BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER:

)

R09-9

PROPOSED AMENDMENTS TO

)

(Rulemaking-Land)

TIERED APPROACH TO CORRECTIVE )

ACTION OBJECTIVES

)

(35 Ill. Adm. Code 742)

)

POST-HEARING COMMENTS OF RAYMOND T. REOTT

Raymond T. Reott hereby submits the following comments in the above

rulemaking. These comments supplement the pre-filed testimony I submitted on

February 24, 2009, my March 4, 2009 pre-filed questions with the Illinois EPA’s

responses dated March 11, 2009, and my testimony at the March 17, 2009 hearing.

Each Assumption’s Affect on Values

The Illinois EPA’s proposal ultimately leaves the Board in the dark about the impact of

the assumptions the agency used to formulate the proposed rule. The Illinois EPA bases

its proposal on the USEPA Johnson & Ettinger model and uses the model to create the

proposed Tier 1 table values for the new indoor air inhalation exposure pathway. The

new Tier 1 values represent a tenfold increase in cleanup levels for communities with

approved groundwater use restrictions ordinances, i.e. most of the Illinois population.

Even USEPA acknowledges that the Johnson & Ettinger model is so conservative that

field studies fail to find the predicted levels of contaminants in actual indoor air

sampling. (

See

USEPA, Sept. 2005, J. Weaver and F. Tillman, Uncertainty and the

Johnson-Ettinger Model for Vapor Intrusion Calculations, p.31; USEPA, Sept. 2005, F.

Tillman and J. Weaver, Review of Recent Research on Vapor Intrusion, pp. 17-23).

Also, because the model does not reflect actual attenuation present in UST sites, USEPA

does not recommend the Johnson & Ettinger model for UST sites, in contrast to this

proposed rule which would use that model for Illinois UST sites.

Because of how the Illinois EPA presents the proposed rule, the impact of any individual

assumption cannot be predicted. For instance, the impact on the proposed Tier 1 table

from the assumptions about the fraction of organic carbon in the soil cannot be

determined. Similarly, the agency never explains why the proposed default fraction of

organic carbon for this new pathway is lower than the one adopted by the Board years

ago in the existing TACO regulations. Likewise, the impact from using the new default

soil porosity or from ignoring the distance between the contaminant and the bottom of the

building cannot be determined. Therefore, this proposal fails to provide the Board with

the essential information needed to understand the consequences of these individual

assumptions on the proposed Tier 1 table. Most of the agency’s choices in this proposal

are conservatively based and unrealistic for the conditions in Illinois and the Board

cannot tell how conservative the ultimate numbers are in the Tier 1 tables.

Electronic Filing - Received, Clerk's Office, May 29, 2009

* * * * * PC # 5 * * * * *

The Board should choose a more open and informative approach. The Illinois EPA

should first submit a Tier 1 table using realistic assumptions from Illinois and then apply

a conservative factor to those numbers. Instead of hiding the conservative nature of the

numbers, the agency should clearly state its chosen safety factor. The current proposed

rule fails to identify the safety factor chosen by the agency and the Board should not

adopt it.

Notice Burden

In addition, the Board should be aware of pending House Bill 4021 which would base the

Right-to-Know notification requirements on the Tier 1 objectives set in this rulemaking.

If HB4021 passes and the Board also enacts this proposed rule with its current Tier 1

objectives, these rules will create a new unnecessary notice burden. An unintended

consequence will be to force many more public notifications for an overstated risk.

Communities with groundwater ordinances would then be subjected to new Right-to-

Know notification requirements about risks that everyone agrees are overstated risks.

This Right-to-Know notice burden is another cost of establishing overly conservative

Tier 1 values and adopting the current proposed rule.

Negative Indoor Air Samples

The Illinois EPA is not proposing using actual indoor air concentrations because of its

concern about false positives. However, at the previous hearings, no witness articulated

any reason why representative samples with a negative result were not reliable. Further,

other states already have adopted indoor air concentration values. States like New Jersey

and Minnesota also have issued detailed guidance for taking indoor air samples. The

proposed rule should include a provision so that a representative negative indoor air

sample should prevail over the predicted values from other samples outside the building.

Assumptions Are Not Representative of Illinois

As I mentioned in my previous testimony, the agency’s assumptions about soil geology

are not representative of conditions in Illinois. In addition, the assumption of 1089

square feet (33 ft. x 33 ft. x 8 ft) for a residential a structure is far below the average size

of a single family home in the Midwest. For example, Michigan cited the average size of

a Midwest single family home as 2,095 feet in 1995. (Michigan DEQ Storage Tank

Division, Part 213, Risk-Based Screening Levels (RBSLs) for Groundwater and Soil

Volatilization to Indoor Air, Operational Memorandum No. 4, Attachment 8, June 12,

1998, p.4, (citing

Characteristics of New Housing: 1995

(US DOC and US HUD,

1996))). Further, the percentage of homes under 1,200 square feet, which includes the

agency’s assumption of 1089 square feet, is only 11%.

. Because the average size of

housing continues to increase and because these values are from 1995, the current

average size of a single family home in Illinois likely would be even larger than 2,095

square feet which already is well above the agency’s proposed assumption of 1089 square

feet. Using a more realistic building size would better represent conditions in Illinois and

ultimately provide Tier 1 values that addressed the real risk in Illinois.

Electronic Filing - Received, Clerk's Office, May 29, 2009

* * * * * PC # 4 * * * * *

The Illinois EPA also assumed that the average home in Illinois did not have a basement,

yet Michigan cites that 90% of homes built in the Midwest between 1975 and 1995 were

built with basements or crawl spaces.

. These statistics further show how overly

conservative the agency’s assumptions are and how these assumptions fail to represent

conditions in Illinois. If the default building had a basement, the Tier 1 values would be

higher and far more realistic. As stated above, the Board should require the agency to

first establish values representative of Illinois and

then

incorporate a known safety factor

into those values.

Conclusion

The Illinois EPA’s proposed rule is overly conservative. Further, the agency presented

the rule in a way that does not show each assumption’s impact on the final value. The

Board should ask the agency to provide the information needed to determine the impact

from each assumption. The Board should not adopt this rule as proposed because it is not

representative of actual conditions in Illinois. The Board should only adopt regulations

based on conditions in Illinois and actual risk to human health, consistent with the

General Assembly’s mandate.

Reott Law Offices, LLC

By:

_____/s/______________________

Raymond T. Reott

Becky J. Schanz

Reott Law Offices, LLC

35 East Wacker Drive

Suite 650

Chicago, Illinois 60601

Ph: 312-332-7544

Fax: 312-782-4519

Dated: May 29, 2009