1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3 IN THE MATTER OF:
)
)
4 PROPOSED AMENDMENTS TO
) R08-18
GROUNDWATER QUALITY
) (Rulemaking - Public
5 STANDARDS, 35 ILL. ADM.
) Water Supply)
CODE 620
)
6
7
Proceedings held on July 16, 2008, at 10:03 a.m., at the
8 Illinois Pollution Control Board, 1021 North Grand Avenue
East, Springfield, Illinois, before Richard R. McGill,
9 Jr., Hearing Officer.
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11
12
13
Reported By: Karen Waugh, CSR, RPR
CSR License No: 084-003688
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KEEFE REPORTING COMPANY
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11 North 44th Street
Belleville, IL 62226
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(618) 277-0190
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Electronic Filing - Received, Clerk's Office, July 28, 2008
1
APPEARANCES
2
3 Board Members present:
4
Board Member Thomas E. Johnson
5 Board Member Andrea S. Moore
6
7 Board Staff Members present:
8
Alisa Liu, Environmental Scientist
9
10
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
11
BY: Ms. Kimberly A. Geving
Assistant Counsel
12
Division of Legal Counsel
1021 North Grand Avenue East
13
Springfield, Illinois 62794-9276
On behalf of the Illinois EPA
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15
16
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
BY: Mr. Alec M. Davis
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General Counsel
215 East Adams Street
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Springfield, Illinois 62701
On behalf of the Illinois Environmental
19
Regulatory Group
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1
INDEX
2 WITNESS
PAGE NUMBER
3 IEPA
7
Gary King
4 Richard P. Cobb
Thomas C. Hornshaw
5
Brian H. Martin
26
6
7
8
9
10
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12
13
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EXHIBITS
2 NUMBER
MARKED FOR I.D.
ENTERED
3 Hearing Exhibit No. 4
7
8
4 Hearing Exhibit No. 5
8
8
5 Hearing Exhibit No. 6
18
18
6 Hearing Exhibit No. 7
26
26
7
8
9
10
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12
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PROCEEDINGS
2
(July 16, 2008; 10:03 a.m.)
3
HEARING OFFICER MCGILL: Good morning. I'd
4 like to welcome everyone to this Illinois Pollution
5 Control Board hearing in Springfield. My name is Richard
6 McGill. I'm the assigned hearing officer for this
7 rulemaking proceeding. It is docketed as R08-18 and is
8 captioned "In the Matter of Proposed Amendments to
9 Groundwater Quality Standards, 35 Illinois Administrative
10 Code 620."
11
On February 19, 2008, the Board received a
12 rulemaking proposal from the Illinois Environmental
13 Protection Agency to amend the Board's Part 620
14 groundwater quality standards. Today is the second
15 hearing. No additional hearings are presently scheduled.
16 We held the first hearing in Chicago on June 18, 2008.
17
Also present today on behalf of the Board is
18 Board Member Thomas Johnson -- he's the lead board member
19 for this rulemaking -- Board Member Andrea Moore, and
20 from the Board's technical unit, Alisa Liu. Would any of
21 the board members present like to make any remarks at
22 this time? We'll go off the record for a moment.
23
(Off the record.)
24
HEARING OFFICER MCGILL: Let me go back on
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1 the record. Today's proceeding is governed by the
2 Board's procedural rules. All information that is
3 relevant and not repetitious or privileged will be
4 admitted into the record. We will begin with the
5 Agency's testimony, followed by any questions the Board
6 or members of the public may have for the Agency's
7 witnesses. We will then proceed with the testimony of
8 the Illinois Environmental Regulatory Group, followed by
9 questions for IERG's witness. After that, anyone else
10 who did not prefile testimony may testify as time
11 permits. All those testifying will be sworn in and may
12 be asked questions about their testimony. For those who
13 wish to testify but who did not prefile testimony, we
14 have a witness sign-up sheet located at the back of the
15 room.
16
Toward the conclusion of today's hearing, we will
17 take up the Agency's motion to correct the first
18 hearing's transcript. I would ask for the benefit of the
19 court reporter transcribing today's hearing that everyone
20 please speak up and try not to speak too quickly or talk
21 over one another so we have a clear transcript for the
22 Board to consider.
23
Are there any questions about our procedures
24 today? Seeing none, I would ask the court reporter to
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1 swear in the Agency's witnesses collectively.
2
(Witnesses sworn.)
3
HEARING OFFICER MCGILL: Thank you. And now
4 I ask Agency Attorney Kim Geving to begin the Agency's
5 presentation.
6
MS. GEVING: Good morning. With me today to
7 my immediate left is Gary King; to my right, Rick Cobb
8 and Tom Hornshaw. They will be providing summaries of
9 the testimony that we prefiled, but as an initial matter,
10 at the last hearing, Mr. Davis had requested two missing
11 pieces out of our testimony that were actually meant to
12 be exhibits, and I have those today. There are also
13 copies of those exhibits in the back on the table as well
14 as our prefiled testimony and errata sheet number 3.
15 This morning I'm going to have Mr. King start off with a
16 summary of the issue on solubility.
17
HEARING OFFICER MCGILL: Could I just
18 interrupt for moment? Do you want to go ahead and make
19 these hearing exhibits?
20
MS. GEVING: Yes, please.
21
HEARING OFFICER MCGILL: Just real quickly,
22 the first document is entitled "CWS Facilities Currently
23 Exceeding the New Arsenic MCL of 0.010 milligrams per
24 liter." That would be Exhibit 4. Is there any objection
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1 to entering this document as a hearing exhibit? Seeing
2 none, that will be Exhibit 4. The second document,
3 entitled "Distribution of Arsenic in the Mahomet Aquifer
4 of Central Illinois, USA," would be Hearing Exhibit 5.
5 Any objection to entering this document as a hearing
6 exhibit? Seeing none, that will be Hearing Exhibit 5.
7 Thank you.
8
MS. GEVING: Mr. King, if you would like to
9 proceed with your summary.
10
MR. KING: Certainly. I'm confining my
11 comments specifically to the request number 8, which was
12 a request that really was focused on water solubility as
13 the basis for class I and class II standards. My name's
14 Gary King, and my position is I am acting bureau chief
15 for the Bureau of Land. I've testified in many board
16 proceedings, regulatory proceedings over the years, and
17 one area I've particularly done a lot of testimony has
18 been relative to -- I'm going to use the term TACO, which
19 stands for tiered approach to corrective action
20 objectives. The Agency has been administering TACO since
21 1998. It's been a very effective rule in terms of
22 allowing clean-ups within the state to move forward.
23 There's a number of principles that are really key to
24 making that work. One of the key principles is the fact
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1 that it functions on a -- with a risk-based methodology.
2
We've always had a close nexus between TACO and
3 the Part 620 standards. The TACO groundwater remediation
4 objectives, which are contained in Appendix B, Table E of
5 TACO, were really -- they were either taken directly from
6 Part 620 or were developed using the 620 methodologies.
7 This -- We are certainly anticipating that this
8 regulatory proceeding is going to result in changes in
9 the Part 620 standards. In due course, because of that
10 nexus between TACO and Part 620, we will be going about
11 amending TACO to incorporate changes in the -- these
12 rules. Currently we're working on an amendatory proposal
13 to TACO, which we are intending to file with the Board
14 later this summer. That proposal's going to include a
15 new pathway and it's going to update many of -- many
16 changes in the tier 1 remediation objectives. It's our
17 intention that that proposal will reflect the changes in
18 this proceeding.
19
As we've gone through the development of these
20 TACO amendments, we have an advisory committee, the Site
21 Remediation Advisory Committee, that advises us on --
22 with regards to our TACO proposals, and they brought to
23 our attention -- and it's always -- we always have found
24 that to be an excellent forum for us as we're developing
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1 TACO regulations. They -- We get a lot of really, really
2 excellent input from that group, and we received it in
3 this case as well because they brought to our attention
4 that some of the changes in Part 620 could have some
5 unintended consequences as to the way the TACO
6 remediation objectives are structured, and as we looked
7 at it further, that it became pretty clear to me that
8 there were going to be those kind of unintended
9 consequences and that if we continued to use a
10 contaminant solubility rather than contaminant health
11 risks, we were going to have the TACO groundwater and
12 soil remediation objectives for those categories not
13 following a risk-based approach.
14
So in the written testimony, I gave an example of
15 what that impact would be with regards to one of the
16 contaminants. I won't go through the numbers on that,
17 but the bottom-line conclusion was that we think that
18 TACO should continue the risk-based approaches followed
19 to date and thus have recommended that we make some
20 changes to Part 620 numbers for certain compounds that
21 have used solubility. That concludes my summary.
22
MS. GEVING: Thank you, Mr. King.
23 Mr. Hearing Officer, would you like to proceed right to
24 Mr. Cobb's summary? That's fine with me.
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1
HEARING OFFICER MCGILL: Well, I understand
2 Mr. King may need to leave early. I -- But you can stick
3 around for --
4
MR. KING: Yeah, I --
5
HEARING OFFICER MCGILL: When did you need
6 to leave?
7
MR. KING: I would like to leave by noon
8 because I -- my director --
9
HEARING OFFICER MCGILL: I don't anticipate
10 that being a problem, but just -- does anyone at this
11 point in time have any questions specific to Mr. King?
12 Seeing none, we'll move on with the Agency's next
13 witness, but if -- Mr. King, if you wouldn't mind
14 sticking around in case something comes up.
15
MR. KING: Yeah, sure.
16
HEARING OFFICER MCGILL: Thanks.
17
MS. GEVING: Mr. Cobb has actually prepared
18 a summary in writing that he's going to read, so at this
19 time I'd like to present that to the Board for the record
20 as an exhibit and then let him go ahead and read it into
21 the record, if that's acceptable.
22
HEARING OFFICER MCGILL: Sure.
23
MS. GEVING: Mr. Cobb's summary is intended
24 to directly address a couple of the issues that were
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1 raised in Mr. Martin's testimony, so with that, Mr. Cobb,
2 if you'd go ahead.
3
MR. COBB: I thank you very much. The
4 main -- There are three kind of areas that I just wanted
5 to touch upon just because of maybe some slightly
6 different viewpoints on a couple of statements. The
7 first issue that was brought up was in regard to the --
8 using "commonly detected," which is one of the factors,
9 among several, that the Board must consider in developing
10 groundwater quality standards, and correctly stated,
11 they're part of how we came up with some of the proposed
12 standards, was as stated in Mr. Martin's testimony.
13 Our -- In regards to the concept of commonly detected, we
14 have kind of a slightly different viewpoint and maybe a
15 kind of a bigger picture. We also -- We informed IERG
16 that we -- from a historical context --
17
HEARING OFFICER MCGILL: I'm sorry. If we
18 could just interrupt for a moment. Mr. Davis?
19
MR. DAVIS: I have two points, first being
20 I -- could I please get a copy of his --
21
MS. GEVING: You bet.
22
MR. DAVIS: And the second being, are we
23 summarizing the prefiled testimony or are we adding
24 additional substance to the discussion?
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HEARING OFFICER MCGILL: This is additional
2 substance. This would not be a summary of prefiled
3 testimony, which I'm still expecting to hear, but I think
4 they can provide new testimony. I don't think we're
5 going to run out of time.
6
MR. DAVIS: I just want to make sure that we
7 were clear that this was not a summary.
8
HEARING OFFICER MCGILL: Yeah, this is not
9 a -- as I understand it --
10
MR. COBB: No.
11
HEARING OFFICER MCGILL: -- and Ms. Geving
12 can correct me if I'm wrong -- this is new testimony --
13
MR. COBB: That's correct.
14
HEARING OFFICER MCGILL: -- not a summary of
15 the prefiled testimony.
16
MR. COBB: That's correct.
17
MS. GEVING: Thank you.
18
MR. COBB: So basically, the first issue
19 raised by the Illinois Environmental Regulatory Group
20 regarded the preference for numerical water quality
21 standards, especially where specific contaminants have
22 been commonly detected in groundwater, as described in
23 the Illinois Groundwater Protection Act, 415 ILCS
24 55/8(b)(3). The Illinois Environmental Regulatory Group
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1 questioned how the Agency defined "commonly detected."
2 The Illinois Environmental Regulatory Group subsequently
3 learned that the meaning was established using a process
4 by which the Illinois EPA's Bureau of Land developed a
5 database on sampling results from solid waste and other
6 regulated sites. IERG is uncertain that the procedure
7 used to defined "commonly detected" is appropriate or
8 whether it is more analogous to finding contaminants
9 where one would expect them to be found and extrapolating
10 that finding to the remainder of the state.
11
Illinois EPA also informed IERG that we have been
12 from a historical context and still are directed by other
13 provisions of the Illinois Environmental Protection Act,
14 the Illinois Groundwater Protection Act, and specifically
15 415 ILCS 55/8(a), in proposing groundwater standards as
16 follows: "The Agency, after consultation with the
17 committee and council, shall propose regulations
18 establishing comprehensive water quality standards which
19 are specifically for the protection of groundwater,"
20 emphasis added on that phrase. "In preparing such
21 regulations, the Agency shall address, to the extent
22 feasible, those contaminants which have been found in the
23 groundwaters of the state" -- emphasis added -- "and
24 which are known to cause or suspected of causing cancer,
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1 birth defects or any other adverse effect on human health
2 according to nationally accepted guidelines. Such
3 regulations shall be submitted to the Board by July 1,
4 1989."
5
As emphasized above, the purpose of the
6 groundwater standards, which includes non-degradation
7 provisions, are for the protection of groundwater.
8 Moreover, the intent of the Act, the Illinois Groundwater
9 Protection Act, and the groundwater standards is to be --
10 prevent -- the intent is not to wait till contaminants
11 are widespread or commonly detected on an ambient basis.
12 This approach would defeat the purpose of protecting the
13 resource.
14
Furthermore, the standards are not corrective
15 action or clean-up objectives or clean-up standards. The
16 Illinois Pollution Control Board final order and opinion
17 on groundwater quality standards, 35 Illinois
18 Administrative Code Part 620, docket R89-14(B), which was
19 adopted November 17 of 1991, indicated the following on
20 page 25: "It's important to remember, however, that
21 these are groundwater quality standards and not clean-up
22 standards."
23
The second issue that I'd like to comment on is
24 impact on coal combustion by-product use, CCB. The
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1 Illinois EPA will need to have further discussions with
2 the Agency and the Office of Mines and Minerals in regard
3 to CCB use in mines, and I have a couple questions there
4 for when after Brian testifies in regarding asking for
5 some of the actual data on those. And in addition, just
6 an additional comment here, per personal communication
7 with Scott Fowler at the Office of Mines and Minerals,
8 Scott -- Mr. Fowler indicated that even if the metals
9 exceeded the ASTM standards that are required in their
10 rules for use in mines that he could still approve that
11 process. So that's in addition to what I have here in
12 this written testimony.
13
The third issue is irrigation as the basis for
14 the class II standards. IERG provided that Illinois EPA
15 has stated that the basis for proposed class II
16 groundwater standards for arsenic, molybdenum and
17 vanadium is irrigation and livestock watering, from the
18 National Academy of Sciences, 1972, Water Quality
19 Criteria; see prefiled testimony of Richard P. Cobb in
20 the matter of Proposed Amendments to Groundwater Quality
21 Standards, 35 Illinois Admin Code 620, R0-18, at 14,
22 Illinois Pollution Control Board, May 29, 2008;
23 hereinafter, Cobb testimony. Yet the Illinois EPA has
24 made no further explanation of the applicability or the
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1 validity of that report in determining the suitability of
2 groundwater for such uses in Illinois.
3
The Board's final order and opinion on
4 groundwater quality standards at 35 Illinois Admin Code
5 620, docket R89-14(B), adopted November 17 of 1991,
6 indicated the following on the bottom of page 9 [sic] and
7 the top of page 20: "Section 620.420 establishes
8 standards for Class II: General Resource Groundwaters.
9 Because groundwaters are placed in class II because they
10 are quality-limited, quantity-limited or both (see
11 Subpart B discussion above), it is necessary that the
12 standards that apply to these waters reflect a range of
13 possible attributes. Among the factors considered in
14 determining the class II numbers are the capabilities of
15 treatment technologies to bring class II waters to
16 qualities suitable for use (R3 at 75). Thus, many class
17 II standards are based on MCLs as modified to reflect
18 treatment capabilities. For some parameters, the class
19 II standards are based on support of a use other than
20 potability (e.g., livestock watering, irrigation,
21 industrial use) where a different use requires a more
22 stringent standard, (R3 114-8)."
23
The current class II standards adopted by the
24 Board for arsenic, beryllium, boron, cadmium, chromium,
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1 cobalt, lead, manganese, mercury, nickel, nitrate and
2 zinc were based on livestock or irrigation factors using
3 the 1972 Water Quality Criteria. The Board found this
4 approach to have merit. Therefore, the class II
5 groundwater standards for arsenic, molybdenum and
6 vanadium were also based on the protection of irrigation
7 and livestock. And that concludes my supplemental
8 testimony.
9
HEARING OFFICER MCGILL: Would you like to
10 have this written summary entered into the record as a
11 hearing exhibit?
12
MS. GEVING: I would.
13
HEARING OFFICER MCGILL: That would be
14 Hearing Exhibit 6. Are there any objections? No
15 objection. That will be entered as Hearing Exhibit 6 as
16 a response to IERG comments. Do you have an additional
17 summary of the prefiled testimony to provide or --
18
MS. GEVING: We do not. We thought at this
19 point we'd open it up for questions.
20
HEARING OFFICER MCGILL: Okay. Why don't we
21 go off the record for a moment.
22
(Discussion held off the record.)
23
(Brief recess taken.)
24
HEARING OFFICER MCGILL: Ms. Geving, the
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1 Agency at this point has concluded its presentation?
2
MS. GEVING: We have.
3
HEARING OFFICER MCGILL: Thank you. Why
4 don't we at this point move on to questions for the
5 Agency's witnesses. I would ask if you are a member of
6 the public and have a question if you would signal me,
7 and after I acknowledge you, state your name and, if
8 applicable, your title and any organization you're
9 representing here today. Before the Board proceeds with
10 its questions, does anyone else have any questions for
11 any of the Agency's witnesses? Go ahead. Your name?
12
MR. HOPKINS: My name is Leonard Hopkins.
13 I'm with the Southern Illinois Power Cooperative. I
14 guess I have a question regarding the last witness, just
15 brief. In his discussion with Scott Fowler of Illinois
16 Department of Natural Resources, he said Mr. Fowler
17 claimed that he could grant a permit for mine reclamation
18 irregardless of the ASTM limits. I wondered how the EPA
19 would handle that. I mean, if the rule is still the
20 rule, how will a grant or permit by IDNR make any
21 difference in the EPA's enforcement of that rule?
22
MR. COBB: Well, the Act, on that particular
23 matter, the issue flows from being an EPA jurisdiction to
24 a DNR jurisdiction, and it's their rules that dictate and
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1 how they operate it dictate the findings, and so we don't
2 really have input on that other than how we normally deal
3 with mines and minerals on groundwater protection issues
4 relative to mining and that sort of thing, so it would
5 ultimately be Mr. Fowler's -- you know, for example, he's
6 going to look at a surface coal mine or an open pit mine
7 that's already been mined, and placing this material in
8 there, he would have probably already made determinations
9 for any of the other metals in understanding the
10 environmental fate and transport. It's really going to
11 take very little, then, molybdenum, arsenic and these
12 other things, not being much different than the other
13 metals that may have already had a determination for CCB,
14 because those are going in the mine right now. What
15 he'll be looking at is, you know, is that going to affect
16 any off-site groundwater outside of that permitted area,
17 and many of these are class IV groundwaters. That may
18 not mean anything to you, but that's kind of a different
19 set of standards for coal mining separate from class I or
20 class II or class III standards, so --
21
HEARING OFFICER MCGILL: Ms. Geving?
22
MS. GEVING: Just a question for purposes of
23 clarification. Mr. Cobb, when you were referencing the
24 Act in shifting the jurisdiction over to the Department
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1 of Natural Resources, were you referring to
2 Section 3.135, which is the definition of coal combustion
3 by-products, specifically Subsection B?
4
MR. COBB: Yes.
5
MS. GEVING: Thank you.
6
HEARING OFFICER MCGILL: Thank you. Is
7 the -- Does the Agency know if DNR's Office of Mines and
8 Minerals has promulgated rules concerning these
9 beneficial use determinations?
10
MR. COBB: I believe they have, yeah,
11 because they -- I mean, they do it all the time. I mean,
12 this is something that is happening ongoing.
13
HEARING OFFICER MCGILL: Is that something
14 that the Agency can just provide a citation to the Board?
15
MR. COBB: Absolutely. Scott is a member of
16 our interagency coordinating committee on groundwater,
17 and so that's how we have that contact and interaction.
18 We'd be happy to get that from Scott, pass it on to the
19 Board.
20
HEARING OFFICER MCGILL: Thank you.
21
MS. GEVING: It's also our intent to talk
22 with Mr. Fowler to perhaps do a public comment on this
23 issue at the end of the rulemaking.
24
HEARING OFFICER MCGILL: Great. Thank you.
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1 Any further questions for the Agency's witnesses? The
2 Board has some additional questions we'd like to pose.
3 Member Moore?
4
BOARD MEMBER MOORE: Well, I just was
5 looking at one of the exhibits that you presented, and
6 this is the summary of the "Distribution of Arsenic in
7 the Mahomet Aquifer," and as I was looking through, I was
8 curious, because in this summary it doesn't really say
9 where these high concentrations of arsenic are proposed
10 to come from, and I wondered if they are assumed to be
11 naturally occurring or is there -- where does the -- what
12 causes this high concentration of arsenic in this
13 aquifer?
14
MR. COBB: For the most part, it's naturally
15 occurring. It's a geochemical reaction that has a lot to
16 do with the oxidation reduction state of the groundwater,
17 which obviously -- well, I shouldn't say that -- strike
18 that -- which is a factor of in some cases pumping in the
19 area. For example, a community well may be right next to
20 a private well. The community pulls in or captures
21 larger quantities of groundwater, and that may be more
22 oxygen rich, whereas right next door in the same aquifer
23 you may have a private well that pumps much less quantity
24 of water. It may not have the same oxygen rich. It may
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1 be more of a reducing environment. And so you can have
2 much higher concentrations not because of the depths but
3 just because of that geochemical reaction between
4 oxidation and reduction in the very same aquifer, and
5 that's what all the research is showing thus far. At the
6 point of time that this was done, some of those answers
7 weren't even available when we first did this joint
8 publication, but since that time there have been several
9 publications on that.
10
BOARD MEMBER MOORE: Have any other studies
11 been done anywhere else in the state?
12
MR. COBB: Other than the --
13
BOARD MEMBER MOORE: Similar to this.
14
MR. COBB: -- Mahomet?
15
BOARD MEMBER MOORE: Uh-huh.
16
MR. COBB: I'm not sure. I'd have to go
17 back and look at that.
18
BOARD MEMBER MOORE: Thank you.
19
MR. COBB: But the reaction should be very
20 similar in the same -- not necessarily just specific to
21 this aquifer, though. I mean, it's -- if they're in a
22 sand and gravel aquifer, the same geochemical reaction
23 could happen wherever it was located. So we always base
24 the inorganic standards, the number except due to natural
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1 causes, so --
2
BOARD MEMBER MOORE: Thank you.
3
HEARING OFFICER MCGILL: Why don't we go off
4 the record for a moment.
5
(Off the record.)
6
HEARING OFFICER MCGILL: We'll go back on
7 the record.
8
MS. LIU: Good morning. This question is
9 probably best for either Mr. Hornshaw or Mr. Cobb. In
10 the discussion of chloroform on page 2 of your prefiled
11 testimony, the Agency refers to USEPA's maximum
12 contaminant level goal, or MCLG, of 0.07 milligrams per
13 liter in the Stage 2 Disinfectants and Disinfectants
14 By-products Rule. We were wondering if the Agency could
15 please provide a Federal Register citation for the USEPA
16 rule.
17
MR. COBB: We can get that, yeah.
18
MS. LIU: Okay. Great. And there's a part
19 two to this question, also with respect to chloroform.
20 Other than the fact that 0.07 milligrams per liter, that
21 value was taken from a promulgated federal rule, is there
22 any other reason that the Agency is proposing that value
23 over the lower value of 0.0027 milligrams per liter?
24
MR. HORNSHAW: Yes. In that rule, the EPA
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1 states that the MCLG is protective against both cancer
2 and non-cancer health effects. They use the -- I believe
3 they did not develop the cancer slope factor, but I think
4 they are treating it as if it was a non-carcinogen; in
5 other words, it has some kind of a threshold below which
6 you don't see the carcinogenic activity. So our
7 reasoning in preferring the MCLG is that we are being
8 protective of cancer, if you believe EPA's promulgated
9 rule, so that it's not necessary to go to the lower
10 value, which comes from a California EPA cancer slope
11 factor.
12
MS. LIU: Thank you very much.
13
MR. HORNSHAW: Thanks.
14
HEARING OFFICER MCGILL: This is a question
15 I have for IERG later, but since the Agency's been
16 testifying on the beneficial use determinations, I just
17 wanted to ask for the Agency what the informational
18 requirements are for receiving a beneficial use
19 determination. Are those in rules or policy or --
20
MS. GEVING: We're going to have to get back
21 to you on that one.
22
HEARING OFFICER MCGILL: Okay. Thank you.
23 Are there any other questions for any of the Agency's
24 witnesses? Seeing none, I'd like to thank you all for
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1 participating today, and we will move on with the
2 testimony of the Illinois Environmental Regulatory Group.
3 I would ask the court reporter to go ahead and swear in
4 IERG's witness.
5
(Witness sworn.)
6
HEARING OFFICER MCGILL: At this point I'd
7 like to turn it over to counsel for IERG, Alec Davis.
8
MR. DAVIS: I'd like to offer the prefiled
9 testimony of Brian H. Martin on behalf of IERG.
10
HEARING OFFICER MCGILL: Thank you. Is
11 there any objection to entering as a hearing exhibit the
12 prefiled testimony of Brian Martin? Seeing none, that
13 will be entered as Hearing Exhibit 7. Thank you. Go
14 ahead.
15
MR. DAVIS: Brian, if you'd like to present
16 your summary.
17
MR. MARTIN: Okay. Good morning. My name's
18 Brian Martin. I'm employed by Ameren Services in
19 St. Louis, Missouri. I'm also chairman of the Corrective
20 Action Workgroup within the Illinois Environmental
21 Regulatory Group and chairman of the Illinois Site
22 Remediation Advisory Committee. My testimony reflects
23 the opinions of both IERG and SRAC in this matter.
24
I just -- I want to again commend the IEPA and
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1 the Board for its flexibility and willingness to accept
2 for consideration our issues with respect to the
3 solubility issue in the 620 regulations. We know it was
4 a kind of a late notice issue and we appreciate everyone
5 working with us in the resolution of that issue.
6
We had requested some other information to
7 support some of the determinations in the proposed rules
8 with respect to the issue of commonly occurring
9 chemicals. We had submitted a Freedom of Information Act
10 request to the IEPA last week to obtain the database that
11 was used to make that determination. The response was
12 due to us today, so we haven't seen that information, nor
13 have we seen Mr. Cobb's testimony that was entered today,
14 so we're not in a position to respond to that testimony
15 today. We'd like the opportunity to follow up in writing
16 for those issues. That's -- I guess that's it for my
17 summary. I'd be glad to answer questions.
18
HEARING OFFICER MCGILL: Thanks. Does
19 anyone have any questions for Mr. Martin?
20
MS. GEVING: I have one.
21
HEARING OFFICER MCGILL: Miss Geving?
22
MS. GEVING: On page 5 of your testimony,
23 Mr. Martin, you're talking about it coming to IERG's
24 attention that leachate from coal combustion by-product
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1 has potential to exceed the proposed class I groundwater
2 standards for molybdenum and potentially exceed the class
3 I groundwater standards for other metals, and I was just
4 wondering if you have a list of sites around the state
5 that you could provide to us with any data.
6
MR. MARTIN: We don't have anything readily
7 available. This was provided by input from our members,
8 and I don't know if it's anecdotal information or if
9 there is specific analytical data that's available, but
10 we'll go back to members and put together what we have
11 for you.
12
MS. GEVING: We would appreciate that.
13 That's all I have.
14
HEARING OFFICER MCGILL: Any further
15 questions for this witness? Okay. The Board has just a
16 few questions.
17
MS. GEVING: I'm sorry. We have one more
18 question. Mr. Cobb would like to ask a question.
19
HEARING OFFICER MCGILL: Go ahead.
20
MR. COBB: Mr. Martin, in -- on your
21 testimony on page 3 at the top there, that top paragraph,
22 last sentence where it's stating, "IERG is uncertain that
23 the procedure used to define 'commonly detected' is
24 appropriate or whether it's more analogous to finding
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1 contaminants where one would expect them to be found,"
2 can you respond to what do you mean by finding
3 contaminants where one would expect them to be found?
4
MR. MARTIN: Well, we were -- this is a
5 follow-up to our discussion at the meeting with SRAC --
6 and we did that last week -- and it goes back to our
7 curiosity about the database that was used to make the
8 determination. We're curious as to whether your database
9 looks at contaminated sites such as mines, landfills,
10 remediation sites, UST sites, things like that, or if the
11 suggestion that these compounds are commonly occurring is
12 suggestive that it somehow represents groundwater in the
13 state and this is a wider-spread issue. We don't know
14 the answer to this. That's why we were looking to obtain
15 the database for review.
16
MR. COBB: Well, let me -- just a follow-up
17 on finding contaminants where one would expect them to be
18 found. Are contaminants of that type expected to be
19 found in waters of the state? I mean, are they naturally
20 occurring or anthropogenic?
21
MR. MARTIN: They could be both, and the
22 issue is -- our interest -- like I say, we don't have an
23 answer. We're just curious at this point. We'd like to
24 get more information from the IEPA. For example, you
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1 might expect to find some of these metals in landfill
2 leachate, but it may not necessarily be a state-wide
3 groundwater issue. That's the distinction we're trying
4 to make.
5
MR. COBB: At those sites, are -- is -- are
6 the -- is the groundwater underlying those sites waters
7 of the state or is it water somehow specifically
8 designated for a landfill with the leachate?
9
MR. DAVIS: Are you asking him to --
10
MR. COBB: Yeah, I'm asking the question --
11
MR. DAVIS: -- define what the statute
12 considers to be waters of the state?
13
MR. COBB: I'm asking him if -- you know,
14 once again, finding contaminants where one would expect
15 them to be found --
16
MR. MARTIN: I would presume that some of
17 these locations will -- there'll be a range of
18 conditions. Some of them perhaps may be class IV
19 groundwater all the way up to at least class II, and
20 until we obtain the information, we don't know what we're
21 looking at.
22
MR. COBB: All right.
23
HEARING OFFICER MCGILL: I had a question --
24 a related question, Mr. Martin. Does IERG at this point
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1 have any recommendations on additional or alternative
2 criteria for identifying commonly detected chemical
3 constituents on a state-wide basis?
4
MR. MARTIN: I think it's our hope that
5 we'll be able to provide some sort of a recommendation,
6 and we're hoping to obtain the database to review what
7 they did so we can see what we would believe to be
8 reasonable.
9
HEARING OFFICER MCGILL: Thank you.
10
MS. LIU: Good morning, Mr. Martin.
11
MR. MARTIN: Good morning.
12
MS. LIU: Miss Geving's earlier question
13 started to get into this and I kind of wanted to follow
14 through with it more. On pages 5 and 6 of your prefiled
15 testimony you talk about the leachate from the CCB or the
16 coal combustion by-products having the potential to
17 exceed the proposed class I groundwater standards for
18 molybdenum and other metals. Additionally, then you also
19 state, quote, "If, after further investigation, this
20 potential is found to demonstrate the reality of the
21 situation, the potential to put such CCB to beneficial
22 use may be severely restricted," end quote. I was
23 wondering if you could please clarify whether IERG or any
24 of IERG's members are currently conducting an
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1 investigation to evaluate the implications of the
2 proposed groundwater standards on the beneficial use of
3 CCB and, if so, to describe those studies and perhaps if
4 the results of those studies might be available within
5 the time period of the rulemaking.
6
MR. MARTIN: I'm not aware of any such
7 studies. I'm certain that they -- that many members have
8 looked at the proposed standards, and as I mentioned --
9 as I explained to Ms. Geving, either anecdotally or
10 perhaps with data, they know that their CCB may exceed
11 for one or more of these compounds or these metals. I
12 don't know that it's gone any farther than that. We'll
13 find out and provide written comments to that effect.
14
MS. LIU: When you do, it would also be
15 helpful if you could discuss what those other metals
16 might be as well. Thank you very much.
17
MR. MARTIN: You're welcome.
18
HEARING OFFICER MCGILL: That was the
19 reference to molybdenum and other metals concerned.
20 Thank you. Mr. Martin, on page 6 of your prefiled
21 testimony you acknowledge that when coal combustion waste
22 does not meet the statutorily required class I
23 groundwater standards, the Environmental Protection Act
24 provides the opportunity for beneficial use determination
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1 by either the Agency or the Office of Mines and Minerals
2 within DNR depending on the specific beneficial use being
3 proposed. You also state that IERG is concerned that
4 such approvals, which you indicate require detailed
5 site-specific analyses, may reduce the incentive to put
6 coal combustion waste to beneficial use. I was wondering
7 if you could provide any testimony on the Agency's or the
8 DNR's informational requirements for demonstrating -- the
9 necessary demonstration or informational requirements for
10 receiving a beneficial use determination.
11
MR. MARTIN: I don't know specifically what
12 the informational requirements are. We'll put those
13 together and get them to you.
14
MR. DAVIS: I -- Is it then also similar to
15 the request that they provide the statutory basis for
16 making beneficial use determinations?
17
HEARING OFFICER MCGILL: Yes. The statutory
18 basis -- at least in terms of the Environmental
19 Protection Act, the CCB definition -- I in particular was
20 wondering about any DNR or Agency rules or policies with
21 respect to the application process.
22
MR. DAVIS: Did you not ask Mr. Cobb to
23 provide a reference to the rulemaking by the Office of
24 Mines and Minerals specifying how they make
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1 determinations of beneficial use?
2
HEARING OFFICER MCGILL: Correct.
3
MR. DAVIS: Okay.
4
HEARING OFFICER MCGILL: Correct.
5
MR. DAVIS: So this is the same thing?
6
HEARING OFFICER MCGILL: Well, I'm more
7 concerned about IERG and its members, and you're
8 indicating that it's a detailed process, so if you could
9 give an indication of how much it costs to put an
10 application together --
11
MR. DAVIS: I see. Okay.
12
HEARING OFFICER MCGILL: -- you know, the
13 economic and technical difficulties that you might face
14 in trying to obtain a beneficial use determination, and
15 also any experience in obtaining them or being denied --
16
MR. DAVIS: Okay.
17
HEARING OFFICER MCGILL: -- with either the
18 Agency or DNR.
19
MR. DAVIS: We'll get that to you.
20
HEARING OFFICER MCGILL: Thank you. Are
21 there any other questions for IERG's witness? Seeing
22 none, I'd like to thank IERG's witness, Mr. Davis for
23 their participation today, and why don't we go off the
24 record for a moment.
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1
(Off the record.)
2
HEARING OFFICER MCGILL: Is there anyone
3 else who wishes to testify today? I believe there was
4 a Mr. Morgan, Jack Morgan I thought I saw on the
5 witness --
6
MR. NORMAN: You probably saw Jack Norman.
7
HEARING OFFICER MCGILL: I apologize.
8
MR. NORMAN: Scribbled, maybe.
9
HEARING OFFICER MCGILL: Okay. Sir, if you
10 would have the court -- would you like to testify?
11
MR. NORMAN: I think I can pass. Thank you.
12
HEARING OFFICER MCGILL: Okay. Fair enough.
13 Anyone else interested in testifying today? Okay.
14 Seeing no response, I'll move on to a few procedural
15 issues before we adjourn.
16
Anyone may file written public comments on this
17 rulemaking with the clerk of the Board up to at least 45
18 days after any first notice proposal is public in the
19 Illinois Register. However, to ensure that your public
20 comment is considered by the Board in any first notice
21 decision, I am setting a pre-first notice public comment
22 filing deadline of September 12, 2008. Public comments
23 may be filed with the clerk in paper or through the
24 Board's Web-based Clerk's Office On-Line, known as COOL.
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1 Please note that all filings with the clerk of the Board
2 must also be served on the hearing officer and on those
3 persons on the service list for this rulemaking. For
4 that pre-first notice public comment filing deadline, the
5 mailbox rule will not apply, which means that the clerk's
6 office must have the public comment in hand no later than
7 September 12.
8
Copies of the transcript of today's hearing
9 should be available on the Board's Web site by July 28.
10 Let me go off the record for a moment.
11
(Discussion held off the record.)
12
HEARING OFFICER MCGILL: Lastly, the Agency
13 on July 11, 2008, filed a motion to correct the first
14 hearing's transcript. Is there any objection to granting
15 that motion? I see no objection, and in the interest of
16 public commenters knowing how the first hearing's
17 transcript should correctly read, I grant the Agency's
18 motion now before the expiration of the 14-day response
19 period.
20
In addition, there's a change that I would like
21 to mention. It's, again, in the first hearing
22 transcript, page 65, line 7. For context, the transcript
23 reads, "On March 26, 2008, the Board accepts DCEO's
24 request to conduct an EcIS on the Agency's rulemaking
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1 proposal." That should read, "On March 26, 2008, the
2 Board sent DCEO a request to conduct an EcIS on the
3 Agency's rulemaking proposal." That's in lines 6 through
4 8 on page 65. Is there any objection to making that
5 correction? Seeing none, that line of the transcript
6 will be corrected.
7
Are there any other matters that need to be
8 addressed at this time? Seeing none, I would like to
9 thank everyone for participating today, and this hearing
10 is adjourned.
11
(Hearing adjourned.)
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1 STATE OF ILLINOIS )
) SS
2 COUNTY OF BOND
)
3
4
I, KAREN WAUGH, a Notary Public and Certified
5 Shorthand Reporter in and for the County of Bond, State
6 of Illinois, DO HEREBY CERTIFY that I was present at the
7 Illinois Pollution Control Board, Springfield, Illinois,
8 on July 16, 2008, and did record the aforesaid Hearing;
9 that same was taken down in shorthand by me and
10 afterwards transcribed, and that the above and foregoing
11 is a true and correct transcript of said Hearing.
12
IN WITNESS WHEREOF I have hereunto set my hand
13 and affixed my Notarial Seal this 27th day of July, 2008.
14
15
16
__________________________
17
Notary Public--CSR
18
#084-003688
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