1
ILLINOIS POLLUTION CONTROL BOARD
May 21, 2007
2
IN THE MATTER OF:
) R07-18
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STATIONARY RECIPROCATING AND) (Rulemaking-Air)
INTERNAL COMBUSTION ENGINES)
4
AND TURBINES: AMENDMENTS TO)
35 ILL. ADM. CODE SECTION )
5
201.146 AND PARTS 211 AND 217)vs.
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HEARING BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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8
A P P E A R A N C E S
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FOR THE IPCB BOARD:
MR. TIMOTHY FOX, HEARING OFFICER
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MS. ANDREA MOORE
MR. ANAND RAO
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MS. MARIE TIPSORD
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COUNSEL FOR IEPA:
MS. RACHEL DOCTORS
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MR. JOHN KIM
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COUNSEL FOR SCHIFF HARDIN:
MS. KATHLEEN BASSI
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MR. JOSHUA MORE
MR. JAMES MCCARTHY
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FOR IERG:
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MR. GALE NEWTON
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WITNESSES FROM THE
ENVIRONMENTAL PROTECTION AGENCY:
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MR. YOGINDER MAHAJAN
MR. ROBERT KALEEL
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21
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23
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Page1
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MR. HEARING OFFICER: Good morning and
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welcome to this Illinois Pollution Control Board
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hearing. Am I audible to everybody who is in the room?
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Great. I prefer to avoid the microphone, and if that
5
will work, continue without it.
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My name is Tim Fox, and I am a hearing
7
officer for this rule-making proceeding entitled Fast
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Track rules under nitrogen oxide or NOx SIP Call Phase
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II, Amendments to 35 Illinois Administrative Code
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201.146 and parts 211 and 217. The board docket number
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for this rule-making is R07-18.
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The Board received this rule-making
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proposal on Friday, April 6, 2007, from the Illinois
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Environmental Protection Agency, and the Board received
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this proposal for hearing in an order Thursday, April
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19, 2007.
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Also present for the Board -- and I
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would like to introduce are the following: To my
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immediate left, Board member Andrea Moore, who is the
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lead Board member for this rule-making. Member Moore,
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did you wish to make any remarks at this time?
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MR. MOORE: I think just the customary
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gratitude that the Board has for the efforts that
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everyone makes on all sides of the issue in order to
Page2
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establish a record that we can make a decision. We
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certainly appreciate your attention. Thank you.
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MR. HEARING OFFICER: Also present
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are, to my far right, the Board's acting chairman, Dr. G
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Tanner Girard. Dr. Girard, did you wish to make any
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comments?
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DR. TANNER: I don't need to add to
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Member Moore's comments, but just good morning, and we
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look forward to your testimony and questions this
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morning.
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MR. HEARING OFFICER: And to my
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immediate right is Marie Tipsord, who is Chairman
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Girard's attorney assistant and at my far left is Anand
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Rao with the Board's technical staff. Today we are
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holding the first hearing in the rule-making. The
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second is now scheduled to take place beginning June 19,
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and the third to take place on Monday July 2 here in
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Springfield.
19
As you may know, the Board, on
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Thursday, May 17, entered an order bifurcating the
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Agency's original proposal and directing that this
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hearing should proceed today only with regard to the
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portion of that proposal addressing Phase II of the NOx
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SIP Call. In response to that order, on the 18th, on
Page3
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Friday, May 18, filed a motion to withdraw the testimony
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of Michael Koerber and Scott Leopold, and a second
3
motion to amend the testimony of Robert Kaleel and
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Yoginder Mahajan.
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Let me address those two motions in
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that order, if I may. I understand, with regard to the
7
motion to withdraw testimony, that neither the Pipeline
8
Consortium nor IERG, who had filed objections to the
9
Agency's reliance on Section 25, had objected to the
10
granting of that motion. Is there, for the record, any
11
objection to granting the motion to withdraw the
12
testimony of those two witnesses? Neither seeing, nor
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hearing none, as it was filed in quick response to the
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Board's order and will expedite the hearing
15
concentrating on the relevant issues, I grant that
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motion and allow the Agency to withdraw its testimony of
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Michael Koerber and Scott Leopold, as it had requested
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in the motion of may 18.
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With regard to the second motion, the
20
motion to amend testimony, I, again, understand that,
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neither the Pipeline Consortium, nor IERG, who had filed
22
objections to the use of Section 28.5 had objected to
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the granting of that motion. Is it correct that there
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is, in fact, no objection to granting that motion?
Page4
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MS. BASSI: That is correct.
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MR. HEARING OFFICER: Ms. Bassi has
3
indicated that that is correct, and seeing no objection,
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I proceed to note that Section 28.5-G of the Act
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requires prefiling, at least, 10 days before a hearing,
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unless a waiver is granted for good cause. In this
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instance the proposed revision responds quickly to a May
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17 Board order, appears consistent with the terms of
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that order, and will assist in focussing the hearing
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today on the issues in that docket. Accordingly, I find
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that good cause does exist do waive the 10-day filing
12
deadline, grant the motion to amend the testimony of
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robert Kaleel and Yoginder Mahajan, and accept the
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amended testimony of those two gentlemen for hearing
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today.
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This proceeding is governed by the
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Board's Procedural Rules. All information that is
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relevant and not repetitious or privileged will be
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admitted into the record. Please note that any
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questions that are posed today, either by the Board
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members or the Board staff are intended solely to assist
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in developing a clear and complete record and do not
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reflect any prejudgment of the proposal.
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Under Section 28.5-G-1, this hearing,
Page5
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quote, "Shall be confined to the testimony by and
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questions of the Agency's witnesses concerning the
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scope, applicability, and the basis of the rule." The
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Board received prefiled testimony from the Illinois
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Environmental Protection Agency, and, naturally, we will
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begin this hearing with that prefiled testimony. That
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will be followed by any questions that other
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participants may have on the basis of that testimony.
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As a procedural note, for the benefit
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of our court reporter who will be transcribing this
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proceeding, please speak as clearly as you can, and try
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to avoid speaking at the same time as any other
13
participant, so we have can have as clear a transcript
14
as possible. In speaking with counsel for the Agency
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about procedural matters briefly before the hearing,
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they indicated that they wish to begin with a brief
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synopsis and introduce their witnesses, and to begin I
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believe quite quickly after that with some questions.
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If, at this point, there are no
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questions about procedures of any kind, Ms. Doctors and
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Mr. Kim I believe were prepared for you to introduce
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your witnesses.
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MS. DOCTORS: I have a short
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statement, and I will introduce my witnesses as part of
Page6
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that. Good morning. My name is Rachel Doctors, and I'm
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an assistant counsel for the Legal Division/Regulatory
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Air Section with the Illinois Environmental Protection
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Agency. I am representing the Agency today in support
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of its rule-making proposal, "In the matter of
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Fast-Track rules under Nitrogen Oxide SIP Call Phase II
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Amendments to 35 Illinois Administrative Code Section
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201.146 and Parts 211 and 217, RO7-18.
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On behalf of the Director, I would
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like to thank the Board for its consideration of this
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rule-making proposal and this opportunity to provide
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testimony in support thereof. I have with me two
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experienced staff of the Bureau of Air to present their
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testimony to the Board. On May 11, both witnesses
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presubmitted testimony to the Board and all parties on
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the Service List. However, on May 17, the Board issued
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an order narrowing the scope of this hearing and
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splitting the Agency's proposal into two dockets,
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RO7-18, as mentioned above, and RO7-19.
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In the matter of Section 27 Proposed
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Rules for Nitrogen Oxide, we'll skip that. As a result,
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on May 18, both witnesses submitted amended testimony to
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the Board, and all parties on the Service List, and are
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prepared to either read that testimony into the record
Page7
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or have it entered as if read, whichever the Board and
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the Hearing Officer prefers.
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First, we will here from Robert
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Kaleel, who is the manager of the Air Quality Planning
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Section of Air Pollution Control who will explain the
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purpose of this proposal and describe the components of
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the proposed rule.
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Second, we have Yoginder Mahajan, who
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is an Environmental Protection Engineer in the Air
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Quality Planning Section, Division of Air Pollution
11
Control, who will explain control technologies and
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emissions reductions expected from this proposal.
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Following the testimony, the witnesses will be happy to
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answer any questions presented by the Board members or
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staff and the public.
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Before turning it over to Rob, I would
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like to note the Agency is going forward with the
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Board's order on May 17, 2007, with respect to this
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hearing concerning RO7-18. However, as the Illinois EPA
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has had only two days to review this order, and still is
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in the process of reviewing it, the Agency reserves its
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rights to raise issues or present additional testimony
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at the second hearing on June 19 in this matter. The
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Agency notes that it will have comments on Attachment A
Page8
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of the Board's May 17 order, specifically, but not
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limited to the following comments: The emission
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factors, testing and monitoring requirements that were
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proposed to be incorporated by reference, the
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incorporation by reference sections and test sections
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were not included in Attachment A, despite being
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prefaced in the proposed subpart Q. The Agency believes
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that it is appropriate and required by the
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Administrative Procedure Act to include incorporation by
10
reference of those items. The Agency will also request
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the definitions be included in Docket RO7-18 to the
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extent referenced in Attachment A. The Agency is
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agreeable that the Amendment to 35 Illinois
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administrative Code 201.146 concerning a change in the
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permanent exemption for engines be moved to the docket
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in RO7-19.
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With respect to the Board's May 17
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order as it relates to the establishment of RO7-19, the
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Agency is still reviewing its portions of the order and
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reserves all rights and responses with to respect that
21
order. The Agency's decision to proceed with this
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hearing in the RO7-18 docket should not be construed as
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waiving any rights it has with respect to the Board's
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decision to create the RO7-19 docket.
Page9
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Now I will turn it over to Rob Kaleel,
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if that is agreeable.
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MR. HEARING OFFICER: Thank you,
4
Ms. Doctors. At this point, why don't we have the court
5
reporter swear in both of the Agency's witnesses at this
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point so we can prepare to hear their testimony.
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(At which point, both witnesses were
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sworn in by the court reporter).
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MR. HEARING OFFICER: Ms. Doctors, I
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think you said you were prepared to begin with
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Mr. Kaleel.
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MS. DOCTORS: Correct. Would you like
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him to read his testimony in?
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MR. HEARING OFFICER: Nothing would
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prevent him from reading his testimony, but I have no
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sense from any of the participants that it would be
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necessary for him to do so. I know that that was posted
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on the Board's website, virtually, as it was received on
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Friday. It wouldn't have given everybody an expeditious
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chance to read it over. So seeing no specific interest
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from anyone in having him read it, let's just proceed
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with the.
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MS. DOCTORS: I would like to ask that
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it be admitted as if read, both the testimony from
Page10
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Yoginder Mahajan and Rob Kaleel, that the testimony be
2
admitted as read.
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MR. HEARING OFFICER: Do you have
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copies of those, Ms. Doctors, that you can admit.
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MS. DOCTORS: We just have copies of
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the motion.
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MR. HEARING OFFICER: I have in front
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of me the testimony of Robert Kaleel, and this is the
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amended testimony Ms. Doctors filed on Friday, the 18th,
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correct?
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MS. DOCTORS: Correct.
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MR. HEARING OFFICER: Which I will
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mark as Exhibit 1, and a document marked "Testimony of
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Yoginder Mahajan." Again, the amended testimony
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Ms. Doctors filed on Friday, May 18.
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MS. DOCTORS: Correct.
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MR. HEARING OFFICER: I will mark that
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as Exhibit No. 2, and note Ms. Doctors' motion to admit
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those into the hearing record, those numbered Exhibits 1
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and 2. Is there any objection to granting the motion?
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It will be granted. It will be marked as Exhibits No. 1
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and 2 and entered into the docket.
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MS. DOCTORS: Thank you.
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MR. HEARING OFFICER: Mr. Kaleel,
Page11
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please go ahead.
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MR. KALEEL: Well, I'm available for
3
questions. I don't have any specific statements to make
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beyond my testimony.
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MR. HEARING OFFICER: If there are
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questions for Mr. Kaleel, and you simply raise your hand
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and identify yourself the first time, so that I may
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pronounce your name correctly, we will certainly
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recognize you. Any questions? I see Ms. Bassi.
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QUESTIONING BY MS. BASSI:
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Q. My name is Kathleen Bassi, B-A-S-S-I. I'm
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with the law firm of Schiff Hardin, LLP, and we
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represent the Pipeline Consortium, which is made up of A
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and R Pipeline Company, Trunk Line Pipeline Company,
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Panhandle Eastern and Kender Morgan. With me today is
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Josh More, also from Schiff Hardin, and to his right --
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left, is Jim McCarthy, who is a consultant to the
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Pipeline Consortium.
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Mr. Kaleel, on page 4 of your
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testimony, you state an average plan must ensure that
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the total mass of actual NOx emissions from all affected
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units included in the emissions averaging plan must be
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less than the total mass of allowable NOx emissions for
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the same units. Do you see that line or that sentence
Page12
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I'm talking about?
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A. Yes.
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Q. Can units that are not included on
4
Appendix G to this rule-making be used in an averaging
5
plan to achieve compliance with the NOx SIP Call
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emissions reductions required by this rule?
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A. Yes, they can.
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Q. Is it the case that, if a source uses a
9
NOx averaging plan, the total amount of mass reductions
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that the source must achieve under the averaging plan is
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more than the total amount of mass reductions that the
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source would have to achieve on an engine-by-engine
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basis if it did not average?
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A. I would ask if you could repeat that. I'm
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not sure I understand.
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Q. I apologize for the question being so
17
long. Is it the case that, if a source uses an
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averaging plan, that the amount of mass reduction that
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the source must achieve is greater than if the source
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complied on an engine-by-engine basis? And perhaps this
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is a question better posed to Mr. Mahajan. I don't
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know.
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MR. MAHAJAN: It could be a
24
possibility because you are including more engines
Page13
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emissions and emissions will be more, so it could be
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possible that the reduction may not match that 54/22,
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whatever you ask. It can be more, yes.
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Q. Does the rule, specifically, require that
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it be more?
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MR. MAHAJAN: No.
7
MS. BASSI:
8
Q. Thank you. By missing the NOx SIP Call
9
May 1 compliance date, I have a couple questions along
10
those lines. Is it true that U.S. EPA has issued a
11
finding of failure to submit the NOx SIP Call Phase II
12
requirement?
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MR. MAHAJAN: Yes.
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Q. Will Illinois have submitted the NOx SIP
15
Call Phase II prior January 1, 2008?
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MR. KALEEL CONTINUES: We hope if this
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rule-making is completed that we be able to make our
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submittal before January 1, 2008.
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Q. Did U.S. EPA propose a FIP (phonetic) that
20
affects these Appendix G engines?
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A. No, not to my knowledge.
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Q. And so then is it your understanding that
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these engines would not be subject to a FIP between May
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1, 2007 and January 1, 2008?
Page14
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A. I guess we don't know what U.S. EPA's
2
plans are. I would think it's unlikely that a FIP would
3
be implemented between now and January 1, 2008.
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Q. That's all I have.
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MR. HEARING OFFICER: Mr. More?
6
QUESTIONING BY MR. MORE:
7
Q. I have some general questions that might
8
be allowed if either one of you to answer. If that's
9
all right with the Board, I would rather pose it to the
10
group, as a whole.
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MR. HEARING OFFICER: It makes since,
12
under the circumstances, to do it as a panel.
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MR. MORE:
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Q. Is it correct that the NOx SIP Call Phase
15
II rule is not source-specific?
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A. That is correct.
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Q. It's based on a budget reduction?
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A. It's based on a budget reduction from this
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particular category of sources, reciprocating internal
20
combustion engines.
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Q. Is it correct that the State doesn't have
22
to regulate these specific units to comply with the NOx
23
SIP Call Rule?
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A. That is correct.
Page15
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Q. Is it also correct that the NOx SIP Call
2
rule calls for seasonable reductions of NOx emissions?
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A. That is correct, the ozone season.
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Q. This rule calls for an annual reduction
5
from these units. Is that correct?
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A. This rule actually would establish limits
7
or requirements for both the ozone season and an annual
8
basis.
9
Q. In both of your testimony, you note that
10
the rule will result in, approximately, 5,422 tons of
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NOx emissions being reduced during the ozone season.
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How much or how many tons of NOx emissions will be
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reduced during the non-ozone season?
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MR. MAHAJAN: Based on the U.S. EPA's
15
inventory and what they issued with regards to NOx SIP
16
Call, and looking at the emissions of those engines, the
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inventory of the mass reduction per year would be 1,900
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tons, so it will be 12,900 minus 5,422 for the ozone
19
season, would be the non-ozone season.
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Q. How will those additional reductions be
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used by the state?
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MR. KALEEL CONTINUES:
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A. The annual requirement in the rule, as
24
proposed by IEPA, was intended to address the annual
Page16
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standard for fine particles. BM 2.5 is the way that we
2
refer to that. The BM 2.5 standard, unlike ozone,
3
consists of a short-term and an annual standard, and, in
4
Illinois, the annual standard is the one that is most
5
restrictive, so that's where the NOx emissions were
6
targeted on an annual basis.
7
Q. In the Technical Support Document on page
8
59 -- or 39, excuse me, there is a reference to U.S.
9
EPA's command and control analysis for rights for five
10
different cost ceilings.
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MS. DOCTORS: Are you referring to the
12
reference to Table 5.2?
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MR. MORE: Yes. Thank you for the
14
clarification, the last paragraph on page 39. Those
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dollar figures, in what -- in terms of what year do
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those dollars represent? Throughout this document,
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there's reference to, "In 1990 dollars," or "2004
18
dollars" --
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MR. MAHAJAN: 1990.
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MR. MORE: 1990 dollars.
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MS. BASSI: Can I follow up on that a
22
bit? Are there not 2005 dollars or 2007 dollars
23
available?
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MR. MAHAJAN: All those analyses done
Page17
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by U.S. EPA are based on the 1990 dollars. We can
2
convert those dollars based on the inflation rate or
3
something, but the U.S. EPA did all this based on the
4
1990 dollars.
5
MR. MORE CONTINUES:
6
Q. Along those lines, then, is it correct,
7
when you're doing this conversion, you are not taking
8
into account actual costs? You are using, like, the
9
Consumer Price Index?
10
MR. MAHAJAN: Consumer Price Index, or
11
whatever you want to use, yes.
12
Q. Why is it that you don't go to the market
13
and determine what the actual costs are?
14
MR. MAHAJAN: Like I said, we didn't
15
do the study. The U.S. EPA did that modeling on the
16
cost modeling. That's what they come up with 1990. The
17
reference 12 you can make them to 1997, but they didn't
18
do it based on that.
19
Q. So if the cost of materials were more
20
expensive today than they were in 1990, barring
21
inflation, the number would be skewed. Is that correct?
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MR. MAHAJAN: It would be, if it was
23
different.
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MS. BASSI: When was U.S. EPA's
Page18
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analysis on the cost of this performed? Do you know
2
that?
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MR. MAHAJAN: I think it is based on
4
2000.
5
MS. BASSI: On when?
6
MR. MAHAJAN: 2000.
7
MS. BASSI: 2000?
8
MR. MORE:
9
Q. To speed along the process, throughout the
10
TSD, there's then conversions from 1990 dollars to 2004
11
dollars.
12
MR. MAHAJAN: Yes.
13
Q. Why is that?
14
MR. MAHAJAN: Because we just want to
15
show the Board what the current cost would be, so we
16
just converted based on the CPI, taking inflation into
17
account.
18
Q. The CPI would have allowed you to convert
19
to 2007 dollars, correct?
20
MR. MAHAJAN: It's not available so
21
far I don't think, but we can convert last year, like
22
2006, 2005, yes.
23
Q. There hasn't been an analysis done by IEPA
24
to determine what the costs would be in terms of today's
Page19
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dollars?
2
MR. MAHAJAN: No.
3
Q. Now, has U.S. EPA done an analysis to
4
determine what the cost would be in today's dollars?
5
MR. MAHAJAN: No, I don't think so.
6
Q. And is it correct that the analysis that
7
you relied upon from U.S. EPA related only to engines,
8
the cost analysis?
9
MR. MAHAJAN: Yes.
10
Q. And it only related to what you have --
11
MS. DOCTORS: Wait; objection. When
12
you say "costs," there's lots of different numbers in
13
this document. Which specific costs are you referring
14
to?
15
MR. MAHAJAN: The costs mentioned in
16
my estimate?
17
MS. DOCTORS: Wait. Let him point to
18
what the numbers are that he's concerned about.
19
MR. MORE: In the Technical Support
20
Document, it refers to reliance upon U.S. EPA's cost
21
analysis. Is that correct?
22
MR. MAHAJAN: Yes.
23
MS. DOCTORS: Where are you -- what
24
page are you on?
Page20
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MR. MORE: We can show -- we can go to
2
the testimony, too, page two of Mahajan testimony. The
3
last paragraph references a series of U.S. EPA
4
documents.
5
MS. DOCTORS: Let me ask Mr. Mahajan a
6
question, then, but that's -- when we're talking about
7
particular numbers, as I said, there are lots of numbers
8
in the document, and some of them talk -- in this
9
section of the document, we're talking about engines,
10
and other sections of the document we're talking about
11
turbines.
12
MR. MORE: In general, though, the
13
testimony has been that the cost figures that they have
14
established have relied upon U.S. EPA's findings.
15
MR. MAHAJAN: That's true.
16
MR. MORE CONTINUES:
17
Q. What I want to understand is did U.S.
18
EPA's cost figures only relate to an analysis for
19
engines?
20
MR. MAHAJAN: Yes.
21
Q. Did it only relate to an analysis of large
22
engines?
23
MR. MAHAJAN: For the NOx SIP Call,
24
yes, only the large engines.
Page21
1
Q. And large engines would be these 28
2
engines that are being regulated in today's rule-making?
3
MR. MAHAJAN: That's correct.
4
Q. Is the Agency planning on seeking, to your
5
knowledge, an extension to achieve attainment for ozone
6
or PM 2.5?
7
MR. KALEEL: We haven't made a
8
determination to that effect, yet.
9
MR. MORE: That's all I have.
10
MR. HEARING OFFICER: Ms. Bassi?
11
MS. BASSI: I have some questions that
12
are based on Mr. Mahajan's testimony. Is that
13
appropriate now, as well?
14
MR. HEARING OFFICER: Perhaps we
15
should have had them introduce their testimony at the
16
same time. Would it make sense to have him offer his
17
synopsis and then proceed right to the questions?
18
MS. BASSI: Sure.
19
MS. DOCTORS: I thought we just had
20
both pieces of testimony admitted as if read.
21
MR. HEARING OFFICER: They did. Did
22
Mr. Mahajan wish to speak to his testimony as Mr. Kaleel
23
had done?
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MS. DOCTORS: I don't believe
Page22
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Mr. Mahajan has any comments on his testimony.
2
MR. HEARING OFFICER: Now that we have
3
established that now, Ms. Bassi, do you want to go ahead
4
and ask the question you had in mind.
5
FURTHER QUESTIONING BY MS. BASSI:
6
Q. Thank you. Mr. Mahajan, on page two of
7
your testimony, there is a statement that says, "The
8
required levels of NOx emissions controls are 82 percent
9
NOx emission reduction from natural gas-fired engines,
10
and 90 percent NOx emission reduction from all other
11
diesel and dual-fuel internal combustion engines." Do
12
you see that?
13
A. Yes.
14
Q. Of the Appendix D engines, are any of them
15
diesel engines?
16
A. No.
17
Q. Are any of them dual-fuel engines?
18
A. No.
19
Q. If someone should happen to bring into
20
Illinois a new engine, would it be subject to the NOx
21
SIP Call?
22
A. Not right now.
23
Q. Pardon?
24
A. No.
Page23
1
Q. No? Would it be subject to any emission
2
standards under this particular rule?
3
A. Not under this rule, no.
4
MS. DOCTORS: Are you speaking to --
5
when you are speaking of "this rule," are you speaking
6
of the rule in Attachment A?
7
MS. BASSI: Yes, ma'am, just what is
8
the subject of this Docket 18.
9
MS. BASSI CONTINUES:
10
Q. So is it the case, then, that the only
11
engines that are subject to this rule in Docket 18 are
12
gas-fired engines?
13
A. Yes.
14
Q. Are there any turbines that are subject to
15
this rule in Docket 18?
16
A. No.
17
Q. Is it -- is there a reason for this rule,
18
then, to refer to anything, other than the Appendix G
19
engines?
20
A. Probably not.
21
MS. DOCTORS: Mr. Kaleel, do you have
22
something you would like to add?
23
MR. KALEEL: We discussed earlier
24
about the averaging plan and the possibility that the
Page24
1
option of the affected companies, that they could
2
include engines or turbines, an averaging plan as an
3
alternate means of compliance, so that would be a reason
4
for including that language in this rule.
5
MS. BASSI CONTINUES:
6
Q. So does that mean, if a source or company
7
were to include in an averaging plan, say, a diesel
8
engine, that the reduction level requirement for that
9
diesel engine would be greater than it would be for a
10
gas-fired engine?
11
MR. MAHAJAN: They can include in this
12
averaging plan allowable minutes based on the 5,542 or
13
the average. Then they have to what is the actual
14
conclude and that reduction can take the averaging plan
15
(phonetic).
16
MS. BASSI: Just one second.
17
MS. BASSI CONTINUES:
18
Q. Does one of you -- and I'm not sure who
19
the appropriate person is to answer this -- but it was
20
in Mr. Mahajan's testimony that he had relied on cost
21
figures derived by the State and Territorial Air
22
Pollution Program Administrators slash Association of
23
Local Air Pollution Control Officials, other known as
24
STAPPA ALAPCO. Do you know how they derived their cost
Page25
1
figures?
2
MR. MAHAJAN: Most of them they are
3
based on the TSD document.
4
Q. The same federal document?
5
MR. MAHAJAN: Yes, that document, yes.
6
Q. Do they differ from the federal document?
7
MR. MAHAJAN: These documents they are
8
refer to what is the cost of controlling engines based
9
on the HP rating, so they have very extensive cost data,
10
all these documents.
11
Q. Is it more extensive than what U.S. EPA
12
had developed?
13
MR. MAHAJAN: U.S. EPA focused only,
14
for this rule-making, the NOx SIP Call. They focused
15
only on those engines which are impacted by that SIP
16
Call.
17
Q. So then how is it that the STAPPA ALAPCO
18
cost figures are based on U.S. EPA's?
19
A. STAPPA ALAPCO, they come up with a control
20
strategy for all the universal sources of NOx, and that
21
is where they mentioned that these engines, not the SIP
22
Call engines, all the engines, in general, can be
23
controlled at a very cost effective number, and those
24
numbers they mention. They summarize -- actually, they
Page26
1
summarize the cost that you can save in the PC
2
documents.
3
MS. BASSI: Perhaps my questions about
4
this would be more appropriate in Docket 19. Will this
5
be revived for that purpose? I'm asking the Agency.
6
MS. DOCTORS: At this point, we are
7
reviewing -- there's no hearing set for that, and we are
8
not sure exactly what the proceedings are going to be
9
like.
10
MS. BASSI: Since this is in his
11
testimony, I feel like I need to proceed on this line.
12
MS. DOCTORS: If it's an issue in
13
that, he will be available, or there will be information
14
available to address these issues at that time. Right
15
now we are just discussing the NOx SIP Call. That's the
16
only issue today in terms of what's required to be
17
controlled under this rule-making.
18
MS. BASSI: Just so I'm clear,
19
Mr. Mahajan would be available to answer questions
20
STAPPA ALAPCO cost figures as they apply to the
21
non-Appendix G engines. Is that correct?
22
MS. DOCTORS: To the extent the Agency
23
relies on those documents in the next docket, yes.
24
MR. HEARING OFFICER: For purpose of
Page27
1
the record, it's the Board's intent to, based upon the
2
relationship issues in the two dockets, to incorporate
3
the record in 07-18 into 07-19, if that's helpful to
4
you.
5
MS. BASSI: I will wait, then.
6
MS. BASSI CONTINUES:
7
Q. Has selective catalytic reduction been
8
selectively demonstrated on gas pipeline engines?
9
MR. MAHAJAN: For the NOx SIP Call,
10
all these numbers are like 552 tons per day. They are
11
all based on the low-emission technology, which is not
12
considered for this rule-making, not the SCR.
13
Q. I believe, though, that your testimony
14
identified SCR as a possible control technology --
15
A. Possible, but, for this cost analysis,
16
what they use is the lower-emission technology, not SCR,
17
but there are SCR. If somebody wants to use it, they
18
can use it.
19
Q. That's all I have.
20
MR. HEARING OFFICER: From any of the
21
other participants, are there questions on the Agency's
22
two witnesses on the basis of their prefiled testimony
23
or their questions posed here today? I don't see anyone
24
suggesting that they do have a question. Do any of the
Page28
1
Board members or the Board staff have questions that
2
they would like to pose to the Agency's witnesses? Very
3
good. Seeing no questions, it would -- I certainly
4
would give either the Pipeline Consortium counsel, or
5
any of the other participants that are present here
6
today an opportunity to make any brief statements, if
7
they wished to do so for the record.
8
MS. BASSI: It's my understanding that
9
we do need to confirm that we would like to have a
10
second hearing, and I would like to have that in the
11
record that we would. I anticipate that it would be
12
fairly short.
13
MR. HEARING OFFICER: Ms. Bassi, I was
14
going to bring that up in just a moment or two. You are
15
only a second or two ahead of me. The Board's
16
Procedural Rules do allow any participant, any person,
17
to request a second hearing to request, that it be held
18
on the record at the first hearing, so we will certainly
19
consider your statement as sufficient to indicate that
20
the second hearing will go forward. That is now
21
scheduled, pursuant to a Board Hearing Officer Order, to
22
begin on -- and I'm sorry for having to flip through --
23
Tuesday, June 19. That will take place in the
24
auditorium of the Melandick Building, Room No. 500 on
Page29
1
160 North LaSalle Street. That is the old State of
2
Illinois building across from the Thompson Center. So,
3
again, we will regard that as the formal request for the
4
hearing to take place. Mr. More?
5
MR. MORE: Understanding that the
6
Board is now going to consider these dockets together,
7
the testimony provided we would reserve the right to ask
8
these witnesses the same or similar questions in
9
subsequent hearing and subsequent rule-making, and would
10
ask that any of our decisions made not to ask questions
11
not be viewed as a waiver to ask future questions.
12
MS. BASSI: I have a question I would
13
like to ask off the record.
14
MR. HEARING OFFICER: Perhaps it would
15
be better to ask it when we go off the record in the
16
moment or two.
17
MR. KIM: I have a question on the
18
record.
19
MR. HEARING OFFICER: Yes.
20
MR. KIM: Before I speak, I had spoken
21
with the hearing officer prior to the hearing. My name
22
is John Kim. I have not filed any written appearance in
23
this case. I will be doing that this afternoon, but I
24
would ask the hearing officer's indulgence in accepting
Page30
1
my oral request to be entered as an attorney of record
2
on behalf of the Illinois EPA.
3
MR. HEARING OFFICER: Mr. Kim is
4
correct that he raised that procedural issue before the
5
hearing, and I would certainly be happy to allow him to
6
file an oral appearance on the record with the
7
expectation that he follow up in writing later today.
8
MR. KIM: Thank you. As Mr. Doctors
9
noted, the Agency, as I'm sure the other parties of
10
interest are sort of still digesting, the rule that's in
11
the form found in Attachment A, if, as she noted, we do
12
have some issues or some areas that we believe need to
13
be clarified or addressed through additional testimony
14
since we simply haven't had an opportunity to identify,
15
yet, is it my understanding, then, that we would also,
16
at the hearing on the 19th, be allowed to present
17
whatever witnesses we felt were necessary to address
18
those issues?
19
MS. BASSI: Actually, that's what my
20
off-the-record question was going to go to.
21
MR. KIM: I don't know that we even
22
have any issues or witnesses that we will need, but I
23
was wondering if that's an opportunity for them to be
24
there.
Page31
1
MS. BASSI: May I offer a response
2
that?
3
MR. HEARING OFFICER: I think I can
4
address that, Ms. Bassi, but if you do have a question,
5
the Act in 28.5-G-2 does states that it shall be voted
6
to presentation of testimony documents and comments by
7
the effected entities and all other interested parties,
8
so to the extent that that language would give you an
9
opportunity to respond, and I would further note you
10
cited a couple times, Ms. Doctors, it's an aid that was
11
incorporated and as the order, itself, indicates it's
12
solely for the convenience of the parties. Indication
13
what the Board would need to proceed. If it's not you
14
can't order and was meant specific demonstrative
15
evidence that might have died Board be considering today
16
so if that's an explanation that helps all understanding
17
the Board's intent in providing that I hope it's
18
fulfilled its purpose.
19
MS. DOCTORS: Yeah. I think there was
20
a statement -- and I don't have it right here in the
21
order -- that they wanted to perhaps not include the
22
other sections, besides subpart Q, that had been amend.
23
That's why I made that.
24
MR. HEARING OFFICER: Of course, the
Page32
1
sub Section 201.146 and Part 211 remain on first notice
2
in this docket, so that the preparation of Attachment A
3
was merely designed to focus on what might be
4
characterized as the contested parts, so that nothing
5
should be interpreted as signifying, by any means, that
6
those would be removed from the Agency's second
7
proposal.
8
MS. BASSI: In response to your
9
characterization of the Agency as "all other interested
10
parties" that's in the section that you quoted from
11
Section 28.5, Section 28.5 clearly establishes the
12
Agency as the proponent of a rule-making under 28.5. It
13
is the only party that can be a proponent of a
14
rule-making, and so if you want to call it an interested
15
party, I would say they are super-interested party.
16
There can't even be a rule-making, unless under 28.5,
17
unless the Agency proposes.
18
The third hearing, under Section 28.5
19
was established for purpose of the Agency rebutting
20
anything that was presented in the second hearing, and
21
to the extent that the Agency thinks it has more to say
22
in this rule-making following the second hearing, I
23
would suggest that the third hearing is the appropriate
24
place for that to occur, not during the second hearing.
Page33
1
MR. MORE: Let me add to that. The
2
other related parties denotes that there are people,
3
other than the two interested parties, the Agency and
4
the effected community, the regulated community in this
5
instance. That interpretation would allow the Agency to
6
present testimony at all three hearings, which would be
7
viewed as a disadvantage. It would be prejudicial to
8
the regulated community.
9
MR. KIM: Well, I would note that, in
10
the past, at least, my limited experience in this kind
11
of situation has been that the Board has been helpful to
12
be able to ask the Board's witnesses at potentially all
13
three Fast Track rule-makings, and I think, to shut the
14
Agency out of an opportunity to do so would be a
15
disservice, note only to the Agency, but to the Board in
16
its development for the proper record for the rule,
17
itself.
18
MS. BASSI: I don't think anyone is
19
objecting to the asking of and answering of questions.
20
What we're objecting to is the presentation of more
21
affirmative testimony.
22
MR. HEARING OFFICER: If we could go
23
off the record for just a moment, please.
24
(A small break was taken).
Page34
1
MR. HEARING OFFICER: During that time
2
off the record, we reviewed the language of Section
3
28.5, specifically, and under the -- I think it's fair
4
to say, fairly unique circumstances in this case, the
5
Agency, in terms of its opportunity to respond to the
6
Board's order granting the relief sought by the
7
objectors, leads them, effectively, two opportunities to
8
issue their response, one of which is the second
9
hearing, of course, now scheduled for June 19, because
10
the third hearing is under Section 28.G -- 28.5-G-3,
11
specifically, limited to the Agency's response to
12
material submitted at the second hearing, so that, if
13
they are not permitted to respond at the second hearing,
14
they will, in effect, be foreclosed from having any
15
response.
16
The other opportunity that they may
17
have is to recess this hearing on the record and
18
reconvene on Friday, this Friday, which would I believe
19
be the 25th of May, so I would propose that to the
20
participants as an alternative to having the Agency, if
21
it wishes to do what it has indicated what it will not
22
necessarily need to do, wants to offer additional
23
testimony at the second hearing.
24
MS. BASSI: I have a question.
Page35
1
MR. HEARING OFFICER: Yes, Ms. Bassi.
2
MS. BASSI: How does recessing and
3
reconvening on Friday comport with the order that says
4
that the hearing will continue day-to-day?
5
MR. HEARING OFFICER: The hearing
6
would not be adjourned, and the record would be kept
7
open for the participants to meet one another to
8
continue the hearing that was recessed.
9
MS. BASSI: Okay.
10
MR. KIM: Actually, maybe to address
11
Mr. Bassi's concerns, I think the Agency's preference
12
would be -- and, again, before I even say that, we don't
13
have any issues that we right now intend to present
14
testimony on. That was simply presented as sort of a
15
trying-to-leave-the-door-open kind of thing. If we
16
should end up finding anything, we have been in
17
discussion with Ms. Bassi, and other attorneys in this
18
case. I assume we will continue to do so, so that, if
19
we do find discrepancies or what have you, certainly, if
20
they want to address those, and bring those to the
21
Board's attention, that's fine with us. I think, as
22
long as we're in agreement with that, and so far the
23
discussion we have had between the issues with the
24
Board's order today we have together identified a few
Page36
1
issues that we will be bringing to the Board's
2
attention. So we are not looking to present testimony,
3
and if we do find issues, we will do the best we can to
4
make sure that we don't have to actually put people on.
5
Just bring it to the attention of Ms. Bassi, and if they
6
want to do that, that's fine with us. If there is some,
7
at this point, unforeseen issue where we feel like we
8
individually need to present something, we will make
9
every attempt to keen it as limited and as focused as
10
humanly possible. We're not looking to create any kind
11
of surprise or burden on the parties. It was simply
12
reflected that we have not had time to, even in its
13
demonstrative form, fully digest Attachment A, and pair
14
that with how that's going to play against the other
15
rule-making.
16
MS. BASSI: We are willing, obviously,
17
to continue talking with the Agency about these things,
18
and if there are issues that pop up, we would be willing
19
to present them, or, at least, open the door to them at
20
the second hearing. I am still not willing to concede
21
that there will be any type of presentation by the
22
Agency at the second hearing. If we open the door to
23
this during the second hearing and the -- that should
24
give the Agency the entree to address it in the third
Page37
1
hearing if they feel we have not done it sufficiently.
2
MR. NEWTON: My name is Gale Newton
3
for IERG, and we would like to concur with Ms. Bassi and
4
her statement.
5
MS. BASSI: I do have another question
6
simply because I can't remember. When are written
7
comments accepted in this? At any time or is there a
8
comment period?
9
MR. HEARING OFFICER: This is
10
addressed in the Act, Ms. Bassi, and I apologize I'm
11
flipping through to find the precise reference to it,
12
Subsection L of 28.5 provides, specifically, "Following
13
the hearings, the Board shall close the record 14 days
14
after the availability of the transcript." But that
15
does not mean that public comments are accepted only
16
after the conclusion of the hearings, of course. Is
17
that a sufficient answer?
18
MS. BASSI: Yes, thank you. I had
19
forgotten what it said.
20
MR. HEARING OFFICER: I had, as well.
21
Having heard quite candidly no interest in recessing
22
this hearing to continue on Friday, the 25th of May, are
23
there -- before we would move toward adjournment and
24
procedural issues, any other issues we would need to
Page38
1
address? The one point, in moving toward adjournment,
2
that I did want to raise was the risk that there was
3
some confusion about incorporation of the record in 7-18
4
into the docket in 7-19. Those are distinct, obviously,
5
in terms of their substance, and are distinct certainly
6
in terms of their procedure.
7
We have, obviously, nearly concluded
8
one hearing at this docket, and have not even scheduled
9
hearings in Docket 17, so it's merely an incorporation
10
of the record, and not any indication that the Board
11
intends to consider those in tandem, to decide them at
12
the same time, or otherwise treat them as the same
13
docket.
14
MR. KIM: And just as a further
15
clarification, since the first notice in RO7-19
16
contained I believe, effectively, the entirety of the
17
Agency's original proposal, is it safe to assume the
18
Board's intention is, once the docket in RO7-18 is
19
concluded, whatever the final language of the quote,
20
unquote Fast Track Provisions would be carried over into
21
R07-19, so that -- and then or how are you intending to
22
reconcile potentially different language in Attachment
23
A, versus what will end up to be, versus what you have
24
put out in the first notice for RO7-19?
Page39
1
MR. HEARING OFFICER: I'm looking to
2
rely upon our rules coordinator. If there is a second
3
notice opinion in RO7-19, it would be based on the
4
expedited deadlines on RO7-18 will reflect that RO7-18
5
language as adopting the rules text.
6
MS. CONLEY: The existing text would
7
be shown as existing text as RO7-18, adopted on a much
8
faster schedule (phonetic).
9
MR. HEARING OFFICER: It ascribes the
10
difficulty in having sections open simultaneously in two
11
dockets. If you would identify yourself and spell your
12
name for the court reporter. I should have asked you to
13
do that.
14
MS. CONLEY: Erin Conley, E-R-I-N,
15
C-O-N-L-E-Y, Rules Coordinator for the Board.
16
MR. HEARING OFFICER: I will address a
17
few quick procedural issues. Ms. Bassi, you had touched
18
upon the opportunity to submit written public comments,
19
and I will simply note that, through the Board's
20
Electronic Filing Pilot Program, those comments may be
21
submitted through the clerk's office on line by any
22
participant or any other person who wishes to submit
23
them. Any filings, whether paper or electronic, must
24
also be served on the hearing officer and on those
Page40
1
persons whose name appear on the Service List and before
2
filing with the clerk. If you would please check with
3
the Board's clerk's office, so you may have the most
4
recent version of the Service List, that would certainly
5
expedite that task.
6
The court reporter has indicated the
7
that copies of the transcript, which the Board is
8
obtaining on an expedited basis in this Fast Track
9
Rule-making will be available by Thursday, the 24th, and
10
virtually as soon as they are available to the Board's
11
clerk, they will be placed on our website where, of
12
course, they be viewed, downloaded and printed.
13
I was prepared to cite, Ms. Bassi, in
14
Section 28.5-G-1 referring to the requests for the
15
second hearing that it be taken, that it occur as
16
scheduled. I will reiterate that we have heard your
17
request that it take place and will continue as
18
scheduled beginning on Tuesday, June 19, at 10 a.m. in
19
Chicago. The prefiling deadline for that hearing will
20
take place on Friday, June 8, and the Mailbox Rule does
21
not apply, and the service of that prefiled testimony
22
will need to take place to anyone whose name appears on
23
the Service List on the Sunday preceding that, which I
24
believe would be the second of June, but I certainly
Page41
1
would stand corrected if I'm not correct about that. If
2
anyone has questions about the procedural aspects, or
3
otherwise, with this rule-making, they may certainly
4
contact me and my direct line is 312-814-6085. Are
5
there any further issues or procedural matters that need
6
to be addressed this morning before we adjourn?
7
Anything further, Ms. Bassi? Very well. I would like to
8
thank everyone for their participation and for their
9
civility this morning and thank you. We look forward to
10
seeing you on June 19.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page42
1
STATE OF ILLINOIS)
2
COUNTY OF ST. CLAIR)SS
3
4
I, Holly A. Schmid, a Notary Public in
5
and for the County of Williamson, DO HEREBY CERTIFY that
6
pursuant to agreement between all parties involved, this
7
hearing occurred before me on May 21, 2007, at the
8
office IEPA, 1021 North Grand Avenue East, Springfield,
9
Illinois. This hearing, touching on the matter in
10
controversy, was taken by me in shorthand and afterwards
11
transcribed upon the typewriter and said hearing is
12
herewith returned.
13
IN WITNESS WHEREOF I have hereunto set
14
my hand and affixed my Notarial Seal this 22nd day of
15
May, 2007.
16
__________________________
17
HOLLY A. SCHMID
18
Notary Public -- CSR
19
084-98-254587
20
21
22
23
24
Page43