THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF: )
)
PROPOSED AMENDMENTS TO TIERED ) R06-10
APPROACH TO CORRECTIVE ACTION ) (Rulemaking - Land)
OBJECTIVES (35 ILL. ADM. CODE 742). )
NOTICE OF FILING
TO: Ms. Dorothy M. Gunn Richard R. McGill, Jr., Esq.
Clerk of the Board Illinois Pollution Control Board
Illinois Pollution Control Board James R. Thompson Center
100 West Randolph Street 100 West Randolph
Suite 11-500 Suite 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL) (VIA FIRST CLASS MAIL)
(SEE PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board
THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP’S COMMENTS
and
ENTRY OF APPEARANCE OF
MONICA T. RIOS,
copies of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By: /s/ Katherine D. Hodge
One of Its Attorneys
Dated: April 17, 2006
Katherine D. Hodge
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
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CERTIFICATE OF SERVICE
I, Katherine D. Hodge, the undersigned, hereby certify that I have served the
attached
THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP’S
COMMENTS
and
ENTRY OF APPEARANCE OF MONICA T. RIOS
upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
via electronic mail on April 17, 2006; and upon:
Richard R. McGill, Jr., Esq. William G. Dickett
Illinois Pollution Control Board
Sidley Austin Brown & Wood LLP
James R. Thompson Center Bank One Plaza
100 West Randolph, Suite 11-500 One South Dearborn Street, Suite 2800
Chicago, Illinois 60601
Chicago, Illinois 60603
Kimberly A. Geving Annet Godiksen
Assistant Counsel Legal Counsel
Illinois Environmental Protection Agency
Illinois Environmental Protection Agency
1021 North Grand Avenue East 1021 North Grand Avenue East
Post Office Box 19276 Post Office Box 19276
Springfield, Illinois 62794-9276
Springfield, Illinois 62794-9276
Mr. Bob Mankowski Ms. Lisa Frede
Environmental Protection Industries Chemical Industry Council of Illinois
16650 South Canal 2250 East Devon Avenue, Suite 239
South Holland, Illinois 60473 Des Plaines, Illinois 60018-4509
Mark R. Sargis, Esq. Tracy Lundein
Bellande & Sargis Law Group, LLP Hanson Engineers, Inc.
19 South LaSalle Street, Suite 1203 1525 South Sixth Street
Chicago, Illinois 60603 Springfield, Illinois 62703-2886
Douglas G. Soutter Georgia Vlahos
Conestoga-Rovers & Associates Naval Training Center
8615 West Bryn Mawr Avenue
2601A Paul Jones Street
Chicago, Illinois 60631 Great Lakes, Illinois 60088-2845
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Matthew J. Dunn, Division Chief Diane H. Richardson
Office of the Attorney General Commonwealth Edison Company
Environmental Bureau 10 South Dearborn, 35 FNW
188 West Randolph Street, 20th Floor Chicago, Illinois 60603
Chicago, Illinois 60601
Monte Nienkerk Elizabeth Steinhour
Clayton Group Services, Inc. Weaver Boos & Gordon Consultants LLC
A Bureau Veritas Company 2021 Timberbrook Lane
3140 Finley Road Springfield, Illinois 62702
Downers Grove, Illinois 60515
Mark Marszalek Jarrett Thomas, Vice President
Andrews Environmental Engineering Suburban Laboratories, Inc.
3535 Mayflower Boulevard 4140 Litt Drive
Springfield, Illinois 62711 Hillside, Illinois 60162
Stanley Yonkauski Raymond T. Reott
William Richardson, Chief Legal Counsel Jorge T. Mihalopoulos
Illinois Department of Natural Resources Reott Law Offices, LLC
Legal Division 35 East Wacker Drive
One Natural Resources Way Suite 650
Springfield, Illinois 62702-1271 Chicago, Illinois 60601
Steven Gobelman Dr. Douglas C. Hambley, P.E., P.G.
Thomas Benson Graef Anhalt Schloemer & Associates, Inc.
Illinois Department of Transportation 8501 West Higgins Road, Suite 280
2300 South Dirksen Parkway, Room 330 Chicago, Illinois 60631-2801
Springfield, Illinois 62764
Erin Curley Chetan Trivedi
Environmental Department Manager Trivedi Associates, Inc.
Midwest Engineering Services 2055 Steeplebrook Court
4243 West 166th Street Naperville, Illinois 60565
Oak Forest, Illinois 60452
John W. Hochwarter
David L. Rieser, Esq.
Jeffrey Larson McGuire Woods LLP
Missman Stanley & Associates
77 West Wacker Drive, Suite 4100
333 East State Street Chicago, Illinois 60601-1681
Rockford, Illinois 61110-0827
Charles A. King, Esq.
Chicago Department of Law
30 North LaSalle Street, Suite 900
Chicago, Illinois 60602
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Musette H. Vogel Harry Walton
The Stolar Partnership SRAC
The Lammert Building, 70th Floor 2510 Brooks Drive
911 Washington Avenue Decatur, Illinois 62521
St. Louis, Missouri 63101-1290
by depositing said documents in the United States Mail, postage prepaid, in Springfield,
Illinois, on April 17, 2006.
/s/Katherine D. Hodge
Katherine D. Hodge
IERG:001/R Dockets/Fil/COS – R06-10
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF: )
)
PROPOSED AMENDMENTS TO TIERED ) R06-10
APPROACH TO CORRECTIVE ACTION ) (Rulemaking - Land)
OBJECTIVES (35 ILL. ADM. CODE 742). )
THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP’S COMMENTS
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“IERG”), by and through its attorneys, HODGE DWYER ZEMAN, and submits the
following comments in the above-referenced matter:
I. INTRODUCTION
In January 2005, IERG staff, members of the Site Remediation Advisory
Committee (“SRAC”), and representatives of the Illinois Environmental Protection
Agency (“Agency”) met to discuss the Agency’s proposed rulemaking amending
provisions of the Tiered Approach to Corrective Action Objectives (“TACO”). Since the
initial meeting, IERG has continued to be active in the development of this rulemaking.
IERG, SRAC, and the Agency have been able to reach a consensus regarding the
proposed revisions and amendments to the TACO regulations. IERG generally supports
the Agency’s proposed amendments to the regulations and requests that the Board take
further action in this rulemaking consistent with IERG’s comments.
II.
RETROACTIVITY OF MANDATORY FORMS
IERG understands that the Agency’s proposed mandatory use of model forms
found in the appendices to the proposed regulations will not be retroactively applied. The
Agency does not intend to apply the model forms to owners or operators of sites who
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have negotiated and executed Highway Authority Agreements, Environmental Land Use
Covenants, or other agreements with the appropriate agency prior to the effective date of
the rules.
See
Transcript of March 1, 2006, Hearing at 10-11,
In the Matter of: Proposed
Amendments to Tiered Approach to Corrective Action Objectives (35 Ill. Admin. Code
742),
PCB No. R06-10 at 3 (Ill. Pol. Control. Bd. Mar. 10, 2006). These owners or
operators will not be required to renegotiate the agreements, even where the agreements
may not be identical to the new forms. In order to clarify that the proposed model forms
will not be retroactively applied, IERG respectfully requests that the Illinois Pollution
Control Board (“Board”) address this issue in its final opinion in this matter.
III.
PNA BACKGROUND STUDY
IERG wants to clarify an issue raised by the Board during the March 1, 2006,
hearing regarding sampling sites for the Illinois polynuclear aromatic hydrocarbon
(“PNA”) background concentration study. In IERG’s Prefiled Testimony of Mr. Brian
Martin, Mr. Martin stated,
[t]he objective of this investigation was to determine ambient
concentrations of PNAs due to natural and human activities in non-
impacted residential and commercial (including some agricultural and
light industrial) areas. The sampling protocol goal was to obtain PNA
data from residential areas with no known sources of PNAs (
i.e
., strong
data bias to the residential land use including rural areas adjacent to
communities). The protocol did not attempt to characterize PNAs on a
statewide basis meaning that industrial, commercial, rural, agricultural,
and recreational areas were not investigated.
Prefiled Testimony of Brian H. Martin at 3,
In the Matter of: Proposed Amendments to
Tiered Approach to Corrective Action Objectives (35 Ill. Admin. Code 742),
PCB No.
R06-10 (Ill. Pol. Control. Bd. Feb. 22, 2006). The “non-impacted residential lands”
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referenced above are residential and commercial sites not impacted by direct industrial
sources. The sampling method chosen for the study eliminated both industrial locations
where there would be a known likelihood of contamination and non-populated areas
where contamination would likely not be present. Transcript of March 1, 2006, Hearing
at 20,
In the Matter of: Proposed Amendments to Tiered Approach to Corrective Action
Objectives (35 Ill. Admin. Code 742)
,
PCB No. R06-10 (Ill. Pol. Control. Bd. Mar. 10,
2006).
The Board questioned the apparent contradictory language of the first and last
sentences in the paragraph above quoting IERG’s prefiled testimony. In response, Mr.
Martin explained,
[w]e were trying to identify background PAHs in populated areas, small
cities, things like that. In some cases where it was necessary to find
representative samples for populated areas, there might have been
samples, and probably were samples collected from agricultural land at the
edge of town, for example, but it was still considered to be within a
population center.
Id.
To further clarify Mr. Martin’s response, “industrial, commercial, rural, agricultural,
and recreational areas were not investigated” outside of populated areas, that is, on a
statewide basis. However, a limited number of such types of sites that were either
located in, adjacent to, or contiguous with incorporated municipalities or urban areas
were sampled as warranted by the study’s sampling methodology. Some of these
adjacent or contiguous sites were primarily used for agricultural or light industrial
purposes.
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The PNA background studies conducted in Illinois over the last few years
concluded that “several PNA compounds were found to be present in almost every
sample collected throughout the state.” Prefiled Testimony of Lawrence W. Eastep,
In
the Matter of: Proposed Amendments to Tiered Approach to Corrective Action
Objectives (35 Ill. Admin. Code 742)
,
PCB No. R06-10 (Ill. Pol. Control. Bd. Jan 10,
2006). As currently written, the TACO regulations require the owner, operator, or
remedial applicant to “remediate below naturally occurring levels” in order to meet the
remedial objectives for certain PNAs.
Id.
In his prefiled testimony, Mr. Larry Eastep
explained that allowing owners, operators, or remedial applicants of sites to take into
account PNA background levels will help keep costs low and “allow them to focus on
contaminants of concern, while still protecting human health and the environment.”
Id.
Mr. Martin also commented on the usefulness of considering PNA background
concentrations. He stated in his pre-filed testimony,
[t]he Act and existing rules were written with the goal to address situations
where remediation site contaminants of concerns are from an industrial
source. Many remediation sites including commercial and industrial sites
have PNAs concentrations less than the proposed Table H concentrations
but greater than Tier 1 residential ROs. Requiring the remedial applicant
to remediate to achieve Tier 1 residential would result in “islands of clean”
and would “chill” the recycling of commercial/industrial properties to a
residential land use. The increased cost to achieve the Tier 1 ROs will not
result in a decreased risk to the residential community. . . .The Table H
concentrations must be considered as the applicable PNA ROs.
Prefiled Testimony of Brian H. Martin at 5,
In the Matter of: Proposed Amendments to
Tiered Approach to Corrective Action Objectives (35 Ill. Admin. Code 742),
PCB No.
R06-10 (Ill. Pol. Control. Bd. Feb. 22, 2006). The regulated community recognizes the
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benefits of the Agency’s proposal, and IERG respectfully requests that the Board adopt
the Agency’s proposed amendments related to the incorporation of PNA background
concentrations into the TACO regulations.
IV.
ADLs AS REMEDIATION OBJECTIVES
During the hearing held on March 1, 2006, laboratory community representatives
raised issues concerning the use of Alternative Detection Limits (“ADLs”) as TACO
Tier 1 remediation objectives (“ROs”), when risk-based ROs are less than the practical
quantification limits (“PQLs”) and/or method detection limits (“MDLs”). IERG staff was
actively involved in the development of the TACO standards and understands the
laboratory community’s concerns, but believes that these concerns may be unfounded and
are better addressed in a separate rulemaking.
As the Board knows, TACO is the Agency’s method for developing ROs for
contaminated soil and groundwater. These ROs protect human health and take into
account site conditions and land use. ROs generated by TACO are risk-based, site-
specific, and used in conjunction with Illinois’ corrective action programs, such as the
Leaking Underground Storage Tank Program, Site Remediation Program, and RCRA
Closure and Corrective Action. These programs use the TACO process to assure
environmental conditions at a site do not pose a risk to human health and the
environment. Because of the wide range of sites and contaminants of concern in which
TACO can be applied, TACO itself does not provide procedures for characterizing a site
and evaluation of the potential contamination at the site. Adequate characterization of the
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extent and nature of contaminants is critical to the TACO process, but it is program
specific, as provided by each program’s regulatory requirements.
The Agency’s 2006 proposed amendments to TACO do not include changes to
ADLs. The concerns raised by the representatives of the laboratories during the first and
second hearings regarding this perceived need to change the manner in which ADLs are
established are not appropriate to this rulemaking. Changing the ADL regulatory
structure to address the laboratory representatives’ concerns would be in conflict with
TACO protective and “conservative” policy goals. The current ADL compliance policy
assures that the Tier 1 ROs are protective in all exposure scenarios. The regulated
community, which includes the financial and lending industry, developers and the legal
community, rely upon the current TACO policy and process, which provide cost effective
tools to address theoretical risks.
Accordingly, IERG urges the Board to adopt the Agency’s TACO amendments
without addressing the ADL issue. IERG further recommends that the ADL issues and
concerns raised by the laboratory community be discussed between the Agency and
interested parties. If necessary, amendments to the applicable regulatory programs may
then be proposed to address any outstanding issues.
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V.
CONCLUSION
IERG appreciates the opportunity to participate in this proceeding. IERG
respectfully requests that the Board take further action in this proceeding consistent with
IERG’s comments.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:____/s/ Katherine D. Hodge_________
Katherine D. Hodge
Dated: April 17, 2006
Katherine D. Hodge
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
IERG:001/R Dockets/Filings/R06-10 /TACO Comments
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER
OF:
)
PROPOSED AMENDMENTS TO TIERED)
R06-10
APPROACH TO CORRECTIVE ACTION )
OBJECTIVES
(35 ILL. ADM. CODE 742) )
(Rulema
- Land)
ENTRY OF APPEARANCE OF MONICA T. RIOS
NOW COMES Monica T. Rios, of the law firm HODGE DWYER ZEMAN, and
hereby enters her appearance in this matter on behalf of the Illinois
Regulatory Group.
By:
Dated: April 17, 2006
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Respectfully submitted,
iromnental
IERC:o01/R Dockets/FiUR06-lo- E'OA for MTR
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