/1 —

y

3-

/

M

1

BEFORE THE ILLINOIS POLLUTION

CONTROL

BOARD

2

3

IN THE MATTER OF:

)

ECEVE<

)

CLERK’S

OFFICE

4

PROPOSED

MENDMENTS

TO

)

FEB

05

2009

TIERED APPROACH TO

)

R09-9

STATE

OF

ILUNOIS

5

CORRECTIVE ACTION

)

(RulemakiRUiOfroI

Board

OBJECTIVES (35 ILL. ADM.

)

6

CODE 742)

)

7

8

Proceedings held on January 27, 2009,

at 10:35 a.m.,

at

the Illinois

Pollution Control Board, 1021

North Grand

9

Avenue East, Springfield,

Illinois, before Richard

R.

McGill, Jr., Hearing Officer.

10

11

12

13

Reported By: Karen

Waugh, CSR, RPR

14

CSR License No:

084-003688

15

KEEFE REPORTING COMPANY

11

North 44th Street

16

Belleville,

IL 62226

(618)

277—0190

17

18

19

20

21

22

23

24

Keefe Reporting

Company

---

1

APPEARANCES

2

3

Board Members

present:

4

Chairman G. Tanner Girard

Board Member Gary L. Blankenship

5

Board Member

Thomas E. Johnson

Board

Member Shundar Lin

6

7

Board Staff Members present:

8

Anand Rao, Senior Environmental Scientist

9

Alisa Liu, Environmental Scientist

10

11

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

BY: Ms. Kimberly A.

Geving

12

Assistant

Counsel

Division of Legal Counsel

13

1021 North Grand Avenue

East

Springfield,

Illinois 62794-9276

14

On behalf of the Illinois EPA

15

16

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP

BY: Mr. Alec M. Davis

17

General Counsel

215 East Adams

Street

18

Springfield, Illinois 62701

On behalf of the Illinois

Environmental Regulatory

19

Group

20

HODGE, DWYER

&

ZEMAN

21

BY:

Ms. Monica T. Rios

Attorney

at

Law

22

3150 Roland Avenue

Springfield, Illinois

62705-5776

23

On behalf of the Illinois

Environmental Regulatory

Group

24

2

Keefe

Reporting Company

---

1

INDEX

2

WITNESS

PAGE

NUMBER

3

IEPA Panel

Gary P. King

12

4

Tracey

Hurley

22

Dr.

Thomas Hornshaw

24

5

Dr. Atul

Salhotra

69

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

3

Keefe Reporting

Company

---

1

EXHIBITS

2

NUMBER

ENTERED

3

Hearing

Exhibit

No. 1

9

Hearing

Exhibit

No.

2

10

4

Hearing

Exhibit

No.

3

10

Hearing

Exhibit

No. 4

10

5

Hearing

Exhibit

No.

5

10

Hearing

Exhibit

No. 6

10

6

Hearing

Exhibit

No.

7

11

Hearing

Exhibit

No. 8

11

7

Hearing

Exhibit

No. 9

11

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

4

Keefe

Reporting

Company

---

1

PROCEEDINGS

2

(January

27, 2009;

10:35

a.m.)

3

REARING

OFFICER MCGILL:

Good

morning.

I’d

4

like to welcome

everyone

to this

Illinois

Pollution

5

Control Board

hearing

in Springfield

today.

My name

is

6

Richard

McGill,

and I’m

the hearing

officer for

this

7

rulemaking

proceeding

docketed

as R09-9

and captioned,

8

“In the

Matter

of:

Proposed

.mendments

to

Tiered

9

Approach to

Corrective

Action

Objectives,

35 Illinois

10

Administrative

Code 742,”

better known

as TACO.

11

Briefly,

by way of

background,

on September

3,

12

2008, the

Board

received

a rulemaking

proposal

from

the

13

Illinois Environmental

Protection

Agency. The

Agency

14

proposes

to amend

the Board’

s TACO rules

in order

to

add

15

the indoor

inhalation

exposure

route to TACO’s

risk-based

16

methodology

as

well

as

update remediation

objectives

for

17

all

exposure routes.

Today

is the first

hearing.

18

Another hearing

is

scheduled

for March 17

and 18,

2009,

19

in Chicago.

20

Also present

today

on

behalf

of the Board

is

21

Board

Member Dr.

Shundar Lin

to

my

far

left; next

to him,

22

Board Member

Gary

Blankenship;

Chairman

Tanner Girard;

23

the lead board

nieniber,

Thomas

Johnson; and

to

my

right,

24

our technical

unit, Anand

Rao

and Alisa Liu.

5

Keefe Reporting

Company

---

1

To make

today’s hearing

as efficient

as

possible,

2

I issued an

order

on October

20 requiring

the

filing

of

3

prefiled testimony,

prefiled

questions

and

prefiled

4

answers.

We will begin

today

by

entering

those

materials

5

into

the record

as

if

read, as well

as designating

a

6

number

of hearing

exhibits.

The Agency’s

witnesses

who

7

prefiled

testimony

will

be

giving

summaries

of their

8

testimony,

and Agency

witness

Dr. Atul

Salhotra will

9

present

a

slide presentation

and

give his

associated

10

testimony.

That

will

be

followed

by

questions

for the

11

Agency’s

witnesses,

who will

be responding

today

as

a

12

panel. After

that, we

will allow

anyone

else

to testify,

13

time

permitting.

Toward

the conclusion

of today’s

14

hearing

we will

take up a number

of procedural

items

and

15

discuss

a

potential

prefiled testimony

filing

deadline

16

for

the

second

hearing.

We do have

this

room

reserved

17

for tomorrow

if

business

still remains

at the end

of

18

today. Otherwise,

we will conclude

the hearing

today

19

with

those procedural

items I mentioned.

20

Today’s

proceeding

is governed

by the Board’s

21

procedural

rules.

All

information

that

is relevant

and

22

not repetitious

or

privileged

will

be admitted

into

the

23

record.

Those

who

testify will

be sworn in

and

may

be

24

asked questions

about

their testimony.

For those

who

6

Keefe

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---

1

wish to testify

but

who did not

prefile testimony,

we

2

have

a

witness

sign-up

sheet

located

at the

back

of

the

3

room.

I would

ask for

the court

reporter

transcribing

4

this proceeding

if you

would please

speak slowly

and

not

5

talk

over one

another.

Please

speak

up so we’ll

have

a

6

clear

transcript

for the Board

to review.

7

We learned

this morning

that Dr.

Saihotra has

8

been delayed

somewhat.

He’s in

transit.

He’s expected

9

to be here

by

around

noon. Depending

on the

progress

we

10

make,

how many follow—up

questions we

have for the

11

Agency’s

witnesses,

we will

take an hour lunch

break

12

unless it looks

like we’re

in

a position to wrap

up

13

without

breaking,

in

which

case we’ll

just forge

ahead.

14

Are there

any questions

about

our procedures

today?

15

Seeing

none,

I’m going

to take up one

procedural

16

item

that I normally

would

take

up

toward the end

of

the

17

day,

but given Dr.

Saihotra’s

delay, I thought

we might

18

as

well

take care of

this

matter

right now.

It concerns

19

the

Board’s request

to the

Department

of Commerce

and

20

Economic

Opportunity

for an

economic

impact

study.

21

Section

27(b) of the

Environmental

Protection

Act

22

requires the

Board

to request that

the Department

of

23

Commerce and

Economic

Opportunity

conduct an

economic

24

impact

study,

or EcIS, on

proposed

rules before

the Board

7

Keefe Reporting

Company

---

1

adopts the rules.

DCEO

may within

30

to

45

days of the

2

request

produce

a study

on the economic

impact

of the

3

proposed rules.

The Board

must

make the economic

impact

4

study

or DCEO’s

explanation

for

not

conducting one

5

available

to

the public

at

least

20

days before

a public

6

hearing.

On

October

7, 2008,

the Board

sent

DCEO

a

7

request

to conduct

an EcIS

on the Agency’s

rulemaking

8

proposal. DCEO

has not

responded

to the Board’s

request.

9

Is

there anyone

who would

like

to

testify regarding

this

10

matter?

11

Seeing no response,

I

will move

on to address

the

12

prefiled

testimony.

Absent

any objections,

the prefiled

13

testimony,

questions

and responses

will

be entered

into

14

the record

as if read.

After

that I’m

going to be

15

designating

these as hearing

exhibits.

It’ll

make it

a

16

lot

easier

to

cite

them later

if we

give them

a specific

17

hearing

exhibit number.

Any

questions

at this point?

18

Okay.

Seeing

none, first,

is

there

any

objection

19

to

entering

as

if read

any of the prefiled

testimony

of

20

Thomas

Hornshaw,

Gary

King

or Tracey Burley?

Seeing

21

none, each

is

so entered.

Next, is there

any

objection

22

to

entering

as if read

any

of

the prefiled

questions

of

23

Gail

Artrip

or the Illinois

Environmental

Regulatory

24

Group? Seeing

none,

each is so entered.

Finally,

is

8

Keefe

Reporting

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---

1

there

any

objection

to entering as

if read

any of the

2

prefiled

responses

of

the Agency?

Seeing none,

each

is

3

so

entered. Again,

for

ease of later

citation,

I will

4

now

take

up designating

each of the

prefilings

as hearing

5

exhibits.

I’m

sorry.

Go

ahead.

6

MS. GEVING:

Mr.

Hearing

Officer, we

also

7

wanted

to know if

you were going

to

enter

Dr. Salhotra’s

8

slides

as

an exhibit,

because that’s

——

9

HEARING OFFICER

MCGILL:

I was

going

to

take

10

that as

an exhibit.

I can

do that after

his

presentation

11

or can take

care of

it now. I was

just going

to

make

12

that

a hearing

exhibit

since it wasn’t

actually

13

testimony.

14

MS. GEVING:

I have

copies of

all the

15

documents

now

if you’d like

them, including

errata

sheets

16

nwnber

1 and

2.

17

HEARING

OFFICER MCGILL:

Perfect.

I

can

18

take those now.

Thank

you. Okay.

First,

is

there

any

19

objection

to designating

as a hearing exhibit

the

20

Agency’s errata

sheet

nuniber

1, which was

filed with

the

21

prefiled

testimony?

Seeing

none,

that is Hearing

Exhibit

22

No.

1. Is

there any objection

to

designating

as a

23

hearing

exhibit

the Agency’s

errata

sheet

number

2,

which

24

was filed

with the

prefiled

responses?

Seeing none,

that

9

Keefe

Reporting

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---

1

is Hearing Exhibit No. 2. Okay.

Is there any objection

2

to

designating

as a

hearing

exhibit the prefiled

3

testimony of Gary King along with its attached document

4

entitled “Instances of Vapor Intrusion Risk

at

Sites

in

5

Illinois”? Seeing none, we’ll make

that

Hearing

6

Exhibit 3.

7

Next, is there any

objection to designating

as a

8

hearing exhibit the hard copy of

the colored

slide

show

9

presentation of Dr. Atul Saihotra? Seeing none,

that

10

will

be Hearing Exhibit 4. Next, is there any

objection

11

to

designating

as a

hearing

exhibit the prefiled

12

testimony of Thomas Hornshaw along

with

his

attached

CV?

13

Seeing

none,

that will be Hearing Exhibit

5.

Next,

is

14

there any objection

to designating as a hearing exhibit

15

the prefiled testimony of Tracey

Hurley? Seeing none,

16

that

will

be Hearing Exhibit 6.

17

And before

designating the prefiled questions

as

18

hearing exhibits, I will mention

that the first

question

19

to which the Agency responded came from

Kara Magyar not

20

as a

prefiled

question but rather

as a

public

comment.

21

That question will therefore not

be

made

a

hearing

22

exhibit

and may simply be cited

as

public

comment number

23

1.

Is

there any objection to designating

as a hearing

24

exhibit the prefiled questions of

Gail Artrip? Seeing

10

Keefe Reporting Company

---

1

none, that’ll

be Hearing

Exhibit

7. Is there

any

2

objection

to

designating

as a hearing

exhibit

the

3

prefiled

questions of

the Illinois

Environmental

4

Regulatory

Group? Seeing

none, that

will

be

Hearing

5

Exhibit 8. Finally,

is

there any objection

to

6

designating

as

a

hearing

exhibit the prefiled

responses

7

of the

Agency? Seeing

none,

that will

be Hearing

8

Exhibit

9.

9

At

this point we

will proceed

with

the

Agency’s

10

presentation.

I would ask

the court

reporter to please

11

swear in

the Agency’s

witnesses

collectively.

12

(Witnesses

sworn.)

13

HEARING OFFICER

MCGILL:

Thank

you.

Now I

14

would ask

Agency

attorney Kimberly

Geving

to begin the

15

Agency’s presentation.

16

MS. GEVING:

Good morning.

As

you

stated,

17

my name

is Kimberly

Geving.. I’m

assistant

counsel for

18

the Bureau

of Land.

I’ll do my

best -- I’m

sitting

right

19

near you, so

you can hear

me. I’m going

to introduce

20

today

our panel

of witnesses

and also Agency

staff

21

present

here today.

To

my

immediate right

is

Heather

22

Nifong,

programs advisor

for the

division of

remediation

23

management.

Next

to

her

is Gary

King, acting

chief of

24

the Bureau of

Land.

Next

to Gary is

Hernando

Albarracin,

11

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Reporting

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---

1

manager

of the leaking

underground

storage

tank section.

2

Next

to

Hernando

is

Andy Frierdich,

project

manager

in

3

the state

sites unit,

and next

to Andy is Tracey

Hurley,

4

an environmental

toxicologist.

Next

to Tracey

is Dr. Tom

5

Hornshaw, manager

of

the toxicity

assessment

unit, and

6

last

but not least

is Joyce

Munie,

manager of the

7

remedial

project

management

section.

I will turn

it

over

8

to them

for summaries.

9

HEARING OFFICER

MCGILL:

Thank

you.

10

NR. KING:

My name’s Gary

King.

I

11

appreciate

the opportunity

to present testimony

here,

and

12

I’m not going

to go

into length on

all of

this,

but

I’ll

13

summarize some

of the

aspects of the

proposal.

Our

14

proposal

really

has two major

components.

One,

and I

15

think is the

-- been

the most significant

in terms

of

16

development,

has been the

addition of

the

indoor

17

inhalation

exposure

route, and

the second

part

is the

18

updating of

the

remediation

objectives.

19

This

is the

fourth

time we

have come

before

the

20

Board

with amendments

to

TACO since

the rule was

first

21

adopted

in 1997.

I testified

at that

-- those first

set

22

of hearings.

I didn’t

have any

gray

hair

at that

point.

23

I do now,

so —- and I’ve

been involved

with

each of

these

24

rules as we’ve

developed

them. The

commitment

we

made

12

Keefe

Reporting

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---

1

back in ‘96 was

that

we would

continue to

update

TACO

as

2

we

gathered

further information

relative

to

its

3

implementation

and relative

to the science

that

supported

4

it,

and that’s what

we’ve

continued

to do and that’s

what

5

we’re

doing with

the proceeding

that

we’re testifying

at

6

today.

7

We’re

fortunate

in terms

of the proposal

we’re

8

making in that

when we

first

set

TACO up over

a decade

9

ago,

we did

a -- we set

up a rule

that was very

10

comprehensive

but

yet was very

flexible

in its approach

11

to establishing

remediation

objectives.

The

system we

12

have,

as

I’ve

seen what

other

states

have around

the

13

country,

I think we

have the

best

system

of any state

in

14

the country,

and I think

because

of that

it’s allowed

us

15

to

come back

and add, make

changes

and build on

the

16

system

that we already

have

in place,

and that’s what

17

we’re doing

with our

proposal

that we

submitted

for

this

18

docket.

19

The

second

thing I

think

is

-- that’s

been real

20

important

relative

to TACO --

and

again,

it’s fairly

21

unique among

states

-- we -- the

Illinois

statute

set

up

22

initially

a

group

called

the Site

Remediation

Advisory

23

Committee,

and

we took our

involvement

with them

very

24

seriously

from

the start and

we’ve

continued

to take

that

13

Keefe

Reporting

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---

1

very seriously.

It’s really

-- That’s

a

group

of the

2

people

who

are regulated

by -- subject

to the regulations

3

of TACO,

and

they have over

the years

provided us

with

4

very

exceptional

professional

input on

the things

we’ve

5

proposed,

and that’s

also

true

of the proposal

that

we

6

submitted

in this proceeding.

We ended

up -- We started

7

with —— We

spent about

a year or

so

developing

a

8

proposal. We

sent it

out to the advisory

conunittee

in

9

May

of 2007 and

requested

that they review

it and

they --

10

and

that they transmit

it

to

all the people

that they

11

could,

you

know,

find

that would

be interested

in it,

and

12

they

did that, and

they

ended up coming

back to

us with,

13

oh,

I don’t know,

about 125,

130 questions

and issues

to

14

be

addressed,

and

so

we had

a

series

of meetings

with

15

them

and addressed

those

issues, and that

involvement

16

really

resulted in

some very

significant changes

to

our

17

proposal.

18

Just

to

highlight

a

couple of

those, one

of

them

19

was

relative

to

soil

gas corrective

action

objectives.

20

We have

that now in our

Tier

1

table, and

when we

21

initially

went out with

the

proposal,

we didn’t

have

22

those in there,

and one

of the comments

we

got

back from

23

the

advisory committee

is

that we really

needed

to

24

include

that, and

so we’ve

gone

ahead

and prepared

those

14

Keefe

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---

1

type

of objectives.

Another significant

comment we

2

received was relative to building

control technologies,

3

that we needed

to

have

a set of defined

types

of building

4

control technologies,

so we went back and included

those

5

as

well,

and then there’s a lot of

other smaller changes

6

that we

made,

so that was really -- I

think really a key

7

to

developing

this proposal, and Brian

Martin, who is the

8

current chair

of the Site Remediation

Advisory Committee,

9

was really instrumental

in working with

us with regards

10

to the development of

the proposal.

11

Let me talk

about -- a little bit about the

12

proposal itself. Again, we’re looking

at the -- on the

13

indoor inhalation

side, we phrased it that way

in the

14

rules. More typically in

a colloquial kind of way it’s

15

called

vapor intrusion, and so if

you see it in the press

16

and those kind of

things, that’s the way it’s

normally

17

referred to. We call it

indoor inhalation

just to --

18

because it fits better within the

context of our rules,

19

and

it also is

not quite -- it’s not

quite as

20

inflammatory

a term as vapor intrusion

is. And really,

21

this pathway is focused

on the movement of

contaminants

22

from soil and

groundwater through soil

gas and then into

23

building interiors,

where it can create

health risks

when

24

occupants

breathe that contaminated

air. We have

15

Keefe Reporting Company

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1

included

59

chemicals

of concern that

we have

identified

2

should be

subject to this

exposure

route. Those

are

3

listed in the

proposal.

4

Management

of

the

indoor inhalation

route

is

5

going

to be

similar

to what

we have in

the other pathways

6

of TACO.

Again,

as I said before,

it’s

really building

7

upon

it. We’ve got

a three—tiered

approach,

a Tier 1

8

with

a

table

of numbers

that can screen

compounds

out

or

9

not;

there’s

a set of Tier

2 equations

that

are

put in

10

the

rules; and then

finally

there’s Tier

3

that

kind

of

11

deals with

situations

that fall

outside of Tier

1

and

12

Tier

2.

We have

included

opportunities

for

pathway

13

exclusion,

as

we have

done

with the other

pathways,

and

14

we’ve included,

as I

was describing

before, building

15

control

technologies,

which

is somewhat

similar

to the

16

concept

of engineering

barriers

that we had

relative

to

17

the other

pathways.

18

Included

with my

testimony are

some

case studies,

19

and

that’s —— that

was from

seven different

sites,

and

20

the reason

why we

put those together,

it’s

not that

those

21

are the only

things

we’ve encountered,

but

we wanted

to

22

give kind of

a

flavor

of the fact that

this

issue

23

relative

to

indoor

inhalation

is something

that

needs

to

24

be

addressed

across

all of

the programs

that Illinois

EPA

16

Keefe

Reporting Company

---

1

looks

at when

they’re managing

a

cleanup site,

and it

2

really

shows

the kind

of variety of

those

types

of sites

3

and

shows the different

types that are

encountered

and

4

really

shows

the need for having

a consistent

methodology

5

for how

you address

indoor inhalation,

which is what

we

6

are proposing

in this

rule.

7

We

think this

is

going

to have three

important

8

benefits

for

the state and

for

the

residents of

the

9

state.

First

there’s going

to be --

this methodology

10

will create

a

better

way of protecting

Illinois

residents

11

from volatile

chemicals

migrating

into -- from

12

contaminated

soil and groundwater

into

their homes

or

13

places

of business.

Secondly,

site

owners

and other

14

remediation

applicants

will have

a more expanded

15

liability

relief

through issuance

of

a no further

16

remediation

letter

that covers

this

pathway.

And

then

17

finally, we

think that

this -- having

these

remediation

18

objectives will

facilitate

property

transactions.

19

In

March

of last

year, ASTM issued

a standard

20

practice

document for

assessment

of vapor

intrusion

into

21

structures relative

to

real

estate

transactions.

As

part

22

of

that practice

document,

they

instruct

users

to apply

23

state

generic

risk—based

concentrations

as

they’re

going

24

through

the process

of

using

the

ASTM standard.

We

think

17

KQefe

Reporting

Company

---

1

that

what

we’re doing

here

really

is part

of helping

2

assist

that

process

along.

3

Rather

than

go

through

the

details,

I think

the

4

details

of the

proposal

are

kind of

spelled

out.

We’ll

5

kind of

talk

about those

further

as

we discuss

some

of

6

the

questions

and

responses

to

them.

I

wanted

to talk

7

briefly

about

--

we submitted

a

couple

of

errata

with

8

our

—— subsequent

to our

proposal.

Errata

1 proposes

9

removing

a subsection, 742.1210(c)

(4). That

section

10

contains

a building

control

technology

requirement

for

a

11

barrier

made

of geologic

materials.

As I put

together

in

12

my testimony

after

-- we

initially

had that

included,

but

13

as we

went

through

the

process

of our

developing

our

14

proposal

and

developing

the

other

building

control

15

technologies,

we realized

that that

(c)

(4)

provision

16

really

didn’t

make sense

to

be included

based

on the

way

17

the

equations

worked,

so

we are

proposing

that

that

be

18

dropped.

The

second

errata

--

19

HEARING

OFFICER

MCGILL:

I’m

sorry.

Could

I

20

just

interrupt

you for

one

sec?

I want

to make

sure

I’m

21

looking

at the

right

errata

sheet.

You

said

that was

in

22

errata

sheet

number

1?

23

MR. RAO:

Yes.

24

MR.

KING:

Yes.

18

Keefe Reporting

Company

---

1

HEARING OFFICER

MCGILL:

Okay.

Thank

you.

2

MR.

KING:

Then in

errata number

2 we are

3

proposing

an addition to

Section

742.105(i),

and I’ll

4

just read it

to give it

-- give some

context

here. It

5

says,

“A no further

remediation

determination

issued

by

6

the

Agency under this

part

addresses

the potential

of

7

contaminants

present

in

soil,

soil

gas

and groundwater

to

8

reach human

receptors.

It does not

evaluate

the

safety

9

or protectiveness

of buildings

on or

off—site.”

10

What we’re

dealing

with in that

issue

is

the fact

11

that buildings

can

have volatile

chemicals

within

them,

12

okay, and the

fact that

a -- the groundwater

or the

soil

13

on

a

site

meets

the criteria

of the rules

doesn’t

mean

14

that any existing

building

necessarily

is

safe,

so

we

15

wanted to make

it clear

that what we’re

focusing

on here

16

is

not contamination

within

a building

but

contamination

17

that can

move from

contaminated

soil or

groundwater

into

18

a building, and,

you

know, that

-- and we --

the

19

importance

of that

was

identified

-- just recently

I

saw

20

a report

out of Maryland

where

they

actually had PCE

21

which from

a dry-cleaner

site

had gone

into the drywall

22

of

the building,

and then

as the

site

changed

usage,

the

23

PCE

was coming

off into

the air within

the structure.

24

So,

I mean, it’s

-- like

I said, it’s

important

to

19

Keefe

Reporting

Company

---

1

recognize that

we’re

not talking

about using

TACO

to

2

determine

whether the environment

within the building

has

3

been made safe

from things

within the

building. That’s

4

the

purpose of

errata

2.

5

The

final

thing I wanted

to

address as part

of

my

6

opening

testimony,

one of the

questions

that we received

7

from IERG

-- if you

want to

just

refer

to

it, it’s

8

question 8

—— and we

presented an

answer in our

prefiled

9

responses,

but

I had

a conversation

with

Mr. Martin

last

10

week,

who indicated

he thought

that that response

was

11

incomplete

and was too

generalized

and needed

to

have

a

12

little

more

specification,

so I prepared

a response

13

that’s

a little bit

different

from the

answer that

we

14

have in

the prefiled

question,

and I can

just

read

that

15

into

the record

or we can

submit that,

however

——

16

HEARING

OFFICER

MCGILL:

That would be

fine

17

if

you

want to just

go

ahead

and

read it.

18

MR. KING:

Okay.

19

HEARING

OFFICER

MCGILL:

Is this replacing

20

your prior

answer

or supplementing

it?

21

MR. KING:

Yes, this

would

be

replacing

the

22

prior answer.

Do

you

want me to read

the

question

as

23

well?

24

HEARING

OFFICER

MCGILL:

That might

be

20

Keefe

Reporting

Company

---

1

helpful

for

those who

haven’t read

the

question.

2

MR.

KING:

Okay. This

is question

8, and

3

the

question

is as follows:

“If there

is

a

well at the

4

property

boundary

and it

exceeds the remediation

5

objectives

for the

vapor

intrusion

groundwater

pathway,

6

will the

site still

qualify for

an NFR

letter? For

7

example,

the remediation

site might

not

have

any

8

buildings and

indoor

inhalation ROs

might not

apply,

but

9

presumably

the

groundwater

(and exceedance)

might

go

10

off-site.”

Okay.

And the

answer is

as

follows:

“Yes,

11

if the site

meets

the

soil

gas

remediation

objectives

at

12

the

property boundary

and

no other

pathways are

a

13

concern.

If soil

gas concentrations

exceed

remediation

14

objectives,

the

site

evaluator must

investigate

15

off-site.”

16

Just as an

aside,

that’s

similar

to what

we

had

17

before in

the answer.

Here’s

kind of the

difference

18

where

we broke

it

out into

the LUST

program and

site

19

remediation

program.

“Under

the LUST

program, if

20

contamination

is identified

off-site,

the site

evaluator

21

must

either

clean up the

contamination

or

negotiate

an

22

ELUC.”

That’s

capital

E, capital L,

capital

U, capital

23

C.

“Under the

site remediation

program,

the site

24

evaluator

need only

actively

remediate

the on-site

21

Keefe Reporting

Company

---

1

contamination

to qualify

for an NFR

letter.

The NFR

2

letter issued

by the

site remediation

program

will not,

3

however, release

the

site from any

off-site liability.

4

For both programs,

the

absence of any

buildings,

on-site

5

or

off—site,

does not matter

when performing

the

site

6

investigation.”

7

That

concludes

my presentation.

8

HEARING

OFFICER MCGILL:

Thank

you.

9

MS.

GEVING:

Ms. Hurley,

if

you’d

like

to

10

proceed

with your

summary,

please.

11

MS. HURLEY:

Okay.

My name is

Tracey

12

Hurley. My

testimony

concerns the

updates to

the

13

appendices,

errata

sheet

number 1 and errata

sheet

number

14

2.

We have

four primary

reasons

for the updates

to

the

15

appendices.

One is

we’ve

calculated

new remediation

16

objectives

for the

indoor

inhalation route,

and

we have

17

added

a new associated

table

with the Tier

1

remediation

18

objective,

and we have

also

added

a new table

with

the

19

Johnson

and Ettinger

equations,

and

we have added

a new

20

table

with the parameters

that

were

used in the Johnson

21

and Ettinger

equations

and the

default

values for these

22

parameters,

and in the

appendices

we have

also updated

23

the remediation

objectives

for the

other pathways,

and

24

this

was

due

to updates

in the toxicity

criteria

and

22

Keefe Reporting

Company

---

1

updates in the chemical

and physical parameter values,

2

and we

have also

added new chemicals from

the

proposed

3

groundwater standards.

4

Errata sheet 1 corrects

errors in the tables, and

5

errata sheet 2, we are proposing

a change in

6

Section 742.227, and this

is in response

to a

prefiled

7

question that we received

from IERG, question number

13.

8

When we were preparing

our response, we realized that

the

9

rules weren’t clear that Section 742.227

does not

apply

10

to sub—slab soil gas samples,

so we are adding language

11

to

clarify

this. Do you want me

to

read

the language?

12

HEARING

OFFICER MCGILL:

This is in

the

13

current errata sheet number 2?

14

MS. HURLEY:

Yes.

15

HEARING

OFFICER MCGILL:

Okay.

Sure,

if

16

you’d like to.

17

MS. HURLEY:

Okay. At

the end of the

18

opening paragraph

to Section 742.227, we

are adding the

19

following sentence:

“Proposals to use sub—slab

soil

gas

20

data

shall follow

Section 742.935(b).”

21

Also in errata

sheet

number

2, in Appendix

A,

22

Table L, we are changing

the Csat value for the

chemical

23

m-Xylene. We are

changing the value from 1.50E+00

to

24

1.50E+02, and this

is correcting a

typographical error

in

23

Keefe Reporting Company

---

1

the

value. In Appendix

B,

Table A, for the

chemical

2

1,4—Dichlorobenzene,

also known

as

p—Dichlorobenzene,

we

3

are changing

the ingestion

value

from

120

with a footnote

4

of “e”

to 5,500 with

a “b”

footnote,

and we are

changing

5

the outdoor

inhalation value

from

3.3 with an

“e”

6

footnote to 12,000

with

a “b” footnote,

and this was

in

7

my

prefiled testimony

on

errata 1. It

was actually

8

supposed

to be in

errata sheet

1 but was inadvertently

9

omitted

from the actual

filed

copy of errata

sheet 1.

10

And

the last

change on errata

2 is

in Appendix

C, Table

11

M.

For the symbol

Qsoil in

the column

entitled “Source,”

12

we are

deleting the references

to Part 742.505

(a) (2) (D)

13

and

Part

742.505(b)

(5),

and these

sections refer

to

an

14

old

draft version

of the TACO

rules and

these sections

no

15

longer

exist in the current

proposal.

And that

concludes

16

my

summary.

17

HEARING

OFFICER

MCGILL:

Thank you.

18

MS. GEVING:

Dr.

Hornshaw, if

you’d like

to

19

proceed.

20

DR. HORNSHAW:

Yes.

My

name is Tom

21

Hornshaw,

and I’m

the manager

of

the toxicity

assessment

22

unit.

In contrast

to the prior

hearings for

TACO,

my

23

testimony

is limited

to one small

portion of

errata

sheet

24

1

dealing

with the area

background

determination

for

24

Keefe Reporting

Company

---

1

groundwater,

and

the reason for

this is

that

a

problem

2

that

became apparent

in

a legal

case

that

we’re involved

3

with in

which the

responsible

party

is

using the current

4

prescriptive

approach

for

determining

area

background,

5

which is

Section 742.410(b)

(1),

which specifies

that

if

a

6

data set contains

ten samples,

is

normally

distributed

7

and

has no

more

than 15 percent

non—detect

values,

then

8

the responsible

party may

calculate an

upper

tolerance

9

limit from

that

data

set using

the procedures

listed

in

10

the prescriptive

approach.

11

A problem

is

--

that occurred

is with nitrate

12

determination

at this

legal

case in which

this

--

the

13

next sample that

will

complete

the ten data

sets will

14

result

in an upper

tolerance

limit for

nitrate in

the

15

range of

50 to 55 milligrams

per liter,

a concentration

16

that has been

shown

to

cause

adverse

effects

in

infants

17

in

the past. Realizing

this, we looked

at the 1999

18

Unified

Guidance, which

was

not available

at the time

of

19

the original

TACO hearing

back

in 1997. The

time

-- At

20

that

time

-- We were using

EPA

guidance

at

that

time,

21

which

gave the way

of doing

the

prescriptive

approach

22

which is

now

outdated.

The Unified

Guidance

specifies

23

many different

statistical

procedures

to be used, which

24

the use of which

depends

on

the

characteristics

of the

25

Keefe Reporting

Company

---

1

individual

data

set.

It

is

worth

noting

that

upper

2

tolerance

limit

is not

among any

of the

statistical

3

procedures

specified

in

the

new

guidance.

Therefore,

we

4

are

recommending

to delete

the

prescriptive

approach

in

5

Section

410(b)

(1)

and replace

it

with

a

language

that

6

specifies

statistics

appropriate

to

the data

set

be used

7

after

approval

by the

Agency.

And

that concludes

my

8

small

portion

of

this

proceeding.

9

HEARING

OFFICER

MCGILL:

Just a

quick

10

follow-up.

You

referred

to

the

Unified

Guidance.

Could

11

you

just

elaborate

on

-- describe

that?

What

is that

12

referring

to?

13

DR. HORNSHAW:

It’s

-- The

actual

title is

14

“Statistical

Analysis

of

Groundwater

Monitoring

Data at

15

RCRA

Facilities-Unified

Guidance,”

USEPA,

Office

of

Solid

16

Waste,

1999c,

which

is

in progress,

and

I’ve been

told

17

that

it

has not

been

finalized

as

of this

point.

18

HEARING

OFFICER

MCGILL:

Thank

you.

19

MS. GEVING:

Are you

going

to need

a copy

of

20

that

document?

21

HEARING

OFFICER

MCGILL:

No.

Thank you.

22

MS.

GEVING:

Well,

at this

time,

that

23

concludes

the

Agency’s

summaries

until

Dr. Salhotra

24

arrives,

so

if you

want to

open

it

up

for

follow—up

26

Keefe

Reporting

Company

---

1

questions.

2

HEARING

OFFICER

MCGILL:

Why don’t

we

go off

3

the

record

for a

moment.

4

(Discussion

held off

the

record.)

5

HEARING

OFFICER

MCGILL:

At

this point

in

6

time

we’re

going to

open

it

up for

questions

of

the

7

Agency’s

witnesses.

If you

are

a

member

of

the

public

8

and

have

a

question,

I

would

ask that

you

signal

me,

and

9

after

I

acknowledge

you,

if

you

would

state

your

name

10

and,

if applicable,

your title

and

any organization

11

you’re

representing

here

today.

The

Board

does have

some

12

questions,

but

I understand

that

the

Illinois

13

Environmental

Regulatory

Group

also

has some

questions,

14

so we’re

going

to let

IERG

lead

with

its questions.

15

MR.

DAVIS:

Thank

you.

My

name’s

Alec

16

Davis.

I’m

here on

behalf

of the

Illinois

Environmental

17

Regulatory

Group,

or

IERG.

I want

to

thank

you for

the

18

opportunity

to

participate.

With me

today

is

Brian

19

Martin,

who’s

an

IERG

member

and

is also,

as

Gary King

20

mentioned,

the

chairman

of the

Site

Remediation

Advisory

21

Committee.

Also

with

me

is Deirdre

Hirner

-- she’s

22

executive

director

of IERG

-- and

Monica

Rios

with

the

23

law

firm of

Hodge

Dwyer Zeman,

who’s

here

on

behalf

of

24

IERG

as

well.

27

Keefe

Reporting

Company

---

1

I’m

just

going

to go through, I think, our

2

questions in

order as they’re presented in the

3

follow-ups. I just wanted to develop

a

few of our

4

questions a little more fully

so that we really have an

5

understanding of what

we’re facing here, and I will begin

6

with questions 2

and 3. That will be on pages 6 and 7 of

7

the prefiled answer

document.

8

HEARING OFFICER

MCGILL: And just for the

9

record, that is Hearing -- now Hearing

Exhibit 8?

10

MR. DAVIS:

Okay.

11

HEARING

OFFICER MCGILL:

You’re referring

to

12

the prefiled questions of IERG?

13

MR. DAVIS: No, this was

the prefiled

14

answers.

15

HEARING OFFICER MCGILL:

You’re referring

to

16

the responses?

17

MR. DAVIS:

Right.

18

HEARING

OFFICER MCGILL:

The Agency

19

responses?

20

MR. DAVIS: The Agency

responses contain

the

21

questions

as well.

22

HEARING OFFICER MCGILL:

Okay.

So that’s

23

Exhibit 9, I believe, Hearing Exhibit

9. Thank you.

24

MR. DAVIS:

In

questions 2 and 3, IERG

asked

28

Keefe Reporting

Company

---

1

the Agency

to provide some information

regarding the

2

contents of NFR letters

-- that would be no further

3

remediation letters

—— in various circumstances,

and I

4

wanted

to

ask

a few questions

to

kind of broaden

the

5

circumstances

a little bit.

Our questions focused mostly

6

on

things like the location of

buildings, which your

7

answers indicated

did not

—— were not taken into

account.

8

However, I

want to ask whether your

response ——

9

specifically looking

at 2, your response

to 2b and

c on

10

page 7, I wanted

to

know,

would your answer

change if

11

there was not contamination

underlying an existing

12

building

on a portion of

a

site?

13

HEARING

OFFICER MCGILL: Would

it be all

14

right if you just

go

ahead

and restate the

question?

15

That might

help others who haven’t

read this already

and

16

also refresh our memory.

17

MR. DAVIS:

Question 2 asks,

“Can the Agency

18

provide draft language that

will be included in

no

19

further

remediation letter under

the following

20

circumstances,”

and “b” and

“c”

is

where there’s no

21

building on-site

and “c” is where there’s

no building

on

22

the site when an

NFR letter is issued

but there’s

a

23

likelihood of

construction of

a building on a known

24

location

in the future or an unknown

location,

and their

29

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response was

that “b

and

c are

the same purposes

—— are

2

the

same for

purposes of

an NFR letter.

Illinois

EPA

3

intends

for the

entire

site

to

be safe for current

and

4

future

building

occupants

regardless

of where those

5

buildings

are located.”

And

so my question

is

whether

or

6

not the

location

of contaminants

relative

to a building

7

location makes

a difference

in

the response.

Would

an

8

NFR letter

be appropriate

given

a building location

that

9

is

not overlying

the contaminated

portion of the

site?

10

MR. KING:

I mean,

there

still would

be

11

institutional

control

on

the property.

I guess I’m

a

12

little

-- Maybe

if you phrased

the

question

as a

13

hypothetical.

14

MR. DAVIS:

I

can

do that,

certainly. If

15

you

had a site

where, you

know,

you

had

——

we’ll just

16

say,

you know, the

north

half

of

the

site was not

17

contaminated,

the

south half of

the

site

was

18

contaminated,

would an NFR

letter

-- could

an NFR letter

19

be issued

that would,

you know,

require

an

institutional

20

control

over the

south half and,

you know,

either

allow

21

for

buildings

or if

there was an

existing

building

on

the

22

north

half, would

that

be permissible?

23

MR.

KING:

Yes, I

think

that’s

correct.

24

MR.

DAVIS: Okay.

I just

wanted

to clarify

30

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that.

2

MR.

KING:

Just

as long

as

it --

again,

3

it’s

-- what’s

critical

to that

hypothetical

is the

area

4

of

contamination

be identified.

5

MR. DAVIS:

Okay.

And

just

generally,

on

6

NFR

letters

that

are

going

to

be

issued

under

this

new

7

regime

with inhalation

exposure

route,

will

those

letters

8

when

they’re

issued

explicitly

refer

to

the

fact that

the

9

indoor

inhalation

route

has been

evaluated

or

some

other

10

instance

just

to set

them apart

from previously

issued

no

11

further

remediation

letters?

12

MR.

KING:

At this

point

we

weren’t

planning

13

on

making

that kind

of separation.

I mean,

it

would

14

just

--

it would

be

--

the way

we

have

things

set

up is

15

once

the

rules

go

into effect,

a site

has

to

end

up

16

addressing

all of

the pathways,

including

indoor

17

inhalation,

so

it’s

just to

be --

presumed

to be

the

18

case.

19

MR. DAVIS:

Okay.

Moving

on,

then,

from

20

that

--

21

BOARD MEMBER

JOHNSON:

Wait a

second,

Alec.

22

I mean,

if

one

of your

goals

is to facilitate

property

23

transactions,

don’t

you

think the

addition

of

language

24

addressing

that specifically

in

an

NFR

letter

would

31

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benefit that?

2

MR. KING:

You

know,

we have put

in language

3

at

the request

of reinediation

applicants

that wanted

4

specific language

in

there. I think

we could

evaluate

5

that.

We

just —— We weren’t

going

to set up a procedure

6

where

we were mandating

that

that would

apply because

we

7

don’t do

that now

and there’s

multiple

pathways, so

8

again, we’re

just

trying to be somewhat

similar

to the

9

way we’ve been,

but if

somebody wants

to

have

that

10

referenced,

I think

we

could

accommodate

that.

11

MR. DAVIS:

Thank

you. All right.

For

12

question 7,

our -- IERG’s

question 7

is,

“Will

the Agency

13

require

actual

data

or

allow

modeling of

groundwater

to

14

evaluate

the vapor

intrusion

pathway to an

off—site

15

building?”

My question,

I

guess,

which

is relative

to

16

this

but isn’t specifically

drafted is,

does the

indoor

17

inhalation

pathway

require

modeling of the

migration

of

18

contaminated

soil or

groundwater?

19

MR.

KING:

When

you

say -- Are you

just

20

looking

at the

J&E model or

are

you

looking

at R26

or --

21

because

those are

two separate

models,

so I’m a little

22

confused by

the

question.

23

MR. DAVIS:

Well, I

-- your response

24

referred

to

R26,

but I think

if

you

could describe

both,

32

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that would

be good, just to enhance our understanding

and

2

just

what

it is that is actually required,

what modeling

3

is actually required

by

indoor inhalation.

4

MR. KING: Well,

you don’t -- I mean, if

you

5

found out the extent of

contamination —— let’s

just say

6

we’re talking

about soil -- you found the extent of

7

contamination and

those are —— and that was below

—— all

8

below the Tier 1 numbers,

then there wouldn’t

be

any

9

modeling required relative

to the indoor inhalation

10

pathway. If it was above those

screening numbers, then

11

there

would

be a choice of using the Tier

2 equations

12

with site-specific

inputs or Tier 3 or actually

13

monitoring what the soil

gas

is.

If the soil gas

14

demonstrates

that the Tier 1 numbers

are complied with,

15

again,

you

wouldn’t have

to do any —— there would

be no

16

modeling required.

17

MR. DAVIS: And would

your response be the

18

same

for groundwater?

19

MR. KING:

Yes.

20

MR. DAVIS: Thank

you. And then actually,

21

my last point that I wanted

to make is just going

back to

22

your testimony. This isn’t

based on prefiled questions.

23

On page 4 of your testimony

you describe averaging,

and

24

that was in the averaging

of sample results for

soil gas

33

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samples, if I

recall

correctly,

and I

just

wanted

to

ask

2

whether the

Agency remains

willing

to

evaluate

an

3

averaging methodology

if IERG or SRAC

was to

provide

you

4

with

some language

that

was felt

to address the

issues

5

that

you

outlined

in your

testimony

here.

6

MR.

KING: Yes,

as long as

it’s

done

soon

7

enough before

we’re

done

with

the whole process

so

8

it’s --

9

MR.

DAVIS:

No, I realize

that

-- the timing

10

constraints.

I

just --

11

MR. KING:

Yeah.

Well, we’re

definitely

--

12

we’re

open

to evaluate an

averaging

approach

or, as

13

outlined

in my

testimony, kind

of

the

issues that

we

14

think are

appropriate

to think

about in

developing

an

15

averaging

approach.

16

MR. DAVIS:

All

right.

Thank

you.

That’s

17

all I’ve

got.

18

HEARING OFFICER

MCGILL:

Thank

you.

At

this

19

point

I wanted

to see if anyone

else

in the

audience

has

20

any questions

for

the Agency’s

witnesses.

Sir,

again,

if

21

you could

just state

your name and

any

organization

22

you’re representing.

23

MR.

REOTT:

Raymond

Reott.

I wonder

if I

24

could

pull my

chair

up

so you don’t

have

to turn.

34

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HEARING

OFFICER

MCGILL:

Sure.

2

MR.

REOTT:

It’s

awkward

to

speak

to the

3

back

of

people’s

heads.

A

couple

of questions

for

the

4

panel.

As

I understand

it,

like

any other

pathway,

this

5

new

pathway

would

apply

to

every piece

of

real estate

in

6

Illinois

regardless

of

whether

it currently

has a

7

structure

on it.

Is that

right?

8

MR.

KING:

That’s

correct,

for -—

as long

as

9

they’re

going

through

our

programs,

we’re

addressing

10

them.

11

MR. REOTT:

All right.

There

were

--

seemed

12

to be a

couple

assumptions

that

need

to

be made

to make

13

them

all work

in Illinois.

I know

that at

least

on some

14

of those,

like

temperature,

you made

an Illinois-specific

15

adjustment

to the

Johnson

and Ettinger

model to

reflect

16

Illinois’

condition.

Did

you make

any other

adjustments

17

to

reflect

Illinois-specific

factors?

18

MR.

KING:

That’s

a good

question,

and

I

19

didn’t

spend

any

time in

my

testimony

talking

about

it.

20

One

of

the complexities

to

developing

this

rule was

21

because

there are

various

things

that

needed

to be

22

thought

through

to

develop

remediation

objectives

that

23

were

different

than

what

we had

for

the

other pathways.

24

One

of

them,

for instance,

is building

parameters.

We

35

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had

to make a decision

on

what size

building is

going

to

2

be assumed

for

purposes of

developing

the Tier I

numbers.

3

You have

to pick

a building

size. I mean,

that’s

just

4

the

way it works,

and

we did,

and that’s

reflected

in

the

5

appendices

in terms

of the --

it’s in

--

I’ll tell

you

6

where it’s

at. It’s

Appendix

C,

Table

M,

which is

the

7

parameters.

So we

had

to develop

-— reach some

8

conclusions

as

to

factors

such

as

the

building

size.

We

9

used

an Illinois—specific

temperature,

as you noted,

as

10

opposed

to using the

number

that

was

used

by USEPA.

They

11

used

a 25 degree

C number,

and

we

thought that

was way

12

too

conservative for

the circumstances

in Illinois.

So,

13

I mean, it

really --

if

you look

through

the -- through

14

that

Table M, there’s

a

few

items

that we had

to reach

15

conclusions

on, and

I

think

those are

pretty well

16

identified.

17

MR.

REOTT:

On

the building

size

-- I don’t

18

know

if I saw over

there ——

what did

you

assume

on the

19

building

size?

20

MR. KING:

The building

size

for

residential

21

was

—— it was

assumed

to be 10 meters

by 10 meters

as

22

a

—— you

know,

as

a residential

size,

so I’m trying

to ——

23

it’s

about 1,000 square

feet,

I guess,

if I’m thinking

24

that through

properly,

so you

can

see what

kind

of

36

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building

size we’re talking

about as far as

a

residence.

2

MR. REOTT:

And in the commercial/industrial

3

setting?

4

MR. KING: We

doubled the length of the

5

building, so it became 20 meters

by 20 meters. And

6

again, you know, we could have

picked a smaller size

or a

7

bigger size, but we had

to pick something that

we

felt

8

was going to be reasonable

as a suitably conservative

9

approach.

10

MR. REOTT:

You also, it

appears, made an

11

assumption

about

the geologic

material that

would exist

12

between the contaminated media

and the building,

and I

13

think, if

I remember correctly,

you chose sand as

your

14

default value; is that

correct?

15

MR. KING: That’s

correct.

16

MR. REOTT: Did anyone

consult with the

17

state geologist

about whether that was

an appropriate,

18

you know, assumption given

Illinois’ thicker

geology?

19

MR. KING: Well,

that -- one of the

things

20

that we

tried to do as we were

developing the parameters

21

to use

with

the J&E model is we

always went back

and

22

looked

at what did we do under TACO

as it always

stood,

23

okay,

and

we used sand as the

default condition

under the

24

existing TACO rule,

so

that’s

what we used here.

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MR.

REOTT:

This is more

of a science

2

question,

so

maybe it’s not

you, but

do any of the

3

science

people

—— maybe

it’s a question

for your

later

4

witness.

Do

you

think

that

that

assumption

would

affect

5

the parameters

a

little

differently

in

a vapor context

as

6

opposed to

the

original

TACO context?

7

MR.

KING:

Well, it’s

-- it definitely

8

affects

the values

that

are calculated,

but again,

we

9

were

—— we wanted

to have a

—— again,

as I said, build

on

10

what we

had before in

TACO

and

have something

that

11

continues

to

be a reasonably

conservative

approach.

12

MR.

REOTT: What

about

the depth

to

the

13

contaminated

media?

What did

you

assume

there?

14

MR. KING:

I think

--

The parameter

--

15

again,

this is

still in that

Table

M

-- is Dsource,

16

distance

from the

ground surface

to top

of contamination,

17

and for soil

it’s 152 centimeters,

which

how

many feet

is

18

that?

19

MR.

FRIEROICH: Almost

five

feet.

20

MR.

KING:

Which is

about five

feet. You

21

know, it’s

just -- just

got to work

with the

metric

22

system,

so, I mean,

it’s

just -- it’s

all still

too old,

23

can’t

-- it’s hard

to visualize

the

metric stuff.

And

24

then the

groundwater

contamination,

it’s

304.8

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centimeters,

which is

about ten feet.

2

MR. REOTT:

Are those factors

that can be

3

varied in

a

Tier

2 type analysis --

4

MR. KING: Well,

they --

5

MR. REOTT:

-- to show that -- in your

6

site-specific

conditions

that that contaminant

be used

7

different?

8

MR. KING: They

could, but they’re

the

9

least -- they’re

-- they have very

little sensitivity

in

10

the model,

because the model’s

assuming an infinite

11

source, so it —— whether

it’s deeper or not

as deep,

you

12

know, it

doesn’t vary that,

doesn’t have that

much of an

13

impact.

14

MR. REOTT:

If you end

up

in

a Tier 2

15

analysis,

what factors did

you find had the most

16

sensitivity?

17

MR. KING:

The biggest

one is -- let me

find

18

it here

-- is theta w, which

is described

as water-filled

19

soil porosity. That

has the

biggest impact, and

then

the

20

next one is FOC,

which is --

21

MR. REOTT:

Fraction

organic?

22

MR. KING:

-- fraction

organic carbon

23

content.

24

MR.

REOTT: So that

would basically

be

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challenging whether it’s really

sand or not.

2

MR. KING:

Yes.

3

MR. REOTT:

Okay. Was any attempt made

4

based upon those seven

case studies that you had talked

5

about

in your testimony

to try to correlate actual indoor

6

air quality readings in

the field with the predicted

7

values under the Johnson

and Ettinger model?

8

MR. KING:

The

simple answer is no.

9

MR. REOTT: It

seems that one of the -- or

10

two of the primary impacted populations

by

this

rule

11

change is going to be the LUST fund and the City

of

12

Chicago, the LUST fund

because of the number of sites

13

that could potentially be affected. Has

anybody done

a

14

financial calculation to see the impact of this on

the

15

LUST fund?

16

MR. KING: No, we have

not done that.

I

17

mean, part of that too again, what we’re seeing

as far

as

18

remediation

costs is that the petroleum contaminants

are

19

not

as

significant of

a

problem

as the chlorinated

20

compounds, so how much actual impact

there would be

21

relative to tank sites in terms of

actual remediation is

22

not quite clear at this point.

23

MR. REOTT: Did the

Agency do any tables

24

that directly compare for the

59 chemicals the

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preexisting

TACO pathway

values

and the proposed

values?

2

Because

you have

separate tables

now

in

the way the

3

rule’s written.

Just

to keep

someone from

having to

4

reconstruct

this, did

you guys

internally

do

anything

in

5

a more ——

in an easy—to—compare

formula

show the

new

6

projected values

for indoor

inhalation

versus

the

7

existing

TACO values

for

the same

59

chemicals?

8

MR. KING:

Yeah,

that was one

of the

things

9

we kind

of

struggled

with.

We

wanted

to

put

it

all in

10

the

same

set

of

tables just

for

making

that kind

of

11

comparison

you’re

talking about

easier

to do, but

it

12

just, you

know ——

13

MR.

REOTT:

Print

ends

up

so

small

you can’t

14

read

it.

15

MR. KING:

Yeah.

You know,

you can’t

-- and

16

you get to

a point —— I

mean,

we’ve

got footnotes

on

17

those

tables, and

those footnotes

are

important, and

all

18

of a sudden

you take

them apart

and

you

can’t even

—— you

19

can’t

read

what the footnote

is,

so we

chose

to use

a

20

separate

table,

and we did

do some comparison,

and in

21

some

situations

they’ re more

conservative

than what’

s

22

existing now

and then

in other

situations

they’re

not.

23

Where

the

groundwater

ingestion

pathway

that’s still

--

24

that’s

in

the older

set of rules

is

still

-- has not

been

41

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excluded

or that’s not

been excluded,

that

is generally

2

still going

to

be

the driving

pathway.

3

MR. REOTT:

The most

restrictive

criteria.

4

MR.

KING:

Right, the

most restrictive

5

criteria. Where

that

has been excluded,

okay,

then

a

lot

6

of

the time the

indoor

inhalation

pathway will become

the

7

most

restrictive for

volatile

chemicals.

8

MR.

REOTT:

So for

volatile

chemicals

at

9

sites in the

city of Chicago

or other

communities

with

10

groundwater

ordinances,

the

indoor inhalation

pathway

11

will turn

out to

be the most

restrictive

pathway,

then.

12

MR. KING:

I think that’s

--

that is going

13

to

turn

out to

be true.

14

MR. REOTT:

So particularly

for those

15

populations,

you know,

people with

sites

in

those kind

of

16

communities,

Chicago and

other communities

with

17

groundwater

ordinances,

then

there’ s something

18

substantial

at

stake

here,

you

know,

in this

change.

19

This

is

not a

minor change

to the rule.

It’s

a pretty

20

big change.

21

MR. KING:

No,

it is a significant

change,

22

and that

was one of the

things

we earlier

identified

for

23

people,

is

that the groundwater

ordinance

institutional

24

control

would

not apply

for this pathway,

and

so

there --

42

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Reporting

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---

1

it

is something that additionally will be

-- will need

to

2

be

addressed.

3

MR. REOTT: There’s

a

couple of points in

4

the testimony where

different witnesses describe

5

different issues with

trying

to measure

indoor air

6

quality and use indoor air testing to evaluate

compliance

7

with an indoor inhalation pathway and point out

obvious

8

problems with indoor air testing. It seemed as

if most

9

of those problems

resulted in false positives in a sense

10

that, you

know, if the person in the home is using some

11

volatile chemical, it will result in a positive

in

the

12

sense that it will show that

chemical

in the

air in the

13

house or

building

but

it didn’t necessarily come from the

14

soil or groundwater. If you have indoor air results that

15

are negative, so in

other words they

show

the chemicals

16

are not

present, why wouldn’t those still trump the other

17

predicted

modeling sources for what the indoor air

18

quality would be?

19

MR. KING: Under Tier

3 that

would

be

an

20

option, but

it’s still

-- you’d

still have

to

address

the

21

source

of the contamination. I mean, it —— you could

go

22

into a

building and find negative values,

but,

you know,

23

where is

that building in the context

of

the

24

contamination? There

has

to be a

correspondence

between

43

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Reporting

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---

1

where

the contaminants

are

and

where

the

building’s

at.

2

It

would

be

-- That

would

be

a potential

way

to approach

3

things,

but

again,

as

you

were

commenting,

the

danger

of

4

false

positives

and

the

intrusive

nature

of

that kind

of

5

sampling,

particularly

when

you’re

talking

about

6

residences,

we

just

thought

it was

a more

sound

approach

7

to

look

at the

contamination

at the

site

without

having

8

that

-- you

know,

the

indoor

aspect

as a

-- as its

own

9 tier.

10

MR. REOTT:

So

at

least

in a

Tier

3 type

11

evaluation,

the

Agency

would

consider

that

approach?

12

MR.

KING:

Yeah,

we could

consider

it. I

13

wouldn’t

advise

it,

I

mean,

just

because

of

the

—-

I

14

think

that

would

be

kind of

a

last

resort

kind

of an

15

approach

given

the other

flexibilities

we’ve

included

in

16

the

rules.

17

MR.

REOTT:

That’s

it. Thank

you.

18

HEARING

OFFICER

MCGILL:

Mr.

Reott,

if

19

you

——

are

you just

here

on

your own

behalf

or

20

representing

an organization

today?

21

MR. REOTT:

I

--

22

HEARING

OFFICER

MCGILL:

On

your

own

behalf

23

is fine.

I just

--

24

MR.

REOTT:

I’m

here

-- I testified

three

44

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Reporting

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---

1

times

in

the

original

TACO

rulemaking

--

2

HEARING

OFFICER

MCGILL:

Yeah,

we

recall.

3

MR.

REOTT:

--

for

those

of

you

who were

4

around

for

that,

was one

of

the

two

people

who

opposed

5

the

original

Agency

proposal

in

that

rulemaking,

which

6

the

Board

substantially

changed,

and

I

just

think

that

--

7

HEARING

OFFICER

MCGILL:

And before

you

8

proceed,

I

——

we

certainly

would

be

happy

to

swear

you

in

9

if

you would

like

to

provide

some

testimony.

10

MR.

REOTT:

No.

I

may

well

do

that

in

11

March.

12

HEARING

OFFICER

MCGILL:

Okay.

Fair

enough.

13

MR.

REOTT:

Today

was more

informational

14

gathering

about

the

nature

of

the

Agency’s

proposal,

try

15

to

flush

out

a

couple

of

parameters.

This

is

really

16

important.

This

is

going

to

affect

a

lot

of

sites,

and,

17

you

know,

I think

I’ll

probably

elaborate

on

that

in

18

March,

but,

you

know,

this

needs

to

be

looked

at

very

19

carefully.

20

HEARING

OFFICER

MCGILL:

Thank

you.

We look

21

forward

to

hearing

from

you.

22

MR.

KING:

Could

we

make

one

other

addition?

23

Dr.

Hornshaw

wanted

to

make

one

other

addition.

24

HEARING

OFFICER

MCGILL:

Sure.

We’re

still

45

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Reporting

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1

on

the record.

Go ahead.

2

DR.

HORNSHAW:

Just

wanted

to point

out

that

3

in

addition

to the

potential

problem

of

false

positives,

4

there’s

also

a

problem

——

a potential

problem

for

false

5

negatives.

You

can pump

up the

ventilation,

open

the

6

window,

etc.,

to help

defeat

the

actual

results

that

7

might

be

truly

there.

8

HEARING

OFFICER

MCGILL:

Thank

you.

I’ll

9

ask

again

if

anyone

in

the audience

has any

questions

for

10

the

Agency’s

witnesses.

Seeing

none,

why don’t

we

go off

11

the

record

for

a

moment.

12

(Discussion

held

off the

record.)

13

HEARING

OFFICER

MCGILL:

The Board

--

Seeing

14

at

this

point

there

were

no other

questions

from

the

15

audience,

the Board

was

going

to pose

its

questions,

16

after

which

if Dr.

Salhotra

hasn’t

shown up

yet,

we’ll

17

probably

break

for

lunch.

18

MS. GEVING:

Okay.

19

MR. RAO:

We’ll

just

go

section

by section

20

and

start

with

the

definitions.

Mr.

King, in

the

21

definition

of

a

building,

could

you please

explain

the

22

rationale

for

choosing

six

months

as

a

time frame

for

23

minimum

occupancy?

24

MR. KING:

Well,

we

were

——

we

knew

we had

46

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Reporting

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1

to

have

something

longer

than

a

day,

you

know,

so

it

--

2

we

just

-—

this

is

one

of

those

discussions

we

had

with

3

the

Site

Remediation

Advisory

Committee

in

terms

of

4

trying

to

come

up

with

something

that

would

be,

you

know,

5

a

reasonable

time

frame

that

would

indicate

that

there

6

was

a

permanency

to

the

structure,

you

know,

so

in

7

essence,

if

you

had

a

——

you

know,

Larry

Estep,

who

is

8

with

--

on

behalf

of

Site

Remediation

Advisory

Committee,

9

he

wanted

to

make

sure

that

his

chili

tents

that

he

set

10

up

for

chili

cook—offs

weren’t

going

to

be

considered

11

buildings,

you

know,

and

so

we

kind

of

had

to

make

sure

12

that

tent

structures

set

up

for

a

short

period

of

time

13

were

not

buildings,

so

it

was

kind

of

like

--

had

to

14

reach

the

conclusion

as

to

what

represented

a

permanent

15

structure,

and

so

we

just

——

we

came

up

with

six

months

16

as

that

kind

of

designation.

17

MR.

RAO:

So

if

somebody

has

a

summer

rental

18

and

occupies

it

for

three

months,

that

--

19

MR.

KING:

Well,

if

the

building

--

excuse

20

me.

Yeah,

if

it’s

intended

for

or

supports

any

human

21

occupancy

for

more

than

six

consecutive

months,

I

guess

22

we’d

be

in

a

close

call

there,

because

that’s

something

23

that’s

intended

for

--

you

know,

could

be

intended

for

24

occupancy

for

more

than

six

months.

I

mean,

it’s

——

47

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Reporting

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1

w&re kind of trying

to look at the building itself.

2

NR.

RAO:

Okay.

3

HEARING OFFICER

MCGILL:

I had a question.

4

The definition of residential

property is not

-- the

5

Agency proposal

does not seek

to

amend it,

but I’ve

got a

6

couple questions on that definition

and whether or not

it

7

needs to be amended to take into

account the new indoor

8

inhalation pathway. I think

because you included the

9

definition

section, most of

you

probably

have the

10

definition in

front of you, but I’m going

to

read

it

just

11

quickly from Section 742.200.

Residential property

is

12

defined as any real property

that is used for habitation

13

by

individuals or where children

have the opportunity

for

14

exposure

to contaminants through soil ingestion

or

15

inhalation

at educational facilities, health

care

16

facilities, child care facilities

or outdoor

recreational

17

areas, and my question is, should

the definition of

18

residential property be amended

so that the Tier 1

19

residential

indoor inhalation remediation

objectives

20

clearly would

apply to, for example, where

children have

21

the

opportunity for

exposure

to

contaminants

through

22

indoor inhalation

at educational

facilities, health

care

23

facilities,

child care facilities

or conceivably indoor

24

recreational areas?

48

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1

MR.

KING:

So

you’re

looking

at

--

it

says

2

soil

ingestion

or

inhalation,

and

then

you’re

looking

at

3

how

those

modifiers

are

working

there.

4

HEARING

OFFICER

MCGILL:

Well,

right.

5

There’s

the

--

well,

several

things.

There’s

--

And

you

6

know

the

history

of

this

provision

probably

as

well

as

7

anyone

back

in ‘97.

In

R97-11

and

R97-12

there

was

a

lot

8

of

attention

paid

to

this

language,

so,

yeah,

I

think

9

there’s

a

question

of whether

soil

ingestion

or

10

inhalation

would

cover

indoor

volatilization

and

then

11

also

the

reference

to

outdoor

recreational

areas.

At

the

12

time

of

the

original

TACO

rulemaking,

indoor

recreational

13

areas

were

specifically

mentioned

in

the

Board

opinion

as

14

not

being

included,

so

I

just

was

wondering

if

you

guys

15

revisited

that

definition

in

light

of

this

proposal.

16

MR.

KING:

No,

we did

not,

but

I

--

in

17

looking

at

the

definition

in the

context of

the

questions

18

you’ve

raised,

I

think

we

certainly

will

go

back

and

look

19

at

this

and

consider

submitting

an

additional

errata

on

20

this

point

to

clarify

it.

21

HEARING

OFFICER

MCGILL:

Thank

you.

And

22

if

--

while

you’re

looking

at

that,

if

you

could

also

--

23

I’m

sure

you’ll

be

looking

at

R97-11

and

12,

where

there

24

was

a

lot

of

discussion

and

Agency-proposed

language.

At

49

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Reporting

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---

1

that

time

the

--

there

was

an

Agency

proposal

and

the

2

Board

agreed

to

reference

children

specifically

as

3

opposed

to

persons,

and

there

was

a

rationale

for

that,

I

4

think,

at

that

time,

and

I’m

just

wondering

if

--

should

5

that

still

be

limited

to

children

or

should

it

be

more

6

broadly

persons?

7

MR.

KING:

We’ll

look

at

both

the

children

8

concept

there

and

then

the

inhalation.

9

HEARING

OFFICER

MCGILL:

Yeah,

with

--

I’m

10

not

trying

to

revisit

decided

issues

or

things

that

are

11

already

reflected

here,

but

in

terms

of

the

indoor

12

inhalation

pathway

in

particular,

since

we’re

adding

it,

13

and

residential

property

definition

is

such

a

14

touchstone

——

15

MR.

KING:

Right.

16

HEARING

OFFICER

MCGILL:

--

for

this

and

for

17

Part

740,

I’d

appreciate

you

guys

taking

a

close

look

at

18

that

and

getting

back

to

us.

19

MR.

KING:

Okay.

We

will.

20

HEARING

OFFICER

MCGILL:

Thank

you.

21

MR.

RAO:

Mr.

King,

the

definition

of

soil

22

gas,

I

think

the

proposed

definition

states

that

it

means

23

air

existing

in

void

spaces

in

the

soil

between

the

24

groundwater

table

and

the

ground

surface.

Groundwater

50

Keefe

Reporting

Company

---

1

table

is

a

well

understood,

you

know,

term

in

the

field.

2

My

question

was,

should

we

put

that

definition

of

3

groundwater

table

in

the

rule

just

to

make

sure

anyone

4

reading the

rule

will

clearly

know

what

it

means?

5

MR.

KING:

You

know,

I

--

I’m

looking

--

I’m

6

getting

these

looks

on

this.

We

had

--

I

--

We

had

7

considered

putting

that

in

there.

We

found

that

once

we

8

started

trying

to look

at

it

in

different

programs and

9

site-by-site

issues

that

it

was

going

to

be

really

10

difficult

to

have

a

single

definition,

but

we

can

go

back

11

and

think

about

that

again.

12

MR.

RAO:

Yeah,

I

thought

that

may

be

one

of

13

the

reasons

for

not

putting

it

in,

but

sometimes

we

get

14

these

requests

from

JCAR,

so

I

was

thinking

it

had

better

15

come

from

you

guys

than

we

coming

up

with

a

definition

16

really

late

in the

rulemaking,

so

I’d

appreciate

it

if

17

you

take

a look

at

that.

18

MR.

KING:

Okay.

Thank

you.

19

MS.

LIU:

Miss

Hurley,

hi.

Good

morning.

20

On

page

7

of

your

prefiled

testimony you

explained

that

a

21

volatile

chemical

is

defined

in

a new

way,

differently

22

from

a

VOC.

The

previous

definition

references

to

the

23

vapor

pressure

as

well

as

the

boiling

point,

but

the

new

24

definition

of

volatile

chemical

doesn’t

include

a

51

Keefe

Reporting

Company

---

1

reference

or

a

limitation

on

boiling

point,

and

I

was

2

wondering

if

you

could

explain

why.

3

MS.

HURLEY:

We

looked

at

several

different

4

physical

chemicals

of

the

property

--

physical

chemical

5

properties

of

the

chemicals,

and

boiling

point

did not

6

really

correlate

very

well

with

whether

a chemical

was

7

analyzed

as

a

volatile

or

semi—volatile,

and

we wanted

to

8

consolidate

the

two

definitions

of

volatile

chemical

that

9

we

had

in

the

rules,

so

we

decided

to

drop

boiling

point

10

from

the

definition.

11

MS.

LIU:

Also

referring

to

those

same

two

12

definitions

side

by

side,

there

is

a

difference

in

the

13

temperature

referenced.

One

was

25 degrees

celsius

and

14

the

other

was

20

degrees

celsius.

Was

the

reason

for

15

that

change

to

approach

Illinois-specific

factors

or

16

indoor

air

temperature

more

closely,

or

was

there

another

17

reason?

18

MS.

HURLEY:

We changed

the

current

19

definition

to

25

degrees

from

20

degrees

because

most

of

20

the

data

is

collected

at

25

degrees

C

as opposed

to

20

21

degrees

C.

22

MS.

LIU:

Thank

you.

23

HEARING

OFFICER

MCGILL:

Ms.

Hurley,

this

is

24

just

sort

of

a

housekeeping

question. There

-—

You

52

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