sort of a tag-team
21 approach that could be used.
22 But in relation to the question, I
23 guess, of a joint letterhead with a company,
24 I'm not sure, from a public policy
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1 standpoint -- Can we think of any other
2 Agency situations where we've done that with
3 not another government Agency but with a
4 private company?
5 MR. PHILLIPS: I can't think of any
6 right offhand.
7 MR. COBB: I wanted to add something
8 more on the question of the method of notice
9 and leading up to the way we did it in the
10 Steger, South Chicago pilot. We started the
11 kind of stakeholder input process in December
12 of 2004 and ultimately did the notice in July
13 of '05. We talked about those methods during
14 that period, so there wasn't a lot of time
15 spent in discussing what methods might work
16 best when the Agency is doing the
17 notification. Just to add that to the
18 record.
19 MS. ANTONIOLLI: Thank you.
20 Ms. Dinschel, thank you. Would
21 you like to add anything else at this point?
22 MS. DINSCHEL: No.
23 MS. ANTONIOLLI: Thank you for your
24 testimony.
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1 We've also received prefiled
2 testimony from Ms. Hirner on behalf of the
3 Illinois Environmental Regulatory Group.
4 Would you like to talk about your prefiled
5 testimony?
6 MS. RIOS: Hello. I'm Monica Rios
7 from Hodge, Dwyer, Zeman, here on behalf of
8 the Illinois Environmental Regulatory Group.
9 We did file the testimony of our executive
10 director, D.K. Hirner. And today she will
11 summarize her testimony and provide some
12 comments on the issues raised today and
13 answer any questions that the Board or the
14 Agency or the public might have. At this
15 time, we'd like to ask that her prefile
16 testimony be entered into the record as if
17 read.
18 MS. ANTONIOLLI: Is there any
19 objection to entering Ms. Hirner's prefile
20 testimony into the record as Exhibit 4?
21 Seeing none, I'll mark this as
22 Exhibit 4 and enter it into the record.
23 MS. HIRNER: As Monica said, I'm
24 Deirdre Hirner, executive director of ERG. I
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1 would like to give a synopsis of my prefiled
2 testimony. And also, I've jotted down some
3 questions that the Board members and staff
4 have raised during the course of their
5 discussion with the Agency, and I can maybe
6 shed some light on those issues from my own
7 perspective, if that's okay.
8 I would like to thank the Agency
9 for its outreach efforts. It's obvious that
10 the Agency worked very hard to develop a
11 regulation that implements both the spirit
12 and letter of the community Right-To-Know
13 Law. And I'm pleased to offer ERG's support
14 for the regulations as reported in the
15 Agency's errata sheet. I have four minor
16 concerns, and I'll address those very briefly
17 for you as they were touched upon in my
18 prefiled testimony.
19 First issue is the preliminary
20 inclusion of the closure plan documentation
21 in the fact sheets. The second deals with
22 the physical location of the document
23 repository. The third is the definition of
24 responsible parties. And the fourth is the
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1 appearance that community relations
2 activities require notification of occupants
3 in the model community relations plan.
4 As relates to the first, the
5 inclusion of the closure plan in the
6 notification, I know Mr. Wight has addressed
7 that briefly, and I think that does go some
8 way. But perhaps if we look at the community
9 relations process as the process and the
10 notification as what you do in allowing your
11 community relations plan to help identify how
12 you are going to give that process, we can
13 make some steps for ongoing input and kind of
14 outline what may be expected of the
15 regulation community at certain times along
16 the way.
17 The second issue regarding the
18 physical location of the document repository,
19 ERG members -- there are a number of ERG
20 member companies who have had very long
21 ongoing community relations activities. And
22 what they have found is that in some areas of
23 the state, there is very limited access to
24 World Wide Web repositories, and in some
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1 instances it actually works much better --
2 let's say in rural areas or poorer
3 communities where people don't have access to
4 World Wide Web in their homes, they're going
5 to have to go to a library maybe to even
6 access the World Wide Web. But in some
7 instances, the physical documents themselves
8 in a location would better suit the needs.
9 So we would ask your consideration of some
10 flexibility in where those documents are
11 located.
12 The third -- and you've talked a
13 lot about this already, in regards to the
14 definition of the responsible party. As
15 you've pointed out, there are a number of
16 definitions of responsible party. And if,
17 for example, you look at CERCLA, the
18 responsible party denotes having very strict
19 liability. And if we look at the definition
20 that we have in the proposal, it addresses a
21 person performing a response action meaning
22 the responsible party. And as you've pointed
23 out, there are a number of places in
24 Subpart C where many different terms are
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1 used. So, you know, perhaps it would be
2 possible throughout Subpart C to use the
3 person performing the response action or,
4 alternatively, to actually define responsible
5 party for purposes of this particular section
6 so that it's really clear that we're talking
7 about conducting the activity and not the
8 liability that we think of when we think of
9 CERCLA and other programs.
10 The final area that we have some
11 concern about is the inclusion -- the
12 appearance that you be required to notify
13 occupants. The law talks about -- The law
14 requires that we notify owners. And we think
15 it's a very good idea to notify occupants,
16 and that all people who are potentially
17 impacted by a release should be notified. We
18 think that the Agency's language in the
19 proposed rule that we notify the occupants to
20 the extent reasonably practicable is very
21 good language. Because based on experience
22 of some of ERG's member companies -- Two
23 perspectives: To give you a positive
24 example, one of our member companies had a
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1 release and there was a population, actually,
2 of homeless people that lived on a sandbar
3 near the site where the release occurred.
4 And this particular company had a very active
5 community relations program and found a
6 mechanism to identify people who were
7 actually homeless but who could be impacted.
8 In other situations, we found that sometimes
9 with occupants which are a transient
10 population, maybe more transient than
11 property owners, in some instances -- Let's
12 say we try to contact occupants by certified
13 mail. Experience has shown that a lot of
14 really bad news comes in certified mail, that
15 your bills are due, this is due, that is due,
16 and that people will actually not accept a
17 certified letter because, if they accept it
18 and they sign for it, therefore they're bound
19 by the bad news, thinking that it's bad news
20 even though we're trying to be protective of
21 the public health and welfare. And so in
22 that particular situation, it may be better
23 to find within that community how you best
24 notify those occupants.
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1 And I think our resistance to a
2 mandatory identification of occupants beyond
3 that the law requires ownership is that if
4 you make your best effort to notify the
5 occupants, and based on past experience you
6 don't notify the occupants, now you've opened
7 the regulated community up for yet another
8 avenue for lawsuit when it may well be
9 something that is beyond their control. And
10 I think we have no hesitancy whatsoever in
11 saying, yes, we should do everything we can
12 to notify the occupants, but we just see a
13 problem as it's being laid out as a mandate
14 of the regulation.
15 So that's kind of a synopsis of my
16 prefiled testimony. I'll answer questions.
17 And I noted some things that you all had
18 questions about; if you'd like, I may speak
19 to those.
20 MS. ANTONIOLLI: Does anybody have
21 questions at this point for Ms. Hirner?
22 MS. HIRNER: The question regarding
23 the community relations plan, again I think I
24 would like to highlight that we see the
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1 community relations plan as a process and
2 that that process is to help us decide how we
3 need to give notice. For example, the
4 A through H elements that you discussed as
5 being part of a community relations plan,
6 that's how you get to the notice or how you
7 get to the ongoing dialogue; but I think that
8 perhaps we could clear it up a little bit,
9 that that's the community relations plan
10 A through H, and when you give notice, it
11 needs to include 1 through 6 of the
12 legislation because they're not really
13 exactly the same thing. One subsumes the
14 other.
15 The other thing I'd like to speak
16 to is 1505.330(d), the enforcement mechanism.
17 We really believe that if the Agency does
18 indeed allow the regulated entity to be the
19 person giving the notice, there is a greater
20 deal of requirement that the Agency approves
21 what the regulated entity or person who
22 committed the release has to send in terms of
23 public notice and they have to require it
24 along the way -- or approve it along the way.
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1 And that if the regulated entity fails in
2 some mechanism to properly notice the public,
3 there is enforcement against the regulated
4 entity. So we think that there's pretty
5 strong language in here for requiring
6 compliance with the law.
7 And with that, I think I have
8 nothing to offer at this time but to answer
9 questions if you have any.
10 MS. ANTONIOLLI: When you talked about
11 the World Wide Web repository and how, in
12 some instances, a physical location is the
13 best method for the public to get this
14 information, are you recommending that the
15 Word Wide Web site not exist? I think in
16 that case, would there be both a website that
17 has the information and a physical
18 repository?
19 MS. HIRNER: You know, I think once
20 you have compiled the documents, having them
21 uploaded in some form or fashion is not
22 problematic. But the ability to have them at
23 a physical location, we think is pretty
24 important. And in some instances, maybe more
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1 important. If you get into downstate
2 Illinois and some places, people have
3 dial-up. And trying to download those
4 documents from an old dial-up network is
5 tough.
6 MS. ANTONIOLLI: And do you think the
7 way the Agency addressed that section in
8 Errata Sheet 1 is sufficient?
9 MS. HIRNER: I think so.
10 MS. ANTONIOLLI: Okay. Any further
11 questions?
12 Agency?
13 MR. WIGHT: I don't think we do. And
14 it's not that we don't think her points are
15 well taken, but we've already had ongoing
16 dialogue and understand most of their
17 concerns and objections at this point.
18 MS. ANTONIOLLI: Let's go off the
19 record for one minute.
20 (Discussion off the record.)
21 MS. ANTONIOLLI: Back on the record.
22 And the Board has scheduled a
23 second hearing in this matter for May 23rd,
24 2006, and that will take place in
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1 Springfield. The hearing will begin at
2 10:00 a.m. in the Board's office. Any person
3 wishing to testify should prefile testimony
4 with the Board by May 9th, 2006.
5 We expect to have the transcript
6 of today's hearing by April 7th, which is
7 next Friday, a week from this Friday. Soon
8 after we receive it, the Board will post the
9 transcript on our website, which is
10 www.ipcb.state.il.us. There the transcript
11 as well as the Agency's proposal and all of
12 the Board orders throughout this proceeding
13 will be viewable and downloadable. You can
14 also contact the clerk's office of the Board,
15 and the clerk will make copies of any order
16 or document on the website at 75 cents per
17 page.
18 Anyone can file a public comment
19 in this proceeding with the clerk of the
20 Board. But please note that when filing a
21 public comment, you must serve all of the
22 people on the service list with a copy of the
23 public comment. I have extra copies of the
24 service list here today with me, so come talk
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1 to me after the hearing if you need one.
2 If there is nothing further, I
3 wish to thank you all for your comments and
4 your testimony and for being here today.
5 This hearing is closed, and we will see you
6 again on May 23rd. Thank you.
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1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF COOK )
3
4 Kathy A. O'Donnell, being first duly sworn,
5 on oath says that she is a Registered Professional
6 Reporter doing business in the City of Chicago,
7 County of Cook and the State of Illinois;
8 That she reported in shorthand the
9 proceedings had at the foregoing Illinois Pollution
10 Control Board hearing;
11 And that the foregoing is a true and
12 correct transcript of her shorthand notes so taken
13 as aforesaid and contains all the proceedings had at
14 the said Illinois Pollution Control Board hearing.
15
16 ______________________
17 KATHY A. O'DONNELL, RPR
18
CSR No. 084-004466
19 SUBSCRIBED AND SWORN TO
before me this_______day of
20 _______________, A.D., 2005.
21
22
_____________________________
23 NOTARY PUBLIC
24
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