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ILLINOIS POLLUTION CONTROL BOARD

September 7, 2006

Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by A.S. Moore):

Today the Board proposes amendments to the Tiered Approach to Corrective Action Objectives (TACO) rules (35 Ill. Adm. Code 742) for first-notice publication in the Illinois Register. This rulemaking was initiated when the Illinois Environmental Protection Agency (Agency) filed a proposal with the Board. After conducting two public hearings and considering the entire record, including public comments and Agency errata sheets, the Board is adopting for first notice the amendments proposed or agreed to by the Agency.

The first-notice amendments are primarily designed to update standards and improve procedures under TACO and make numerous corrections and clarifications. TACO was last amended in 2002. Generally, TACO provides methods for developing risk-based remediation objectives to be used in environmental contamination cleanups under several regulatory programs: Leaking Underground Storage Tank (LUST) Program; Site Remediation Program (SRP); and Resource Conservation and Recovery Act (RCRA) Part B Permits and Closure Plans. Today’s changes include the addition of background soil levels for polynuclear aromatic hydrocarbons (PAHs) and newly-applicable residential remediation objectives to protect construction workers, as well as mandatory forms to be used for certain institutional controls. Publication of these proposed amendments in the Illinois Register will begin a 45-day public comment period.

In this opinion, the Board first provides the procedural history of this rulemaking and addresses several procedural items. The Board then gives background on the existing TACO rules. Next, the Board discusses the proposal and the key issues raised at hearing and in public comment. The first-notice amendments themselves are set forth in the order following this opinion.

PROCEDURAL MATTERS

Procedural History

The Agency filed its rulemaking proposal on September 30, 2005. ¹ On October 20, 2005, the Board accepted the Agency’s proposal for hearing, but required the Agency to file more copies of the materials that the Agency sought to have incorporated into TACO by reference. On November 2, 2005, the Agency timely filed the additional copies.

The Board held two public hearings in this rulemaking.  ² The first hearing took place in Chicago on January 31, 2006. Five persons testified on behalf of the Agency at the first hearing: (1) Gary King, Manager of the Division of Remediation Management in the Agency’s Bureau of Land; (2) Dr. Thomas Hornshaw, Manager of the Agency’s Toxicity Assessment Unit; (3) Lawrence Eastep, the former Manager of the Remedial Project Management Section in the Agency’s Bureau of Land, now retired; (4) Gregory Dunn, Manager of one of the Voluntary Site Remediation Units in the Agency’s Bureau of Land; and (5) Doug Clay, Manager of the LUST Section in the Agency’s Bureau of Land.

Also testifying at the Chicago hearing were Harry Walton and Jarrett Thomas. Mr. Walton testified on behalf of the Illinois Environmental Regulatory Group (IERG) and the Site Remediation Advisory Committee (SRAC). IERG is a not-for-profit Illinois corporation affiliated with the Illinois State Chamber of Commerce and consists of over 60 member companies. SRAC was established under Section 58.11(a) of the Environmental Protection Act (Act) (415 ILCS 5/58.11(a) (2004)) as a 10-member committee appointed by the Governor to, among other things, “[r]eview, evaluate, and make recommendations regarding State laws, rules, and procedures that relate to site remediations.” 415 ILCS 5/58.11(b)(1) (2004).

SRAC members are from the Illinois State Chamber of Commerce, the Illinois Manufacturers’ Association, the Chemical Industry Council of Illinois, the Consulting Engineers Council of Illinois, the Illinois Bankers Association, the Community Bankers Association of Illinois, the Illinois Association of Realtors, and the National Solid Waste Management Association. Martin PFT2 at 1-2. Mr. Thomas is the President of the Illinois Association of Environmental Laboratories (IAETL) and Vice-President of Suburban Laboratories, Inc. IAETL consists of approximately 24 member laboratories. Tr.2 at 115.

The second hearing took place in Springfield on March 1, 2006. All those who testified at the first hearing also testified at the second hearing. The following additional persons testified at the second hearing: Brian Martin; Steven Gobelman; Ron Turpin; Tracey Hurley; Joe Truesdale; Greg Pronger; Richard Halm.

Mr. Martin testified on behalf of IERG. Mr. Martin is a Consulting Environmental Scientist at Ameren Services who represents the Illinois Manufacturers’ Association as Chairman of SRAC. Mr. Martin is also Chairman of the IERG Corrective Action Work Group, “which includes numerous companies engaged in industry, commerce, manufacturing, and transportation related activity.” Martin PFT2 at 1. Mr. Gobelman testified on behalf of the Illinois Department of Transportation (IDOT). Mr. Gobelman is the Geologic and Waste Assessment Specialist in IDOT’s Bureau of Design and Environment. Mr. Turpin is the Manager of the Quality Assurance Section of the Agency’s Division of Laboratories. Ms. Hurley is with the Agency’s Toxicity Assessment Unit. Mr. Truesdale is a professional engineer and professional geologist with CSD Environmental Services. Mr. Pronger is the Technical Director for Suburban Laboratories, Inc. Finally, Mr. Halm is the General Manager of Environmental Monitoring and Technologies.

The transcripts of the Chicago and Springfield hearings were received by the Board on February 10 and March 10, 2006, respectively, and promptly placed in the Clerk’s Office On Line (COOL) on the Board’s Web site at www.ipcb.state.il.us . Many other documents from this rulemaking are available through COOL, including Board opinions and orders, hearing officer orders, prefiled testimony, and public comments.

As required by Section 27(b) of the Act (415 ILCS 5/27(b) (2004)), the Board requested that the Department of Commerce and Economic Opportunity (DCEO) conduct an economic impact study (EcIS) on this rulemaking. The Board’s EcIS request, dated November 10, 2006, was placed in this rulemaking’s docket. DCEO did not respond to the Board’s request. At hearing, the hearing officer noted the Board’s EcIS request to DCEO and DCEO’s lack of response, affording anyone the opportunity to testify. No one testified about DCEO’s lack of response. Tr.2 at 6-7.

The hearing officer entered 16 hearing exhibits into the record. The hearing exhibits are described as follows:

The Agency filed three errata sheets, proposing rule language changes to its original proposal. Errata sheet number one was filed on January 10, 2006 (Exh. 1); errata sheet number two on January 27, 2004 (Exh. 2); and errata sheet number three on February 10, 2006 (Exh. 7).

On February 21, 2006, the Agency filed a motion to correct the first hearing transcript, which the hearing officer granted on the record at the second hearing. Tr.2 at 8-9. In a

March 7, 2006 order, the hearing officer set a public comment filing deadline of April 17, 2006, for those who wished to ensure that the Board would consider their public comment before proceeding to any first-notice decision. The Board received three public comments, all timely filed on the deadline: (1) public comment of IAETL (PC 1); (2) public comment of IERG (PC 2); and (3) public comment of the Agency (PC 3).

IERG and SRAC support the Agency’s proposed amendments. Martin PFT2 at 2. As discussed below, IAETL sought changes to TACO’s Acceptable Detection Limits (ADLs), which the Agency, IERG, and SRAC opposed.

Motion to Correct Second Hearing Transcript

 On April 3, 2006, the Agency filed a motion to correct the second hearing transcript. No response has been filed to the Agency’s motion. The Board grants the motion. As was done upon granting the Agency’s motion to correct the first hearing transcript, the Board now directs the Clerk’s Office to: (1) have the docket entry for the second hearing transcript reflect the granting of the Agency’s motion to correct; and (2) physically and electronically attach to the front of the second hearing transcript both the Agency’s motion to correct and this portion of the Board’s opinion ruling on that motion.

Filing Public Comments

In addition, public comments may be filed electronically through COOL at www.ipcb.state.il.us . Any questions about electronic filing through COOL should be directed to the Clerk’s Office at (312) 814-3629.  ³      

BACKGROUND ON TACO

The Board adopted TACO rules in 1997 under Title XVII of the Act (415 ILCS 5/58-58.17 (2004)). The rules are set forth in Part 742 of Title 35 of the Illinois Administrative Code (35 Ill. Adm. Code 742). As the Agency notes, the TACO rules provide “procedures for developing remediation objectives based on various risks to human health posed by environmental conditions at a site.” Stat. of Reas. at 2. Under TACO, persons assess the site conditions, evaluate the risks to human health, and propose remediation objectives to “mitigate conditions at the site so that they no longer pose a threat to human health.” Id.

Generally, TACO is used at sites being remediated under the SRP, the LUST Program, and RCRA Part B Permits and Closures. Stat. of Reas. at 1; 35 Ill. Adm. Code 742.105(b). The Agency states that using TACO has put “many sites back into productive use while significantly decreasing remediation costs statewide.” Stat. of Reas. at 4. Indeed, Gary King of the Agency testified that he had spoken with:

State environmental representatives from Indiana, Missouri, Wisconsin, New York, and Mississippi as they have developed their own State programs and have looked to the Illinois TACO rules to help guide their decision making. King PFT1 at 2; Tr.1 at 9.

The Board has amended the TACO rules several times over the years. For example, in 2000, the Board adopted amendments proposed by the Agency that were “necessitated by new technology, science, and programmatic changes.” Stat. of Reas. at 2. According to the Agency, it is again necessary to amend TACO to keep it “current.” Id.

DISCUSSION

In this portion of the opinion, the Board first provides an overview of the first-notice proposal. The Board then discusses the most significant changes being made to the TACO rules and the key issues raised at hearing and in public comment. Those topics are addressed in the following sequence: (1) applicability of TACO; (2) institutional controls, including ordinances and new mandatory forms; (3) background soil levels for polynuclear aromatic hydrocarbons or PAHs; (4) construction worker protection in residential scenarios; (5) new lead remediation objectives; (6) matters raised by the laboratory community, including concerns over Acceptable Detection Limits or ADLs; and (7) the technical feasibility and economic reasonableness of the amendments.

Overview

The Agency described the nature of the proposal:

The proposed amendments range in content from comments from the regulated community to improve procedures to new standards established for various contaminants, updated test methods, and new toxicity criteria. The effect of the proposed amendments is to update and improve standards and procedures so that end users of the rules can achieve accurate data results that are protective of human health. Stat. of Reas. at 2-3; see also PC 3 at 1-2; Tr.1 at 9-10.

 The Board’s first-notice amendments make no substantive changes to the Agency’s original proposal or three Agency errata sheets, with two exceptions: IDOT and IAETL each suggested rule language, all of which is detailed below and agreed to by the Agency. Many of today’s amendments are found in TACO appendices because they are new values established for contaminants or are new forms for institutional controls. Hornshaw PFT1 at 3-4; Tr.1 at 18-19. Many other changes are given effect by amending TACO’s incorporations by reference, reflecting new or updated test methods and technical support documents. Stat. of Reas. at 4, 7-10; Dunn PFT1 at 2-5; Tr.1 at 18-19, 26. The first-notice amendments also reflect a number of minor corrections and clarifications. Hornshaw PFT1 at 7-14.

Applicability of TACO

 The Board adds a new subsection (h) to Section 742.105 on TACO applicability, clarifying that landfills cannot use TACO in lieu of the procedures and requirements applicable to landfills under Part 807 or Parts 811 through 814 (35 Ill. Adm. Code 807, 811-814). Stat. of Reas. at 5; King PFT1 at 2-3. This change “represent[s] longstanding Agency practices.” Stat. of Reas. at 2. In fact, the Agency’s Gary King testified in the original TACO rulemaking that “landfills were not an appropriate fit for use of TACO because of technical and regulatory issues.” King PFT1 at 2-3; Tr.1 at 10.

Institutional Controls

Under TACO, an “institutional control” is “a legal mechanism for imposing a restriction on land use, as described in Subpart J.” 35 Ill. Adm. Code 742.200. Institutional controls include No Further Remediation (NFR) Letters, Environmental Land Use Controls (ELUCs), Highway Authority Agreements (HAAs), and ordinances. See 35 Ill. Adm. Code 742.Subpart J. Several types of institutional controls are impacted by the first-notice amendments.

Highway Authority Agreements or HAAs

 For contamination remaining under highways, the Board adds new language to clarify the use of HAAs. Such agreements are typically between the highway authority and the property owner. The amendments are needed to address when a LUST owner or operator (i.e., the person who would receive the NFR Letter from the Agency) is not the owner of the property. See Proposed Section 742.1000(c)(5); Appendix D; King PFT1 at 3.

In addition, a new instrument is added as an institutional control (Highway Authority Agreement Memorandum of Agreement or HAA MOA) to address situations where the highway authority is the property owner or LUST owner or operator and contamination remains under the highway. The problem resolved by this amendment is that the highway authority cannot enter into a binding agreement with itself. The HAA MOA then, as proposed for first notice, would be entered into between the highway authority and the Agency. See Proposed Sections 742.1000(c)(6), 742.1020(g), (h); Appendix E; King PFT1 at 3, 4-6.

Ordinances

 Mr. King testified that ordinances, like other institutional controls, “must remain in effect in perpetuity unless a responsible party demonstrates to the Agency that the ordinance (or other institutional control) is no longer necessary.” King PFT1 at 4. Ordinances, however, “by their nature, may be amended,” and the Agency is aware of at least two instances where ordinances approved as institutional controls were later amended or repealed without notice to the Agency. Id. Accordingly, the Board adds new requirements to alert the Agency of such actions regarding institutional control ordinances. Id.; see Proposed Section 742.1015(c).

 The Agency’s Gregory Dunn testified that under current Section 742.320(d), an ordinance can be used to exclude the groundwater ingestion exposure route only if the ordinance effectively prohibits installing and using potable water supply wells within 2,500 feet from the source of the release. The 2,500-foot distance was originally proposed to correspond to the maximum setback zone for a community water supply well under Section 14.3 of the Act (415 ILCS 5/14.3 (2004)). Dunn PFT1 at 7; Stat. of Reas. at 5-6. A difficulty has arisen, however, for sites near a municipal boundary. These sites cannot now use Section 742.320(d) because the 2,500-foot radius would extend beyond the municipal boundary—and because beyond the municipal boundary there is no such ordinance in effect. Dunn PFT1 at 7-8; Stat. of Reas. at 5-6.

According to Mr. Dunn, among those sites precluded from using an ordinance to exclude the groundwater pathway are sites that “may only have measured and modeled concentrations extending only a short distance off-site, but well within 2,500 feet of the boundary of the municipality with the groundwater ordinance.” Dunn PFT1 at 8. To address this issue, the first-notice amendments would allow use of a groundwater ordinance for any area within the measured and modeled extent of groundwater contamination above what would otherwise be the applicable Tier I groundwater objectives. Id.; Tr.1 at 29-30; Stat. of Reas. at 6.      

Mandatory Forms

 The Agency over the last several years has developed “model documents” to implement the different institutional controls under TACO. The Agency did so “to make document preparation and Agency review more effective.” King PFT1 at 6. Specifically, the Agency believes that requiring the use of the forms “significantly decreases the burden on the regulated community to craft forms themselves and also substantially decreases the [Agency’s] review time of the documents.” Stat. of Reas. at 7. The Agency posted the model documents on it Web site for easy public use. Tr.1 at 11. Mr. King testified that it would now be appropriate to codify the model documents and formally require their use. King PFT1 at 6.

According to the Agency, the forms were prepared by Agency attorneys “to meet the four corners of the law.” Eastep PFT2 at 5. Over the possible concern that the act of non-lawyers completing these legal documents might constitute the unauthorized practice of law, the Agency maintains that “simply having members of the regulated community fill in the blanks with site specific information does not require any legal expertise, nor does the Agency believe it constitutes the practice of law.” Id. The Agency likens these forms to other government forms that are filled out every day by members of the public without being classified as the unauthorized practice of law. Id . at 5-6. Further, before submitting its proposal to the Board, the Agency shared a draft of the proposed forms with and met with SRAC and IERG, neither of which raised concerns over any potential for the unauthorized practice of law. Stat. of Reas. at 3; Martin PFT2 at 2; Tr.1 at 101-06. For first notice, the proposed mandatory forms appear in new TACO Appendices D (HAA), E (HAA MOA), F (ELUC), and H (Memorandum of Understanding) and are cross-referenced in the rule text. King PFT1 at 6; Eastep PFT2 at 5.

  At the Springfield hearing, Steven Gobelman of IDOT testified that IDOT wished to be exempt from having to use the Agency’s proposed mandatory HAAs. Exh. 12 at 1. Mr. Gobelman testified that IDOT, as a State agency, has “unique legal requirements that other highway authorities would not have.” Id. He explained that the HAA currently used by IDOT:

contains the following additional legal provisions unique to the State of Illinois[:] all [IDOT] HAAs must be reviewed and approved by the Illinois Attorney General’s Office; (2) the [IDOT] HAA is null and void if the Illinois Attorney General’s Office and the Agency do[] not approve such agreement; (3) if [IDOT] should breach the HAA, the owner/operator’s sole remedy is for an action for damages in the Illinois Court of Claims. Id. at 1-2.

According to Mr. Gobelman, IDOT has worked with the Agency and the Illinois Attorney General’s Office to establish its own agreements, “which satisfy not only the requirements of the Model HAA but also the TACO regulations.” Exh. 12 at 1-2. At hearing, IDOT offered changes to the Agency’s proposed Section 742.1020(a) amendments to carve IDOT out from the requirement to use the Appendix D HAA form. Id.; Tr.2 at 22-24. The Agency concurs with IDOT’s proposed rule language (PC 3 at 2), which is reflected in today’s first-notice proposal.

Finally, IERG asked the Board to address in its opinion whether the new mandatory forms would be “retroactively applied.” PC 2 at 1-2. Mr. King testified that the Agency does not intend to require use of the new forms where the institutional control agreements have already been negotiated and executed before the effective date of these amendatory rules. Tr.2 at 10-11; PC 2 at 1-2. The Board agrees with the Agency and as IERG suggests, these rules will not require such pre-existing agreements to be renegotiated “even where the agreements may not be identical to the new forms.” PC 2 at 2.

Background Soil Levels for Polynuclear Aromatic Hydrocarbons or PAHs

 Based on the Agency’s years of experience in reviewing contaminant investigation reports submitted under the SRP, it became apparent to the Agency that significant levels of PAHs are “ubiquitous throughout much of the State.” Stat. of Reas. at 7; Eastep PFT1 at 2; Tr.1 at 21-23. PAHs “occur as a result of the incomplete combustion of organic material or a result of other natural or anthropogenic activities.” Stat. of Reas. at 7. Natural sources of PAHs might include forest fires, volcanic activity, and for the City of Chicago, the Great Chicago Fire. Eastep PFT1 at 1. Anthrpogenic sources may include motor vehicles, coal burning power plants, burning refuse, outdoor grilling, and industrial operations like manufactured gas plants. Id.

The problem presented by these “background” levels of PAHs is that to meet existing TACO remediation objectives for certain PAHs, persons have had to “remediate to levels below the naturally occurring levels.” Stat. of Reas. at 7-8. According to the Agency, “[t]his could mean removal of soils to excessive depths and then trying to find clean fill that might meet all the Tier 1 objectives,” which was often “either technically infeasible or economically unreasonable.” Eastep PFT1 at 2. In the words of IERG’s Brian Martin:

Requiring the remedial applicant to remediate to achieve Tier 1 residential [remediation objectives] 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 [remediation objectives] will not result in a decreased risk to the residential community. Martin PFT2 at 5.

 A new Table H to Appendix A would set forth background soil levels for PAHs that may be used as remediation objectives. The PAH levels are based on two studies performed in 2001 and 2002. One study was conducted by the City of Chicago in conjunction with the United States Geological Survey (USGS) to assess PAH levels in Chicago ambient soils. A Brownfield Redevelopment Grant was approved for the City of Chicago in July 2000 to allow for the study. The results of the study were presented by Tetra Tech EM Inc. in Polynuclear Aromatic Hydrocarbon Background Study, City of Chicago, Illinois, which is being incorporated by reference. Stat. of Reas. at 8; Eastep PFT1 at 2. The study assessed “those soils whose chemical composition is affected by ubiquitous natural or anthropogenic processes rather than site-specific disposal of waste materials.” Eastep PFT1 at 2-4; Tr.1 at 22.

The other study was conducted by the Electric Power Research Institute (EPRI) in soils statewide, but outside of the City of Chicago. The Agency consulted with EPRI on this study and concurred with the site selection and sampling protocols before the study began. The results of the study were published in Polycyclic Aromatic Hydrocarbons (PAHs) in Surface Soil in Illinois: Background PAHs, which is being incorporated by reference. Eastep PFT1 at 3-5; Stat. of Reas. at 8; Martin PFT2 at 2-3; PC 2 at 3; Tr.1 at 22; Tr.2 at 15-20.

For PAHs that have background levels exceeding any tier remediation objective, the “appropriate background level is incorporated into the Tier 1 table by virtue of a footnote” directing the reader to the newly-added background PAH levels table. Eastep PFT1 at 2-5; Stat. of Reas. at 8; see Proposed Appendix A, Table H; Appendix B, Table A, footnote w; Appendix B, Table B, footnote x.

The background PAH table, as with background levels for arsenic added in 2000, is not part of the “area background” provisions of TACO’s Subtitle D (35 Ill. Adm. Code 742.Subpart D). Eastep PFT2 at 2-5; Martin PFT2 at 3-4; see Proposed Amendments to Tiered Approach to Corrective Action Objectives (TACO) (35 Ill. Adm. Code 742), R00-19(A) (Dec. 21, 2000). Larry Eastep of the Agency testified:

Arsenic was found to be present everywhere above the Tier 1 residential objectives. It was in residential areas, natural areas, and many other uncontaminated areas. The Agency determined that even though arsenic was above Tier 1 objectives, it poses no additional (incremental) excess risk over what the public is exposed to every day. *** [A]rsenic was not characterized as “area background” since it was a statewide phenomenon . . . .

***

Since the studies have shown [PAHs] to be ubiquitous in Illinois, the use of statewide background does not fit the concept of “area background” provided in the Act and current rules. “Area background” was intended to address specific areas contaminated by local activities of industry. Eastep PFT2 at 3-4, 5; see also Tr.1 at 80-81, 83, 90-91.

The new Table H with background PAH levels could be used for a site in Chicago or in any other “populated area.” Eastep PFT1 at 5; Stat. of Reas. at 8. The proposed definition of “populated area” reads as follows:

“Populated Area” means (1) an area within the boundaries of a municipality that has a population of 10,000 or greater based on the year 2000 or most recent census; or (2) an area less than three miles from the property boundary of a municipality that has a population of 10,000 or greater based on the year 2000 or most recent census. See Proposed Section 742.200.

Table H contains three columns of differing background soil values: one column for Chicago; one for “metropolitan areas”; and one for “non-metropolitan areas.” Eastep PFT1 at 5. For purposes of the table, “Chicago” means within the corporate limits of the City of Chicago. See Proposed Appendix A, Table H, footnote a. The term “metropolitan area” means a “populated area” (other than the City of Chicago) that is located within any county in a standard metropolitan statistical area (SMSA). See Proposed Appendix A, Table H, footnote b. The term “non-metropolitan area” means a “populated area” that is not located within any county in a SMSA. See Proposed Appendix A, Table H, footnote c. ⁴   

The three separate geographical areas are used because background PAH levels were statistically different in those areas. Eastep PFT1 at 5. The Agency provided an example:

For benzo(a)anthracene, background levels exceeded Tier 1 ingestion levels only in Chicago and the downstate metropolitan areas, but not non-metropolitan areas. Thus, the non-metropolitan areas would not use Table H since background in these areas was below Tier 1 levels. Id.

Mr. Eastep testified that PAHs have a “statewide presence that residents are exposed to every day.” Eastep PFT2 at 4. According to Mr. Eastep, the proposed amendments “should have no impact in terms of excess risk” because there is “no increase in risk to people.” Id. at 5; Tr.2 at 11-12. Responding to potential concerns about the cumulative effect of similar acting carcinogenic chemicals, the Agency contends that if multiple PAHs are present at concentrations less than the values listed in the new background table, then the risk levels fall within “the acceptable range of 10^-4 to 10^-6.” PC 3 at 3, Attachment 1; Tr.1 at 13-14, 84-87; Tr.2 at 11-14.

Mr. Eastep concluded in testimony that allowing cleanups to use the new PAH background table “will help hold costs down and allow them to focus on contaminants of concern, while still protecting human health and the environment.” Eastep PFT1 at 6; PC 2 at 5. The Board adopts the new Table H on PAH background levels for first notice.

Construction Worker Protection in Residential Scenarios

 The Board adds a new footnote, footnote x, to Appendix B, Table A, because 28 chemicals listed in TACO were found to have “industrial/commercial construction worker inhalation” remediation objectives that are more stringent that the “residential inhalation” objectives. Stat. of Reas. at 8-9. In other words, a site cleaned up to current residential levels might nevertheless not meet all of the construction worker objectives. Of course, construction work may occur on residential properties, including emergency work or repairs. Further, many sites are cleaned up to TACO residential levels even though the property is intended to be used for commercial or industrial purposes, “to reduce encumbrances on their property.” Eastep PFT1 at 9-10; Tr.1 at 23-24, 94-95. The new footnote x is designed to apply the more stringent objectives for those 28 chemicals. Id.; Stat. of Reas. at 8-9.

New Lead Remediation Objectives

 Dr. Thomas Hornshaw of the Agency testified that TACO’s existing lead soil remediation objective of 400 milligrams per kilogram (mg/kg) for the industrial/commercial and construction worker ingestion pathways is based on a child’s exposure assumptions. Horhshaw PFT1 at 4. The Agency conferred with USEPA and reviewed the USEPA Adult Blood Lead Model, according to Dr. Hornshaw. The Agency determined that it would be appropriate to use the default inputs for this model to calculate new lead soil objectives of 800 mg/kg and 700 mg/kg for the industrial/commercial and construction worker ingestion routes, respectively. Id., Exh. B, C; Tr.1 at 16-17. For first notice, these new values appear in proposed Appendix B, Table B.

Laboratory Matters

Acceptable Detection Limits or ADLs

Current Section 742.200 of TACO defines ADL as follows:

“ADL” means Acceptable Detection Limit, which is the detectable concentration of a substance that is equal to the lowest appropriate Practical Quantitation Limit (PQL) as defined in this Section. 35 Ill. Adm. Code 742.200.

In turn, PQL is defined as follows:

“PQL” means practical quantitation limit or estimated quantitation limit, which is the lowest concentration that can be reliably measured within specified limits of precision and accuracy for a specific laboratory analytical method during routine laboratory operating conditions in accordance with “Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods”, EPA Publication No. SW-846, incorporated by reference in Section 742.210. When applied to filtered water samples, PQL includes the method detection limit or estimated detection limit in accordance with the applicable method revision in: “Methods for the Determination of Organic Compounds in Drinking Water”, Supplement II”, EPA Publication No. EPA/600/4-88/039; “Methods for the Determination of Organic Compounds in Drinking Water, Supplement III”, EPA Publication No. EPA/600/R-95/131, all of which are incorporated by reference in Section 742.210. 35 Ill. Adm. Code 742.200.

The ADLs are based either on USEPA’s SW-846 test methods document or drinking water methods. Tr.1 at 36-37. Generally, under TACO, where the remediation objective for a chemical is less than the ADL, the ADL serves as the remediation objective. See 35 Ill. Adm. Code 742.505(b)(3)(B) (groundwater), 742.510(a)(8) (soil).

IAETL proposed revisions to existing ADLs in TACO, as well as new ADLs where TACO provides no ADLs. PC 1, Attachment; Tr.1 at 42; 59-61, 67. IAETL argues that the Agency “clearly intended the cleanup objectives found in TACO to be analytically achievable.” PC 1 at 2. IAETL claims that the Agency’s proposal nevertheless failed to address USEPA’s warning that method Estimated Quantitation Limits (EQLs) listed in USEPA’s SW-846 test methods document are “highly matrix dependent” and “provided for guidance and may not always be achievable.” Id. Additionally, IAETL cautions that linking TACO remediation objectives to USEPA SW-846 EQLs poses significant risk because the methods tend to change over time. Id. In fact, USEPA is removing all references to EQLs from future methods and revisions, according to IAETL. Id.

IAETL maintains that the Agency also did not consider the limited number, and in some cases, the complete lack of accredited laboratories that may be able to achieve the published EQLs, and the potentially high costs of implementing non-routine and specialized methods. PC 1 at 2. IAETL’s Jarrett Thomas testified:

[S]ome of those analytes are unachievable using conventional methods that are used by environmental labs every day. There are methods that exist in USEPA that have supersensitive detection limits. However, the cost of using those methods is very high. Tr.1 at 60.

IAETL points to Mr. Dunn’s testimony to show that the Agency does not intend to revise the ADLs even though they are aware that the objectives cannot be achieved. PC 1 at 3.

IAETL suggests that the regulations should require “best available technology” to ensure ADLs are readily achievable. PC 1 at 3-4. IAETL proposes specific ADLs derived from what it considers “commonly used methods of analysis in the environmental laboratory industry.” Id, Attachment 1; Tr.1 at 59-61. Further, IAETL recommends that the Board establish a “Technical Advisory Committee” that would include members of IAETL. PC 1 at 4. The committee, IAETL continues, would offer guidance to the Agency on a routine basis to ensure TACO is “technically sound and method/ADL references are kept current.” Id.

IERG opposes IAETL’s proposed revisions to TACO ADLs. IERG believes that changing the ADL regulatory structure to address the laboratory community’s concerns would “conflict with TACO protective and ‘conservative’ policy goals.” PC 2 at 6. IERG contends that the “current ADL compliance policy” assures that the Tier 1 remediation objectives 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. Id.

The Agency states that it “understands there are compounds for which routinely used methods cannot meet their respective remediation objective established in TACO.” Dunn PFT2 at 3. The Agency argues, however, that if ADLs are “set too high, then the remediation objectives are not protective and can become meaningless.” PC 3 at 4. The Agency further asserts that labs either in Illinois or other states are accredited to perform most of the specified procedures, and where no labs are certified, alternative methods are available under the Act and TACO. In response to IAETL’s claims that routinely used methods often cannot meet remediation objectives or ADLs, the Agency lists labs in Illinois and other states that are certified for most parameters. PC 3 at 4-5, Attachment 2; Tr.2 at 39, 71-73.

Dr. Hornshaw testified at the time of the original TACO rulemaking that Method 8310 was not then widely available at laboratories to test for PAHs, but has since become “fairly widespread”: “in that case we kind of forced the technology to catch up with the detection limits.” Tr.1 at 64-65. According to the Agency, although no labs are currently certified for Method 8061A and Method 8131, other methods are available and, moreover, the Agency “has not encountered these compounds as constituents of concern.” PC 3 at 4.

The Agency contends that even with over 300 SRP sites and over 1,000 LUST sites processed annually, numerous certified laboratories are achieving TACO ADLs “without issue.” PC 3 at 5-6. Moreover, Mr. Dunn testified that TACO already provides a number of ways to comply when faced with a laboratory detection limit that exceeds a risk-based remediation objective for a chemical:

The Agency also disagrees with the testimony of Mr. Thomas concerning the applicability of ADLs to the Class I groundwater remediation objectives. PC 3 at 5. Mr. Thomas testified that the ADLs were too difficult to meet and were unnecessary because “no one drinks the groundwater near remediation sites.” Id. However, the Agency cites examples of private wells located in the vicinity of remediation sites and claims that there are thousands of similarly situated private wells. Id. According to the Agency, if it did not consider drinking water, the regulations would not be protective of human health. Id.

In addition, the Agency opposes Mr. Thomas’ suggestion of adopting a performance based measurement system (PBMS) approach to analytical requirements in TACO. PC 3 at 7; Tr.2 at 29-31; Thomas PFT2 at 6. The Agency believes that Mr. Thomas is referring to a “procedurally rich RCRA [Resource Conservation and Recovery Act] program under USEPA.” PC 3 at 7. The Agency maintains, however, that the elements identified by Mr. Thomas (questions to be answered by monitoring, decisions to be supported by the data, level of uncertainty considered acceptable, documentation that must be generated to support the approach) “are fundamental to its remediation programs and are already addressed by TACO and program procedural rules.” Id. at 7-8.

Furthermore, the Agency continues, the purpose of employing a PBMS would be to “allow remediation objectives to be based on what is analytically achievable as opposed to being risk based.” PC 3 at 8. As noted in the testimony of the Agency’s Ron Turpin:

[I]t was never the intention that the program be able to operate only using what some laboratories call routine or common methods. It’s understood that there are times in order to be protective of health and the environment that more specialized methods would be needed. Id. (quoting Tr.2 at 73).

After careful consideration, the Board finds that there is not enough information in this record to support the sweeping ADL-related changes proposed by IAETL. IAETL has provided no corroborating data or detailed explanation to substantiate its numerous suggestions. Moreover, the Board shares the concern of the Agency and IERG that broadly relaxing ADLs to match routinely-used, lower-cost test methods may risk rendering certain TACO remediation objectives no longer protective of human health. Laboratories are Agency-certified for most test methods and there are several alternative mechanisms to evaluate compounds about which IAETL complains there are either no ADLs or ADLs that are not readily achievable through common test methods.

As the Agency commented, there are limited situations where the “lowest ADL available is still greater than the risk based objective,” but “[t]o change the structure of TACO for convenience or for economic reasons would not be consistent with the Act.” PC 3 at 8. Further, the Board has every expectation that the Agency will continue to propose to the Board appropriate rulemaking “updates” to reflect “changes in scientific information.” PC 3 at 1. Under these circumstances, the Board declines to include IAETL’s proposed ADLs in the first-notice proposal.

After the second hearing, the hearing officer’s order encouraged persons to include in public comment their views on how the Board should procedurally address the concerns raised in this record about ADLs and other laboratory issues: “For example, the Board’s procedural options include addressing the matters in this docket; holding another hearing before first notice; opening a different docket.” Hearing Officer Order, R06-10 (Mar. 7, 2006).

IAETL, of course, requests that the “analytical limitations of TACO be addressed in this rulemaking.” PC 1 at 2. IAETL states that for the last four years it has tried without success to “work with the [Agency] to resolve several analytical problems inherent in the regulation.” Id.; Tr.1 at 58; Tr.2 at 62-64.

IERG believes that IAETL’s concerns are better addressed in separate rulemaking. PC 2 at 6. TACO itself does not provide procedures for characterizing a site and evaluating the potential contamination at the site, according to IERG. Id. at 5. Rather, IERG continues, these details are found in each program’s regulatory requirements. Id. at 5-6. IERG maintains therefore that IAETL’s concerns are not appropriate for this rulemaking. Id. IERG recommends that:

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. Id.

The Agency also opposes having the Board hold further hearings or open a sub-docket to address the laboratory issues. PC 3 at 9. The Agency emphasizes that Mr. Thomas and IAETL “addressed issues that were not part of the Agency’s original proposal.” Id. The Agency maintains:

If and when the laboratories can agree on a concrete approach that is technically justified, we would invite them to come to the Agency with that unified approach, and we would be amenable to giving them our input at that time. Id.

The Board greatly appreciates the participation of IAETL in this rulemaking, as well as that of all the other participants. To be clear, one of the Agency proposal’s main purposes, as articulated by the Agency, was to update and improve many technical aspects of TACO. Further, the Agency’s proposal did seek amendments to TACO tables that include ADLs. When the Board opened this rulemaking docket, IAETL and all other persons were free to suggest changes to the Board through testimony and comment, regardless of whether those suggestions might raise unexpected issues. To proceed otherwise could stifle public participation in Board rulemakings. The Board finds, however, that given the nature and scope of IAETL’s proposed changes, neither this docket nor a sub-docket is appropriate to address the concerns raised by the laboratories. Nor is the Board in a position to create a new advisory committee on TACO absent a statutory directive to do so. Compare 415 ILCS 5/58.11 (2004) (creating SRAC).

As was noted at hearing, however, any person may propose new rules or rule amendments to the Board. See 415 ILCS 5/27, 28 (2004); 35 Ill. Adm. Code 102. In the past, besides the Agency acting as a rulemaking proponent before the Board, the Board has received rulemaking proposals from industry associations both singly and jointly with the Agency. The Board encourages IAETL and the Agency, and all other interested persons, to work together cooperatively on the ADL issues and, if necessary, to return to the Board with one or more separate rulemaking proposals.

Correction Factor

The Agency’s original proposal in this rulemaking included these proposed amendments to Section 742.215(b)(1)(B):

The Agency is now receptive to the Board adding a specific correction factor to the rules for converting total organic matter to total organic carbon, as suggested by IAETL. PC 3 at 6-7. Mr. Thomas testified that consultants want his laboratory to provide that correction factor. Tr.2 at 31. The Agency feels that this issue should be resolved between the laboratories and their clients, but would not object to having a precise factor in the rules. PC 3 at 6-7.

Specifically, the Agency agrees to modifying Section 742.215(b)(1)(B) by deleting the proposed words “appropriately adjusted” and replacing them with “multiplied by 0.58,” which figure is based on the Van Bemmelen correction factor from Nelson and Sommers (1982). ⁵ PC 3 at 6-7; Tr.1 at 28, 34-35; Tr. 2 at 93-94, 96, 99. According to the Agency, if someone wishes to use an alternative correction factor, subsection (b)(3) of Section 742.215 allows for approval of other methods. PC 3 at 7.  The Board includes the suggested correction factor language in the first-notice amendments.

Technical Feasibility and Economic Reasonableness

 The Agency maintains that the technical feasibility and economic reasonableness of the TACO rules were established when they were adopted in 1997 and are “only enhanced” with the updates from this rulemaking, which reflect “new science, technology, and experience.” Stat. of Reas. at 4. The Agency asserts that TACO has improved economic development by helping to put “innumerable sites back into productive use.” Id. Moreover, the Agency continues, because TACO is based on risk to human health, TACO has encouraged cleanups by minimizing costs: “more sites are being cleaned up, threats to human health are decreased, and the economy is given a boost.” Id. As noted, IERG and SRAC support the proposal. Martin PFT2 at 2.

Based on this record, the Board finds that the amendments proposed today are technically feasible and economically reasonable and will not have an adverse economic impact on the People of Illinois. See 415 ILCS 5/27(a), (b) (2004).

CONCLUSION

The Board proposes Part 742 TACO amendments for first notice. These changes are needed to update, improve, and correct many provisions of the TACO remediation rules, which are so critical to addressing the risks posed by contaminated properties in Illinois. Among today’s more significant amendments are the addition of background soil levels for PAHs, revisions to protect construction workers at properties cleaned up to residential levels, and changes to enhance flexibility in using ordinances for excluding the groundwater ingestion exposure pathway.

Substantively, the Board is adopting the Agency’s proposed amendments, along with two other language changes suggested by other participants and agreed to by the Agency: IDOT’s request to not be subject to the new mandatory HAA form; and IAETL’s request for a specific correction factor to convert total organic matter to total organic carbon. The Board has also made several minor, clarifying changes to the Agency’s proposal, none of which merit discussion.

Publication in the Illinois Register of the proposed amendments will start a period of at least 45 days during which anyone may file public comments with the Clerk of the Board at the address set forth at the outset of this opinion. Additionally, as noted, public comments may be filed electronically through COOL at www.ipcb.state.il.us .

ORDER

 The Board directs the Clerk to cause first-notice publication of the following proposed TACO amendments in the Illinois Register. Proposed additions to Part 742 are underlined; proposed deletions appear stricken.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER f: RISK BASED CLEANUP OBJECTIVES

PART 742

TIERED APPROACH TO CORRECTIVE ACTION OBJECTIVES

SUBPART A: INTRODUCTION

SUBPART B: GENERAL

Section

742.200  Definitions

742.205  Severability

742.210  Incorporations by Reference

742.215  Determination of Soil Attenuation Capacity

742.220  Determination of Soil Saturation Limit

742.225  Demonstration of Compliance with Remediation Objectives

742.230  Agency Review and Approval

SUBPART C: EXPOSURE ROUTE EVALUATIONS

Section

742.300  Exclusion of Exposure Route

742.305  Contaminant Source and Free Product Determination

742.310  Inhalation Exposure Route

742.315  Soil Ingestion Exposure Route

742.320  Groundwater Ingestion Exposure Route

SUBPART D: DETERMINING AREA BACKGROUND

Section

742.400  Area Background

742.405  Determination of Area Background for Soil

742.410  Determination of Area Background for Groundwater

742.415  Use of Area Background Concentrations

SUBPART E: TIER 1 EVALUATION

Section

742.500  Tier 1 Evaluation Overview

742.505  Tier 1 Soil and Groundwater Remediation Objectives

742.510  Tier 1 Remediation Objectives Tables

SUBPART F: TIER 2 GENERAL EVALUATION

Section

742.605  Land Use

742.610  Chemical and Site Properties

SUBPART G: TIER 2 SOIL EVALUATION

Section

742.700  Tier 2 Soil Evaluation Overview

742.705  Parameters for Soil Remediation Objective Equations

742.710  SSL Soil Equations

742.715  RBCA Soil Equations

742.720  Chemicals with Cumulative Noncarcinogenic Effects

SUBPART H: TIER 2 GROUNDWATER EVALUATION

Section

742.800  Tier 2 Groundwater Evaluation Overview

742.805  Tier 2 Groundwater Remediation Objectives

742.810  Calculations to Predict Impacts from Remaining Groundwater Contamination

SUBPART I: TIER 3 EVALUATION

Section

742.900  Tier 3 Evaluation Overview

742.905  Modifications of Parameters

742.910  Alternative Models

742.915  Formal Risk Assessments

742.920  Impractical Remediation

742.925  Exposure Routes

742.930  Derivation of Toxicological Data

SUBPART J: INSTITUTIONAL CONTROLS

Section

742.1000  Institutional Controls

742.1005  No Further Remediation Letters

742.1015  Ordinances

742.1020  Highway Authority Agreements

SUBPART K: ENGINEERED BARRIERS

AUTHORITY: Implementing Sections 22.4, 22.12, Title XVI, and Title XVII and authorized by Sections 27 and 58.5 of the Environmental Protection Act [415 ILCS 5/22.4, 22.12, 27, and 58.5 and Title XVI and Title XVII].

SOURCE: Adopted in R97-12(A) at 21 Ill. Reg. 7942, effective July 1, 1997; amended in R97-12(B) at 21 Ill. Reg. 16391, effective December 8, 1997; amended in R97-12(C) at 22 Ill. Reg. 10847, effective June 8, 1998; amended in R00-19(A) at 25 Ill. Reg. 651, effective January 6, 2001; amended in R00-19(B) at 25 Ill. Reg. 10374, effective August 15, 2001; amended in R00-19(C) at 26 Ill. Reg. 2683, effective February 5, 2002; amended at 30 Ill. Reg. ________, effective ____________________.

NOTE: Italics Capitalization indicates statutory language.

SUBPART A: INTRODUCTION

Section 742.105  Applicability

Section 742.110  Overview of Tiered Approach

SUBPART B: GENERAL

Section 742.200  Definitions

Except as stated in this Section, or unless a different meaning of a word or term is clear from the context, the definition of words or terms in this Part shall be the same as that applied to the same words or terms in the Act.

Section 742.210  Incorporations by Reference

ASTM. American Society for Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959. (610) 832-9585. 1916 Race Street, Philadelphia, PA 19103 (215) 299-5400.

ASTM D 2974-0087, Standard Test Methods for Moisture, Ash and Organic Matter of Peat and Other Organic Soils, approved August 10, 2000 May 29, 1987 (reapproved 1995).

ASTM D 2488-0093, Standard Practice for Description and Identification of Soils (Visual-Manual Procedure), approved February 10, 2000 September 15, 1993.

ASTM D 1556-0090, Standard Test Method for Density and Unit Weight of Soil in Place by the Sand-Cone Method, approved March 10, 2000 June 29, 1990.

ASTM D 2167-94, Standard Test Method for Density and Unit Weight of Soil in Place by the Rubber Balloon Method, approved March 15, 1994.

ASTM D 2922-0191, Standard Test Methods for Density of Soil and Soil-Aggregate in Place by Nuclear Methods (Shallow Depth), approved June 10, 2001 December 23, 1991.

ASTM D 2937-00e194, Standard Test Method for Density of Soil in Place by the Drive-Cylinder Method, approved June 10, 2000 June 15, 1994.

ASTM D 854-0292, Standard Test Methods Method for Specific Gravity of Soil Solids by Water Pycnometer Soils, approved July 10, 2002 November 15, 1992.

ASTM D 2216-9892, Standard Test Method for Laboratory Determination of Water (Moisture) Content of Soil and Rock by Mass, approved February 10, 1998 June 15, 1992.

ASTM D 4959-0089, Standard Test Method for Determination of Water (Moisture) Content of Soil by Direct Heating Method, approved March 10, 2000 June 30, 1989 (reapproved 1994).

ASTM D 4643-0093, Standard Test Method for Determination of Water (Moisture) Content of Soil by the Microwave Oven Method, approved February 10, 2000July 15, 1993.

ASTM D 5084-0390, Standard Test Methods Method for Measurement of Hydraulic Conductivity of Saturated Porous Materials Using a Flexible Wall Permeameter, approved November 1, 2003 June 29, 1990.

ASTM D 422-63 (2002), Standard Test Method for Particle-Size Analysis of Soils, approved November 10, 2002 November 21, 1963 (reapproved 1990).

ASTM D 1140-0092, Standard Test Methods Method for Amount of Material in Soils Finer than the No. 200 (75 m m) Sieve, approved June 10, 2000 November 15, 1992.

ASTM D 3017-0188, Standard Test Method for Water Content of Soil and Rock in Place by Nuclear Methods (Shallow Depth), approved June 10, 2001 May 27, 1988.

ASTM D 4525-90 (2001), Standard Test Method for Permeability of Rocks by Flowing Air, approved May 25, 1990.

ASTM D 2487-0093, Standard Test Method for Classification of Soils for Engineering Purposes (Unified Soil Classification System), approved March 10, 2000 September 15, 1993.

ASTM E 1527-0093, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, approved May 10, 2000 March 15, 1993. Vol. 11.04.

ASTM E 1739-95 (2002), Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites, approved September 10, 1995.

Barnes, Donald G. and Dourson, Michael. (1988). Reference Dose (RfD): Description and Use in Health Risk Assessments. Regulatory Toxicology and Pharmacology. 8, 471-486.

GPO. Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20401, (202) 783-3238.

USEPA Guidelines for Carcinogenic Risk Assessment, 51 Fed. Reg. 33992-34003 (September 24, 1986).

"Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication number SW-846 (Third Edition, Final Update IIIA, April 1998), as amended by Updates I, IIA, III, and IIIA (Document No. 955-001-00000-1).

"Methods for the Determination of Organic Compounds in Drinking Water", EPA Publication No. EPA/600/4-88/039 (December 1988 (Revised July 1991)).

“Methods for the Determination of Organic Compounds in Drinking Water, Supplement I”, EPA Publication No. EPA/600/4-90/020 (July 1990).

"Methods for the Determination of Organic Compounds in Drinking Water, Supplement II", EPA Publication No. EPA/600/R-92/129 (August 1992).

"Methods for the Determination of Organic Compounds in Drinking Water, Supplement III", EPA Publication No. EPA/600/R-95/131 (August 1995).

“Guidance for Data Quality Assessment, Practical Methods for Data Analysis, EPA QA/G-9, QAOO Update,” EPA/600/R-96/084 (July 2000). Available at www.epa.gov/quality/qs-docs/g9-final.pdf .

IRIS. Integrated Risk Information System, National Center for Environmental Assessment, U.S. Environmental Protection Agency, 26 West Martin Luther King Drive, MS-190, Cincinnati, OH 45268, (513) 569-7254.

"Reference Dose (RfD): Description and Use in Health Risk Assessments", Background Document 1A (March 15, 1993).

"EPA Approach for Assessing the Risks Associated with Chronic Exposures to Carcinogens", Background Document 2 (January 17, 1992).

Nelson, D.W., and L.E. Sommers. (1982). Total carbon, organic carbon, and organic matter. In: A.L. Page (ed.), Methods of Soil Analysis. Part 2. Chemical and Microbiological Properties. 2nd Edition, pp. 539-579, American Society of Agronomy. Madison, WI.

NTIS. National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161, (703) 487-4600.

“Calculating Upper Confidence Limits for Exposure Point Concentrations at Hazardous Waste Sites,” USEPA Office of Emergency and Remedial Response, OSWER 9285.6-10 (December 2002), PB 2003-104982.

"Dermal Exposure Assessment: Principles and Applications", EPA Publication No. EPA/600/8-91/011B (January 1992).

"Exposure Factors Handbook", EPA Publication No. EPA/600/8-89/043 (July 1989).

“Exposures Factors Handbook, Vol. I: General Factors”, EPA Publication No. EPA/600/P-95/002Fa (August 1997).

“Exposures Factors Handbook, Vol. II: Food Ingestion Factors”, EPA Publication No. EPA/600/P-95/002Fb (August 1997).

“Exposures Factors Handbook, Vol. III: Activity Factors”, EPA Publication No. EPA/600/P-95/002Fc (August 1997).

"Risk Assessment Guidance for Superfund, Vol. I: ; Human Health Evaluation Manual, Supplemental Guidance: Standard Default Exposure Factors", OSWER Directive 9285.6-03 (March 1991).

"Rapid Assessment of Exposure to Particulate Emissions from Surface Contamination Sites," EPA Publication No. EPA/600/8-85/002 (February 1985), PB 85-192219.

"Risk Assessment Guidance for Superfund, Volume I; Human Health Evaluation Manual (Part A)", Interim Final, EPA Publication No. EPA/540/1-89/002 (December 1989).

"Risk Assessment Guidance for Superfund, Volume I; Human Health Evaluation Manual, Supplemental Guidance, Dermal Risk Assessment Interim Guidance", Draft (August 18, 1992).

“Risk Assessment Guidance for Superfund, Vol. I: Human Health Evaluation Manual (Part E, Supplemental Guidance for Dermal Risk Assessment) Interim”, EPA Publication No. EPA/540/R/99/005 (September 2001).

"Soil Screening Guidance: Technical Background Document", EPA Publication No. EPA/540/R-95/128, PB 96-963502 (May 1996).

"Soil Screening Guidance: User's Guide", EPA Publication No. EPA/540/R-96/018, PB 96-963505 (April 1996).

"Superfund Exposure Assessment Manual", EPA Publication No. EPA/540/1-88/001 (April 1988).

“Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites”, OSWER Directive 9355.4-24 (December 2002).

Polynuclear Aromatic Hydrocarbon Background Study, City of Chicago, Illinois, Tetra Tech Em Inc., 200 E. Randolph Drive, Suite 4700, Chicago, IL 60601, February 24, 2003.

Polycyclic Aromatic Hydrocarbons (PAHs) in Surface Soil in Illinois: Background PAHs, EPRI, Palo Alto, CA, We Energies, Milwaukee, WI, and IEPA, Springfield, IL: 2004. 1011376. EPRI, 3412 Hillview Avenue, Palo Alto, CA 94304, (800) 313-3774.

RCRA Facility Investigation Guidance, Interim Final, developed by USEPA (EPA 530/SW-89-031), 4 volumes (May 1989).

United States Environmental Protection Agency, Office of Environmental Information (2000). “Guidance for Data Quality Assessment, Practical Methods for Data Analysis,” EPA QA/G-9, QAOO update. EPA Publication No. EPA/600/R-96-084. (Available online at www.epa.gov/oswer/riskassessment/pdf/ucl.pdf ).

Section 742.215  Determination of Soil Attenuation Capacity

Section 742.220  Determination of Soil Saturation Limit

Section 742.225  Demonstration of Compliance with Remediation Objectives

Compliance is achieved if each sample result does not exceed that respective remediation objective unless a person elects to proceed under subsections (c), (d) and (e) of this Section.

(Source: Amended at 30 Ill. Reg. _______, effective __________)

SUBPART C: EXPOSURE ROUTE EVALUATIONS

Section 742.305  Contaminant Source and Free Product Determination

No exposure route shall be excluded from consideration relative to a contaminant of concern unless the following requirements are met:

Section 742.320  Groundwater Ingestion Exposure Route

The groundwater ingestion exposure route may be excluded from consideration if:

a)  The requirements of Sections 742.300 and 742.305 are met;

b)  The corrective action measures have been completed to remove any free product to the maximum extent practicable;

SUBPART D: DETERMINING AREA BACKGROUND

Section 742.415  Use of Area Background Concentration

SUBPART E: TIER 1 EVALUATION

Section 742.505  Tier 1 Soil and Groundwater Remediation Objectives

 b)  Groundwater

SOURCE: Amended at 30 Ill. Reg. __________, effective _________.

Section 742.510  Tier 1 Remediation Objectives Tables

a)  Soil remediation objectives are listed in Appendix B, Tables A, B, C and D.

1)  Appendix B, Table A is based upon residential property use.

i)  Class I groundwater; and

ii)  Class II groundwater.

i)  Industrial/commercial; and

ii)  Construction worker.

i)  Industrial/commercial; and

ii)  Construction worker.

i)  Class I groundwater; and

ii)  Class II groundwater.

B)  The first column in Tables C and D lists the chemical names.

7)  Confirmation sample results may be averaged or soil samples may be composited in accordance with Section 742.225.

SUBPART H: TIER 2 GROUNDWATER EVALUATION

Section 742.805  Tier 2 Groundwater Remediation Objectives

where:

W_ave = Weighted Average

SUBPART I: TIER 3 EVALUATION

Section 742.900  Tier 3 Evaluation Overview

SUBPART J: INSTITUTIONAL CONTROLS

Section 742.1000  Institutional Controls

2)  Environmental Land Use Controls;

3)  Land Use Control Memoranda Memorandums of Agreement;

Section 742.1010  Environmental Land Use Controls

c)  Duration:

Section 742.1015  Ordinances

Section 742.APPENDIX A: General

Section 742.TABLE E: Similar-Acting Noncarcinogenic Chemicals

Section 742.APPENDIX A: General

Section 742.TABLE G: Concentrations of Inorganic Chemicals in Background Soils

(Source: Amended at 30 Ill. Reg. _________, effective ____________)

Section 742.APPENDIX A: General

Section 742.TABLE H: Concentrations of Polynuclear Aromatic Hydrocarbon Chemicals in Background Soils

(Source: Added at __ Ill. Reg. _______, effective ____________________)

Section 742.APPENDIX A: General

TABLE IH: Chemicals Whose Tier 1 Class I Groundwater Remediation Objective Exceeds the 1 in 1,000,000 Cancer Risk Concentration

Section 742.APPENDIX B: Tier 1 Illustrations and Tables and Illustrations

Section 742.Illustration A: Tier 1 Evaluation

(Source: Amended at 30 Ill. Reg. ________, effective ____________________)

Section 742.APPENDIX B: Tier 1 Illustrations and Tables and Illustrations

Section 742.TABLE A: Tier 1 Soil Remediation Objectives^a for Residential Properties