Microsoft Word - R07-8 hearing transcript 012907.txt

ILLINOIS POLLUTION CONTROL BOARD

3 IN THE MATTER OF:

)

4 PROPOSED AMENDMENTS TO SOLID )

WASTE LANDFILL RULES, 35 ILL. ) No. R07-8

5 ADM. CODE 810 AND 811

) (Rulemaking-Land)

)

REPORT OF PROCEEDINGS before the Illinois

8 Pollution Control Board, taken before Tamara

9 Manganiello, Registered Professional Reporter and

10 Notary Public, at the Michael A. Bilandic Building,

11 160 North LaSalle Street, Room N-505, Chicago,

12 Illinois, commencing at the hour of 11:00 a.m. on

13 the 29th day of January, A.D., 2007.

L.A. REPORTING (312) 419-9292

1 A P P E A R A N C E S:

ILLINOIS POLLUTION CONTROL BOARD,

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(312) 814-6085

BY: MR. TIMOTHY J. FOX, HEARING OFFICER

DR. G. TANNER GIRARD, ACTING CHAIRMAN

MS. ANDREA S. MOORE, BOARD MEMBER

MR. THOMAS E. JOHNSON, BOARD MEMBER

MR. NICHOLAS J. MELAS, BOARD MEMBER

MS. ALISA LIU, ENVIRONMENTAL SCIENTIST

MR. ANAND RAO, SR. ENVIRONMENTAL SCIENTIST;

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

BY: MS. KIMBERLY A. GEVING;

SORLING, NORTHRUP, HANNA, CULLEN, COCHRAN, LTD.,

607 East Adams Street

P.O. Box 5131

Springfield, Illinois 62705

(217) 544-1144

BY: MR. CHARLES J. NORTHRUP,

Appeared on behalf of the Proponent,

National Solid Wastes Management

Association;

ALSO PRESENT:

MS. GWENYTH THOMPSON, ILLINOIS EPA

20 MR. CHRISTIAN J. LIEBMAN, ILLINOIS EPA

MR. WILLIAM R. SCHUBERT, WASTE MANAGEMENT

21 MR. TERRY R. JOHNSON, WASTE MANAGEMENT

MR. ERIC BALLENGER, ALLIED WASTE

22 MR. TOM HILBERT, WILLIAM CHARLES WASTE COMPANIES

MS. KATHY ANDRIA, AMERICAN BOTTOM CONSERVANCY AND

SIERRA CLUB, KASKASKIA GROUP

MS. JOYCE BLUMENSHINE, SIERRA CLUB, HEART OF

ILLINOIS GROUP

L.A. REPORTING (312) 419-9292

HEARING OFFICER FOX: Good morning to

all of you and welcome to this Illinois

Pollution Control Board hearing. My name is

Tim Fox and I am the hearing officer for the

this rulemaking proceeding which is entitled

Proposed Amendments to Solid Waste Landfill

Rules, 35 Illinois Administrative Code 810

and 811.

The Board docket number for this

rulemaking is R07-8. The Board received this

proposal on July 27th, 2006, from the

Illinois Chapter of the National Solid Waste

Management Association, which seeks to amend

the Board's regulations concerning solid

waste landfills. The Board accepted this

proposal for hearing with an order dated

August 17th of 2006.

I'd like to take a moment to make

introductions. First of all, present today

from the Illinois Pollution Control Board

are, to my immediate right, Board Member

Andrea Moore, who is the lead Board Member

for this proceeding.

Member Moore, did you wish to make

L.A. REPORTING (312) 419-9292

any opening remarks?

BOARD MEMBER MOORE: Just a brief

statement to say thank you very much and the

Board does really appreciate the efforts your

association has gone through to produce this

proposal. And the cooperation that the IEPA

has had, as well, we wanted to thank you for

that.

HEARING OFFICER FOX: Thanks very

much. Three persons to the left is the

Board's acting chairman, Dr. G. Tanner

Girard.

Dr. Girard, did you have any

remarks or comments you wanted to offer to

begin this morning?

DR. GIRARD: No. Just good morning

and it's good to see everyone here. We do

appreciate your efforts. Thank you.

HEARING OFFICER FOX: We, as it turns

out, have the full Board present. To Dr.

Girard's left is Board Member Nicholas Melas

and to Member Moore's right is Board Member

Thomas E. Johnson.

And, in addition, on my immediate

L.A. REPORTING (312) 419-9292

left is Alisa Liu of the Board's technical

staff, and to her left, Anand Rao, her

colleague in the technical unit.

Today we are holding the first of

two scheduled hearings in this rulemaking.

The second hearing is now scheduled to begin

Wednesday, February 28th of this year in

Springfield.

This proceeding is governed by the

Board's procedural rules. Under those, all

information that is relevant and that is not

repetitious or privileged will be admitted

into the record of this hearing.

Please note that any questions

that are posed today either by the Board

members or the Board's staff are intended

solely to develop a complete and clear record

in this proceeding for the Board's decision

and do not reflect any prejudgment or any

bias regarding the proposal as it was

offered.

The Board has received pre-filed

testimony from one participant, again, the

Illinois Chapter of the National Solid Wastes

L.A. REPORTING (312) 419-9292

Management Association. We will begin this

hearing with that pre-filed testimony.

First, hearing from witnesses from the

Association, and then this will be followed

by questions that either the Board and its

staff or other participants that are present

hearing today may have for them.

Once we have finished questions of

those witnesses the Association, which has

pre-filed its testimony, anyone else may

testify, as time permits. And if you would

like to testify today, but did not pre-file

testimony, there is a sign-up sheet located

just inside the door behind the Agency staff

on which you can indicate your interest in

testifying.

Like all witnesses, those who do

testify would be sworn by the court reporter

and would be open to cross examination and

also may be asked questions about their

testimony itself.

I realize that many of you are

veterans of these proceedings, but for the

benefit of our court reporter, please speak

L.A. REPORTING (312) 419-9292

as clearly and loudly as you can so that it's

as easy as possible for her to complete our

record. And please avoid speaking at the

same time as another person so that her task

is simplified, as well.

In speaking with representatives

of the Agency and the Association before

hearing, off the record, it was acknowledged

by the Agency -- I think it's fair to say,

Mr. Northrup, please disagree if I'm

incorrect -- that the pre-filed testimony

would be admitted into the record as if read

here today under the Board's rules at

35 Illinois Administrative Code

Section 102.42(f). And I believe the

Association would be willing or would prefer

it, in fact, to proceed directly to

questions?

MR. NORTHRUP: That's correct.

HEARING OFFICER FOX: Excellent. Were

there any questions about our procedure or

about the general basis over which we'd be

going forward?

(No verbal response.)

L.A. REPORTING (312) 419-9292

HEARING OFFICER FOX: Seeing none.

Mr. Northrup, if you had any brief summary or

brief introductions, certainly, we'd be to

happy hear that.

MR. NORTHRUP: Just real brief

introductions. To my left is Tom Hilbert,

who filed pre-filed testimony. In his

testimony, I identified him as the president

of the Midwest Chapter of the NSWMA. He's

actually the former president of the

Association. So I wanted to clarify that.

To my immediate right is Terry

Johnson. He also filed pre-filed testimony.

I know, Mr. Fox, you mentioned just there was

one filing, but there was actually two.

HEARING OFFICER FOX: Correct. Two

persons, yes.

MR. NORTHRUP: To Mr. Johnson's right

is Bill Schubert, a representative of the

Association. And to his right is Eric

Ballenger.

Now, all four of these gentlemen

have been involved in this regulatory

proposal going back to when it first began in

L.A. REPORTING (312) 419-9292

1998 or '99, so they are all very

knowledgeable about it and I think they will

all be able to answer any questions that you

might have.

The culmination of this goes back,

you know, to the beginning of the Board's

landfill regs back in R-88. We view this as

just a continuation of that. There were

amendments made in '97 or '98. This is just

a further addition onto that.

In the intervening -- you know,

whether it's ten years from the R-97 or 17

from the initial Board regs, you know, a lot

of practical information and data has been

built up and so we just view this as really

nothing more than an update of those

regulations. We don't believe there's any

controversy with these. We're glad to see

that the Illinois Environmental Protection

Agency supports us in this.

Sort of the bottom line and

globally, we think these regulations will

provide better data for the companies and the

Agency. It provides a more formal review of

L.A. REPORTING (312) 419-9292

the data once it's sent into the Agency. It

provides for more consistent application of

the Board's regs across the state. And we

certainly think that it increases the

protection of human health and the

environment.

So, with that, I do note I did

file an errata sheet number two,

electronically filed, with the Board on

Friday. I've got copies of that if anybody

wants it. In other words, there's just two

typographical issues that were addressed in

that. So with that, I will turn it back to

you, Mr. Fox.

HEARING OFFICER FOX: Very good.

Thank you very much. In the original

proposal filed by the Association in July of

2006, the proposed amendments to the

regulations were numbered consecutively in

the order of the administrative code

citations. And it appears, Mr. Johnson, that

your pre-filed testimony follows that exactly

so that we should be able to cross reference

those two documents very, very accurately

L.A. REPORTING (312) 419-9292

with one another.

Why don't we begin, appropriately

enough, with the Proposed Amendment No. 1

amending Section 810.104. Mr. Johnson, in

your pre-filed testimony, you had

characterized that as a non-substantive

proposal. If that is still your position

with regard to the language and if the Agency

or the other participants don't oppose that

characterization at all, perhaps we could

proceed to the second proposed amendment.

MR. JOHNSON: Yes.

HEARING OFFICER FOX: Mr. Johnson has

indicated that he still does regard it as

non-substantive.

(Whereupon, a discussion

was had off the record.)

BOARD MEMBER JOHNSON: Tim, you intend

to go through each of these 49 proposed

amendments individually and just make sure

that we're --

HEARING OFFICER FOX: Make sure that

we're building a record, precisely.

Mr. Rao has pointed out to me

L.A. REPORTING (312) 419-9292

correctly what we should do.

Thank you, Mr. Northrup for

providing copies of the pre-filed testimony

of Thomas Hilbert as Proposed Exhibit No. 1,

the pre-filed testimony of Terry Johnson as

Proposed Exhibit No. 2 and the errata sheet

number two, which includes the changes in the

first errata sheet as Proposed Exhibit No. 3.

And in order to admit those into the record

as the basis for any questions, is there a

motion to admit those as exhibits.

MR. NORTHRUP: I would move to have

those admitted.

HEARING OFFICER FOX: Is there any

opposition or comment from the Agency or from

the other participant on that issue.

MS. GEVING: The Agency has no

objection.

MS. ANDRIA: Can I ask, does that mean

you're not going to be delivering them

orally?

HEARING OFFICER FOX: Correct. Under

the Board's procedural rules, because these

were pre-filed on Tuesday the 16th, they will

L.A. REPORTING (312) 419-9292

be admitted into the record of this

proceeding as if they were read aloud here

today.

And I don't mean to commit you to

something, Mr. Northrup, but you did mention

that you had some additional copies of these

documents. And if you were needing to see or

obtain a copy of them, I suspect that

Mr. Northrup would be willing to make one of

those copies available to you.

MR. NORTHRUP: That's correct.

MS. ANDRIA: My question -- my perplex

is that I had my questions keyed to the

testimony, so I wanted to know if that wasn't

being delivered, then I would have to regroup

and that's why I was trying to figure out the

rules.

HEARING OFFICER FOX: Mr. Northrup's

motion is to admit as Exhibit No. 1, the

pre-filed testimony just as it was pre-filed

with the Board on the 16th. So the document

that he is seeking to admit today has no

difference whatsoever from what you might

have printed from the Board's web page over

L.A. REPORTING (312) 419-9292

the last two weeks or so.

And, likewise, that applies

equally to Mr. Johnson's pre-filed testimony.

This document would be precisely the same as

what's available from the Board's website and

would be, again, under the operation of the

Board's rules, admitted as if he had read it

aloud, if he had read from his written

testimony.

And, likewise, the errata sheet

number two embracing the changes both in the

first and then in the second errata sheet

would be admitted just as it was filed with

the Board and put on its website. So there

would be no difference between the two

documents that I think you're referring to.

MS. ANDRIA: Then my question would be

at what point is it appropriate for us to ask

questions on the pre-filed testimony?

HEARING OFFICER FOX: We will plan to

go -- particularly, since all of the proposed

amendments were numbered consecutively, we

will be going through, of course, from one to

two all the way to the 49th. So if you have

L.A. REPORTING (312) 419-9292

a question about a particular one, please

indicate that you have a question and I'll be

happy to recognize you for that. And we'll

just ask you, when you pose that question, to

state your name and any organization that you

might represent so that the record is clear.

MS. ANDRIA: Thank you.

MR. NORTHRUP: And, also, if I could

add, the testimony tracks the proposal except

for the non-substantive issues. Those are

not included in the testimony. But then

everything else is all the same, so...

HEARING OFFICER FOX: Did you have any

further questions or was I at all helpful in

clarifying it.

MS. ANDRIA: No. I think that does

help. And this is my first hearing like

this, so I'm probably going to have other

questions on procedures. Thank you.

HEARING OFFICER FOX: Don't hesitate

to indicate that you'd like to be recognized

and we can certainly recognize you for any

procedural or substantive questions.

L.A. REPORTING (312) 419-9292

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER FOX: Jumping back,

Ms. Geving has indicated that the Agency did

not have any disagreement with the

characterization of Proposed Amendment No. 1

as non-substantive. Mr. Johnson, I think,

has indicated both by word and gesture that

he continues to believe it is so.

MR. JOHNSON: Yes.

HEARING OFFICER FOX: Why don't we

proceed to Propose Amendment No. 2, which,

again, Mr. Johnson has characterized as

non-substantive.

Ms. Geving, does the Agency have

any disagreement with that assessment or

characterization at all?

MS. GEVING: We do not.

HEARING OFFICER FOX: Were there any

questions from the other participants about

Proposed Amendment No. 2.

(No verbal response.)

HEARING OFFICER FOX: Very good.

Proceeding to No. 3, again, Mr. Johnson has

L.A. REPORTING (312) 419-9292

indicated that he believes that is

non-substantive.

Ms. Geving, does the Agency have

any reason to dispute that characterization

in this case?

MS. GEVING: We do not.

HEARING OFFICER FOX: Any other

questions about Proposed Amendment No. 3 at

all?

(No verbal response.)

HEARING OFFICER FOX: Seeing none --

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER FOX: Mr. Rao for a

question.

MR. RAO: This question is not

directly related to the corporation by

reference, but we had a general question for

Mr. Hilbert. In the statement of reasons on

Page 2, the National Solid Wastes Management

Association cites increased efficiency and

reduced costs for both IEPA and the regulated

community as one of the impetus for the

proposed rulemaking. Is it possible to

L.A. REPORTING (312) 419-9292

estimate the monetary value of the increased

efficiency or cost savings that this

rulemaking would produce?

(Brief pause.)

MR. HILBERT: I'm sorry. I misheard

you. I wasn't sure that you were addressing

me.

We could make an estimate of that,

but we don't have -- we have not gone out and

sought detailed numbers on the economic

impact for these rules. The primary goal of

the rule was to reduce what, in our opinion,

were an unnecessary frequency of assessment

monitoring events that were triggered by

false indications of release from a landfill.

And so it really wasn't -- although, there's

going to be an economic impact and we feel

that it will actually lessen our cost to some

degree, that wasn't the primary goal of the

rulemaking.

MR. RAO: If there is any estimate

that you can make, if it's a significant

reduction, it would be helpful if you provide

those cost figures to the Board at a later

L.A. REPORTING (312) 419-9292

time because one of the things that the Board

has to do during the rulemaking process is to

discuss the cost impact of the rulemaking.

And if there's any cost impact, it would be

helpful for the Board to have that

information.

MR. JOHNSON: I can maybe attempt to

answer that. What we can look at is the

detection monitoring list. We know what we

have been doing and what we've proposed. And

the difference between those two is roughly

about a third. It's about a third less

costly under the new proposal to perform the

detection monitoring. But we are adding some

additional sampling. We are adding a second

test for volatiles and we are formalizing the

leachate monitoring requirements. The other

elements of it, it's hard to put a real

district number on at this time.

MR. RAO: Okay. Well, whatever that

you can generate in cost data, that will be

helpful.

MS. LIU: It also might be helpful to

include maybe the number of man hours or

L.A. REPORTING (312) 419-9292

something along those lines.

DR. GIRARD: I have a quick background

question. Are all the landfill operators in

Illinois members of the National Solid Wastes

Management Association.

MR. HILBERT: No. Not all of the

landfill operators in the Illinois are

members of the National Solid Wastes

Management Association. But we have

contacted the non-member operators and made

them aware of the rulemaking, given them

copies of proposed changes and they have

indicated their support for the proposed

changes.

DR. GIRARD: So you did get feedback

from those non-member operators --

MR. HILBERT: Correct.

DR. GIRARD: -- and they did have some

input into these suggested changes.

MR. HILBERT: Certainly.

DR. GIRARD: Thank you.

MR. RAO: And just a follow-up to

Dr. Girard's question. In this universe of

landfill operators in the state, are mostly

L.A. REPORTING (312) 419-9292

municipal solid waste landfill units members

of your organization or are there other

on-site landfills or chemical waste landfills

that are operating in the state that are also

members of your organization?

MR. HILBERT: To my knowledge, the

vast bulk of members in the National Solid

Wastes Management Association are primarily

municipal solid waste landfill operators.

There may be certain members that

in addition to operating a solid waste

landfill also have responsibilities for what

I'll call on-site facilities.

BOARD MEMBER JOHNSON: For what?

MR. HILBERT: On-site facilities. But

the NSWMA's membership is primarily composed

of and their interests are primarily lined

with solid waste landfill operators.

MR. RAO: And when you responded to

Dr. Girard's question about whether all the

landfills in the state, if they're aware of

this rulemaking, as a part of your outreach,

did you also contact these on-site facilities

and other non-municipal solid waste landfill

L.A. REPORTING (312) 419-9292

units?

MR. HILBERT: No, we did not. We

don't really have a good list. It's a lot

easier -- all of the municipal solid waste

landfills in Illinois that are permitted

are well-documented. It's easy to understand

the world of -- who operates a municipal

solid waste landfill. The industrial sites

and on-site facilities aren't. It's a little

bit less certain on who we would contact, so

we did not make that effort.

HEARING OFFICER FOX: And I wonder,

Ms. Geving, if I may interrupt and perhaps

anticipate your question. Mr. Northrup, I'm

sorry that I've overlooked this until now.

We have not had the court reporter swear in

your witnesses. I wonder if it would be your

preference simply to have her do so as all

four of them together as a group?

MR. NORTHRUP: Yes.

HEARING OFFICER FOX: Very well. If

you would do so, please?

(Witnesses sworn.)

BOARD MEMBER JOHNSON: Retroactively.

L.A. REPORTING (312) 419-9292

HEARING OFFICER FOX: And I think I

see Ms. Geving indicate that I did, in fact,

anticipate her question. And I appreciate

her letting me acknowledge that oversight.

Mr. Rao, did you have any further questions.

MR. RAO: Yes. Actually, I had a

follow-up to the Agency regarding this issue

of the universe of landfill operators in the

state. Would it be possible for the Agency

to provide the Board with a list of landfill

operators that you are aware of who may be

affected by this rulemaking?

MS. GEVING: May we, at this time,

have our witnesses sworn, as well, please?

HEARING OFFICER FOX: Very well. If

the court reporter would swear in the two

agency witnesses, please.

(Witnesses sworn.)

MS. GEVING. I'm going to have

Ms. Thompson -- Gwen Thompson is directly to

my right and Mr. Liebman is to her right.

Gwen, will you answer the question, please?

MR. LIEBMAN: I'll try to answer the

question. We can certainly try. We really

L.A. REPORTING (312) 419-9292

don't do much with on-site, unpermitted

landfills. We do act as a repository for the

reports that they're supposed to file in

accordance with Part 815, but we don't really

maintain any sort of database that we could,

you know, go to easily. But I'll see what

our records unit can do.

MR. RAO: Okay.

HEARING OFFICER FOX: Any further

questions?

(No verbal response.)

HEARING OFFICER FOX: We do have a

standing motion to admit the Proposed Hearing

Exhibit Nos. 1, 2 and 3. And Ms. Geving, I

believe, indicated that there was no

objection.

Any objection on the part of other

participants?

(No verbal response.)

HEARING OFFICER FOX: Seeing none, the

exhibits will be entered into the record, the

pre-filed testimony of Mr. Hilbert as Exhibit

No. 1, the pre-filed testimony of Mr. Johnson

as Exhibit No. 2 and the errata sheet number

L.A. REPORTING (312) 419-9292

two as Exhibit No. 3.

(Whereupon, Proponent

Exhibit Nos. 1, 2 and 3

were entered into the

record by the Hearing

Officer.)

HEARING OFFICER FOX: That disposes of

the first three proposed amendments and the

general question that Mr. Rao had raised.

Why don't we proceed to Proposed

Amendment No. 4, amending Section 811.309(g)

regarding leachate monitoring.

Are there questions regarding the

language of Proposed Amendment No. 4?

Ma'am, I'm sorry, I can't recall

your name. I apologize.

MS. ANDRIA: My name is Kathy Andria.

I'm with American Bottom Conservancy.

HEARING OFFICER FOX: Thank you,

Ms. Andria.

MS. ANDRIA: And I'm also conservation

chair for the Kaskaskia Group for the Sierra

Club. I have a number of questions in this

section and I didn't want you to scoot onto

L.A. REPORTING (312) 419-9292

the next section before --

HEARING OFFICER FOX: We will not

scoot. Please proceed if you've got

questions.

MS. ANDRIA: One of the questions I

have, this proposed list of leachate

monitoring parameters consists of 202

constituents, quote, likely to be found in

leachate. I wondered -- I'm concerned about

that "likely to be found". Are there

constituents not likely to be found, but that

are found in various types of landfills?

MR. JOHNSON: The lists that we have

there are those constituents. We've been

monitoring leachate in Illinois and other

states with similar lists and those are the

compounds that we do see most frequently in

leachate.

MS. ANDRIA: But are there compounds

that aren't on the list that do appear?

MR. JOHNSON: To my knowledge, that

list is comprehensive as it exists that we've

monitored for and we believe it includes all

those parameters.

L.A. REPORTING (312) 419-9292

MS. ANDRIA: And none of the things

that you're excluding in the list that you're

going to be monitoring is ever found in --

MR. HILBERT: Maybe I can clarify

something. The list, as it was presented as

an amendment to these rules, is really to add

something into the rules that didn't exist

before. Prior to that, the list was derived,

at least for permanent facilities, internally

within the Agency and there was nothing

specified specifically in the rules that

would have to be monitored for leachate. So

we're not excluding anything, we're actually

adding the list to the regulatory rules that

wasn't there previously.

MS. ANDRIA: Then I must have misread

because I thought there were certain things

that weren't going to be monitored for now.

MR. HILBERT: Not that I'm aware of

within the leachate monitoring lists.

MS. ANDRIA: And, also, I'm very

appreciative that you're bringing in all

landfills in Illinois and not just permitted

landfills, but I'm wondering if IEPA, as they

L.A. REPORTING (312) 419-9292

just said, that they don't do much with

on-site and with unpermitted facilities, how

will that be enforced?

BOARD MEMBER JOHNSON: That's the

Agency.

MR. LIEBMAN: Well, first, I wanted to

respond to your question about --

BOARD MEMBER MOORE: The list.

MR. LIEBMAN: -- the list and

possibly excluding the parameters that had

previously been monitored. The changes

concerning leachate in this rulemaking were

made at the Agency's request. And the list

that we're adding here were things that we

were requiring permitted landfills to do by

permit. And the attempt was to -- and the

idea was to have everything that we're

currently requiring to do by permit, reflect

it in the rules and not leave anything out.

MS. ANDRIA: So are on-site facilities

like steel mill landfills, coal waste

landfills, coal combustion waste, will they

be covered by this?

MR. LIEBMAN: Yes.

L.A. REPORTING (312) 419-9292

MS. ANDRIA: And would those

constituents that are normally in those,

which aren't -- the wording -- "likely to be

found" in leachate, are those all considered

and will they all be monitored for under the

new rules?

MR. LIEBMAN: I want to make sure I

understand what you're asking. Are you

asking whether this current list was

developed for municipal solid waste landfills

and may not address all the parameters or

contaminants that may come from industrial

waste?

MS. ANDRIA: I guess that's what I'm

asking. I'm very joyful that these landfills

that don't have to get permits and don't have

the proper monitoring, at least from the ones

that I see in the metro east, I'm glad that

they're in there, but I'm just wondering

since they are covered I just want to make

sure that the constituents that would be in

that leachate would be covered under these

and it's not being excluded from monitoring.

MR. LIEBMAN: Well, the list that's

L.A. REPORTING (312) 419-9292

going into the regulations was developed from

a literature review done back in the early

'90s. And I think the literature review was

not tailored just to municipal solid waste

landfills. It was intended to include

constituents examined to be found in leachate

from industrial waste, as well.

MS. ANDRIA: Is there another way to

word "likely to be found" so that it is more

comprehensive?

MR. HILBERT: Could I offer one

additional point of clarification? There is

still some language -- and, actually, it's

part of the amendments in 809 -- 309(g), and

it does allow the Agency, by permit

condition, although, it doesn't address

unpermitted sites, to require additional

leachate sampling if it's found to be

necessary or appropriate. I'm not sure if

that actually clarified Ms. Andria's

concerns, but...

MS. ANDRIA: Would it be an

appropriate -- since you said they would all

be covered, could you word it as "all known

L.A. REPORTING (312) 419-9292

constituents to be found in leachate"? Would

that be possible?

MR. NORTHRUP: I think the most likely

language is just in our proposal. That's not

actually in the rule itself.

MS. ANDRIA: Are we going to go by the

letters afterwards or just taking the 309(g)

all at once?

HEARING OFFICER FOX: I'm not sure I

understand your question, Ms. Andria. I'm

sorry.

MS. ANDRIA: The leachate proposed for

the (g), are we going to go by the -- oh, I

see. It's another letter. Okay. I

apologize. I got ahead of myself.

HEARING OFFICER FOX: No apologies.

Ms. Andria, did you have further questions on

the Proposed Amendment No. 4 for either the

Association or the Agency.

MS. ANDRIA: That is not the part

where it has the frequency, is it?

HEARING OFFICER FOX: I believe that

is addressed in Proposed Amendment No. 8,

which would be the Proposed New Subsection 5.

L.A. REPORTING (312) 419-9292

MS. ANDRIA: Okay.

HEARING OFFICER FOX: And, certainly,

we won't skip any opportunity to cover that.

MS. ANDRIA: Okay. And I apologize

because, like I said, I keyed it to the

testimony and not the sections, which was

really stupid.

MR. RAO: I had a follow-up to Ms.

Andria's question about the list proposed in

Section 811, Appendix C. Is this list's --

was this list's data based on the leachate

data that the Agency has for municipal solid

waste landfills?

MS. THOMPSON: I'll take that. That

list is based on federal requirements for

monitoring basically everything that's

monitored in groundwater, which is 40 CFR

258, Appendix 1, 40 CFR 141.40, as well as

some publications -- numerous publications

that have gone out on past studies on solid

waste landfills and incorporated all of those

parameters.

BOARD MEMBER JOHNSON: And, in fact,

that's more comprehensive than the current

L.A. REPORTING (312) 419-9292

rule; isn't that correct?

MS. THOMPSON: That is what we have

been actually doing in the past.

BOARD MEMBER JOHNSON: Thanks.

MR. RAO: So this list of parameters,

which are basically derived from the federal

municipal solid waste rules, would this list

impose additional monitoring requirements for

the chemical waste landfills which are not

municipal solid waste landfills?

MR. LIEBMAN: Well, I think it depends

upon what they've been doing and how they've

read the current regulations. And we've not

tried to look and see what their filing with

us to see if they are more or less doing what

we're requiring permitted landfills to do.

MR. RAO: Let me read that section

here. It is Section 811.309(g)(3), which

deals with chemical waste monitoring. It

states, discharges of leachate from units

with dispose only chemical waste shall be

monitored for constituents determined by

characteristics of the chemical waste

disposed of in the unit, so it was basically

L.A. REPORTING (312) 419-9292

tied to the type of waste that was being

disposed in that particular unit, but now

they will be required to monitor for the

additional lists of constituents called for.

So this replaced additional requirement on

those landfills, does it not?

MR. LIEBMAN: Perhaps.

MR. RAO: Okay.

(Whereupon, a discussion

was had off the record.)

MS. GEVING: May we pause for just a

moment?

HEARING OFFICER FOX: Yes, Ms. Geving.

(Brief pause.)

MS. GEVING: May we have the court

reporter read the last question back, please,

before we respond?

HEARING OFFICER FOX: Yes.

(Whereupon, the requested

portion of the record

was read accordingly.)

MS. THOMPSON: Yes, it would

(inaudible).

THE COURT REPORTER: Can you repeat

L.A. REPORTING (312) 419-9292

that? I can't hear you.

MS. THOMPSON: Yes, it would replace.

MR. JOHNSON: May I speak?

HEARING OFFICER FOX: Yes,

Mr. Johnson, please.

MR. JOHNSON: I'd just like to add for

the record that between myself and my

colleague, Bill Schubert, we work in a number

of states, at least 15 states, and this is

the most comprehensive leachate monitoring

list in that area.

The present regulations do not

contain a list for monitoring, so this

codifies an actual list. And it matches

quite well with the research that is out

there. There's a body of research that

looked at broad monitoring of MSW landfills,

C&D landfills, chemical waste landfills and

co-disposal landfills and this matches real

well with the literature, some of which is

stated in our documents.

DR. GIRARD: Just a follow-up question

to that then. And I don't know whether the

Agency should answer this or the Association.

L.A. REPORTING (312) 419-9292

But for most of the landfills in the state

now, this list of constituents would be in

their individual permits, is that correct --

MR. LIEBMAN: Yes.

DR. GIRARD: -- for the constituents

they need to monitor for.

So in most of these landfills, do

they monitor for more or less than 202

chemical constituents in their permits?

MR. LIEBMAN: I'd say almost exactly

that. We are trying to put in the

regulations what we're requiring by permit

now.

DR. GIRARD: Thank you.

HEARING OFFICER FOX: Any further

questions on Proposed Amendment No. 4?

(No verbal response.)

HEARING OFFICER FOX: Very well.

Let's proceed -- I'm sorry. My mistake.

Yes, Ms. Blumenshine?

MS. BLUMENSHINE: Thank you. Joyce

Blumenshine, B-L-U-M-E-N-S-H-I-N-E. Thank

you very much.

I did have a question, please,

L.A. REPORTING (312) 419-9292

regarding the wording change that the Agency

may then allow less leachate sampling and

testing as necessary. I just wondered what

was the, I guess, rationale for that as one

would think that with a basic listing that

would be a baseline that would be necessary

for consistency and that, of course, the

wording, would require more, would be

understood for particular instances, but I

wanted to hear some rationale for allowing

less leachate sampling.

MR. LIEBMAN: The thinking there was

that there may be -- well, first of all, the

baseline would be the list in the appendix.

But then we thought that perhaps on a

case-by-case basis some landfill operators

may be able to demonstrate that some of the

parameters on the baseline lists weren't

appropriate or necessary for their particular

site and in those cases we thought we should

have the ability to eliminate those

unnecessary parameters.

HEARING OFFICER FOX: Ms. Andria.

MS. ANDRIA: I don't see the wording

L.A. REPORTING (312) 419-9292

that I'm looking for right now, but I think

they referred to that there were different

spatial and temporal changes, and by going to

less would you not be able to catch

contamination that was being effected by a

temporal change, say a river is up and

pushing in a different direction?

HEARING OFFICER FOX: Mr. Schubert

apparently would like to respond.

MR. SCHUBERT: I think I might help

clarify that. In No. 4 it says -- just to

put your statement in context, provide less

leachate sampling might otherwise be

required. The sentence before that talked

about a default minimum number of leachate

monitoring locations. Right now in the

regulations, there is no number of leachate

monitoring locations in the regulations that

says that the leachate must be monitored, so

it could be just one.

The new regulations provide a

minimum number of points greater than one

that needs to be monitored at every site.

And then the Agency upon -- you know, if

L.A. REPORTING (312) 419-9292

there is a reason, you know, for them to only

approve one point, such as the sites not

taking any leachate or, you know, maybe one

location where all the leachate drains to,

they can make that call, as well.

But there is a default number of

leachate monitoring locations that now exist

in regulations by virtue of this amendment

that weren't there before.

MS. ANDRIA: But aren't you -- by

going to a minimum number of locations and

then later on in the proposed rulemaking

you're going to less frequent or longer time

spans, I think that you might not be able to

catch something that starts -- a problem that

starts for perhaps a year or more when the

groundwater is threatened. Would that not be

the case?

MR. SCHUBERT: Well, we'll go through

timing on some of the future amendments -- I

think we covered timing and that type of

thing -- later. But, no, we think that this

proposal is probably -- as Terry had

mentioned, is more rigorous than any other

L.A. REPORTING (312) 419-9292

leachate monitoring proposal that I know of

in any of the neighboring states or 13 states

that I deal with.

So it's pretty rigorous in terms

of monitoring. And, really, I think the

Agency's intention was to make sure that

there's good agreement between what we're

monitoring for in the ground water and what's

in the landfills.

MS. ANDRIA: How does it compare to,

say, California or New York?

MR. SCHUBERT: I don't know.

MS. ANDRIA: Are there other states

that have more rigorous requirements than

you're proposing?

MR. SCHUBERT: Not in my experience.

MS. ANDRIA: And is that in the 13

states and his 15 states?

MR. SCHUBERT: Yes, ma'am.

MS. ANDRIA: In your extensive review

that you've been working on, for ten years I

think you said, have you not found any in

other states that are more protective?

MR. SCHUBERT: The point of our review

L.A. REPORTING (312) 419-9292

wasn't to look at other states, necessarily.

I'm just saying that it put the rigorousness

of the requirement in context.

MS. ANDRIA: Thank you.

HEARING OFFICER FOX: Ms. Blumenshine,

I think you indicated that you had a

question.

MS. BLUMENSHINE: Just to wrap-up on

my question so that we can go on. Thank you

for your time. I'll go back and review this.

But my specific question -- and I believe

the leachate monitoring points is under

another -- in (g)(4) in Amendment 7. I was

specifically concerned -- my question dealt

with that the Agency then could allow less

sampling and testing and my concern was that

there's a provision in there to allow less

sampling. So that was my specific question.

MR. SCHUBERT: Right.

MS. BLUMENSHINE: Thank you.

HEARING OFFICER FOX: Any further

questions on Proposed Amendment No. 4.

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

L.A. REPORTING (312) 419-9292

then moving ahold to Proposed Amendment No.

5, which proposes to amend Section

811.309(g)(2)(G). Are there questions about

the specific language of that proposal?

Ms. Andria, I see your hand.

MS. ANDRIA: On heavy metals, I'm very

confused about the errata sheet and that some

of the heavy metals were removed from testing

and now -- we didn't -- this was not posted

on the website, so we didn't see things being

put in, so I haven't been able to check. But

are they in or out? Are heavy metals in our

out?

HEARING OFFICER FOX: Let me step

back, if I may, and just ask a procedural

question, Ms. Andria. Are you saying that

you were not able to gain access on the web

to errata sheet number one or number two.

MS. ANDRIA: Well, yesterday it

wasn't -- they didn't have "view file" on the

side of it so it wasn't accessible.

HEARING OFFICER FOX: There wasn't a

link from which you could print the document,

in other words.

L.A. REPORTING (312) 419-9292

MS. ANDRIA: Correct.

HEARING OFFICER FOX: I understand.

It was at least listed there in the docket

sheet?

MS. ANDRIA: It was listed that the

document was there, but it wasn't something

that you could read.

HEARING OFFICER FOX: Thank you for

clarifying that for me. I appreciate that.

Ms. Geving, did you have a

question or a response?

MS. GEVING: I just had one

suggestion. Maybe this would help

facilitate. Charlie, if you could have

somebody do an overview of what was changed

just by errata sheet number two that's

different from errata sheet number one so

they understand what the change was?

MR. NORTHRUP: Yeah. There were very

limited changes to errata sheet number two.

In fact, there were only two and they dealt

with on errata sheet number one, total

suspended solids, and had TDS in parenthesis,

which was wrong, so we changed that to TSS

L.A. REPORTING (312) 419-9292

and then we actually added total dissolved

solids. That's the only difference between

errata sheet number one and errata sheet

number two.

MS. ANDRIA: Okay. So is there less

monitoring or have pesticides been dropped

from monitoring? Because that was my read of

an earlier document and I don't know

pesticides by their chemical names so I just

wondered whether that was the case.

MR. BALLENGER: I think I can answer.

Eric Ballenger with Allied. I think the

leachate list you see there is essentially

what we're using. You may be confused then

with what you saw with the groundwater

monitoring programs. The leachate list does

include pesticides/herbicides, does include

the total metals, does include the volatiles

as identified on that list.

MS. ANDRIA: And PCBs?

MR. BALLENGER: Yes. That exact list

that you see there is the list we were using

as part of our leachate program.

MS. ANDRIA: Thank you.

L.A. REPORTING (312) 419-9292

HEARING OFFICER FOX: My recollection

is that we were ready to move on to Proposed

Amendment No. 5, Section 811.309(g)(2)(G).

Were there questions for the Association as

the Proponent on that?

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

let's proceed to Proposed Amendment No. 6,

which would propose to amend Section

811.309(g)(3)(D). Are there questions for

the Association as Proponent of that or the

Agency?

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

let's move forward to Proposed Amendment No.

7, amending 811.309(g)(4). Are there

questions on this proposal for the either the

Association or the Agency?

Ms. Andria?

MS. ANDRIA: This will now have a

minimum of four leachate monitoring locations

and at least one for every 25 acres within a

waste boundary unless the operator

demonstrates through the permitting process

L.A. REPORTING (312) 419-9292

that fewer leachate monitoring locations are

needed? And is that -- the permit would

guide that or this would guide that?

HEARING OFFICER FOX: Mr. Liebman?

MR. LIEBMAN: The regulations would

guide that unless in a permit application the

applicant was able to demonstrate that

something else was appropriate.

HEARING OFFICER FOX: Mr. Schubert,

did you wish to add to that answer or

respond?

MR. SCHUBERT: No. I had pretty much

the same answer.

HEARING OFFICER FOX: Any further

questions relating to Proposed Amendment No.

7 then?

DR. GIRARD: Just to have a summary

follow-up, for some landfills in the state,

when their permit is re-written, they will

actually have more monitoring stations than

they do now?

MR. LIEBMAN: That was not what we had

in mind and that's not the way we would read

that note. We thought that landfills that

L.A. REPORTING (312) 419-9292

were permitted -- let's say a landfill that's

100 acres has one leachate monitoring point,

well, the Agency approved that leachate

monitoring through the permit process,

therefore, we would think that

previously-permitted landfills still complied

with the amended regulations.

DR. GIRARD: But if their permit comes

up for renewal and this regulation is in

place, doesn't it state that they need a

minimum of four monitoring locations now.

MR. LIEBMAN: Unless something else

has been permitted.

DR. GIRARD: So they can still have

just one.

MR. LIEBMAN: Correct.

DR. GIRARD: So it doesn't really

enhance the leachate monitoring location

network in terms of adding more sites to

currently-permitted sites, it's just for

newly-permitted sites; is that correct.

MR. LIEBMAN: That's the way we

anticipate administering it, yes.

DR. GIRARD: Thank you.

L.A. REPORTING (312) 419-9292

MR. RAO: Then what's the rationale

for requiring new sites to have four

monitoring locations if they're 100 acres?

MR. LIEBMAN: The idea is to ensure

that the leachate monitoring system is

capable of detecting spatial variability.

MR. RAO: Doesn't the same rationale

apply to existing units even though they have

been permitted in the past because this

requirement was not there?

MR. LIEBMAN: Right. Yes, it would.

There may be some cases, including for new

sites, where one monitoring point at a

100-acre site would be acceptable. If the

landfill operator was able to make that

demonstration, we would certainly review it

in the permit application.

MR. RAO: What criteria do you use to

make such a determination?

MR. LIEBMAN: We've really not

developed any criteria like that.

MR. SCHUBERT: I think, as I had

mentioned before, you know, our petition in

regard to this section had mentioned that,

L.A. REPORTING (312) 419-9292

you know, we, as the petitioner, looked at

this as a default number of sampling points.

If there was a reason to have a

smaller number, you know, we could ask the

Agency to review that.

In my opinion, you know, the

criteria might be if you had five sampling

locations in your landfill and four of them

were dry consistently for two years, you

know, we might go in there and say, well, we

don't -- we want to go back to those

landfills and have somebody, you know, put a

sampling device down, you know, on a periodic

basis.

If we have flow-through manholes

and we have sampling locations, but they're

hydraulically connected to a single point, we

might make a petition to the Agency that

might be, you know, sufficient criteria for

looking at that type of thing as far as what

we looked at.

But I think in fairness to the

Agency, we haven't come in with anything and

they probably haven't recalled any criteria

L.A. REPORTING (312) 419-9292

yet.

MR. RAO: I just wanted to understand

under what circumstance is this provision

being implemented?

MR. SCHUBERT: We typically have

multiple points now. But what this

regulation does is it makes it a requirement.

Before, it was just, you know, put into our

permits and could be appealed and, you know,

could potentially be appealed as being not

consistent with the rule. Now, it will be

obvious that it's consistent with the rule.

MR. RAO: Thank you.

HEARING OFFICER FOX: Any further

questions on Proposed Amendment No. 7 then?

(No verbal response.)

HEARING OFFICER FOX: Proceeding then

to Proposed Amendment No. 8 for Section

811.309(g)(5). Are there questions for the

Association as Proponent or for the Agency on

this issue?

Ms. Andria, I see your hand.

MS. ANDRIA: Yes. I wondered if this

would -- if you're doing this for all

L.A. REPORTING (312) 419-9292

landfills, would it not be not restrictive

enough for, say, a loose, sandy soil where a

landfill was located very close to an aquifer

in a floodplain, say, that might the

contaminants might move more quickly? Would

that not be the case?

MR. BALLENGER: The frequency of the

leachate monitoring doesn't change the

frequency of our groundwater monitoring

program. So we still have a scheduled

groundwater monitoring event regardless that

is, of course, there to potentially indicate

whether or not we're seeing some sort of

release in the facility.

So although you may not be

monitoring those leachate points as

frequently, the groundwater monitoring

program, which is the perimeter wells, of

course, around the landfills stays the same.

MS. ANDRIA: So what is the benefit

other than cost and less frequent leachate

monitoring?

MR. BALLENGER: Well, in general,

we've seen over the years that the leachate

L.A. REPORTING (312) 419-9292

quality either hasn't changed much or, in

fact, in some cases, when you have very new

garbage input in a brand new cell, the

leachate is going to be a bit different and

there's not much of a change in quality over

time. We've been doing this for many, many,

many years of quarterly monitoring these

sites and have been able to show that we're

not seeing a big change in the leachate

quality.

(Whereupon, a discussion

was had off the record.)

MR. BALLENGER: Overall, there's not

really a general decrease in frequency of

when we're doing leachate monitoring.

MS. ANDRIA: The studies that you

referred to and the testing that you've done,

is that available? You have a whole lot of

things that you've used as bases for your

studies and you indicate that you're trying

to get a broad constituent supporting this,

but you've made not anything available to the

public that we can review the data so that we

can make an informed comment on it and maybe

L.A. REPORTING (312) 419-9292

look at it and see and maybe agree with you

100 percent, but we -- maybe not.

And since we weren't provided it,

it gives us a little more queasy feeling

about going forward and supporting this

without seeing the data that you base your

assumptions on.

MR. SCHUBERT: All of our data, you

know, filed with the Agency is available for

review. That's really what he had mentioned.

We have been looking at this for a long -- we

have been providing this data for a long time

and, like I said, it's been required by our

permits but not necessarily in regulation.

MR. JOHNSON: As I understand it, we

did summarize the references of the

peer-reviewed journal articles that we relied

on and provided those. We do have hard

copies of those, as well. But those would

all be available on-line.

MS. ANDRIA: Are they available at the

Agency's office that people could go in to

review?

MR. NORTHRUP: We can certainly copy

L.A. REPORTING (312) 419-9292

them and give them to you.

MS. ANDRIA: I would very much

appreciate that. And, also, the list that

you supplied in your errata sheet that you

gave your sources, if any of those has a

website link that we can go to, that would be

very helpful, also.

MR. NORTHRUP: Okay. I don't know if

they do, but...

MR. JOHNSON: I have a lot of them.

HEARING OFFICER FOX: And,

Ms. Andria -- and please correct me,

Mr. Northrup, if I'm mistaken. I think

you've used the same term to apply to a

couple of different things. There was the

errata sheet which submitted changes that the

Association wished to make in its original

proposal. And thus, as a second filing or a

second document, the Association also in

response to a Board order filed a fairly

lengthy list candidly of documents, studies

and other research that they had relied upon.

And I believe that was filed on January 16th

with the errata sheet, but those would be two

L.A. REPORTING (312) 419-9292

separate documents and two separate questions

that those are addressing.

MS. ANDRIA: I apologize.

HEARING OFFICER FOX: No. No worries.

I just wanted to make sure there was no

misunderstanding about that. And while

you've noted that all of those perhaps are

not posted to the web, I can certainly check

with our clerk's office and ask them to scan

those so that they're available to see more

quickly.

MS. ANDRIA: I would very much

appreciate that. Thank you.

HEARING OFFICER FOX: And let me

double check. Ms. Andria, did you have a

further question?

MS. ANDRIA: I will defer to

Ms. Blumenshine.

HEARING OFFICER FOX: Ms. Blumenshine?

MS. BLUMENSHINE: Thank you very much.

Just to follow up, I simply wanted to clarify

that in Amendment 8 where each established

leachate monitoring location shall be

monitored once every two years, was your

L.A. REPORTING (312) 419-9292

literature review for determining that every

two years is adequate just on literature from

industry or did it include public health, as

Ms. Andria mentioned, wetland literature,

other literature that involved this section

of concerns?

MR. JOHNSON: Our literature review

with respect to this No. 8 was specific to

the parameters detected in leachate and the

frequency of monitoring to establish those

detections. And in consideration of the

stages that a landfill goes through, which

are very well understood now, that before, in

the old way of looking at it, we had more

frequent monitoring early on in the landfill.

And early on, what we typically monitor is

precipitation falling on new land areas.

It's not really reflective of what that

source will ultimately become.

So with this proposal, we maintain

a semiannual, it's not every two years. We

monitor semiannually and we better account

for the fact that the leachate that we're

really interested in understanding is the

L.A. REPORTING (312) 419-9292

stuff that develops over time, not the

initial.

MS. BLUMENSHINE: I'm sorry. I

understand that you do monitor semiannually,

but each location would be monitored at least

once every two years --

MR. JOHNSON: Correct.

MS. BLUMENSHINE: -- and there are

areas that could then not be monitored for

two years?

MR. JOHNSON: That's correct. But

there would be some sample collected on a

semiannual basis to that landfill unit.

MS. BLUMENSHINE: I guess my question

was the basis then to assess that that would

be safe for the public, what is the proof in

the literature that states that every

two years by missing wells that you would not

be missing important measurements? I didn't

know. Is that in your literature review?

MR. HILBERT: Could I just clarify

more of a global point? When we're talking

about leachate monitoring, we're talking

about characterizing a potential source, a

L.A. REPORTING (312) 419-9292

source that's contained within a Subtitle D

landfill. And it's just so that we can

understand what we need to monitor and that

there isn't something inordinate that has

occurred within that source.

So when we're talking about

monitoring it every six months, we're really

just looking at what we're containing and not

what is potentially in the environment. It's

within our contained system.

MR. RAO: As a follow-up, Mr. Hilbert,

what you're proposing is a change in

frequency over the first two years of the

initial two-year period of monitoring of

leachate, isn't it? The Board rules require

you to monitor on a quarterly basis over the

first eight quarters, and then it switches to

semiannual. So all you're saying is the

first two years it's okay to monitor on a

semiannual basis?

MR. HILBERT: Correct.

MR. RAO: And in Mr. Johnson's

testimony he referred to four quarters of

initial monitoring. Actually, the rules

L.A. REPORTING (312) 419-9292

require eight quarters. So your rationale

still holds that the initial monitoring

period is not very representative of the

leachate characteristics --

MR. JOHNSON: Right.

MR. RAO: -- in place?

HEARING OFFICER FOX: Any further

questions then with regard to Proposed

Amendment No. 8?

(No verbal response.)

HEARING OFFICER FOX: Moving on to

Proposed Amendment No. 9 with regard to 811,

Appendix C, this is, of course, for the

record, the subject, I believe, Mr. Northrup,

of the two errata sheets filed by the

Association and which has been the subject of

some discussion already. Are there further

questions with regard to Appendix C?

Ms. Blumenshine, I see your hand.

MS. BLUMENSHINE: I just would wish to

ask if having this specific list will in any

way impair or hamper the Agency, IEPA, if

they would wish to require additional testing

for other specifics pollutants? What other

L.A. REPORTING (312) 419-9292

procedure would you have to do if you wanted

additional things tested?

MR. LIEBMAN: I think the wording

still allows us to require more in cases

where we think it's necessary.

MS. BLUMENSHINE: So there would be no

specific aggregates requiring that unit to go

through any other procedure?

MR. LIEBMAN: That's the way I read

the proposed regulations, yes.

HEARING OFFICER FOX: Anything further

on the part of the Agency?

MR. LIEBMAN: No.

HEARING OFFICER FOX: Very good.

Moving on to Proposed Amendment No. 10 with

regard to Section 811.315(e)(1)(G)(1). Are

there any questions of the Association as

proponent or of the Agency on this issue?

Ms. Andria?

MS. ANDRIA: I'd like to ask the

Agency since I'm not really -- I don't really

understand all of the wording and I'm not

familiar with the groundwater rules and how

it refers back to the public water supply

L.A. REPORTING (312) 419-9292

standard. Is this a substantive change? The

way they're wording it, it's not a

substantive change. It's just something that

they're required to change.

So I guess I wanted to know from

the Agency, referring to the rules involving

the groundwater standards, is that less

protective than it would be if it were a

direct public water supply source?

HEARING OFFICER FOX: And if I may

jump in, Ms. Andria? Looking at Page 3 of

Mr. Johnson's pre-filed testimony, he did not

include that with the list that he considered

non-substantive. So I did want to clarify

that.

MS. ANDRIA: I realize that. That's

why I'm asking. It sort of infers in Mr. --

in the pre-filed testimony that this is not a

big change, not a substantive change. So I

guess I'm asking the Agency is there a change

in water quality standards between the

groundwater standards found at 620 and what

was in the record now at public or food

processing water supply standards at 302?

L.A. REPORTING (312) 419-9292

MS. THOMPSON: If there is some

differences -- there may be some differences,

but I could not tell you exactly what they

are at this time. At the time that these

rules -- these regulations for landfills were

promulgated, 620s were being evaluated for

rulemaking, but they were not enforced.

If they had been enforced at that

point in time, you would be reading 620 in

here as far as the standards as opposed to

302. The 620s were not promulgated at that

point in time and so the 302 standards, which

were the only existing standards at that

time, were put in instead. 620 is equally

protective and it is evaluated for human

health standards.

MS. ANDRIA: Okay. In an English

person's language, I mean, a common person

like me who is not an engineer or an

attorney, it is every bit as protective, the

groundwater standards, as public water supply

standards?

MS. THOMPSON: The 620s, when they

were promulgated, were evaluated for human

L.A. REPORTING (312) 419-9292

health and environment and it is protective

of human health and environment, yes.

MS. ANDRIA: As protective is my

question.

MS. THOMPSON: If you're asking me if

a number is exactly the same as a 302 number,

I cannot answer that. I can say that it is

protective.

MS. ANDRIA: I would respectfully

request that when you testify at the next

hearing that you find that out because that's

very much a concern of people. There are

still people in our area on wells and in

sandy soil where it moves quickly through.

So if there's change in the water quality

standard in this, we would very much like to

know so we can make proper comment on that.

HEARING OFFICER FOX: And, Ms. Andria,

just as a point of information, the original

landfill rules were adopted in a proceeding

docketed at R88-7, which took effect in 1990.

And the groundwater standards took effect in

a docket 89-14B, which took effect at the

very end of calendar year 1991. So I think

L.A. REPORTING (312) 419-9292

that's the timing issue that the Agency and,

I believe, the Association, as well, were

referring to.

MS. ANDRIA: So it's just a change in

wording, not a change in water quality

standards?

HEARING OFFICER FOX: That would be a

characterization for the Proponent to make.

I'll leave that to them to respond to.

MS. ANDRIA: Could they, please?

MR. SCHUBERT: We have to look at

that.

MR. JOHNSON: I think that's generally

accurate, but we'd want to look at it.

HEARING OFFICER FOX: That makes

perfect sense.

MS. GEVING: Would they be responding

to that at the next hearing then?

HEARING OFFICER FOX: I'm sorry.

MS. GEVING: Would the Proponent be

responding to that --

MR. JOHNSON: Yes.

MS. GEVING: -- at the next hearing?

HEARING OFFICER FOX: They've clearly

L.A. REPORTING (312) 419-9292

indicated they will.

MR. NORTHRUP: AS you will, as well.

MS. GEVING: That's right.

HEARING OFFICER FOX: Are there any

further questions on Proposed Amendment No.

10.

MR. RAO: Can I go back and just make

an additional request for the Proponent? In

that same section where we are replacing the

public and food processing water supply

standards with the Illinois groundwater

quality standards, would you also take a look

to see, you know, there are like three sets

of standards under R6-20, the Class 1, Class

2 and Class 3, will you also take a look at

it to see which groundwater standards would

apply to landfills? Because my understanding

is Class 1 is based on the MCLs, which is

equivalent to these public water supply

standards. But if it's Class 2 or Class 3,

it may not be the same. It may still be

protective. I'm not sure. I'd like you to

take a look at that and address that.

MS. THOMPSON: That would be Class 1.

L.A. REPORTING (312) 419-9292

MR. RAO: So should we say Class 1 in

this proposal?

MR. HILBERT: The default standard is

Class 1. That is the standard.

MR. RAO: Okay.

HEARING OFFICER FOX: Any further

questions then on Proposed Amendment No. 10?

(No verbal response.)

HEARING OFFICER FOX: Mr. Johnson did

indicate that Proposed Amendment No. 11 was

non-substantive and I think it simply adds a

subsection to a citation. If Mr. Johnson

still believes that's non-substantive and

there's no objection from either the Agency

or any other participant, why don't we

proceed to Proposed Amendment No. 12.

MR. NORTHRUP: One quick question on

Mr. Rao's last question. Are you satisfied

with that answer or do you want us to address

that, as well?

MR. RAO: If the default is Class 1 --

actually, that's not my concern. I'm just

following up on Ms. Andria's question about

whether it's equally protective or not. So

L.A. REPORTING (312) 419-9292

that's where I was coming from, to see

whether Class 1 is equally protective of

what's being changed or proposed here.

HEARING OFFICER FOX: Returning to No.

11, is it still Mr. Johnson's

characterization that this is non-substantive

and is there any dispute with that

characterization on the part of the Agency?

MS. GEVING: No objection.

HEARING OFFICER FOX: Seeing none,

let's proceed to No. 12, proposing to amend

Section 811.318(e)(6)(B). Are there

questions either of the Association as

Proponent or the Agency on this issue?

(No verbal response.)

HEARING OFFICER FOX: As proceeding,

Mr. Johnson has indicated that Proposed

Amendment Nos. 13, 14 and 15 are

non-substantive. Once again, if he continues

to believe that that is the case and there's

no objection from any of the other

participants, including the Agency, we can

proceed.

(No verbal response.)

L.A. REPORTING (312) 419-9292

HEARING OFFICER FOX: Hearing no

dispute, about that characterization, let's

proceed to Proposed Amendment No. 16. That

proposes to amend Section 811.318(e)(7). Are

there questions of the Association as

Proponent or of the Agency on this issue?

Yes, Ms. Andria?

MS. ANDRIA: Going to five years, I

wondered if different things happened to a

well that is in a floodplain with a high

water table then would be -- would that need

more frequent checking -- whatever the proper

word is -- for information?

MR. JOHNSON: The purpose of this

well-depth measurement was to measure whether

or not there's been silication occurring at

the monitoring wells. And when these

regulations were originally adopted,

procedures for monitoring were often used

bailer and they introduced some turbidity in

the well.

Since that time, we've

standardized on the dedicated sampling pumps

which are made out of Teflon. And the reason

L.A. REPORTING (312) 419-9292

that we have standardized on these is to

prevent cross-contamination from someone

actually lowering a bailer and minimizing the

effects of turbidity which can yield to

silication. So the language differentiates

between wells that have that dedicated

systems and those that do not.

So if a particular well was still

sampling with a bailer system in a

floodplain, as you suggested, it would still

have to perform these measurements annually.

MS. ANDRIA: Do they change their

function when they're -- if, like, the water

comes up, the freeze/thaw problems, do they

operate properly if you -- would that not be

a better idea to check them more frequently

when they're in the floodplain like that?

MR. JOHNSON: It really isn't because

we want to leave that equipment down the

hole. It's all been decontaminated. When we

buy it, we get a certificate that it is free

of organics and other contaminants.

What we've learned is when we're

pulling all that equipment out, -- you know,

L.A. REPORTING (312) 419-9292

you can imagine in a field that might have a

well 20, 30, 40 feet deep, there's tubing

that goes all the way down these pumps. And

when you pull that out, you have to very

carefully put it in a decontaminated

environment or you actually introduce

contamination in the well.

MS. ANDRIA: Is it possible that the

shifting of the sand in the aquifer, the

water, the rising of the river up and down

would change something there that needed to

be checked?

MR. JOHNSON: No. Really, these are

within a PVC or steel well to prevent any of

that shifting. These pumps are inside an

enclosed environment.

MS. ANDRIA: And the PVC doesn't shift

either?

MR. JOHNSON: It generally doesn't

shift.

HEARING OFFICER FOX: Any further

questions on Proposed Amendment No. 16?

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

L.A. REPORTING (312) 419-9292

Mr. Johnson, once again, has characterized

Proposed Amendment 17 as non-substantive. If

he has not changed his opinion on that and

there's no dispute from the Agency or others,

we can proceed.

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

Proposed Amendment No. 18 regarding Section

811.319(a)(2)(A)(ii), are there questions of

the Association as Proponent or of the Agency

on this question?

Ms. Blumenshine, I see your hand.

MS. BLUMENSHINE: I did mean to ask,

please, the determination that any location

accepting more than 50 percent by volume of

non-municipal waste must be determining

additional indicators, what was the rationale

for that 50 percent? I was just concerned

that maybe that would be more protective of

the environment based on perhaps the type of

waste coming in, more indicative of the

specific locations of the waste.

MR. JOHNSON: The thinking behind that

was that if we had that volume of material,

L.A. REPORTING (312) 419-9292

that we would then add in the parameters that

are more reflective that perhaps would be

present in the leachate from a facility with

those characteristics into the detection

(inaudible) --

THE COURT REPORTER: I'm sorry? Into

the?

MR. JOHNSON: Into the routine

detection quarterly monitoring program.

THE COURT REPORTER: Okay. I can't

hear you. You need to turn toward me.

MS. BLUMENSHINE: Thank you. I just

didn't understand if 50 percent was a tipping

point or was an arbitrary number or if, like,

40 percent would be more protective or how

that 50 percent was determined.

MR. SCHUBERT: Frankly, we looked --

this was a source of a lot of discussion

between the Agency and ourselves when we were

putting this together. And we looked at

landfills with varying percentages of non-MSW

and made a judgment, you know, based on the

leachate characteristics of those landfills

that they wouldn't substantially change

L.A. REPORTING (312) 419-9292

unless they were, you know, 50 percent

non-MSW.

MR. RAO: I have a follow-up. This is

more of a clarification question about that

requirement that you have proposed as a note.

Should this be an actual requirement in the

rules instead of, you know, a Board note in

the rules that additional monitoring would be

required if 50 percent of the waste -- more

than 50 percent by volume is not municipal

solid waste?

MR. SCHUBERT: Well, I think it's

appropriate where it's at because there are

so many different scenarios that could arise,

you know, that you may want to include. You

may want to include other parameters.

I can think of an instance of a

landfill that had taken a large amount of fly

ash and had a fly ash stabilization process

that for a certain part of a period of time

was more than -- this was fly ash from a coal

burning power plant -- took more

stabilized or solidified, stabilized fly ash

than the MSW.

L.A. REPORTING (312) 419-9292

Over that period of time, you need

to -- you know, I guess the Agency would take

a look at a situation like that and say, hold

on, we need to add, you know, more parameters

to your list to reflect, you know, the

possible, you know, contaminants in that new

type of leachate that would be, you know,

from the addition of stabilized fly ash

because now you're over 50 percent and your

leachate looks a little different than it

would if it were just MSW. Does that answer

your question.

MR. RAO: Do you see any circumstances

where you can have a non-municipal solid

waste more than 50 percent by volume where

you'd not require additional monitoring?

MR. SCHUBERT: It could be a very

inert material. Say it was contaminated soil

from the clean-up of a gas station. Well,

levitec (phonetic), which would be your main

constituent of interest in that case, are

included in the list for this landfill, so

maybe they wouldn't want to add any. Could

be. Things change a lot.

L.A. REPORTING (312) 419-9292

I mean, you're trying to cover a

lot of circumstances in that single Board

note -- or that single note in the

regulations. And I guess I could think of an

instance that would be practical.

MR. RAO: I'm not an authority, but

I've always been told these Board notes are

not enforceable.

MR. SCHUBERT: If that's your

question, I'm not an attorney either. I

don't know.

MR. RAO: Right. Well, I was just

asking that for the record.

MR. NORTHRUP: I would not take that

position. For me, it doesn't make a

difference whether it says it's a note or

whether it's got its own designation. I

think it's equally enforceable as a note. I

don't know if that's the Agency's position or

not.

MS. GEVING: Let me answer that by

suggesting maybe if we roll this into more of

a requirement than an explanation and a Board

note? Would you be amenable to that?

L.A. REPORTING (312) 419-9292

MR. NORTHRUP: Yes.

MS. GEVING: Okay. Maybe we can work

together on that for an errata sheet number

three.

HEARING OFFICER FOX: Any further

discussion on Proposed Amendment No. 18?

(No verbal response.)

HEARING OFFICER FOX: Moving ahead to

Proposed -- I'm sorry, Ms. Andria. I didn't

see your hand.

MS. ANDRIA: I wanted to ask about

removing the dissolved iron and manganese.

Are we still on that one, the detection

monitoring?

HEARING OFFICER FOX: I believe so,

yes.

MS. ANDRIA: I wanted to understand

why they want to move -- remove dissolved

iron and manganese from the quarterly

sampling list.

MR. JOHNSON: I can answer that

question. The dissolved iron and manganese

are both naturally occurring compounds in the

groundwater and we've got a lot of experience

L.A. REPORTING (312) 419-9292

monitoring for those two compounds and doing

our statistical analyses on the data.

We've seen those frequently in the

groundwater both upgradient and downgradient

and, frankly, even at facilities that have

not yet begun to accept waste as triggering

us into assessment monitoring.

So, in short, they're not very

effective detection monitoring parameters.

We have more effective parameters that we

have proposed with this rulemaking.

HEARING OFFICER FOX: Ms. Andria.

MS. ANDRIA: But wouldn't -- I mean,

we have high iron and manganese in our

water -- in our groundwater. You're saying

then that you should just not monitor for

that as part of the detection monitoring

system?

MR. JOHNSON: Ideally, for detection

monitoring, we want a list of parameters that

is most indicative of a problem the landfill

has caused. And you mentioned you have these

parameters in your well. And I do, as well,

in my own well, which is the reason that it's

L.A. REPORTING (312) 419-9292

hard to -- virtually impossible to

distinguish high iron, high manganese as

being a source from a landfill or is it a

result of a natural condition because it is

high in natural groundwater.

MS. ANDRIA: Wouldn't you be able to

do background testing to have something to

compare, and then if there's a spike, then

you could naturally assume that it was coming

from a landfill? But if you don't test it

for all, you're not getting any levels of

iron or manganese, which I think is

problematic.

MR. JOHNSON: You really cannot make

that interpretation with iron and manganese

because increases in them can be caused by

factors totally unrelated to the landfills.

So even if you do have background data and

establish a high level, and that level then

goes up, that does not necessarily mean that

there's been a landfill impact.

It can be a number of other

causes, which we've kind of been in a circle

examining those other causes for many, many

L.A. REPORTING (312) 419-9292

years, which is one of basis for this

approach to remove those parameters and add

some parameters that are more conservative

that aren't subject to that interference in

the natural conditions.

MS. ANDRIA: But if you're not

testing, then you're not finding out that

there is a problem. And it doesn't

necessarily have to be your fault, but

because you're there testing for it, then I

think, you know, you have the opportunity to

address it.

And a lot of the landfills take in

special waste, which could yield spikes in

iron and manganese, I believe. And so I

think -- I find that very problematic to just

remove them rather than you can make a case

that we didn't cause it.

MR. JOHNSON: You know, our goal is to

as accurately as possible be able to tell

when we're having an impact on the

environment. And, frankly, these parameters

have not, in the history that we've monitored

for them, in the literature that we've looked

L.A. REPORTING (312) 419-9292

at, added to that goal. They add confusion.

MS. ANDRIA: Okay. Just for the

record, too, that's our goal, we want to make

sure that it's all -- everything is monitored

and attributed.

I also wondered if this is also to

be removed, antimony, barium, beryllium,

cobalt, copper, nickel, selenium, silver,

thallium and vanadium. If that's still meant

to be removed from the program of detection

monitoring.

MR. SCHUBERT: Yes.

MR. JOHNSON: Yes.

MS. ANDRIA: And the reason for those?

MR. JOHNSON: The removals -- the

metal compounds that you listed for removal

are monitored for as totals, meaning that the

samples are collected and they're not

filtered. And the reason that we're

proposing to remove these is that the

concentrations that we measure when we do

those tests are also reflective of the

suspended sediment in the sample and not the

actual dissolving groundwater. We still

L.A. REPORTING (312) 419-9292

maintain a number of those metals in the

monitoring program as dissolved constituents.

In addition, they're not --

they've been shown in the literature that

we've cited to not be mobile in groundwater

and not to be present in leachate at a high

contrast between groundwater and leachate.

MS. ANDRIA: In your pre-filed

testimony, you said that most other state

programs have eliminated the monitoring of

many of these parameters. Which have they

not eliminated?

MR. JOHNSON: It kind of depends on

the state. There are some states that have

eliminated all of them. Most notably,

Kansas. There are other states. Indiana, I

believe. Minnesota, also, I believe,

eliminates all the total analyses. I did see

some correspondence from South Dakota that

they're also eliminating the total metals.

HEARING OFFICER FOX: Any further

questions on that issue.

MR. RAO: I may have.

MS. LIU: I do, too. Mr. Johnson,

L.A. REPORTING (312) 419-9292

Ms. Andria was asking you about the list that

involved manganese and iron being eliminated.

I also noticed in your discussion you mention

that it also included phenols, but phenols

didn't make your final list in the proposed

regulations, but there wasn't any reasoning

given to why that one was removed. Could you

follow-up on that one, as well?

MR. JOHNSON: Yes. That's a good

point. Phenols have been added back in on

the -- being they are an organic compound,

they're added into the organic monitoring

list, which will be done two times per year.

MS. LIU: Thank you.

MR. RAO: Mr. Johnson, you were

talking about the monitoring of the total

metals. And in your proposal under

Section 811.319(a)(2)(A)(ii), the list of

constituents, they're all indicated as

dissolved concentrations. Could you clarify

these for the record whether landfills are

currently required to sample for dissolved

concentrations for most of these sample

parameters or are they required to monitor

L.A. REPORTING (312) 419-9292

for the total?

MR. JOHNSON: Presently, we monitor

for most of these, both total and dissolved.

MR. RAO: Both?

MR. JOHNSON: Yes.

MR. RAO: Thank you.

MR. JOHNSON: And we do that once per

year under the existing regulations for the

totals.

MR. RAO: Is that a requirement by

regulations or is it an Agency permit

requirement?

MR. JOHNSON: It originally was out of

the federal regulations, Subtitle D. And I

believe that's how it was incorporated into

the Illinois regulations.

MR. RAO: Thanks.

HEARING OFFICER FOX: Ms. Andria.

MS. ANDRIA: My understanding of this

section, the detection monitoring program for

which the heavy metals I was just talking

about had been taken out is just to assess

when there's a problem. And then the second

part of it is the assessment monitoring that

L.A. REPORTING (312) 419-9292

is conducted after there is a problem. And I

note that you say that monitoring for the

specific total metals is included in the

assessment monitoring program. If they are

included in after there's a problem, then

shouldn't they be included in the beginning?

I mean, you're admitting that

sometimes they're going to make it to that

final stage where there's a problem, so

you're testing it after the groundwater

contamination has occurred.

MR. JOHNSON: The monitoring program

that we have is based on detection and then

assessment. So in the detection phase, we're

performing statistical tests on the inorganic

parameters and we're looking at the volatile

organic compounds. We want to look at those

parameters that are going to provide us with

the most clear indication of what's going on

between the landfill and in the surrounding

environment.

If we do detect a potential

problem, then we broaden our sampling, which

is consistent with the Illinois regulations

L.A. REPORTING (312) 419-9292

as well as the federal, to make sure -- to

double check and make sure that there are not

additional parameters that we were not

monitoring for in the detection that are

present. And so that's the method of

monitoring that this system is based on.

MS. ANDRIA: Wouldn't it be more

protective to just include them in the first

place so you didn't have to get to the point

where you'd have to clean them up and you

could stop whatever was contaminating,

whatever the source was, at a sooner stage

and it would save you money?

MR. JOHNSON: As I stated earlier, the

total metals have really not been a problem,

they've not been really a useful detection

monitoring parameter. But they are included

and added to the list for purposes of

completion.

MS. ANDRIA: Okay.

HEARING OFFICER FOX: If there are no

immediate questions, I'll note that we've

been underway for about 90 minutes and it's

probably an appropriate time to break for

L.A. REPORTING (312) 419-9292

lunch. Why don't we do so and return here in

60 minutes at quarter to 2:00.

And, although, we have inevitably

discussed some of the substance of Proposed

Amendment 19, we can begin there.

Mr. Northrup, it looks like you

have a comment.

MR. NORTHRUP: I do have one

clarification from Mr. Hilbert.

MR. HILBERT: I just would like to

offer clarification on Mr. Rao's question on

whether or not totals were required by

regulations or by permit. They currently are

required by permit. And we monitor them once

per year by permit.

MR. RAO: Thank you very much because

I didn't find it in the rules.

HEARING OFFICER FOX: We'll see you in

60 minutes at quarter to 2:00 then. Thank

you.

(Whereupon, after a lunch

break was had, the

following proceedings

were held accordingly.)

L.A. REPORTING (312) 419-9292

HEARING OFFICER FOX: We're back on

the record after a break for lunch. I did

have two quick housekeeping issues to bring

up. I believe it was you, Ms. Andria, that

had asked about the links on the Board

website to the various documents that had

been filed in this case.

And while we had the break, I did

call that docket sheet up and it appeared

that there was an opportunity for each of the

documents filed to date to be downloaded and

printed from the Board's website. So I

believe that that issue has been resolved

just since we began earlier this morning.

Member Moore, secondly, pointed

out that in describing the filing that the

Association had made last week listing the

published reports and studies on which they

had relied in preparing their proposal, that

I may have left you with the impression that

the Board's records included actual copies,

full-text copies of those documents. And

consistent with the Board's rules, what they

did was file a list that contained a very

L.A. REPORTING (312) 419-9292

specific citation to those that appear -- it

appears that those would be perfectly helpful

online or in any library in finding those.

But to clarify, it did not include the full

text of what I think were probably 50 or 60

documents.

So I didn't want to create an

impression on your part that that couldn't be

fulfilled by the documents that are on file

with the Board.

MS. ANDRIA: Thank you very much.

HEARING OFFICER FOX: Surely. Mr.

Northrup, you had a question.

MR. NORTHRUP: Yeah. We'd like to do

just a real quick two-minute recap of this

morning's events.

MR. HILBERT: Just to ensure that

everybody is real clear with what our goals

were when we set out to propose some changes

to the rules as they exist, I thought it

would be helpful just to kind of briefly

summarize what the areas that we have

proposed some amendments to do and then what

our goal was and how we set about to try and

L.A. REPORTING (312) 419-9292

improve on those rules.

What we really looked at, and the

focus of this rulemaking, is the monitoring

of landfills, not only just the monitoring in

all aspects. So we're proposing changes to

the leachate regulations that's monitoring

the characteristics of landfills to

understand what's in a landfill and what we

should be focusing on as far as ensuring that

we are aware of any potential impacts to the

environment.

In addition to that, we looked at

changes to the detection monitoring program

that would allow us to focus on those things

that were most important, ensuring that we

were protective of the environment in

removing those things that really just didn't

do -- didn't provide any benefit to

accomplishing that goal.

And in many instances in the

course of looking at that, we added

additional language to the rules that were

either things that were done by permit that

weren't specifically in the rules just to

L.A. REPORTING (312) 419-9292

clarify exactly what it is that we should be

accomplishing and we added additional

requirements that weren't there as far as

monitoring.

We did remove certain things from

the monitoring program, but they really are

things that add no clarity to the monitoring

program whatsoever. And I'm not sure if it's

clear that that's what we had in mind with

the objectives.

And as an industry, our goal is to

ensure that we are protective of the

environment. And our industries hurt when

there's instances where there are impacts

from landfill facilities, and so we certainly

wouldn't want to do anything that would

project a negative image on our industry or

do anything that would be a risk to the

general public health safety or the welfare

of the environment.

HEARING OFFICER FOX: Very good.

Before taking our break, it was my

recollection that we did complete discussion

of Proposed Amendment No. 18. And while we

L.A. REPORTING (312) 419-9292

inevitably had been discussing the substance

of Proposed Amendment 19, and we can begin

there, that Proposed Amendment addresses

Section 811.319(a)(2)(A)(ii), and contains a

specific list of indicator contaminants.

Are there, for either the

Association as the Proponent or the Agency,

any questions relating to the substance of

Proposed Amendment No. 19?

(No verbal response.)

HEARING OFFICER FOX: Very well.

Seeing none -- yes, Ms. Andria.

MS. ANDRIA: Do we count in those

questions? When you asked about -- I think

the Board and the Agency should go first with

questions.

HEARING OFFICER FOX: If you have a

question relating to No. 19, it appears that

you are the only participant to do so, so

please proceed if you have one.

MS. ANDRIA: I am confused about

phenols. Are they in or out?

MR. JOHNSON: As stated earlier, the

phenols are in. They've been moved out of

L.A. REPORTING (312) 419-9292

the quarterly. They're in the semiannual

organic program. So they're in.

MS. ANDRIA: And I have another

question about the dissolved mercury. And

I'm not a scientist and don't really know.

Is dissolved mercury the same as

methylmercury?

MR. JOHNSON: Dissolved mercury is an

all-encompassing test that would include

methylmercury in it inherently.

MS. ANDRIA: Thank you.

HEARING OFFICER FOX: Any further

questions pertaining to Proposed Amendment

No. 19?

(No verbal response.)

HEARING OFFICER FOX: Proceeding to

Proposed Amendment No. 20 relating to

Section 811.319(a)(3)(A)(i), for either the

Association or the Agency are there any

questions pertaining to that issue on the

part of any of the participants?

(No verbal response.)

HEARING OFFICER FOX: Seeing none at

this time, we'll move on to Proposed

L.A. REPORTING (312) 419-9292

Amendment No. 21. Once again, Mr. Johnson's

pre-filed testimony indicates that that was

non-substantive and appears to merely correct

a typographical error drawing on the original

proposal. If that's still you're assessment,

Mr. Johnson --

MR. JOHNSON: Yes.

HEARING OFFICER FOX: -- and neither

the Agency or any other participant has any

reason to dispute that, we'll go ahead to

Proposed Amendment No. 22 relating to

Section 811.319(a)(3)(C). And on that issue

are there questions from any of the

participants either for the Association as

Proponent or the Agency?

(No verbal response.)

HEARING OFFICER FOX: Seeing none at

this time, we'll proceed to Proposed

Amendment No. 23 that relates to

Section 811.319(a)(4)(A)(i). Questions

relating to the language of that proposal.

Yes, Ms. Andria?

MS. ANDRIA: This changes the

progressive increase over four monitoring

L.A. REPORTING (312) 419-9292

events to a progressive increase over eight

monitoring events and I think you say

something about the reducing the chance of

false positives. Is there any chance of

false negatives with the changes that you're

proposing?

MR. JOHNSON: Not really.

MS. ANDRIA: Because?

MR. JOHNSON: The four- to

eight-quarter change is just reflective of

current statistical practices. This is an

extra statistical test that we do in Illinois

that we really don't do anywhere else that's

designed to identify trends -- real small

trends that wouldn't be identified in our

normal statistics.

MS. ANDRIA: I'd like to go back to my

mythical landfill in the Mississippi River

floodplain. When the water is up and the

direction is toward a landfill, pushing it in

a different direction, it could -- and that

happens seasonally, you're asking to double

the size, the lengths, the number of

monitoring events, and I think that there

L.A. REPORTING (312) 419-9292

could be something that happens in the

interim with the water levels of the river

that would change that. And I think that

making the length of it would appear to be

too long a period.

And you had talked earlier about

spatial, temporal kinds of inconsistencies.

Wouldn't that then not allow something like

the river coming up and going in a different

direction to be adequately assessed?

MR. JOHNSON: This Item 23 that we're

talking about just pertains to one of the

many statistical tests that we do. The

remaining tests that we do, the bulk of our

testing is done on a reoccurring basis every

quarter. So I think the answer is, no, that

we would be doing these tests continually.

This is just an extra test that we also do to

look at it over a longer period.

MS. ANDRIA: But it appears from my

reading that every change that you have

requested either requires you to twice as

long to get -- to do the testing or half as

much testing; is that a fair

L.A. REPORTING (312) 419-9292

characterization?

MR. JOHNSON: No. No. This is really

tailoring the testing we are doing to our

experience in working with these regulations

and monitoring the landfills over a long

period of time, over ten years.

This particular provision of a

four-quarter increase, we talked to

statistician at the University of Chicago, a

Dr. Robert Gibbons, and had him look

specifically at this and based our language,

both us and the Agency, on his recommendation

to change this to be consistent with current

US EPA guidance on how you do statistics.

MR. SCHUBERT: Excuse me. I'd like to

comment on your statement that every change

we proposed is twice as long or half as

frequent. It's probably the opposite when

you take a look at it.

In fact, the section that you

didn't comment on, the organic monitoring,

those lists of organics will be monitored

semiannual instead of annually.

Our whole intention on this

L.A. REPORTING (312) 419-9292

monitoring docket was to make -- was

basically to update the technology in

monitoring we use in Illinois. It actually

makes the whole monitoring system more

rigorous than it was before and brings that

data to the public and to the Agency that

much more quickly.

If you look at some of the changes

that we've put in that we've talked about

before, it does bring things up quicker.

This one detail -- again, it's important to

note that a lot of your questions are

relatively small details of the monitoring

program in aggregates. So when you look at

things like organic monitoring, which is the

powerful test we do in detection monitoring,

that's done twice as frequently now under

these rules than it was before.

So you can't take that out of

context and say, well, we're looking at this

one little statistical test on subtle trends.

We have statistical triggers built in and

have had statistical triggers built into

these regulation that will identify sharp

L.A. REPORTING (312) 419-9292

increases. And that's the way you normally

see, you know, impacts from a landfill, in a

rather sharp increase on a statistical basis.

The federal laws require that.

The federal regs require that. The IEPA --

or excuse me, the Illinois Pollution Control

Board, when they originally promulgated the

first rules, put in an additional test, an

additional trigger above and beyond, you

know, the required triggers that says, well,

what if there is, in theory, a very small

increase over time, you know, that's so small

it doesn't trip any of those statistical

tolerances but still is rising, should we be

more -- you know, should we look at that as

well? And what we did is we did it. And

they came up with four quarters, it comprises

for four quarters additionally.

So in additional to all of those

statistical triggers that we'd normally look

at every quarter, let's take a look at this

other one, which evaluates the last four, you

know, monitoring periods. If it rises in

each of those four periods, then we'll

L.A. REPORTING (312) 419-9292

consider that a statistical trigger.

If you look back in the old

record, there was no statistical theory

behind it there that said that that very

small increase for four monitoring periods

represented any type of statistical power at

all.

And, in fact, we found it over the

16 years of doing this to be not that

effective. So we went back to this

statistician, as Terry had mentioned, had him

look at it, and he basically made a

recommendation that for the statistical power

we're looking at for these regulations, what

the US EPA recommended for statistical power

and statistical tests -- if we wanted to put

in a test like that, you'd have to look at

eight quarters. But, again, that is just an

add-on to the regular statistical triggers

that we look at every quarter.

So, again, I needed to comment on

your comment that we're taking things out.

Many of these things that we're commenting on

are add-ons and quite the opposite of what

L.A. REPORTING (312) 419-9292

100

you mentioned. We have regulations here that

will deliver the information quicker to the

Agency and the public and also be

statistically more rigorous in terms of real

detection monitoring parameters that will

detect when things are going wrong in the

groundwater.

MS. ANDRIA: Thank you for your

clarification. And I apologize if I

mischaracterized it. It is the perception of

both of us reading this independently and

comparing our notes, so...

MR. SCHUBERT: Well, it's important

for us as the Proponent to make sure that

people understand what the rules do in full

context.

MS. ANDRIA: I appreciate that. Thank

you.

HEARING OFFICER FOX: Any further

questions pertaining to Proposed Amendment

No. 23?

(No verbal response.)

HEARING OFFICER FOX: Seeing none at

this time, we'll proceed to Proposed

L.A. REPORTING (312) 419-9292

101

Amendment No. 24 relating to

Section 811.319(a)(4)(B)(i).

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER FOX: And Mr. Rao --

I'm sorry, I moved too quickly -- did have a

question relating to the Propose Amendment

No. 23. And before we move forward, we'll

certainly give him the opportunity to pose

that.

MR. RAO: Mr. Johnson, at Page 11 of

your testimony you note that the proposed

change to eight consecutive monitoring events

reduce the chance of false positives to

approximately 5 percent. Is this statement

based on the recommendation you received from

the statistician or is it based on some

actual data analysis?

MR. JOHNSON: It's both, sir. The

expert that we consulted with is Professor

Robert Gibbons, and he's a professor of

biostatistics. He's also worked on the

US EPA guidance document. And he did some

calculations to illustrate what would be the

L.A. REPORTING (312) 419-9292

102

most appropriate consecutive quarter increase

to fit with the new US EPA unified guidance

document. And that was about a 5 percent

false positive rate for this particular test,

which would then be added in to all the other

tests that we do. So we still, even with

these changes and the other tests that we do,

in totality, have a higher false positive

rate in our programs in Illinois and most of

the surrounding states, which would be more

protective.

MR. RAO: Have you done any analysis

to see what the rate of false positives would

be under current rules?

MR. JOHNSON: I have Dr. Gibbons'

assessment here. And under for a typical

landfill with 25 monitoring wells monitoring

for 14 constituents doing a total of 350

tests then annually, the probability of a

false positive is just about 100 percent near

certainty is what he concluded.

MR. RAO: That document that you're

referring to, is this some kind of a

communication received or is this something

L.A. REPORTING (312) 419-9292

103

that can be put into the record maybe?

MR. JOHNSON: It certainly could. It

may have already been referenced.

MR. NORTHRUP: Do you remember if it's

referenced on our list?

MR. JOHNSON: I think it was.

MR. NORTHRUP: We can certainly

provide this if it's not listed.

MR. RAO: Thank you.

HEARING OFFICER FOX: Did you want to

make a motion, Mr. Northrup, to admit that as

an exhibit --

MR. NORTHRUP: Sure.

HEARING OFFICER FOX: -- at this time.

MR. NORTHRUP: Yeah. I'll move to

admit what would be Proponent Exhibit No. 4,

which is entitled Statistical Guidelines for

use of Consecutive Increases in Ground-water

Monitoring Programs by Robert D. Gibbons,

dated September 27th, 2001.

HEARING OFFICER FOX: Is there any

objection on the part of the Agency or any

other participant in admitting that into the

record of this proceeding.

L.A. REPORTING (312) 419-9292

104

MS. GEVING: I have no objection. And

it appears from the list that I'm looking at

that it has not been put into the record yet.

Some other items from Gibbons have been, but

not that particular one.

HEARING OFFICER FOX: Seeing no

objection, the document described by

Mr. Northrup, the author of which is Robert

D. Gibbons, will be admitted into the record,

as he said, as Exhibit No. 4 of this

proceeding.

(Whereupon, Proponent

Exhibit No. 4 was

entered into the record

by the Hearing Officer.)

HEARING OFFICER FOX: Thank you,

Mr. Northrup. Let's continue then. We had

just begun Proposed Amendment No. 24

regarding verification samples. Were there

questions for the Proponents or for the

Agency by any of the participants on that

issue? Ms. Andria?

MS. ANDRIA: Yes. I wanted to know

why does it take three months to verify an

L.A. REPORTING (312) 419-9292

105

observed concentration increase?

MR. JOHNSON: It doesn't take

necessarily three months, but the timelines

for routine sampling work are pretty

well-established and then it takes -- we have

facilities with quite a few monitoring wells,

it can take up to a week to two weeks to

sample those and then laboratories have a

turnaround time of 21 days to process

analytical work.

After those results are generated,

those results need to be reviewed and

validated. And there's a ten-day period for

what's called a data quality review that the

lab has to verify that there were no issues

with that.

And then those results, if there

were issues, need to be re-submitted or

corrected. And then in the event of a

verification, if we were going to re-sample

to verify, then that same process needs to be

repeated with the new sample being collected.

So in practical terms, it is very

difficult to complete all these data quality

L.A. REPORTING (312) 419-9292

106

review procedures in the time frame under the

existing rules, which is 45 days.

MS. ANDRIA: Are they missing

deadlines now?

MR. JOHNSON: I'm sorry?

MS. ANDRIA: Are the industries

missing deadlines or are they complying now

with the 45 days?

MR. JOHNSON: We comply with the 45

days, but oftentimes we compromise some of

those data quality steps in order to meet

those deadlines.

In aggregate, I think on this

Item 24 and 25, what's also important to

understand is we are also establishing some

firm dates for this procedure. For instance,

assessment, now we have it tied to a firm

date, which is sampling rather than a notice

of an observed increase, which is something

that the permittee or a landfill operator

would determine.

Each of the alternate source

demonstrations, when we have a confirmed

increase, we do what's called an alternate

L.A. REPORTING (312) 419-9292

107

source demonstration to try to figure out was

that confirmed increase a result of maybe a

sampling problem, something that occurred,

damage to the well. And that, in the past,

was much more open-ended submittal. It now

needs to be submitted as a SIGMOD to a

permit, which establishes some firm

guidelines for us as well as the Agency.

In the past, we had 90 days from

which to submit an assessment monitoring plan

and that time has actually been compressed to

45 days.

So the purpose of these -- and I

realize I am talking about a couple of these.

But looking at them in aggregate was to

really firm this procedure up, recognize that

we needed to complete these important data

review steps so that our data records are

accurate when we submit the data to the

Agency for their records, which is available

to the public, that it's accurate and it's

been QC'd properly.

MS. ANDRIA: So you've gone right into

25 then, talking about that. I have some

L.A. REPORTING (312) 419-9292

108

questions there, too.

MR. JOHNSON: Yeah. But I think

that's kind of something that's important to

do is to look at -- if we look at each little

individual one here, we sometimes draw

different conclusions because we had an

overall objective with a lot of these things.

You know, certainly, there's lots of small

things and we're here to examine those, but

we also need to keep sight of what we're

trying to accomplish on a bigger picture.

MR. SCHUBERT: Under these rules, the

time that we have to submit an assessment

report is now fixed in time and keyed to the

initial sampling event.

Prior to this, it was not and the

Agency had difficulty tracking when, you

know, that submittal needed to be made

because it was on -- because the way the old

regs read, it was on the operator's

observation, whatever that was, you know,

whenever you get it in the mail, I guess, and

look at it and compare it.

Whatever steps occurred to make

L.A. REPORTING (312) 419-9292

109

that determination, they had to guess when

that was. And, instead, now it's keyed into

initial sampling dates. So there's a fixed

date, and even though we're giving ourselves

time to do it right, the amount of time is

trackable and probably in many cases is

shorter than it took to get that assessment

report in before. Now we can do a credible

job of, you know, doing all of the data

analysis correctly and also getting the

report in.

So, again, that's the reason we

brought in the next one is you have to look

at the whole time line.

HEARING OFFICER FOX: Ms. Blumenshine.

MS. BLUMENSHINE: Just a question to

clarify. For the regulations to be most

protective of public health and safety from

your verification timeline, you could still

have an assessment report on the fixed time

let's say if your verification timeline was

60 days instead of 90?

MR. SCHUBERT: You can make it two,

but it wouldn't necessarily get the job. The

L.A. REPORTING (312) 419-9292

110

idea is to get the job done correctly and

still give enough time to get the assessment

report in.

MS. BLUMENSHINE: Then I guess I would

just ask, 90 days is a season, rainfall, many

factors can change within that time that

could impact the importance of the data that

you are assessing and make a difference on,

you know, what happens, so I just wondered on

the 90 days could not that be less?

MR. SCHUBERT: There are a couple of

different reasons. One is that, you know, if

there is a data quality review that has to

take -- you know, that has to occur, many

times with the lab turnarounds that are

typical you can't do that within the 45 days.

The second thing is data

independence. If you look at a lot of the

groundwater that we monitor, generally,

groundwater that's less than ten minus

three centimeters per second in permeability,

the time it takes for that groundwater to

pass through a well screen, you know, and

get, you know, from either side of where that

L.A. REPORTING (312) 419-9292

111

well draws from, you know, say that when you

draw a sample from that well it might take

water from a few inches around that well

screen, sometimes in many cases that

distance -- the groundwater doesn't travel

that distance in 45 days. So, you know,

you're looking at data that, you know, isn't

independent from the other data. So if

there's any issue -- if there's any temporal

issue, you know, to be looked at in terms of

that data, it wouldn't be picked up. You're

basically going back and getting the same

water.

MS. BLUMENSHINE: I guess I just felt

it wasn't answered why. Of course, 45 is not

convenient for the companies. Then why

couldn't it be 50 or 60, rather than three

months, 90? I'm sorry. I guess my question

was why was it, you know, the 90 days? Is

that just for the convenience of the

companies?

MR. SCHUBERT: It certainly is

convenient.

MR. JOHNSON: I think it's a

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112

combination of things, really. If you're

going to -- keep in mind this involves doing

two sets of samples, collecting two sets of

samples, and not just one.

So, really, if you're going to do

all the steps right and if there are issues

that come up that you need to look at the

data more closely, you will need the full

90 days to do that.

If there are no issues, you won't

need it, but we have to have a regulatory

environment that's acceptable under all

circumstances.

And as Bill said, really,

groundwater, one of the things that our

programs are predicated on is sample

independence. And groundwater simply -- most

of our environment does not move fast enough

to keep that principle valid. We have a

number of things that factor in.

HEARING OFFICER FOX: Any further

questions relating specifically to Proposed

Amendment No. 24?

(No verbal response.)

L.A. REPORTING (312) 419-9292

113

HEARING OFFICER FOX: Mr. Johnson, you

had mentioned that 24 and 25 are closely

linked. Why don't we move to Proposed

Amendment No. 25 relating to Section

811.319(a)(4)(B)(iii). Any questions either

for the Association or for the Agency on the

issues in Proposed Amendment 25?

Ms. Andria?

MS. ANDRIA: Yes. You had referred to

a SIGMOD as a significant permit modification

when you find that there's an increase in the

concentration of a constituent. And you --

this is all about that you must then -- the

submit must be in the form of a significant

permit modification. Aren't you asking the

Agency then to permit contamination?

MR. HILBERT: Absolutely not. No.

What this does is -- I kind of wanted to

point this out earlier. Previously, all

anybody had to do was notify the Agency that

they had a confirmed increase and provide

some written explanation of what that may be.

It didn't require the Agency to review that

explanation and actually agree with it. It

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114

just -- you satisfied your requirements just

by sending that in.

Now, we have to go through a

formal permit process, which allows the

Agency an opportunity to review that and

comment on it and approve or disapprove of a

permit based on the results of that

submittal. And so it's a much more rigorous

process. It's designed to ensure that

somebody can't just keep sending letters out

there and claiming that it's due to an

off-site source or due to some other event

that's not related to the landfill.

MS. ANDRIA: Isn't it also, though,

designed to keep the state from perhaps

finding you in violation of your existing

permit?

MR. HILBERT: No, because you're

providing the date to the states so that they

can review it.

MR. RAO: Can I ask a follow-up?

MS. ANDRIA: That's fine.

MR. RAO: Mr. Hilbert, under what

circumstances can assessment monitoring be

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115

triggered by this rule?

MR. HILBERT: Under what circumstances

would it be triggered?

MR. RAO: Yeah.

MR. HILBERT: If during the

confirmation sampling event you actually got

the same results, meaning that say you would

have exceeded some particular groundwater

quality standard, that would trigger the

assessment procedure, and it was determined

to be due to the landfill.

MR. RAO: So this confirmation of

monitored increase that's under Subsection

(a)(4)(A), there are four different scenarios

that are set forth. If you confirm any one

of those, will that trigger assessment

monitoring?

MR. HILBERT: Yes. Do you want to

answer that, Terry?

MR. JOHNSON: Yeah.

MR. RAO: 811.319(a)(4)(A).

MR. JOHNSON: These four tests here,

yeah, these would include our statistical

tests. If during confirmation we confirm

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116

that we had triggered one of these four and

we confirmed that that's occurred through a

subsequent sample, two sampling events, then

we are in the process of determining what's

the cause of that, what's the source of that.

And within that time frame we also

determine what the source is through what we

call a source demonstration. And if that is

concluded that the source is the landfill,

then at that point we typically initiate

assessment monitoring.

MR. RAO: Because in the current rules

it's not very clear when assessment

monitoring is triggered. We have noticed

this in the past, also, as to when a landfill

goes into an assessment monitoring mode.

Would it be possible for you to

take a look at this language that you've

proposed to see if it can be made clearer as

to when assessment monitoring is triggered in

the rules? And the Agency can take a look at

it, too.

MR. SCHUBERT: Just to clarify your

inquiry, you understand the criteria, you're

L.A. REPORTING (312) 419-9292

117

just saying when --

MR. RAO: It doesn't say it in the

rules as to when -- if you go to

Subsection (b), it states, assessment

monitoring. It states the operators shall

begin assessment monitoring program in order

to confirm that the solid wastes disposal

facility is the source of contamination.

There's no linkage between Subsection (a) and

(b) in the current rules.

MR. SCHUBERT: That's 180 days still,

right?

MS. THOMPSON: It specifies and we're

moving on into some future (inaudible) --

HEARING OFFICER FOX: I'm sorry.

Could you speak just a little louder, please.

MS. THOMPSON: It specifies and we

haven't quite gotten to it yet. But under

811.319(b)(2), it specifies that the

assessment monitoring shall be implemented

within 180 days of the original sampling

event.

MR. SCHUBERT: We had the same

concern. That was one of the things we tried

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118

to clarify in these rules. That's what I

made reference to earlier in reference to

Ms. Andria's statement that we are -- you

know, that were are getting some firm

timelines in here where they were previously

ambiguous.

MR. RAO: I realize that. It's just

that when you look at these sections, it's

not very clear as to when, you know, it's

triggered. We can go back, like, to (b)(2)

and try to figure it out. If there's any way

you can make it more clear, that would be

good.

MS. THOMPSON: I'm sorry. I still

don't quite understand what the breakage here

is. You feel that it's in (b)(2) that needs

to be clarified?

MR. RAO: Or if you can say in

Subsection (b) the operators would begin

assessment monitoring program in accordance

with Subsection (b)(2).

MS. THOMPSON: Okay. So --

MR. RAO: Do you see what I'm saying?

MS. THOMPSON: -- just doing a cross

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119

reference through there?

MR. RAO: Yeah.

HEARING OFFICER FOX: Are there

further questions relating to the Proposed

Amendment No. 25 at this time on the part of

any participant?

(No verbal response.)

HEARING OFFICER FOX: We've already

introduced some of the language in Proposed

Amendment No. 26 and then we'll move on to

that relating to Section 811.319(b)(2). Any

questions of either the Association or the

Agency on the issues in that proposed

Amendment? Ms. Andria.

MS. ANDRIA: Yes. I just wanted to

clarify since -- Mr. Schubert; is that

correct?

MR. SCHUBERT: Yes, ma'am.

MS. ANDRIA: He corrected me that I

was mischaracterizing back at 23. Since

then, we've had 24, which doubled the window

from 45 to 90 days. And this one also

appears to go twice as long. And I was

wondering if I'm not understanding that or if

L.A. REPORTING (312) 419-9292

120

that's correct?

MR. SCHUBERT: Which one are you

talking about?

MS. ANDRIA: Well, now we're on 26.

MR. JOHNSON: I think under this one,

actually, the old language had assessment

monitoring implementation 90 days after

Agency approval and has now shortened that to

45 days.

MS. ANDRIA: And what is the 180 days?

I guess I'm --

MR. JOHNSON: That's a second tie-in

to the original sampling event. So it

establishes that that's the maximum time you

can go without implementing assessment

monitoring from the sampling event, whereas

before I think it was tied to the initial

observation, which was kind of a not real

clear date -- firm date that was given.

MS. ANDRIA: So the 180 days compares

to what?

MR. SCHUBERT: Initial sampling.

MS. ANDRIA: I mean, what was it in

the old? There was no quantification?

L.A. REPORTING (312) 419-9292

121

MR. JOHNSON: I believe it was tied to

the initial observation of an observed

increase, which was kind of, you know,

unclear date.

MR. SCHUBERT: It was difficult to

track, you know, from a regulatory

standpoint.

MR. JOHNSON: It certainly was after

the sampling then. It was later than the

sampling. Collect the samples, in order to

do that, you would have to have the

analytical data in hand, so it would have

been some time after the samples were

collected. So both these dates, as I

understand them, are shorter. Does that

help?

MS. ANDRIA: I need to read this

because it sounds like -- it sounds to me

like you're getting six months to do

something that should be done much shorter.

But, I apologize, I don't have my notes clear

here that I can -- and I do not want to

mischaracterize it.

MR. RAO: In the meanwhile, can I just

L.A. REPORTING (312) 419-9292

122

go over this? So once an increase in any one

of those four alternative ways you can do it

is confirmed, then you file a SIGMOD permit

application with the Agency and the Agency

gets, like, I don't know, 180 days to review

the permit?

MS. THOMPSON: Ninety.

MR. RAO: Ninety days to review the

permit? They can do it quicker, but that's

the limit they have? And once that approval

comes in, you will have 45 days to institute?

MR. JOHNSON: Exactly.

MR. BALLENGER: Correct.

MR. SCHUBERT: It used to be 90.

MR. BALLENGER: It used to be 90,

yeah.

MR. SCHUBERT: And the point that Tom

made earlier was that there was not even an

obligation before, you know, to submit

something for Agency approval. You could

make an alternate source demonstration and

just leave it there and the Agency's practice

was on your five-year renewal they'll

question you on that. But if somebody wanted

L.A. REPORTING (312) 419-9292

123

to, they could throw in a bunch of alternate

source demonstrations and not have to follow

up on these items for five years. That

opportunity doesn't exist anymore under this

new proposal.

HEARING OFFICER FOX: Ms. Andria.

MS. ANDRIA: I'd like the ask the

Agency if SIGMODs are open to public comment?

HEARING OFFICER FOX: Do you need her

to repeat that question.

MS. THOMPSON: I understood it. Are

they open to public comment? Yes, you can

provide comment there.

MS. ANDRIA: Are they public noticed?

MS. THOMPSON: Yes, the comments are.

But whenever an application comes inhouse,

it -- all of the state and local government

is notified that an application is inhouse.

MS. ANDRIA: Is there a newspaper

notice to the public provided?

MR. LIEBMAN: No.

MS. THOMPSON: No.

MS. ANDRIA: So do you have some

mechanism in place that someone can put

L.A. REPORTING (312) 419-9292

124

themselves on a list if they want to be

notified of any SIGMODs that are submitted by

certain landfills in certain counties or

anything like that?

MR. LIEBMAN: No. These notices we've

been talking about are really done by the

applicant. As a matter of public policy, we

require the applicants to give us proof that

they've notified various local officials with

each permit application and we do check to

make sure those public officials have been

notified.

MS. GEVING: Is it a possibility,

Mr. Liebman, that they could get on a list

with the public entities that we notify so

that they would know?

MR. LIEBMAN: Perhaps.

MS. THOMPSON: I would like to point

out that this information is available on our

website. If you have a site number for a

facility and you're interested in what kind

of applications they do have inhouse with us,

it is on our website.

MS. ANDRIA: It's not on the public

L.A. REPORTING (312) 419-9292

125

notice -- under public notices. Is it a

special place in the land section?

MS. THOMPSON: It is under Bureau of

Land. We will find out what that web address

is for you. But it is online and it is --

there will be a link on any application that

that facility has inhouse that provides a

brief description and provides who the

reviewers are for it.

MS. ANDRIA: And it's my experience

that -- I can't remember in however many

years I've been paying attention that I've

ever been notified by a public official that

a landfill is applying to do anything except

in citing when they're required to do that.

So I think it would be really very

helpful to those of us who live around

landfills that are concerned about what this

would be putting -- my understanding of it,

at least, that this would be putting a

contaminating parameter into a permit, giving

them license to continue to contaminate the

groundwater. So I really hope that you could

find some way of allowing the public to have

L.A. REPORTING (312) 419-9292

126

a rule in voicing anything under this since

there's a change on this.

MS. THOMPSON: As our current

practice, and it will continue, is that any

private citizen can comment on any

application that we are reviewing at that

time and we do consider all comments that

come in on the application.

MS. ANDRIA: I understand that. And I

appreciate that very much. It's just that if

we don't know, how can we comment? I mean,

at least, I think, you know, the facility is

there -- I mean, the ability I would think is

there for you to go on the public notice

because they've got MPDESs, they've got air

permits, public hearings that are coming up.

If you could have just some kind of link that

flashes to the public who looks at public

notices that there is something coming up and

we can go to the Bureau of Land website to

see what it is, I think that would be much

appreciated.

MS. GEVING: Ms. Thompson, didn't you

state that they have an ILD, a site facility

L.A. REPORTING (312) 419-9292

127

number, and they can check on any of that by

the number currently?

HEARING OFFICER FOX: Ms. Geving, if I

may interrupt very quickly? I apologize.

Ms. Andria, you are coming close, if not

arriving at the point of offering --

MS. ANDRIA: To public comment. I

apologize.

HEARING OFFICER FOX: No apology is

necessary. But in terms of offering

testimony, we would need to have the court

reporter swear you in. And if she would do

that, please.

(Witness sworn.)

HEARING OFFICER FOX: Ms. Geving, I'm

sorry to interrupt you with your question.

MS. ANDRIA: And I didn't mean to go

into public comment. I realized I was doing

it. It's a bone of contention that we can't

find out what's going on and that we have to

live with the results.

HEARING OFFICER FOX: We're clear to

proceed, so if you had a question for the

Agency, it sounds like they may be prepared

L.A. REPORTING (312) 419-9292

128

to answer it if that was, in fact, the case.

MS. ANDRIA: No. That was my -- I

think that was it unless I lost track that I

did have a question.

MR. HILBERT: Can I offer just a

couple points of clarification on some of the

things?

The Agency does maintain a very

accessible and useable database for landfill

permit activities. It's on the Bureau of

Land website. You just go to the database

and it's right there. And it's actually

easier to move through that than it would be

to go through the public notice section of,

say, like the NIPSE permits. And so it's

there, you just have to look for it, but not

very hard.

And the second point of

clarification I'd like to make is that when

we submit assessment monitoring plans into

the Agency for their review, it's not a

permit request to introduce a contaminant

into the environment. It's a permit request

so that the Agency has an opportunity to

L.A. REPORTING (312) 419-9292

129

comment on what our plan is for determining

what the reasons are for a confirmation of a

potential release and what we intend to do to

investigate it further to ensure that we know

for certain whether or not it's related to a

landfill or potentially some other source.

So nobody is permitting, at that

point, a release. It's just an investigative

plan.

MS. ANDRIA: But I believe that your

testimony or perhaps someone else's,

Mr. Hilbert -- you're Mr. Hilbert. I'm

sorry.

MR. HILBERT: Yeah.

MS. ANDRIA: Mr. Johnson, when you

were talking about it, it was to get this on

record. And I think it's problematic and I

don't understand that you don't see that. It

steams to be bypassing something. It seems

very clear that it's -- that you're getting a

permit to continue to pollute the

groundwater. So I apologize if I'm

misunderstanding it this, but...

MR. JOHNSON: Yeah. I think it's --

L.A. REPORTING (312) 419-9292

130

and maybe I misspoke earlier. But assessment

is just as the title describes, it's to

assess what's going on. Oftentimes, in

assessment, we conclude that it's due to some

naturally occurring event. It could be

due -- the confirmed increase could be due to

something coming from off-site. At that

stage, we're just trying to assess, to learn

and work with the Agency to figure out

exactly what caused that specific parameter

to be outside of its normal range.

MS. ANDRIA: Why would you need that

then put into a permit modification? Why

couldn't you just address it under the

existing permit?

MR. JOHNSON: We needed some formal

means of dealing with that. Right now, if

someone wanted to, they could go without

looking at that in a lot of detail under the

existing regulations.

MS. ANDRIA: Could I ask the Agency if

they agree with this characterization?

MS. THOMPSON: Absolutely. What is

being submitted to us in the assessment plan

L.A. REPORTING (312) 419-9292

131

is basically they're saying we found this

confirmed increase out here and this is what

we want to do about it, this is how we want

to investigate it.

What we do as reviewers is

determine whether their investigation is

actually going far enough, if it meets the

regulations, if there's something else that

we want them to do.

If that is the case, then we can

alter the permit at that time and say, yes,

this is exactly how you should go out and do

that investigation and you will come in with

that information at "X" number of time for us

to review your conclusions at that point in

time.

What the significant modification

application is is a chance for the Agency to

look at what they think -- look at their

proposals and make a determination whether we

agree or not.

MS. ANDRIA: And then where does the

clean-up part or the stop-polluting part come

in? At what point does that happen?

L.A. REPORTING (312) 419-9292

132

MR. BALLENGER: It's an assessment

program that identifies the site as the

source of rulings. We then go into a

corrective action program. The corrective

action program does also include a public

meeting and public comment in regards to how

we're going to provide corrective actions and

do it, including the input of the IEPA. The

IEPA will not accept our remedial action

plans without that public meeting occurring.

So, again, the assessment process

is assessing what caused that statistical

injury. It doesn't mean the site is leaking.

It doesn't mean the site caused it. That's

the whole point of assessing that change in

the water quality.

So every single time we have a

confirmed increase of a parameter identified

as part of our statistical MSR rules, we go

into that assessment program.

MS. ANDRIA: And could I ask the

attorney for the Agency does putting whatever

they have done, the assessment of what has

happened, into a permit keep the Agency, the

L.A. REPORTING (312) 419-9292

133

State, from finding them for violations under

the existing permit?

MS. GEVING: Well, I'm not going to

testify, but I will let Gwen answer that

question.

MS. THOMPSON: Could you repeat that

question?

MS. ANDRIA: Probably not, but I'll

try. My concern is about when you put --

when you codify, when you put into their

permit that the groundwater, they have done

something that has caused an increase, does

that stop the Agency from pursuing a

violation under the existing permit once it's

puts into a modification?

(Whereupon, a discussion

was had off the record.)

MS. THOMPSON: It was a little bit

difficult. I understand what you're saying.

Since they have a statistical exceedance

through there, you can't assume that that's

contamination in the first place. That's

what the assessment program and the

investigation is all about. That's why we

L.A. REPORTING (312) 419-9292

134

have all these specific dates we want

everybody to meet, to go into that.

If these dates are met, if we are

progressing through the assessment, through

the investigation, into assessment reports

and corrective actions and there is no

violation, okay, as long as we are dealing

with it through the regulations and they are

following those regulations. If, in fact,

they are not following the regulations that

are set forth, then there is a violation and,

yes, the Agency can act.

MS. ANDRIA: Thank you.

HEARING OFFICER FOX: Any further

questions then relating to Proposed Amendment

No. 26.

MR. RAO: Just for clarification.

Anyone from the Association can answer this.

Isn't it true that the current

regulations require assessment monitoring

plants to be submitted as part of a

significant modification permit?

MR. SCHUBERT: Yes, sir.

MR. RAO: This is not something that

L.A. REPORTING (312) 419-9292

135

you're proposing now, it's already required?

MR. BALLENGER: We're just setting a

strict timeline.

MR. RAO: Thank you.

HEARING OFFICER FOX: Any further

questions on Proposed Amendment No. 26.

(No verbal response.)

HEARING OFFICER FOX: Seeing none, at

this point, we'll proceed to Proposed

Amendment No. 27 relating to

811.319(b)(5)(A). Are there questions for

either the Association or the Agency on the

issues in this Proposed Amendment?

MS. LIU: Mr. Johnson, I had just a

simple clarifying question in that section at

the very end where you add 810.104 and

constituents from 35 Illinois Administrative

Code 624.10. You crossed out 810.104 and

then you put it back in. Was that your

intention?

MR. JOHNSON: First of all, I don't

think I made this exact change. But I

believe the intention was to incorporate the

620.

L.A. REPORTING (312) 419-9292

136

MS. LIU: Okay. Thank you.

HEARING OFFICER FOX: That seems to

conclude the discussion on Proposed Amendment

No. 27. Seeing no additional questions, we

will proceed to Proposed Amendment No. 28

relating to section 811.319(b)(5)(D),

assessment monitoring and timing. Are there

questions for either the Association or the

Agency on those issues?

Yes, Ms. Andria?

MS. ANDRIA: If you can tell me what

they were and what they are and what they

will be; an annual basis, a semiannual? I

got a little confused in this paragraph.

MR. JOHNSON: The assessment

monitoring will be conducted on an annual

basis and any parameters protected in that

monitoring will be added semiannually.

MS. ANDRIA: And what are they now?

MR. JOHNSON: And that's the same as

the US EPA's standards for assessment

monitoring.

MS. ANDRIA: And that's what you're

operating under now?

L.A. REPORTING (312) 419-9292

137

MR. JOHNSON: Now, the current

regulation -- I have to look here to see

exactly what that is, if you give me a

moment.

(Whereupon, a discussion

was had off the record.)

MR. JOHNSON: Presently, we're doing

assessment monitoring on a semiannual basis.

We will be doing assessment monitoring on a

semiannual basis plus with the distinction

that there will be added constituents.

MS. BLUMENSHINE: If I may, please,

ask then how is it more protective of the

health and safety to change this to annual

because already there was concern for this

monitoring to be done? So what was the

rationale that it should now be done annually

instead of semiannually?

MR. JOHNSON: It's an assessment

monitoring program and not a detection

monitoring program.

MS. BLUMENSHINE: And pardon, again.

Just a last question. So assessing is of

less importance to be deferred to annual than

L.A. REPORTING (312) 419-9292

138

semiannual? I'm sorry. I'm having trouble

understanding why that is of less importance.

MR. SCHUBERT: That's the reason why

you have all these different names of these

programs. In the detection monitoring

program, we're trying to detect to see if

there's been any impact to the groundwater.

In the assessment monitoring

program, we've already confirmed that there

is some impact. We've done an initial

analysis to see what the impact is. So we go

through a big list of parameters to see

what's in there. Now we know what parameters

are in there. That's part of the assessment

monitoring. We're trying to see what happens

to the concentration of those parameters with

time.

And that's why the US EPA protocol

is to look for those constituents that were

identified in the original assessment

monitoring and you monitor for those

constituents on a semiannual basis. That's

what we're doing.

MS. BLUMENSHINE: But you're moving to

L.A. REPORTING (312) 419-9292

139

annual, is that my understanding?

MR. SCHUBERT: The whole list -- the

entire list gets monitored annually. And

that's just more or less an add-on to the

US EPA protocol.

What we're trying to do is look at

what's in the groundwater, try to identify

what constituents are in there and look to

see what happens to those concentrations with

time. That's what the assessment monitoring

program is for. They look at the entire list

annually, but on a semiannual basis just keep

track of these constituents.

MS. BLUMENSHINE: Thank you.

HEARING OFFICER FOX: Any further

questions relating to Proposed Amendment 28

then?

(No verbal response.)

HEARING OFFICER FOX: Seeing none, we

can proceed. In his pre-filed testimony,

Mr. Johnson indicated that he would

characterize Proposed Amendment Nos. 29, 30,

31 and 32 as non-substantive. If he

continues to characterize them that way and

L.A. REPORTING (312) 419-9292

140

there's no dispute from the Agency and no

questions relating to that -- I see Ms.

Geving doesn't, in fact, dispute that

characterization.

MS. GEVING: Correct.

HEARING OFFICER FOX: We can proceed

them to Proposed Amendment No. 33 addressing

Section 811.320(A)(3)(B). Any questions on

the language of Proposed Amendment No. 33?

Ms. Andria?

MS. ANDRIA: Yes. Thirty-three, 34

and 35 all give -- make reference to the

public or food processing water supply and

groundwater qualities standards which they're

going to report on, so we will have to

revisit those, I believe.

HEARING OFFICER FOX: And I'm

presuming that what you've indicated is that

at least as to those Proposed Amendments 33,

34 and 35 you will, in effect, reserve

questions for the second hearing.

MS. ANDRIA: Right. After they report

on if they're more protective, less

protective on water quality standards.

L.A. REPORTING (312) 419-9292

141

HEARING OFFICER FOX: Very good. Let

me take these one by one.

MR. HILBERT: Can we offer -- maybe we

can put it to rest here today. I think it

may be helpful to just clarify that the 620

regs weren't in place when these initial

regulations were proposed back in --

MS. ANDRIA: I can't hear you, sir.

MR. HILBERT: The 620 regulations were

not in place at the time that these

regulations were originally written. And so

the only --

HEARING OFFICER FOX: And if I may

interrupt, 620 pertains specifically to

groundwater; is that correct.

MR. HILBERT: To groundwater. That's

where I was going to go. The 620 regulations

are for potable groundwater resources, you

know, public water well supplies, things of

that nature. There was no standard or no

codified rules at the time that these

regulations were written and the only thing

that was available at that time to refer to

was the 302 food processing and public water

L.A. REPORTING (312) 419-9292

142

supplies.

The 620 regulations were always

intended to and do have the effect of

regulating groundwater quality in the state.

And that's the only difference is that now we

are -- since there is a groundwater quality

standard to refer to, we thought it would be

more appropriate for these regulations which

are dealing with groundwater to refer to

groundwater quality standards.

And the process to develop the

groundwater quality standards, the 620

regulations, was done with the public input

and thought to public health, safety and

welfare. And there is no difference in

safety for the general public, it's just that

now there's a set of standards to refer to

that actually addresses groundwater quality.

So, hopefully, we won't have to --

do you need further clarification than that?

MS. ANDRIA: I just wanted to know

whether -- I mean, I think the gentleman

asked about Class 1, Class 2, Class 3

groundwaters. I'm not a technical expert on

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143

this. I just wanted to know simply whether

it was less protective or more protective.

So I would like to see that

explained better after I've gotten a chance

to read the regs as they exist and the

standards as they exist and perhaps to ask

questions about it. And I think he still has

questions about that that you said you would

answer at another hearing.

MR. HILBERT: To clarify that, I think

that -- I thought that we had answered that,

that the default classification was Class 1

groundwater quality, Class 1 standards under

the 620 regulations, which is the potable

resource standard.

HEARING OFFICER FOX: Taking these

one-by-one, is there any further questions

specifically related to the substance of

Proposed Amendment No. 33?

(No verbal response.)

HEARING OFFICER FOX: Not overlooking

your comment Ms. Andria, Proposed Amendment

34 addresses 811.320(b)(2). Are there

questions on the part of any of the

L.A. REPORTING (312) 419-9292

144

participants relating specifically to the

language of that Proposed Amendment?

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

and, again, Ms. Andria, noting the comment

that you have offered on the issue of 620

rules, Proposed Amendment 35 addresses

Section 811.320(b)(4). Are there questions

relating specifically to that Amendment

Number 35, Proposed Amendment No. 35?

(No verbal response.)

HEARING OFFICER FOX: And seeing none

there, Proposed Amendment 36, for the record,

would amend Section 811.320(d)(1). Are there

questions either for the Association or for

the Agency on the substance of Proposed

Amendment No. 36?

Yes, Ms. Blumenshine?

MS. BLUMENSHINE: Thank you very much.

I just wanted to ask if non-consecutive data

will be used -- allowed, wouldn't it be

possible to miss a spike or a trend or

something? I just wondered if that was any

concern to the Agency.

L.A. REPORTING (312) 419-9292

145

MS. THOMPSON: As far as

non-consecutive data, I think that we have it

put in there that it would be allowed where

it isn't a problem. You can test your data

for seasonality. There is statistical

testing for that to be evaluated. And we do

look at that.

MS. BLUMENSHINE: Thank you.

MR. RAO: I had a clarifying question

regarding Subsection 811.320(d). This can be

answered either by the Association or the

Agency.

This section requires groundwater

quality standards to be established based on

four consecutive quarters of monitoring. Are

there any issues or statistical issues

associated with this four quarters or do you

think you need eight quarters of monitoring

to comment on it?

MS. THOMPSON: Yes, there are

statistical issues with that insofar as the

federal requirements and also our own

requirements require that we keep false

positives down to 5 percent.

L.A. REPORTING (312) 419-9292

146

And just four quarters of data

will not allow us to do that, particularly if

you only have one well or even two wells.

Four quarters of data just will not take care

of that issue. A minimum of eight is what

the US EPA recommends and we're trying to

meet our regulation that says keep it under

5 percent.

MR. RAO: So is there a need to amend

this requirement to say a minimum of eight

quarters or does the rule allow the Agency

to, by permit, require additional monitoring?

MS. THOMPSON: I believe that we left

it a little more open than that.

MR. BALLENGER: A minimum

of (inaudible) --

THE COURT REPORTER: Sir, I can't hear

you.

MR. BALLENGER: We've written in the

language to be a minimum of one year which

allows for expanded background to be

completed, expanded background sampling

effects.

MR. RAO: Okay. So that allows the

L.A. REPORTING (312) 419-9292

147

Agency to go beyond one year?

MS. THOMPSON: Correct.

MR. BALLENGER: Correct.

DR. GIRARD: Well, then I have a

question. How would you the Agency decide

when to go beyond one year.

MS. THOMPSON: When would they decide

or when would we decide to require them to do

that or --

DR. GIRARD: Yes.

MS. THOMPSON: Again, that would come

down to statistics. You can use what are

called power curves in your statistical

programs and they will make a determination

if you're meeting your 5 percent false

positive rate. And I realize that's getting

a little technical.

MR. RAO: Not really. Earlier,

Mr. Johnson had cited to this -- I forgot the

professor's name.

MR. JOHNSON: Gibbons.

MR. RAO: Yeah. Dr. Gibbons' report

that at least eight consecutive quarters of

sampling is required for keeping false

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148

positives under 5 percent. Is there some

kind of a, you know, similar sampling

requirement to keep false positives under

5 percent, like eight consecutive quarter?

If that's the case, shouldn't that be put in

the rule instead of one year at minimum to

make it two years?

MS. THOMPSON: I believe I understand

what you are asking. Can we put in a minimum

of eight quarters?

MR. RAO: Yes.

MS. THOMPSON: We could do that as a

minimum of eight quarters. That's not

necessarily the only way to deal with false

positives. If we had additional upgradient

wells, granted that's a lot of wells, that

could also meet that requirement. So there

is more than one way of doing it.

MR. SCHUBERT: There is -- Tom just

mentioned to me that there are certain

circumstances that might cause you to go less

than two years, at least on a temporary

basis. One of which is the start-up of the

new facility.

L.A. REPORTING (312) 419-9292

149

If a municipality, you know, had

started a new facility and they needed money

to use that facility, it could be constrained

as, you know, a delay. Right now, there is

at least a year into the permitting so that

we can collect data during the permit -- you

know, during the permit review and not lose

any time, you know, for start-up of the new

facility because you can do that quarterly

sampling within the year that it's being

reviewed.

If you had a two-year wait period

for starting a new facility, you could spend

a whole other year just collecting background

data. So I guess in certain instances,

although, certainly the industry likes the

idea of a bigger background set because it

does reduce the false positives, there are

certain instances where, you know, like on a

start-up where you'd want to go to a smaller

background set, at least on a temporary

basis, until you go in there and change the

permit again.

MR. BALLENGER: I think what this is

L.A. REPORTING (312) 419-9292

150

trying to say is that, at a minimum, you had

to have that four quarters completed, which

would incorporate, you know, one year of

seasonality. And that once you -- okay, you

have those limits, that gives you the option

after another year's worth of data to submit

another application to get that background

just as appropriately.

MR. SCHUBERT: Does that make sense?

MR. RAO: Uh-huh.

HEARING OFFICER FOX: Any further

questions relating to Proposed Amendment

No. 36?

(No verbal response.)

HEARING OFFICER FOX: I may have

gotten a little bit ahead of myself.

Mr. Northrup, I have what's probably a purely

draftman's question for you. Looking back a

short distance to Section A -- I'm sorry,

Subsection 320 (b)(1), there is a reference

to the Board's adjusted standards procedures.

I believe it was in 2001 the Board amended

its procedural rules and the adjusted

standards procedures are now, in part, 104.

L.A. REPORTING (312) 419-9292

151

Would you be willing to confirm that that

renumbering is correct and it includes that

technical change in any errata sheet or

amendments that you might propose?

MR. NORTHRUP: Yes, I will.

HEARING OFFICER FOX: Thanks very

much.

MR. NORTHRUP: That's actually at

320 (b).

HEARING OFFICER FOX: It's (b)(1). It

refers to, at the very end of that,

Subsection 106.410 through 106.416.

MR. NORTHRUP: Okay.

HEARING OFFICER FOX: Thank you. I

appreciate that. I think we had wrapped up

Proposed Amendment No. 36. And I don't see

any hands indicating questions.

Let's proceed to Proposed

Amendment No. 37 proposing to amend Section

811.320(d)(2). Are there questions for

either the Association or the Agency on this

issue relating to background concentrations?

Ms. Andria?

MS. ANDRIA: Yes. I wondered why the

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152

proposal provides that such changes may only

be made every -- once every two years.

MR. SCHUBERT: That was actually a

consideration and discussion with the Agency.

There was a consideration that there could be

an administrative problem in readjustment of

background virtually every time you come in

with an assessment. So, you know, what we're

talking about here is -- what we're talking

about is the collection of a background data

set and that's used for statistical

comparison.

So the Agency was concerned that

maybe a particular applicant would want to

amend that background data set over and over

and over again every time they had a

monitoring event. And I guess we wanted to

make sure that we could amend it on some type

of reasonable frequency, but not so frequent

as to overload the Agency with review of all

sorts of background data sets every

monitoring event.

So kind of a compromised position

was that every two years seemed like that

L.A. REPORTING (312) 419-9292

153

wouldn't inconvenience the Agency and would

still give the industry or any landfill

owner/operator a chance to reassess

background -- his background data set on a

meaningful interval.

MS. ANDRIA: Do you have any place

that you define what is, quote, statistically

significant where there has to be so much

percent?

MR. SCHUBERT: Well, that's contained

in these regulations of what statistical

significance is. I guess that comes a little

farther -- that comes a little further in the

regulations.

MS. ANDRIA: How much investigation --

is it the company that's doing the

investigation or IEPA as to the background

concentrations and if they are attributable

to not the landfill? Who does that

assessment?

MR. SCHUBERT: We collect the data

under IEPA supervision. They review the data

and incorporate the approval of that

background data set into a permit.

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154

MS. ANDRIA: And do they have -- do

they take samples in their labs or do you do

the sampling in your labs?

MR. SCHUBERT: Generally, we hire

contractors, you know, and EPA approved labs

to do this kind of work. I can tell you that

as a part of a different program, part of the

field services, there is a field

verification -- occasional field verification

of groundwater data by the EPA in their lab.

MS. ANDRIA: That's like split samples

you mean?

MR. SCHUBERT: Yeah. They come out on

regular intervals. But, you know, the data

that we're talking about here, you know, for

permit purposes is generally developed by our

contractor -- contractors that we would hire.

MS. ANDRIA: Thank you.

MR. RAO: And is this change in

background concentrations, the approval

process, is that done as part of significant

modification?

MR. SCHUBERT: Yes, sir.

MR. BALLENGER: Yes, sir.

L.A. REPORTING (312) 419-9292

155

HEARING OFFICER FOX: Further

questions then of any kind on Proposed

Amendment No. 37?

(No verbal response.)

HEARING OFFICER FOX: The next four

Proposed Amendments, Nos. 38, 39, 40 and 41

were all characterized by Mr. Johnson in his

pre-filed testimony as non-substantive.

If the Agency concurs in that

assessment and there's no -- and I see

Ms. Geving indicating that she does concur

and there are no questions about those which

appear only to re-number some of the

language, we can go right ahead to Proposed

Amendment No. 42.

(No verbal response.)

HEARING OFFICER FOX: And seeing no

questions, we will go to Proposed Amendment

No. 42 relating to Section 811.320(e)(1).

Ms. Andria.

MS. ANDRIA: Is there someplace that

is referenced what is an inappropriate test

and an appropriate test and how is that

determined? Is that all under US EPA?

L.A. REPORTING (312) 419-9292

156

MR. JOHNSON: Yes. The US EPA has

developed and conducted training on a new

guidance document, and we took a look at

these regulations with regard to what

US EPA is advocating in their new guidance

document.

You heard Ms. Thompson talk about

statistical power. We took a look at that.

We did also consult with Dr. Robert Gibbons

on these regulations to update that some of

these tests are no longer in use. And there

is a body of peer-reviewed research that lays

out the rationale for not using these tests

and using for up-to-date methods.

MR. HILBERT: And just to add one more

point of clarification, the inappropriate

language here is to distinguish between when

data is normal and non-normal. And that's

just a statistical term. And you cannot use

statistical tests that are based on normality

of data for data that's not normal. That's

what that language is referring to.

MS. ANDRIA: Those tests, are they --

like, do they break down in site specific

L.A. REPORTING (312) 419-9292

157

conditions?

MR. HILBERT: They are affected by the

site specific conditions, meaning that every

site is different. Some sites may have

normal data and some sites may have

non-normal data.

MS. ANDRIA: But, I mean, EPA gives

you the guidance as to what you would -- what

kind of test is appropriate for, say, the

mythical land in a floodplain as opposed to a

landfill that's located in an old abandoned

coal mine?

MR. HILBERT: Exactly.

MS. ANDRIA: Thank you.

MS. LIU: I had a question, too.

Mr. Johnson, in your pre-filed testimony on

this section you state that, quote, "We

propose to delete existing references to

specific normal theory statistical tests and

nonparametric statistical tests." And then

in the proposed revisions I noticed that the

section on normal theory is deleted, but the

nonparametric section remains. Was that your

intent?

L.A. REPORTING (312) 419-9292

158

MR. JOHNSON: Yeah. We could still

use those tests.

MS. LIU: Okay. Thank you. And

talking here earlier today you mentioned that

you view these as more appropriate tests.

Since your proposed rule is now eliminating

some of the tests that were introduced before

or at least recommended for use before, can

you provide some examples of statistical

tests that would be consistent with US

guidance now?

MR. JOHNSON: Yeah. I think that the

bulk of our changes relate to -- the existing

regs were kind of, sort of specific on some

of the tests that you need to use and as my

colleague, Tom Hilbert, has described, under

different data distributions. And what we've

attempted to do in working with the Agency on

this whole set of regs is to open it up more

and make it be more performance-based on the

statistical power curve. So because there's

so many different data distributions that you

can come across and, as we've talked about,

different site-specific situations, we want

L.A. REPORTING (312) 419-9292

159

to focus on what gives us the best

performance, which is the statistical power

curve which balances the false positive rate

and the false negative rate, meaning we're

optimizing that statistic to be able to tell

us when we've got a potential problem.

So we've kind of tried to open it

up. I don't know if that --

MR. SCHUBERT: Give some examples.

MR. JOHNSON: You know, which would

be -- prediction limits would be something

that we commonly use, tolerance intervals,

depending, of course, on the distribution.

DR. GIRARD: I'd just like to clarify

the list of references that you used for all

of the statistical -- I guess, you know, the

changes in the statistical methods that you

used in the regulations. So that's all in

that supplemental information and errata

sheet which was first filed with the Board;

is that correct?

MR. JOHNSON: Is that the first one?

MR. NORTHRUP: Yeah.

MR. JOHNSON: Yeah.

L.A. REPORTING (312) 419-9292

160

DR. GIRARD: What was the date that it

was filed with the Board?

MR. NORTHRUP: January 16th.

DR. GIRARD: So if they wanted to see

a full list of all the references that were

used for determining the statistical tests

and re-evaluating which ones are better,

that's the sheet they should go to? It's got

the US EPA guidance and other documents.

MR. JOHNSON: It appears that they're

in there. They're kind of mixed in. They're

not broken out into a separate statistical

section, though.

BOARD MEMBER JOHNSON: Is that the

document that I gave you before?

DR. GIRARD: Yeah.

BOARD MEMBER JOHNSON: Okay.

DR. GIRARD: Are there any of those

references that are best for looking at? I

mean, some of the US EPA guidance documents,

I noticed there are at least two of them that

deal with statistics. One is sort of an

addendum in 92 and then there's an earlier

one.

L.A. REPORTING (312) 419-9292

161

MR. JOHNSON: Yes. The '92 addendum

to the interim final is probably a good one

to discuss a lot of these. Also, there is an

ASTM standard that discusses these matters,

too.

DR. GIRARD: Is that listed in there.

MR. JOHNSON: I don't see that in

here.

DR. GIRARD: Well, if you can submit

that with comments before the next hearing,

that would be great.

MS. GEVING: Would that be ASTM STP

1118?

HEARING OFFICER FOX: Which is at the

bottom of Page 3 of the supplemental

information.

MS. GEVING: Correct.

MR. JOHNSON: Yeah. I didn't notice

that.

DR. GIRARD: So on Page 3 of that

addendum we've got the US EPA 1992 addendum

to interim final guidance document, which

is -- then we would also have that ASTM STP

1118.

L.A. REPORTING (312) 419-9292

162

MR. JOHNSON: That's correct.

DR. GIRARD: Which is a good source.

Thank you.

HEARING OFFICER FOX: Are there any

further questions pertaining to the language

proposed in Proposed Amendment No. 42?

(No verbal response.)

HEARING OFFICER FOX: Seeing none,

we'll proceed to Propose Amendment No. 43

relating to Section 811.320(e)(3). Are there

questions on anyone's part for either the

Association or the Agency on the substance of

that Proposed Amendment?

(No verbal response.)

HEARING OFFICER FOX: Seeing none, we

can proceed to Proposed Amendment No. 44

addressing Section 811.320(e)(3)(A). Is

there a question on anyone's part relating to

the substance in Proposed Amendment No. 44?

(No verbal response.)

HEARING OFFICER FOX: Seeing no

indication that there are questions, we'll

proceed to Proposed Amendment No. 45 relating

to Section 811.320(e)(3)(B). Are there

L.A. REPORTING (312) 419-9292

163

questions on anyone's part relating to the

substance of Proposed Amendment No. 45?

MS. LIU: I was just wondering

about -- and I'll mispronounce it I'm sure --

the Aitchison Adjustment Standard Statistical

Method?

MR. SCHUBERT: It's an adjustment to

normal statistics. So it's if you had

non-normal, right?

MR. JOHNSON: I believe, yeah.

MR. SCHUBERT: So it would be a

non-normal data set?

MR. JOHNSON: For normal data.

MR. SCHUBERT: For non-normal data

set, it gives you a different way of

calculating the standard deviations so you

can plug it into, like, a normal tolerance

interval equation.

MS. THOMPSON: (Inaudible).

MS. MOORE: Did you hear her?

THE COURT REPORTER: No. I need you

to repeat that.

MS. THOMPSON: It is -- the use of

Aitchison for adjustment is based on the

L.A. REPORTING (312) 419-9292

164

number of detected parameters in data sets.

Anything that's less than

50 percent detection has to be adjusted.

HEARING OFFICER FOX: Are there any

more questions then relating to Proposed

Amendment No. 45.

(No verbal response.)

HEARING OFFICER FOX: Seeing none, we

are prepared to go to Proposed Amendment No.

46 relating to Section 811.320(e)(3)(C). Is

there a question on any participant's part

relating to the substance of Proposed

Amendment No. 46?

(No verbal response.)

HEARING OFFICER FOX: And seeing none,

that allows us to go to Proposed Amendment

No. 47 relating to Section 811.320(e)(4).

Are there questions on anyone's part relating

to the subject of Proposed Amendment No. 47?

(No verbal response.)

HEARING OFFICER FOX: And seeing no

indication that there are questions, we'll go

to Proposed Amendment No. 48 addressing

Section 811.320(e)(5). Is there a question

L.A. REPORTING (312) 419-9292

165

related to the subject of that Proposed

Amendment?

(No verbal response.)

HEARING OFFICER FOX: And seeing no

indication that there is, we'll go to the

final Proposed Amendment No. 49 relating to

Section 811.320(e)(6).

Is there a question relating to

the language of that Proposed Amendment?

(No verbal response.)

HEARING OFFICER FOX: And seeing none,

that brings us to the end of the amendments

proposed in the original filing by the

Association and addressed in the pre-filed

testimony.

Is there anyone else present today

who wishes to testify? I did leave a sheet

out near the door that allowed anyone who

wished to, to indicate that they would like

to testify. And with Mr. Liebman's help, I

think we're determining that that is, in

fact, blank and that there is no one who

formally wished to do so. I'm referring,

obviously, only to a couple of you. Did you

L.A. REPORTING (312) 419-9292

166

wish to offer testimony at this time to be

sworn in to offer it at this point?

MS. ANDRIA: No. I've been sworn, but

I -- I do have one additional question, if I

may?

HEARING OFFICER FOX: My next order of

business was to see if there was any last

question before we moved onto some

housekeeping details. Please go ahead, Ms.

Andria.

MS. ANDRIA: I'm very curious. I

started out very happy that you were

including all of the other kinds of landfills

that are not permitted under this. But given

the Agency's response, I don't see how it can

be at all useful to them given their

resources and -- their lack of resources and

their -- and I'm not even sure legally. So

I'm wondering why you included that in this

proposal -- these proposed rulings to have

these other landfills come under the umbrella

of this?

MR. HILBERT: We didn't specifically

offer any changes in regards to --

L.A. REPORTING (312) 419-9292

167

MS. ANDRIA: I can't hear you.

MR. HILBERT: We didn't offer any

specific changes in regards to on-site

facilities. You know, by default they may be

covered under certain changes that we're

proposing, but this is really -- all these

changes are really with municipal solid waste

landfills in mind and how they fall -- how

the on-site facilities fall under these rules

is up to them, really.

They're not permitted, right?

MR. LIEBMAN: Right.

MR. HILBERT: I'd like to defer to the

attorneys on some of this.

MR. LIEBMAN: The Board might be in a

better position to explain this, but I'll

take a stab at it. Really, the -- right now,

both permitted and unpermitted facilities are

subject to the same standards with regard to

leachate and groundwater monitoring. And we

didn't make any changes that would, well,

change that structure.

We're making changes developed

to -- that would have changed, you know, the

L.A. REPORTING (312) 419-9292

168

fact that we're changing an 811 regulation

that, as Tom said, is geared for permitted

landfills. But I guess it would also apply

to unpermitted landfills because that's the

way the regulations are currently structured.

MR. SCHUBERT: I think what's

significant maybe that you picked out of

these regulations is that, in particular,

like the parameters selection for detection

monitoring, there was specific accommodations

made for consideration of non-MSW landfills,

which tend to be the non-permitted landfills.

We did try to keep an open view of

how it would affect everybody and I think as

a result, you know, might have better

regulations, at least in that one instance,

for the on-site facilities.

MS. ANDRIA: And then just one other

question about the non-municipal landfills or

the non-solid waste. I forgot how you

described it. One point in there -- and I

don't remember where you referred to -- more

than 50 percent or the 50 percent cut-off.

When you do that, is that referring to -- to

L.A. REPORTING (312) 419-9292

169

what exactly, like special waste or

construction demolition debris or what is the

other of the 50 percent?

MR. SCHUBERT: Anything that wouldn't

be MSW. I'd have to take a look, but I

believe that's correct.

MR. HILBERT: The definition of

municipal solid waste is underneath the

Environmental Protection Act.

MS. ANDRIA: I can't hear you.

MR. HILBERT: The definition of

municipal solid waste is underneath the

Environmental Protection Act. That's where

you would figure out what the other stuff

would be.

(Brief pause.)

MR. HILBERT: So typically -- you

know, I think I heard people mention that

would be coal combustion ash, fly ash, things

of that nature, which would be associated

more often than not with an on-site facility.

And maybe the attorneys can

explain why some sites are permitted and some

sites aren't, but we can't, by amending these

L.A. REPORTING (312) 419-9292

170

regulations, make facilities that aren't

currently subject to permit, subject to

permit.

HEARING OFFICER FOX: Any further

questions from any of the participants? Any

further questions at all?

MS. ANDRIA: I just wanted to say I

appreciate your patience with us. Being

non-attorneys and non-engineering people and

this being our first rulemaking, I really do

appreciate all of the courtesies that you

have extended to us, both the Agency, the

Solid Wastes Management Association and the

Board. Thank you.

HEARING OFFICER FOX: You're very

welcome. And it looks like we'll be able to

wrap-up the first hearing in a single day

very shortly.

We, I think, have established

clearly that no one has either in writing or

by their appearance indicated an interest in

providing any further testimony here at the

first hearing.

Why don't we go off the record

L.A. REPORTING (312) 419-9292

171

very briefly and discuss the second hearing,

if we may do that, please.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER FOX: We went briefly

off the record for the purpose of discussing

some procedural issues relating to the date

of the second hearing that was on

November 17th, scheduled to take place

beginning on Wednesday, February 28th, 2007,

beginning at 1:00 p.m. at the Pollution

Control Board's conference room in

Springfield. And we will proceed with that

second hearing as scheduled.

In response to the input from the

parties, the filing deadline for pre-filed

testimony for that second hearing will be on

Thursday, February 15th of 2007. And the

mailbox rule contained in the Board's

procedural rules will not apply so that the

Board's clerk will need to receive a copy

either electronically or on paper of that

pre-filed testimony before the close of

business at 4:30 on Thursday, February 15th.

L.A. REPORTING (312) 419-9292

172

The Board does offer the option of

electronic filing of which the parties and

participants appear to be aware, and that

certainly would be a valid way to file any

pre-filed testimony.

Are there any questions about the

second hearing or generally before we close

the record and adjourn the fist hearing?

(No verbal response.)

HEARING OFFICER FOX: Seeing none, I'm

sure I speak for all of the Board members and

for the other Board staff in thanking you all

for your travel time, your preparation and

your information, the questions and the

answers and your testimony have been very

helpful as the Board moves toward determining

whether or not to adopt a first opinion -- a

first notice of opinion and order in this

proceeding. And thanks, once again. Travel

safely. We're adjourned.

(Which were all the proceedings

had in the above-entitled cause

on this date.)

L.A. REPORTING (312) 419-9292

173

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF WILL )

I, Tamara Manganiello, RPR, do hereby

5 certify that I reported in shorthand the proceedings

6 held in the foregoing cause, and that the foregoing

7 is a true, complete and correct transcript of the

8 proceedings as appears from my stenographic notes so

9 taken and transcribed under my personal direction.

______________________________

TAMARA MANGANIELLO, RPR

License No. 084-004560

SUBSCRIBED AND SWORN TO

17 before me this ____ day

of _______, A.D., 2007.

_______________________

20 Notary Public

L.A. REPORTING (312) 419-9292